ADEBIYI FAMAKINWA V. THE STATE
(2012)LCN/5633(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of October, 2012
CA/B/97C/2010
RATIO
“Our understanding of the binding authorities on this point is that provocation is definable as an act or series of acts which could cause, in a reasonable person [and, actually, does cause in the defendant], a sudden and temporary loss of self-control rendering him vulnerable or susceptible to passion so much so that, for the moment, he is no longer the master of his mind.” Per NWEZE, J.C.A.
“… the Supreme Court defined a tainted witness as “a witness who might have his own purpose to serve in giving evidence. The court must warn itself before admitting his evidence if it agitates the mind of the court that a witness might be a tainted witness.” Per IYIZOBA, J.C.A.
“… I agree with learned counsel for the respondent that the dictionary definition of ‘translated’ incorporates the term ‘explained’. See Chambers 20th Century Dictionary New Edition 1983, page 1373 where ‘translate’ was defined thus: “to render into another language; to express in another artistic medium; to interpret, put in plainer terms, explain.” Per IYIZOBA, J.C.A.
“It is my considered view that the procedure adopted is in substantial compliance with the law. Learned counsel for the appellant was apparently concerned with the plea as taken on page 25 of the record where it was not recorded that the court was satisfied that the accused understood the charge. Even at that, failure to so record does not automatically render the arraignment invalid. See Ogunye v. The State (1999) 5 NWLR (604) 548 per Iguh JSC 567 A-D. “In as much as I fully subscribe to the view that it is good practice, and indeed desirable that a trial court specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto, my understanding of the authorities is not that unless the court so expressly records, as now urged upon us by learned counsel for the 4th and 5th appellants, such an arraignment automatically becomes invalid and null and void. Without doubt, the law enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto. I think however that the test with regard to this requirement is subjective and not objective. Clearly where a trial judge was not satisfied with the explanation of the charge to an accused person, it seems to me that he would have directed that the same be further explained to him before his plea would be taken ….There is absolutely nothing on record to suggest that the learned trial judge was not satisfied with the explanation of the charge to the appellants….” Per IYIZOBA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
ADEBIYI FAMAKINWA – Appellant(s)
AND
THE STATE – Respondent(s
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ondo State High Court sitting at Okitipupa in charge NO. HOK/1C/2004 delivered by Akintoroye J. on the 11th day of May 2006, convicting and sentencing the appellant to death for murder of Monday Sedara contrary to section 319 (1) of the Criminal Code Cap 30 Vol. 11 of the Laws of Ondo State of Nigeria 1978.
The Prosecution’s case was that on the 1st day of April 2002, the appellant went to the house of the deceased, Monday Sedara over an allegation that he was the one who informed the deceased’s brother residing in Gabon that the deceased had mismanaged the money the deceased’s brother sent home. A fight ensued between the appellant and the deceased. The matter was reported to the Oba of the town who sent his police orderly to invite the parties to his palace. The prosecution alleged that while the deceased, the Oba’s police orderly and some others were on their way to the palace, the appellant suddenly emerged with a knife and stabbed the deceased in the chest, causing injuries that resulted in his death.
The appellant admitted stabbing the deceased but his version of the story as to how the incident occurred is different. His story both in his statement to the police and his oral testimony in court was that he was attacked by the deceased and five others in the backyard of the deceased’s house. One of the attackers (PW6) attempted to stab him with a knife but only succeeded in making a scar on the upper part of his left eye-brow. The appellant then overpowered PW6, retrieved the knife from him and that as he aimed to stab PW6 in retaliation, Pw6 dodged the knife and the knife hit the deceased in the chest.
In proof of their case, the prosecution called seven witnesses while the appellant testified on his own behalf and called one other witness, his younger brother. Three exhibits were tendered. The learned trial judge upheld the prosecution’s case, convicted the appellant of murder and sentenced him to death. The appellant being dissatisfied with his conviction filed this appeal by an amended notice of appeal dated 8th of August 2011.
The parties filed and exchanged briefs of argument which were adopted and relied upon at the hearing of the appeal. In his brief of argument, learned counsel for the appellant Chino Edmund Obiagwu, Esq. formulated 4 issues for determination. They are:
1. Whether the arraignment of the appellant at the trial court was in compliance with Section 215 of the Criminal Procedure Law of Ondo State, and if it is not, whether the entire trial was rendered a nullity.
2. Whether the prosecution proved the case against the appellant beyond reasonable doubt.
3. Whether the learned trial Judge wrongly evaluated the evidence in the case, thereby resulting in erroneous conclusion.
4. Whether the evidence adduced before the trial Court availed the appellant of the defences of provocation and self defence.
Learned Counsel for the respondent, Oye Fredrick O. Esq. Deputy Director Legal Drafting and Law Review, Ministry of Justice, Akure in his brief of argument adopted the appellant’s issues for determination but modified issue 3 to read “Whether the learned trial judge rightly or wrongly evaluated the evidence in this case, thereby arriving at the right conclusion.
On issue no. 1, learned counsel for the appellant submitted that contrary to section 215 of the Criminal Procedure Law of Ondo State and section 36 of the 1999 Constitution; the appellant was denied fair hearing because the charge upon which he was tried was not explained to his understanding before he was asked to plead to it. The appellant referred to and relied on the cases of Kajubo v. State (1988) 1 NWLR (Pt. 73) 721, Koromo v. State (1979) 6 – 9 SC 3. Erekanure v. State (1993) 5 NWLR (pt. 294) 385; (1993) 6 SCNJ 1 @ 73, Ewe v. State (1992) 6 NWLR (Pt.246) 142 and Ogunye v. State (1999) 5 NWLR (pt. 604) 548. Counsel argued that the two essentials of arraignment namely explanation of the charge and indication in the court’s record that the appellant understood the charge before the plea were missing.
On issue no. 2, whether the prosecution proved the case against the appellant beyond reasonable doubt Mr. Obiagwu set out the essential elements of the offence of murder, namely:
1. That the deceased died
2. That it was the act or omission of the accused that caused the death of the deceased and,
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm would be the natural consequence.
Counsel submitted that the prosecution proved the 1st and 2nd elements but failed to prove the third element, that the appellant had the requisite intention to kill the deceased person. Learned counsel hinged his argument on the evidence of PW7, DW1 and DW2 that the intention of the appellant was to stab Seyi Omomofe (PW6) to avenge the wound he (PW6) inflicted on him but Seyi dodged and the knife hit the deceased and that the appellant had no intention to stab the deceased. Counsel pointed out areas of contradictions in the evidence of the prosecution witnesses and relying on the cases of State v. Danjuma (1997) 5 NWLR (Pt.506) 512 G-H: Obi v. State (1997) 7 NWLR (pt.513) 352 @ 360 F-G, 366 G and Ibeh v. State (1997) 1 NWLR (pt.484) 632 submitted that their evidence could not be relied upon without explanation of the contradictions.
Counsel further submitted that the prosecution witnesses being relations of the deceased were tainted witnesses whose evidence required corroboration or at least to be treated with caution.
On issue no. 3, wrong evaluation of the evidence by the trial Judge, Mr. Obiagwu submitted that the learned trial Judge misconceived the case of the defence and accordingly failed to evaluate same properly, thereby reaching wrong conclusions as to the guilt of the appellant. Counsel submitted that the learned trial Judge wrongly found that the appellant’s evidence disclosed that he had the intention to commit the offence, which finding was contrary to the defence evidence that the appellant was defending himself from threat to his life and in the process accidentally stabbed the deceased. Counsel submitted that the Judge thereby set up a case for the appellant different from the case he made out. Counsel further submitted that the learned trial Judge had in one part of his judgment agreed with the evidence of the prosecution and in another part of the same judgment agreed and adopted the evidence of the defence, both of which could not be true at the same time. Such inconsistency in the findings of facts by the trial Judge and in his picking and choosing evidence as they suited his conclusions on particular issues, counsel argued, occasioned a miscarriage of justice against the appellant. On this issue, counsel finally submitted that the failure of the prosecution to call the Oba’s police orderly which would have cleared the inconsistency between the evidence of the prosecution witnesses and the defence witnesses was fatal to the prosecution’s case.
On issue no. 4, whether the evidence adduced before the trial court availed the appellant of the defences of provocation and self defence, Mr. Obiagwu submitted relying on the cases of Chukwu v. State (1992) 1 NWLR (pt. 217) 255 and Uwaekweghinya v. State (2005) 23 WRN 1 that in the situation where the appellant was attacked by 5-6 persons, one of them with a knife, it was reasonable for him to assume that his life was in grave danger. He could therefore lawfully defend himself. Further, counsel submitted that the learned trial Judge had found in his judgment that the appellant was provoked, but that he had left the scene after the provocation and returned with a knife, and that his temper had therefore cooled off. This, counsel submitted is inconsistent with the later finding of the trial Judge that the appellant was attacked during the fight and he retaliated immediately. Counsel submitted that the appellant’s evidence with regard to the events that culminated in the stabbing of the deceased availed him of the defences of accident, self defence and provocation and that his evidence is corroborated by the evidence of DW2 and Pw7.
In response to the above submissions, on issue 1, learned counsel for the respondent, Mr. Fredrick Oye, referred to page 59 line 5 of the record of appeal and submitted that the arraignment of the appellant was in total compliance with section 215 of the Criminal Procedure Law of Ondo State and that nothing was breached to warrant the proceedings being declared a nullity. Counsel referred to and relied on the case of Fatai Olayinka v. State (2007) 2 NCC 505 @ 526 – 527. Counsel further submitted that the appellant testified in Yoruba Language and was represented by a lawyer. In answer to a question put to him by his lawyer when he opened his defence, the appellant testified that he was in court because he had been charged with the murder of one Chief Monday Sedara. Counsel submitted that the answer is evidence that the appellant understood perfectly the charge preferred against him.
On issue 2; Counsel submitted that the prosecution proved beyond reasonable doubt the case against the appellant before he was convicted. Referring to the cases of Kada v. State (1991) 8 NWLR (Pt. 208) 134 @ 144 E-H and Abogede v. The State (1996) 5 NWLR (Pt. 464) 270, counsel submitted that the three basic elements for a conviction for murder were proved by the prosecution beyond reasonable doubt. Counsel submitted that the appellant agreed in his brief of argument that the prosecution proved the first and second elements. On the third element, that the act of the accused was intentional with knowledge that death or grievous bodily harm would be the probable consequence, counsel submitted that the evidence presented by the prosecution which the trial judge believed was that the fight was over and that the deceased was stabbed by the appellant with a long knife while on his way to Kabiyesi’s palace. Counsel submitted that the act of stabbing the deceased was consequently intentional with knowledge that death would be the natural consequence. Counsel further submitted that assuming without conceding that the story of the defence was correct, that is, that the intention of the appellant was to cause grievous bodily harm to Seyi Omomofe, that intention is sufficient to ground a conviction for murder as it is unnecessary that the accused should intend to kill a particular person.
On issue no 3, learned counsel submitted that the learned trial judge properly and rightly evaluated the case before him, the evidence of both the prosecution and the defence before arriving at his conclusion in the case. Counsel submitted that it is the appellant that misconstrued the findings of the learned trial Judge and that the trial Judge did not at any time in his judgment adopt the evidence of the defence.
On issue 4; Counsel submitted that the appellant could not avail himself of the defences of provocation and self defence and that the trial judge rightly rejected those defences. Counsel submitted that the trial judge was right in his finding that the force used by the appellant was not commensurate with the provocation. In other words stabbing the deceased with a knife and puncturing his heart was not commensurate with the mere slap given to the appellant by the deceased. Counsel finally submitted that the action of the deceased was not done under the heat of passion and cannot successfully form the basis for a defence of provocation.
Starting with issue 1; I have perused carefully the record of proceedings. From the record, the plea of the appellant was taken twice. The first was at page 25 lines 23-29. This is the plea the appellant refined to and which he wrongly stated in his brief of argument to be at page 20 lines 20 – 29. The record reads:
“COURT: Charge read to the accused person in English and later translated into Yoruba.
PLEA: Accused person pleaded “Not guilty” to the charge
Mr. Akindele applies for a short adjournment to enable him gather his witnesses.
COURT: Application for adjournment is granted. Case is adjourned to Monday, the 2nd day of August, 2004 for trial.”
The second plea was taken before the commencement of hearing on the 4th day of May, 2005 and is at page 59 lines 11-13:
“COURT: Charge read in English and translated to the accused person in Yoruba Language and he seemed perfectly to understand.
PLEA: Not Guilty”
Section 215 of the Criminal Procedure Law of Ondo State, 1978 set out the procedure to be adopted in taking the plea of an accused person in a criminal trial. The section provides:
“The person to be tried upon any charge or information shall be placed before the Court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer at the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”
Both parties are in agreement that the mandatory requirements for a valid arraignment are as follows:
1. The accused shall be placed before the court unfettered unless the Court shall see cause to otherwise order;
2. The charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or any other officer of the court,
3. He shall then be called upon to plead instantly thereto.
It is not in doubt from the numerous authorities of the highest court of the land including the authorities cited above that failure to comply with Section 215 of the Criminal Procedure Law of Ondo State, 1978 will render the proceedings of the court null and void. See the following cases: Kajubo v. State (1988) 1 NWLR (pt. 73) 721, Koromo v. State (1979) 6 – 9 SC 3, Erekanure v. State (1993) 5 NWLR (pt. 294) 385; (1993) 6 SCNJ 1 @ 73, Ewe v. State (1992) 6 NWLR (Pt.246) 142 and Ogunye v. State (1999) 5 NWLR (Pt.604) 548.
The second plea at page 59 of the record of appeal had obviously overtaken the first plea at page 25. From the record of proceedings in court on 4/5/05 at page 59; the appellant was present in court. The first requirement was therefore satisfied. The charge was then read to the accused in English Language and translated to him in Yoruba Language. The record went further to say that he seemed perfectly to understand. He then pleaded “not guilty”.
It is my considered view that the procedure adopted is in substantial compliance with the law. Learned counsel for the appellant was apparently concerned with the plea as taken on page 25 of the record where it was not recorded that the court was satisfied that the accused understood the charge. Even at that, failure to so record does not automatically render the arraignment invalid. See Ogunye v. The State (1999) 5 NWLR (604) 548 per Iguh JSC 567 A-D.
“In as much as I fully subscribe to the view that it is good practice, and indeed desirable that a trial court specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto, my understanding of the authorities is not that unless the court so expressly records, as now urged upon us by learned counsel for the 4th and 5th appellants, such an arraignment automatically becomes invalid and null and void. Without doubt, the law enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto. I think however that the test with regard to this requirement is subjective and not objective. Clearly where a trial judge was not satisfied with the explanation of the charge to an accused person, it seems to me that he would have directed that the same be further explained to him before his plea would be taken ….There is absolutely nothing on record to suggest that the learned trial judge was not satisfied with the explanation of the charge to the appellants….”
Similarly in this appeal, there was nothing in the record of proceedings to suggest that the trial judge was not satisfied with the explanation of the charge to the appellant. On the contrary, I agree with learned counsel for the respondent that the dictionary definition of ‘translated’ incorporates the term ‘explained’. See Chambers 20th Century Dictionary New Edition 1983, page 1373 where ‘translate’ was defined thus:
“to render into another language; to express in another artistic medium; to interpret, put in plainer terms, explain”.
I also agree with the respondent’s counsel that all the requirements of a valid arraignment as laid down in the Criminal Procedure Law and the Constitution were complied with by the trial court. Without any evidence to the contrary, it must be presumed that the charge was explained to the appellant to the satisfaction of the court. Moreover, as rightly submitted by learned counsel for the respondent, the appellant who was represented by counsel in answer to a question put to him by his counsel stated that he was in court because he had been charged with the murder of one Chief Monday Sedara. He spoke in fluent Yoruba and it shows that he perfectly understood the charge when it was translated to him in Yoruba. There is no merit in the argument of learned counsel for the appellant on this issue.
I shall resolve issues 2, 3 and 4 together as they overlap.
The burden rests squarely on the prosecution to prove all the ingredients of the offence charged and by Section 138 of the Evidence Act proof must be beyond reasonable doubt. If there is any doubt in the evidence adduced by the prosecution, such doubt must be resolved in favour of the accused.
Section 316 of the Criminal code which defines the offence of murder provides:
“316. except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say
(1) If the offender intends to cause the death of the person killed, or that of some other person;
(2) If the offender intends to do to the person killed or to some other person some grievous harm;
is guilty of murder.
In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.
If therefore there is evidence that the appellant intended to kill or cause grievous bodily harm to Seyi Omomofe and in consequence the deceased was killed; by section 316 of the Criminal code, the appellant is guilty of murder as it is immaterial that he did not intend to hurt the deceased unless he can rely on any defence such as provocation, self-defense or accident. At page 115 of the record of appeal, the learned trial judge in his judgment observed:
“The accused person (DW1) in this case stated in both Exhibit “B” and in his oral testimony in court that he intended stabbing Seyi Omomofe (PW6) in retaliation for the injury he (PW6) inflicted on him (DW1). He said PW6 dodged the knife that was aimed at him, which inadvertently landed on the chest of the deceased. The consequence of that was the death of the deceased. Goddard, L.C.J. in Arthur George Whybrow, (1951) 35 Criminal Appeal Reports 141 @ 145 held thus:-
“….the jury is told- and it has always been the law that if a person wounds another or attacks another intending to kill or intending to do grievous bodily harm, and the person attacked dies, that is murder, the reason being that the requisite malice aforethought, which is a term of art, is satisfied if the attacker intends to do grievous bodily harm. Therefore, if one person attacks another, inflicting a wound in such a way that ordinary reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder.”
In my humble view, the “intent” on the part of the accused person that preceded the act intended was to stab Seyi Omomofe, and the act intended was to wound him in retaliation for the injury purportedly inflicted by him (Seyi Omomofe) on the accused person. The intent has been proved and or admitted before me as required in law.”
The learned trial judge correctly stated the law. Mr. Obiagwu’s contention that, the evidence adduced by the prosecution did not prove the requisite criminal intention is with all due respect misconceived. The act of the appellant even from his own version of the incident was done with the intention of at least causing grievous harm to Seyi. His evidence:
“I wanted to stab Seyi Omomofe, to avenge the wound inflicted on me. Seyi dodged and the knife hit the deceased on his chest.”
Anyone who intentionally stabs another with a knife knows that the outcome would be death or grievous bodily harm. It is immaterial that the appellant did not intend to hurt the deceased. His intention towards Seyi Omomofe is enough. The law is clear on that point. The question however remains whether there was any defence available to the appellant which could reduce what otherwise would have amounted to murder to manslaughter or no offence at all. The contention of Mr. Obiagwu that the prosecution did not prove the 3rd element of the offence – intention to kill the deceased person is not well founded in view of the provision in Section 316 of the Criminal code.
There were two scenarios presented in this case. The first, by the prosecution was that the fight was over and that the deceased in company of the Oba’s police orderly, PW2 (mother of the deceased), PW5 and some others were proceeding to the palace of the Oba when the appellant who had disappeared, suddenly re-appeared and stabbed the deceased in the chest. If this scenario was what actually happened, the defences of self defence and provocation will obviously not be open to the appellant. The other scenario presented by the defence was that there was a free for all fight in which a group of people attacked the appellant. PW6 pulled out a knife and stabbed the appellant on his eyebrow. The appellant overpowered PW6 retrieved the knife and tried to stab PW6 in retaliation. PW6 dodged the knife and it landed on the deceased. This scenario leaves room for consideration of the defences of self defence and provocation.
The learned trial Judge preferred the evidence of the prosecution that the fight was over and that the deceased was stabbed by the appellant when they were proceeding to the Oba’s palace. With all due respect to learned trial judge, there was in my respectful view a gap in the evidence of the prosecution as to whether the stabbing took place after the fight and on the way to Oba’s palace or during the fight in the back of the deceased’s house. The mother of the deceased PW2 in her evidence in chief at page 60 line 35- 61 line 4 testified thus:
“We went to report the incident to Oba of Akotogbo. Oba sent his police to go and invite the accused to his palace. We did not know where the accused person had gone to. We could not find him. The Police orderly then invited or instructed the deceased to follow him to Oba’s Palace. As we were going, the accused person came from nowhere and stabbed the deceased on the chest.”
Under cross-examination, PW2 at page 62 line 34 – page 63 line 11 stated:
“The accused person stabbed the deceased between 8p.m and 9p.m. I however was at the scene where the accused stabbed the deceased till about 1.00 am weeping over the remains of the deceased which were on my laps. The deceased was still inside his father’s house when the accused came to stab him. The policeman sent by the Oba and some other people were present when the accused stabbed the deceased… Immediately before the accused person stabbed the deceased, only three of us were present at the scene to wit, myself, the deceased and the policeman.”
Further down the same page at line 16, PW2 included her in law, Omomofe as having also witnessed the stabbing. Omomofe who testified as PW5 agreed that he witnessed the stabbing. He added the accused person’s mother as one of those present when the deceased was stabbed. He also testified that the stabbing took place at the back of the deceased’s father’s house, not inside the house. Neither PW2 nor PW5 mentioned Seyi Omomofe as having witnessed the stabbing but Seyi who testified as PW6 said under cross-examination that he witnessed the stabbing and also confirmed that the stabbing was at the back of the deceased’s father’s house. It is clear from the evidence of all of these witnesses that the stabbing took place at the back of the house where the fighting also took place and not on the way to the Oba’s Palace. This contradiction is very material and immediately creates doubt as to whether the fight was indeed over when the deceased was stabbed. It is trite that when there is doubt, the doubt must be resolved in favour of the accused as the prosecution would then be said not to have proved the point beyond reasonable doubt.
Mr. Obiagwu rightly in my view, complained about the judgment on this issue. He submitted that the evidence of some of the prosecution witnesses were contradictory in several material respects and could not be relied upon without any clarification by the prosecution. I have looked carefully at the areas of alleged inconsistencies as set out at page 8 of the appellant’s brief of argument. For example, PW1’s reference to PW3 as the wife of the deceased when PW5 testified she was the wife of the junior brother of the deceased; discrepancies in the evidence of the prosecution witnesses as to the cause of the initial disagreement leading to the fight.
Most of the contradictions are not material. See Awopejo v. State (2001) 18 NWLR (Pt 745) 430 @ 442 H – 443 A where the Supreme Court held that for a contradiction to be essential and affect the decision of a trial court such contradiction must be material and fundamental in the determination of the guilt of the accused. The contradiction must create doubt in the mind of the court to such a degree that the court believes that the doubt must be resolved in favour of the accused. See also Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139 @ 155 A-B:
“It is not every trifling inconsistency in the evidence of the prosecution that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and thus necessarily creates some doubt in the mind of the trial court that an accused is entitled to benefit therefrom.”
This is exactly how the trial court should have viewed the inconsistencies relating to the persons present when the stabbing took place; whether there was a free for all fight; the actual persons who participated in the fight and the actual place where the deceased was stabbed. This is important because the venue will assist in determining whether the stabbing was after or during the fight. If the stabbing took place after the fight and the appellant appeared from nowhere to perpetrate the crime, there will be no room for contention that the appellant was, for example provoked. It will be a case of murder, period! However, if the stabbing occurred during the fight in retaliation for the stabbing of the appellant by Seyi Omomofe, then there will be room for the contention that the appellant was provoked. This case being a criminal matter requiring proof beyond reasonable doubt, any slight doubt must result in the doubt being resolved in favour of the appellant. The prosecution ought to have called the police orderly of the Oba to testify in order to clear the conflict or inconsistencies as to where exactly the stabbing took place; whether on the way to the Oba’s palace or at the back of the house where fighting took place. By failing to call him, the prosecution failed to discharge the burden on it. Mr. Oye, counsel for the respondent’s argument that the evidence the Police orderly would have given had already been tendered by PW5 and that the prosecution was not bound to call a host of witnesses is misconceived. PW5’s evidence did not clarify the issue as his evidence is that the stabbing took place in the back of the house where the fighting also occurred. The learned trial judge with all due respect erred to have shifted the burden of calling the police orderly to the appellant. The burden of adducing evidence can only shift to the accused in a criminal trial where the prosecution has discharged the evidential burden on it. The learned trial Judge with respect did not carry out a proper evaluation of the evidence before coming to the conclusion that the stabbing took place after the fight on their way to the palace of the Oba. The prosecution’s evidence was inconclusive. However the learned trial Judge contrary to the contention of Mr. Obiagwu did consider the need for caution and corroboration in dealing with the evidence of the prosecution witnesses, most of who were related to the deceased. In his judgment at page 118 of the record, the learned trial Judge observed:
“I have approached the evidence of PW2, PW5 and PW6 with objective caution, having regard to the positions they stood to the deceased. PW2 was the deceased’s mother; PW5 was the deceased’s brother-in-law; PW6 was the son of PW5 who married the junior sister of the deceased. The need for corroboration of their respective evidence should be emphasized. I should be sorry to be told that their said evidence had not been sufficiently corroborated to warrant a conviction for murder. If it could be shown that the story they gave was true generally, or that the accused had lied quite materially in the statement he made to the Police under caution, then following WATSON, 8 Criminal Appeal Reports 249 @ 253, and CREDLAND v. KNOWLER 35 Criminal Appeal Reports 48 @ 49, the requirement of corroboration has in this case been fulfilled.” Although corroboration is not by law required with regard to such evidence, the learned trial Judge painted a hypothetical picture but did not get round to identifying facts that show that the story of the witnesses was generally true. On the contrary the inconsistencies in their evidence underscored the need to treat their evidence with caution as is generally required where evidence is said to be tainted. See Okoro v. State (1998) 14 NWLR (Pt 584) 181 @ 215 – 216 H-A where the Supreme Court defined a tainted witness as “a witness who might have his own purpose to serve in giving evidence. The court must warn itself before admitting his evidence if it agitates the mind of the court that a witness might be a tainted witness.” The learned trial judge realized the need to proceed with caution with respect to the evidence of the prosecution witnesses who are relations of the deceased but failed to draw the proper inference from the failure of the prosecution to call as a witness the police officer, not related to the deceased and who by all accounts witnessed the stabbing. In the circumstances, the learned trial judge ought to have given the benefit of the doubt to the appellant. See Onuoha & Ors v The State (1989) NWLR (Pt. 101) @ 21-22G-A Oputa JSC observed:
“If at the close of the defence the totality of the evidence causes the trial Judge to doubt, the law is that the benefit of the doubt be given to the accused……”
The learned trial Judge should have given the appellant the benefit of the doubt by rejecting the prosecution’s version of the story that the deceased was stabbed while he was on his way to the Oba’s palace and accepting the defence version of the story that there was a free for all fight during which the deceased was stabbed. With that factual situation, the court would then consider the defences open to the accused.
First self defence! This defence is provided for under Section 286 and 287 of the Criminal Code. The learned trial Judge in his judgment ruled out the defence of self defence because neither of the two witnesses of the defence gave evidence on which to determine the severity of the assault on the accused and whether it was such as would have caused him a reasonable apprehension of his safety. See The State v. Enabosi (1966) 2 All NLR 116 @ 124. The learned Judge held that the accused must further believe on reasonable grounds that he could not have otherwise preserved himself from death or grievous harm. I agree with the learned trial Judge.
Self defence is a complete answer to a charge of murder but to avail himself of this defence, the appellant must show that his life was in such grave danger by the act of his attacker that the only option left for him to save his own life was to kill his attacker. He must show that he did not want to fight and was prepared to withdraw. This was far from the situation here. The appellant had disarmed Seyi Omomofe, his alleged attacker. His life was no longer endangered. All he needed to do was to withdraw from the fight. Rather than withdraw, the appellant then decided to retaliate and said so expressly. In the attempt to revenge, he aimed the knife at Seyi who dodged, and the knife was driven viciously into the chest of the deceased. The appellant cannot rely on the defence of self defence because his action was avoidable. See Omoregie v. State (2008) 12 SC (pt.111) 80. I am satisfied that the appellant’s defence of self defence was duly considered by the trial judge and rightly rejected. See the cases of The State v. Umunu (1968) NMLR 15 @ 20: Nwede v. The State (1985) 12 SC 32 @ 36: Stephen v. The State (1986) NWLR (Pt.46) 978.
On the defence of accident, the learned trial judge exhaustively considered the two arms of Section 24 of the Criminal Code and at the end held that neither the first arm (otherwise called automatism) nor the second arm (otherwise described as accident) is available to the appellant. The learned judge held that the appellant confirmed in his evidence in court that he wrestled the knife from Seyi Omomofe and wanted to stab him in retaliation. He was therefore conscious and knew what he was about to do. In stabbing the deceased instead of Seyi, accident is ruled out once there is evidence that the intention was to kill or do grievous harm to Seyi. I am satisfied that the learned trial judge rightly rejected the defence of accident.
Provocation: Section 318 of the Criminal Code provides:
“when a person unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by grave and sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”
The elements of the defence of provocation are:-
1. The act of provocation must be grave and sudden
2. The loss of self control, both actual and reasonable; and
3. The retaliation proportionate to the provocation.
All the three elements must be present before the defence can be upheld. See Biruwa V. The State (1992) 1 NWLR (pt. 220) 663
The learned trial judge considered and dismissed the availability of the defence of provocation in the following words at page 118-119 of the record of appeal:
“From the evidence available before me, I am convinced that the accused person was actually provoked, not only by the allegation made against him by the deceased, but also by the physical assault carried out on him by the deceased when he slapped the accused. I have considered the station in life of the accused person-a school drop-out, a dismissed soldier as confirmed in exhibit “B”. However, could it be said that the act of stabbing was done in the heat of passion before there was time for passion to cool? Could it be said that the accused person’s retaliation was proportionate to the provocation offered? Could it be said that the accused person had a reasonable belief that his life was in danger? Could it be said that the quality of force used by the accused person was the same as that from which he defended himself? In my humble view, the accused person had enough time to cool his passion, when he disappeared from the scene for an unknown place….. I am also of the view that the accused person retaliation was not proportionate to the provocation offered. Throughout this trial, it was never said that the deceased was armed. He was only said to have slapped the accused person and held unto his knickers. I want to observe also that the accused person did not prove that his life was in danger as a result of the attack. If however one considers the evidence of PW4, (the medical Doctor) who performed the post mortem examination on the remains of the deceased that…. “the weapon punctured the heart” and also the evidence that “the sharp pointed object must have been made to approach the deceased at some speed which would be relatively high engendering a thrust of the knife into the body”, one would have no difficulty in concluding that the quality of the force used by the accused person was not the same as that from which he defended himself. It has been held by the Supreme Court in the case of Sunday Ihuebeka v. The State (2000) FWLR (Pt. 11) 1827 @ 1847, where it was held that the provocation must be grave and sudden and must be such as to take away freely from the accused the power of self control making him for the moment not a master of his mind. See also the case of Okonji v. The State (1987) 3 SCNJ 33 at 39 where it was held that for the defence of provocation to be available, the accused must have a reasonable belief that his life is in danger. It is unfortunate that the accused person in the instant case refused to inform and or prove before this court that his life was in danger at any time the fight was on”.
From the above, it is evident that the scenario the learned trial judge adopted in considering the availability of the defence of provocation is that presented by the prosecution that the stabbing took place after the fight while they were proceeding to the Oba’s palace and the appellant emerged from nowhere and stabbed the deceased. Having found that the prosecution failed to discharge the burden of establishing that scenario beyond reasonable doubt, and that the doubt must be resolved in favour of the appellant, I shall now proceed to consider the availability of the defence of provocation under the scenario presented by the defence.
The evidence of the appellant and his sole witness DW2 supported in some aspects by the evidence of PW7 was to the effect that the appellant was slapped by the deceased, attacked by the deceased’s brothers, and finally stabbed by Seyi Omomofe with a knife. The appellant managed to wrestle the knife from Seyi and in the attempt to retaliate, Seyi dodged and the knife was driven into the chest of the deceased. In the circumstances, can the defence of provocation reduce the offence to manslaughter? I think it is fair in the circumstances of this case to give the appellant the benefit of the doubt and to hold that the elements of the defence of provocation are satisfied in order to reduce the offence to manslaughter. Even the learned trial judge conceded that the appellant was actually provoked, not only by the allegation made against him, but also by the physical assault carried out against him by the deceased when he slapped him. The final straw in my view was when the brothers of the deceased and the mothers of the deceased and accused joined the fray, maybe, in the guise of trying to separate the fighting couple. See the evidence of the IPO, PW7. The possibility of this scenario was not eliminated by the prosecution evidence. The appellant must be given the benefit of the doubt that he saw it all as attack on him. When according to the appellant Seyi brought out a knife and stabbed him (appellant) on the eye brow; that was it. The appellant grabbed the knife from him and in the attempt to retaliate, Seyi dodged and the knife landed on the deceased. The act of provocation was obviously grave and sudden. The appellant lost his self control which in the circumstances is not unreasonable. The act of stabbing was done in the heat of passion caused by the provocation and before there was time for passion to cool. The retaliation was proportionate to the provocation. It is the same knife Seyi allegedly used in stabbing the appellant on the eyebrow that he deployed in the act of retaliation.
I am mindful of the fact that there is no independent evidence in proof of the defence version of the story. The trial judge while rejecting the evidence of DW2 that the appellant fainted in the course of the free for all fight did not make a definite finding as to whether he believed or disbelieved the defence version of the story. However, the fact that he accepted the prosecution version meant by implication that he rejected the defence version. Be that as it may, the burden of proof rests squarely on the prosecution and proof must be beyond reasonable doubt. Having found that the evidence of the prosecution was inconclusive as regards their version of the incident, the prosecution having also failed to eliminate the possibility that the defence version was the correct version; the appellant must be given the benefit of the doubt. See Agunbiade v. The State (1999) 4 NWLR (pt 599) 391.
In the circumstances, this appeal succeeds. The appellant’s conviction for murder and sentence to death by the Ondo High Court are hereby set aside. In its place I substitute a conviction for manslaughter and a sentence of imprisonment for 15 years. The sentence shall run from the 11th day of May 2006, the date of the appellant’s conviction in the High Court.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Iyizoba, JCA just delivered. I agree with the reasoning and conclusion that the appeal succeeds in part to the extent that the prosecution failed to prove the charge of murder against the appellant but established a case of manslaughter.
The facts that gave rise to the charge before the lower court have been fully set out in the lead judgment.
The appellant raised and relied on several legal defences including provocation, self defence and accident. The undisputed facts before the court are that on the fateful day there was a fight between the appellant on the one hand and the deceased, PW2, PW5 and PW6 and several other people on the other. In the course of the fight, PW6 brought out a knife with which he stabbed the appellant on the left eye brow. The appellant struggled with PW6 and was able to wrest the knife from him. He attempted to stab PW6 but PW6 dodged away and he stabbed the deceased instead. It was established by the prosecution through PW4 that the wound inflicted on the deceased by the appellant was what led to his death. The appellant admitted stabbing the deceased but stated that he stabbed him accidentally as his intention was to stab PW6 in revenge for the wound inflicted on him.
The learned trial Judge found as a fact that it was not the appellant’s intention to kill the deceased but to injure PW6 who had stabbed him.
Where an accused person raises the defence of provocation he must satisfy the court:
a) that he killed the deceased in the heat of the passion caused by sudden provocation and
b) that at the time of the killing the heat of passion had not cooled.
The elements are conjunctive. The test to be applied in determining whether the defence of provocation would avail the accused is the effect the alleged provocation would have had on a reasonable man. The provocation must be of such nature as to incite a reasonable man of the accused’s standing in life and education to lose his self control. See: Musa V. The State (2009) 15 NWLR (1165) 467 @ 503 – 504 H – H.
The effect of a successful plea of provocation is a reduction of charge from murder to manslaughter. See also: Uluebeka v. The State (2000) 7 NWLR (665) 404; Nwede v. The State (1985) 13 NWLR (13) 444; Yesufu v. The State (1988) 4 NWLR (86) 95; R. V. Afonja (1955) 15 WACA 26.
In the instant case the appellant was being attacked and beaten by several people at the same time. The evidence is to the effect that he and the deceased were fighting and when he seemed to have the upper hand, the family members of the deceased joined in the fray and were all pitched against him. During the fight, PW6 brought out a knife and injured the appellant with it. The appellant was able to get the knife out of his hand and in an attempt to retaliate, stabbed the deceased instead. Given the circumstances of this case, I am of the view that the stabbing of the deceased occurred in the heat of passion and before his temper had time to cool.
It was contended by the prosecution that the appellant “appeared from nowhere” and stabbed the deceased while the latter was on his way to the Oba’s palace with the Oba’s orderly who had been sent to invite the combatants to the palace. The said orderly who would have been an unbiased witness in this case was not called. His evidence was material as to whether the attack took place on the way to the Oba’s palace, in which case it would have been clear that passions had had time to cool or whether the stabbing took place while the fighting was still going on. The effect of the failure of the prosecution to call the orderly to testify is that the doubt arising from this issue ought to be resolved in the appellant’s favour.
I am therefore of the view that the defence of provocation was properly made out in this case. Section 179 of the Criminal Procedure Act provides:
(1) In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it. See: Nwachukwu v. The State (1986) 2 NWLR (25) 765.
In light of the above provision, I hold that having successfully made out a defence of provocation, the appellant’s conviction for murder ought to be and is hereby reduced to a conviction for manslaughter.
For these and the more detailed reasons contained in the lead judgment I allow the appeal in part as above stated. I abide by the consequential orders contained in the lead judgment.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my learned brother, Iyizoba JCA, just delivered now. As I agree with my Lord’s reasoning and conclusion, this contribution shall only address the defence of provocation which the appellant relied on: a defence which conduced to the commutation of his sentence from murder to manslaughter in the leading judgment.
Our understanding of the binding authorities on this point is that provocation is definable as an act or series of acts which could cause, in a reasonable person [and, actually, does cause in the defendant], a sudden and temporary loss of self-control rendering him vulnerable or susceptible to passion so much so that, for the moment, he is no longer the master of his mind.
Over the years, the courts have, with unexampled meticulosity, grappled with the subtle significations of the Code provisions on the defence of Provocation, R v. Blake (1942) WACA 118; Shande v. State (2005) 12 NWLR (pt 939) 301; Uwaekweghinya v The State [2005] 9 NWLR (pt 930) 227; Musa v State [2009] 51 WRN 1, 21-22; Mancini v DPP (1942) AC 1; R v Duffy [1949] 1 All ER 893]. From these authorities, it is clear that the three conjunctive elements which a defendant, who wants to avail himself of this special defence, must prove are that:
(a) There was the deceased person’s act of provocation which caused his loss of self-control;
(b) He killed the deceased in the heat of passion and
(c) At the time of killing, the heat of passion had not cooled,
Amala v. State (2004) 12 NWLR (pt 888) 520; R v. Afonja (1955) 15 WACA 26.
These Trinitarian elements, which must be read conjunctively, require the defendant to prove that due to the deceased person’s sudden act of provocation, he [defendant] killed him (the deceased person) on the spur of the moment before his [defendant’s] passion could wane, vanish or cool off, Uluebeka v State [2000] 7 NWLR (pt 665) 404; Nwede v State [1985] 3 NWLR (pt. 13) 444; Yusuf v. State [1988] 4 NWLR (pt 86) 96; R v Afonja (supra). In a word, the provocative act must be such that would deprive him of self-control suddenly and temporarily, Ahmed v The State [1999] 7 NWLR (pt 612) 641; Wonaka v. Sokoto Native Authority (1956) SCNLR 79; Kumo v. State [1967] 5 NSCC 286; Akalezi v. State [1993] 2 NWLR (pt 273) 1; Queen v. Akpakpan [1956] SCNLR 3; Musa v. State (supra).
In other words, at the twinkle of that interval, he was no longer the master of his mind, Musa v. State (supra) 20-21, citing R v Duffy (supra) and Mancini v DPP (supra). In effect, his act of killing the deceased person must have been done in the heat of passion and before his temper could cool off. In any event, his act must be proportionate to the provocation, R v Blake (supra), cited, approvingly, in Musa v. State (supra) 20-21. Above all, an act of savage temper rules out a plea of provocation, Sadiku v. The State (1972) 2SC 169; Yaki v. State [2009] 1 WRN 1, 37; also, C. O. Okonkwo, Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 240; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol 11 (L973) 93-97; NIALS’ Laws of Nigeria (Annotated) Criminal Justice Administration Vol One (Lagos: NIALS, 2008) 686.
As my Lord has, amply, shown in the leading judgment, the appellant has, successfully, woven his defence around the above Trinitarian elements. That is why I subscribe to the conclusion that his sentence of murder shall be commuted to that of manslaughter.
Appearances
CHINONYE OBIAGWUFor Appellant
AND
O. I. ADEJUMO (MRS.) D.L.D.L.R Ondo State with MR. FREDRICK OYE D.D.L.D For Respondent
