EMMANUEL EZE v. THE STATE(2018)

EMMANUEL EZE v. THE STATE

(2018) LCN/4736(SC)

In The Supreme Court of Nigeria

On Friday, the 6th day of July, 2018

SC.487/2015

RATIO

MEANING AND NATURE OF THE DEFENCE OF PROVOCATION

The Appellant did not file a Reply Brief but at the hearing of this Appeal and sister Appeals Nos. SC.488/2015 & SC.489/2015. filed by Adiele Ndubuisi and Stanley Azuogu respectively, their learned counsel, I. A. Akaraiwe. Esq., urged the Court to use their situation, as a test case, to expand the definition of provocation. The word “expand simply means to become or make larger or more extensive – Dictionary.com. So, the Appellant is saying that provocation, as conceptualized in Nigerian law is restricted and he made this point clear, as follows. at page 5 of his Brief – Provocation is defined at P. 1262 of Black’s law Dictionary. 8th Ed., as: 1. The act of inciting another to do something, especially to commit a crime 2. Something (such as words or actions) that affects a person’s reason and self-control. especially causing the person to commit a crime impulsively. Provocation is therefore, words and actions that incite another to commit a crime. We submit as persuasive authority the English Court of Appeal decision of R v. Doughty (1986) 83 Crim Appeal Reports 319. it was held that the persistent crying of a 17 -day old baby sufficiently provoked a parent into killing his child, and a conviction of Murder was consequently substituted with that of Manslaughter. In arguing as he did, the Appellant lost sight of the fact that there was no third party involved in R v. Doughty(supra): a parent was provoked by the persistent crying of a baby into killing the baby. In R. v. Duffy(1949) 1 AER 932. Devlin. J.. made the point clear that: Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually cause in the Accused a sudden and temporary loss of self-control rendering the Accused so subject to passion as to make him or her for the moment not master of his mind. This definition of “provocation” by Devlin, J.. in R. v. Duffy(supra), has been adopted by this Court in numerous cases – Akalezi V. State (1993) 2 NWLR (Pt. 273) 1 SC, George V. State (1993) 6 NWLR (Pt. 297) 41 SC, Uluebeka V. State (2000) 7NWLR (Pt. 665) 404 SC, and it is clear there-from that any such killing(s) is triggered by rage or anger, etc., on the part to the Accused to the person that offered the provocation. It is, therefore. a direct confrontation; there is no third party inciting the Accused to kill the deceased – see Kaza V. State (2008) LPELR-1683(SC), where Tobi, JSC. said: Provocation is an action or conduct which arises suddenly in the heat of anger. Such action or conduct is precipitated by resentment, rage or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage or fury, as there is time for passions to cool. The very act of reportage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage or fury of the Accused. PER AMINA ADAMU AUGIE, J.S.C.

CIRCUMSTANCE UNDER WHICH THE DEFENCE OF PROVOCATION WILL AVAIL AN ACCUSED FACING A CHARGE OF MURDER

The defence only avails the appellant if the incitement was occasioned by the words or act of his victim which rendered him incapable of controlling himself thereby resulting in committing the crime for which he is convicted. See George V. State (1993) 6 NWLR (Pt 297) 41 and Kaza V. State (2008) LPELR-1683 (SC). PER MUSA DATTIJO MUHAMMAD, J.S.C.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

Between

EMMANUEL EZE Appellant(s)

AND

THE STATE Respondent(s)

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Appellant is one of the “Bakassi Boys”, leaders and members of the Abia State Vigilante Group known as “Bakassi’, who were convicted and sentenced to death for the murder of two persons, Chukwudozie Nwachukwu and Okechukwu Maduekwe, and this Appeal turns on the issue of whether the conviction for murder should be substituted with conviction for manslaughter instead.

The facts as established at the Abia State High Court is that on 9/7/1999, the Appellant and three other Bakassi Boys, namely, Ezeji Oguikpe, Stanley Azogu. and Adiele Ndubuisi, were invited from Aba, where the said group is based to Government House, Umuahia, by Ndukwe Okereke, a State Security Service official.

At the Government House, they met the then Secretary to the State Government, Dr. Elekwachi Nwaogbo, who instructed the S.S.S. official, Ndukwe Okereke, to take them, Bakassi Boys, to the Safari Restaurant at Umuahia, where they confronted the people they met with

dangerous weapons, including cutlasses, knives and guns. In the process, the said two deceased persons, were killed and their mutilated bodies dragged to the main road, where their remains were set ablaze by the said Bakassi Boys.

The Abia State High Court found the Appellant, who was the second Accused, guilty of the offence of murder, and convicted and sentenced him to death accordingly. The Court of Appeal was also convinced, after reviewing the evidence, that he was guilty of the offence of murder, and affirmed the trial Court’s decision.

Further aggrieved, the Appellant has appealed to this Court with a Notice of Appeal containing five Grounds of Appeal, and he formulated one Issue for Determination in his Brief of Argument:
Whether the conviction for Murder ought not be substituted with a verdict of Manslaughter.

The Respondent formulated a similar Issue for Determination in its Amended Brief of Argument, but couched differently, that is –
Whether or not the Court of Appeal was not right when it affirmed the conviction for the offence of

murder handed down to the Appellant.

The Issues formulated by both Parties raise the same question – whether the Appellant was rightly convicted for murder or not

The Appellant contends that the Court of Appeal “burdened by sentiments over the setting ablaze of the victims after their death” upheld his conviction for murder “despite the fact that the evidence on record did not support a conviction for murder”.

He argued that the defence of provocation was successfully established by the evidence on record and the Court of Appeal “ought to have set aside sentiments at the admittedly bestial treatment of the dead bodies and substitute the conviction for murder with that of manslaughter. He cited the following on the definition of manslaughter, and the ingredients thereof vis-a-vis that of murder – Sections 317 and 325 of the Criminal Code Act. Akang V. state (1971) 1 All NLR46, Stephen V. State (1986) 5 NWLR (Pt. 46) 978 and Ukwunnenyi V. State (1989) 4 NWLR(Pt. 114) 131.

He further submitted that the defence of provocation is an

extenuating factor that reduces the harshness of punishment of death for murder; and that it is pertinent to determine whether the said defence availed him, and if so, whether the verdict of Murder ought to have been substituted for that of Manslaughter. He proffered arguments under the following subheadings –
1. Whether he was provoked
2. Whether the provocation was grave
3. Whether the act causing death occurred in the heat of passion
4. Whether there was time to cool before the occurrence of the act causing death
5. Whether the act causing death was proportionate to the provocation

On the first question – whether he was provoked, he referred to Black’s Law Dictionary 8th Ed. on the definition of provocation, which includes “the act of inciting another to do something, especially to commit a crime, and R v. Doughty(1986) 83 Crim LR 625, and in answer to the question whether the crime committed on 9/7/199 was “incited or caused”, he submitted as follows –
The Government had incited the group by not only informing them of the whereabouts of suspected criminals, but by also proceeding to identify

the suspected criminals and leaving them at the mercy of the group. – – The death of the deceased persons – – – were principally caused by the words (the complaint) and the actions (transporting the group to the location of the victims and identifying the victims as armed robbers) of the Government official, who delivered the said individual into the hands of a group motivated in arresting and killing thieves. [He] was most definitely provoked into committing the crime. His dedication and disposition towards combating crime by arresting and killing criminals was manipulated by the Government of Abia State, who incited, used, and caused him to indulge in the killing of the deceased persons on the allegation by the Abia State government official, who in turn was instructed by the Secretary to the State Government, that the deceased persons were criminals.

As to whether the provocation was grave, he cited the following – Njokwu V. State (2013) LPELR-19890(SC), Akang V. State (supra) Stephen V. State (supra) and Ukwunnenyi V. State (supra), and argued that a reasonable man, like the Bakassi Boys, who were “blinded

by sheer will and desire to see to it that criminals were brought to justice” and who are “dedicated and transfixed on a mission to eradicate crime and “clean” the society by arresting and killing thieves”, would have reacted the same way they did, by attempting to ‘arrest and/or kill suspected armed robbers’.

As to whether the said act occurred in the heat of passion, he submitted that it was after the identification of the suspects by Mr. Ndukwe Okereke, that they (Bakassi Boys) “descended into anarchy and resultantly killed the deceased persons”: and that it was in the course of a scuffle (fight) with the deceased that they killed the deceased by striking him dead with their machetes.

On whether there was time to cool before the act occurred, he argued that the time that passed between the provocation and killing was so brief that he had no time to regain his composure: that if he had been able to compose himself between that time, the defence of provocation will not lie, citing Obaji V. State (1965) NMLR 417. Odunlami V. Nigerian Navy (2013) LPELR-20701 (SC), and

R v. Ibrams and Gregory(1981) 74 Cr App R 154; and that there was no cooling time between the said complaint, the carriage of the team to the venue where the suspected criminals lay siege, the resistance of the deceased, and the killing of the deceased .

On whether the act causing death was proportionate to the provocation, he cited Odunlami V. State (supra), and submitted –
The prevention squad, a.k.a. “Bakassi Boys” proceeded to the venue designated as the haven of persons suspected to be armed robbers, accompanied by an official from the Government House, who subsequently identified the persons suspected of the crime. [They] proceeded by probing into the details of the suspects but were met with resistance which fortified the allegation against the suspects. There was an ensuing fight which resulted in the deceased persons being stabbed to death by machete cuts. Cutting of the victims was a proportionate reaction by a reasonable man bearing the Appellant’s characteristics, to the provocative acts that preceded the action.

On its part, the Respondent proffered arguments touching on the ingredients of the offence of murder, which must be

established, particularly proof of the common intention to commit the crime.

However, as I stated earlier, the Appellant is not contesting the fact that he and the other Bakassi Boys convicted with him, caused the death of the two deceased persons. He is saying that there were extenuating circumstances that differentiated killing of the deceased persons from a killing with malice aforethought.

On this point, the Respondent submitted that for the plea of provocation or incitement capable of reducing a murder charge to manslaughter to succeed, the Appellant must show elements or acts of provocation in the circumstances of the facts available, citing Galadima V. State (2013)3 NWLR (Pt. 1431) 530. Section 318 of the Criminal Code Act CAP C38 LFN, 2004 (in pari materia) with the Criminal Code Vol. 1 CAP 30, Laws of Eastern Nigeria, 1963), Edoho V. State (2010) 14 NWLR (Pt. 1214) 651 SC, Nwokearu V. State (2010) 15 NWLR (PT 1215) 1, Sheidu V. State (2014) 5 NWLR (PT 1429) 1. and Paul Onyia V. State (2006) 11 NWLR (Pt. 991) 267.

It argued that there was no provocation at the Restaurant, and even if the “Bakassi Boys” were “incited” and “provoked” at Aba, as they claimed, the journey from Aba to Umuahia or from Government House, Umuahia to the Restaurant on Azikiwe Road, should have allowed them enough time for their passion to cool down, citing Ajunwa V. The State (1988) NWLR (PT89) 380.

It further submitted that the defence of provocation cannot succeed as the alleged incitement is unlawful, and no person, who is compelled to obey an order, which is manifestly unlawful, is obliged to obey such order, citing Section 278 and 279 of the Criminal Code, Obodo V. R. (1959) 4 FSC 1, Alagba V. R. (1950) 19 NLR 123, and Abbott V R. (1976) 3 All ER 140; and that there was no provocation offered to the Appellant by Abia State Government, nor the deceased persons, causing him to lose his self-control and leading to the act of killing the deceased persons on that day.

It also argued that there was no evidence of provocation to warrant him asking this Court to embark on such an arduous task of trying to decipher provocation from non-

existent facts; that such a task is tantamount to looking for a needle in a hay stack, and Courts do not conduct investigation, citing Igwillo V. CBN (2000) 9 NWLR (Pt. 672) 302, and that the Appellant and his cohorts were merely blood thirsty murderers, and nothing more.

Furthermore, that there is concurrent finding of facts by the two lower Courts that there was no provocation or incitement, and this Court cannot disturb same – Ben V. State (2006) 4 FWLR 7507, Onwuama V. Ezeokoli (2002) 2 SCNJ 271, Amusa V. State (2003) 1 SCNJ 518, Ubani & 2 Ors V. State (2003) 18 NWLR (PT851) 247, Ojo & Ors V. Anibire & Ors (2004)5 SCNJ 56, Shurumo V. State (2010) 19 NWLR (PT.1226)73, lgwe V. State (1989)9 SC 174, and Eze Ibeh V. The state (1997) I NWLR (PT 484),632 at 641cited.

The word “expand simply means to become or make larger or more extensive – Dictionary.com. So, the Appellant is saying that provocation, as conceptualized in Nigerian law is restricted and he made this point clear, as follows. at page 5 of his Brief –
Provocation is defined at P. 1262 of Black’s law Dictionary. 8th Ed., as:
1. The act of inciting another to do something, especially to commit a crime
2. Something (such as words or actions) that affects a person’s reason and self-control. especially causing the person to commit a crime impulsively. Provocation is therefore, words and actions that incite another to commit a crime. We submit as persuasive authority the English Court of Appeal decision of R v. Doughty (1986) 83 Crim Appeal Reports 319. it was held that the persistent crying of a 17 -day old baby sufficiently provoked a parent into killing his child, and a conviction of Murder was consequently substituted with that of Manslaughter.
In arguing as he did, the Appellant lost sight of the fact that there was no third party involved in R v. Doughty(supra): a parent was provoked by the persistent crying of a baby

into killing the baby. In R. v. Duffy(1949) 1 AER 932. Devlin. J.. made the point clear that:
Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually cause in the Accused a sudden and temporary loss of self-control rendering the Accused so subject to passion as to make him or her for the moment not master of his mind.
This definition of “provocation” by Devlin, J.. in R. v. Duffy(supra), has been adopted by this Court in numerous cases – Akalezi V. State (1993) 2 NWLR (Pt. 273) 1 SC, George V. State (1993) 6 NWLR (Pt. 297) 41 SC, Uluebeka V. State (2000) 7 NWLR (Pt. 665) 404 SC, and it is clear there-from that any such killing(s) is triggered by rage or anger, etc., on the part to the Accused to the person that offered the provocation. It is, therefore. a direct confrontation; there is no third party inciting the Accused to kill the deceased – see Kaza V. State (2008) LPELR-1683(SC), where Tobi, JSC. said:
Provocation is an action or conduct which arises suddenly in the heat of anger. Such action or

conduct is precipitated by resentment, rage or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage or fury, as there is time for passions to cool. The very act of reportage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage or fury of the Accused.

In this case, the Appellant was charged with the murder of only one deceased person, Chukudozie Nwachukwu, but the evidence adduced at trial revealed that on the same day, time and venue, the second deceased, Okechukwu Maduekwe, was also killed by the same Bakassi Boys. The question is what did the deceased persons do or say to the Appellant and his cohorts that provoked them to

butcher the deceased persons with such utter savagery

Who were these two deceased persons The first deceased had a degree (B.SC) in Zoology, and was not resident in Umuahia. He was Operational Manager Of Uncle James Sea Food, in Lagos.

His father. Nze Samuel Nwachukwu. who testified as PW1. did not know he was even in Umuahia, until one Chukwuma Mark. the Manager of the said Safari Restaurant, came to inform PW1 that the first deceased had been attacked while waiting for him, the Manager, at the Restaurant. PW1, further testified as follows:
I saw two corpses lying at the front of the Restaurant – – I saw blood flowing from the Restaurant into the gutter (drainage), dark red blood flowing from the two men that the Bakassi men had killed – – I saw all the Accused Persons at the scene with others who are not here. I identified my son’s body- – On close observation of my son’s body, I saw a sharp knife cut at the back of his neck, a big matchet cut on one of the shoulders, it severed the shoulder, open wound on the stomach, which could be from a gunshot. As I was looking at the two bodies, the bodies had been set ablaze and were burning.

The second deceased person was a Spy Sergeant, who had gone to the Restaurant with his younger brother,Solomon Maduekwe [PW3] to collect the drinks earlier ordered by their elder brother, for their sister’s traditional wedding. PW3 testified that when the second deceased went into the Restaurant, he heard him shout “we are here for drinks, I am not an armed robber”. He rushed in but two men blocked him. One of them stabbed him on the head with a matchet, and pushed him into the Restaurant. where he saw his brother being held down by some people with matchets.

PW3 clearly said that the Appellant in this Appeal cut him on his back with a matchet and kicked his eye with his safety boots. He went on to describe what happened thereafter. In his words:
I shouted that I am not an armed robber that we should be taken for proper identification. After beating me, the 2nd Accused [Appellant] tied my hands backwards and ordered that I should be taken away. My brother got up and brought his ID Card out to identify himself as a Policemen and says we should

be taken to the Police Station for further identification. The 3rd Accused snatched the ID Card from my senior brother. By this time, the person lying down on the floor was dead. The 3rd Accused said is it because he is a Policemen that he was proving stubborn and asked the 1st Accused to shoot my brother. The people were armed, some with machetes, some with guns. After the order from the 3rd Accused, the 1st Accused raised his kaftan and brought out his pistol and shot my brother at close range. My hands were still tied. I was forced into the bus and ordered under the seat of the bus. While I was in the bus, the four Accused Persons and others (about eleven people) brought the two bodies outside the Restaurant and set the bodies on fire.

The question I asked earlier remains unanswered what did the deceased persons do or say to provoke the Appellant that day Nothing, absolutely nothing. The deceased persons said nothing; the Appellant and his gang went into the Restaurant, ready to kill. PW2. Chiedozie Nwosu, who was working at the said Restaurant, testified that about fifteen Bakassi Boys came out of a White Bus,

and one of them came into the Restaurant and demanded for a bottle of beer. When he brought the beer, the man broke the beer with his matchet, then gave PW2 a matchet cut on his right ankle (inner part), and cut his left palm with the broken bottle of beer.

The two lower Courts came to the same conclusion that the Appellant and the other members Of the Bakassi Vigilante Group, went to the Safari Restaurant in Umuahia, with the intent to kill. The learned trial Judge, C. N. Uwa, J. (as he then was) held thus –
Each of the four Accused Persons as DW1 to DW4 also confirmed in their oral evidence before this Court that they set the deceased body ablaze. It is in evidence that part of the neck was severed, the left shoulder was severed, the chest was severely cut open, big open wound on the abdomen exposing the gut, lower part of the abdomen cut open, severe cut on the upper arm, compete amputation of both feet at the ankles before the deceased body was set ablaze. With this type of injury inflicted by the “Bakassi Boys”, (even if it is for the purpose of arrest) could the deceased have survived these injuries by

the slightest stroke of luck I am afraid not. – – The extent of the injuries inflicted by the Accused Persons showed clearly that they were heartless, callous and inhuman and their intention in that Restaurant on that fateful day was not to arrest but to kill, and that they achieved – – Learned defence counsel’s argument that the aim of the type of injuries inflicted by [them] on the deceased was to arrest, not to kill, therefore, fails. With the extent of the injuries nothing else could be envisaged but death. A dead man cannot be “arrested”. The Accused Persons never intended to leave their victims alive right from when they took off on the bus from Aba to Umuahia. Their aim was to use lethal weapons on their victims, and knew the consequences of using such weapons on their victims, which is death.

On his defence of provocation, the learned trial Judge held that:
The evidence— shows that the Accused Persons were the aggressors and it was injuries inflicted on the deceased that caused the death, which were completely disproportionate to any imagined provocation. therefore, neither the defence of self

defence nor provocation would avail the Accused persons. I reject the defence of self defence and provocation.

The Court of Appeal also considered his defence of provocation and in rejecting this line of defence as being unavailable to him. Agube, JCA, who wrote the lead Judgment, observed as follows:
There is no doubt that they left Umuahia from Aba for the purpose of killing armed robbers and in the process, killed Chukwudozie Nwachukwu at the Safari Restaurant. They not only shot at the deceased persons but dealt them very deadly matchete cuts. To further demonstrate that their intention was to kill and not only to arrest armed robbers, the Appellants and their cohorts, in a most barbaric and reprehensible manner set the bodies of the deceased ablaze. Whatever altruistic or lawful reasons that may have brought them to Umuahia or plea of self defence or provocation they may have proffered, were vitiated by that singular act of setting the bodies of their victims ablaze— In any case, [they] were not licensed to carry dangerous weapons and even if the deceased persons resisted arrest they

would have shot them on the legs to immobilize them. This was not, however, to be as the Appellants not only shot and dealt deadly matchete cuts on the persons of the deceased but went further to roast them like animals, as can be seen in Exhibit (101), the photograph of the mutilated and roasted body of Chukwudozie Nwachukwu a holder of BSC. Degree in Zoology. That was the height of exhibition of intention and criminal negligence on the part of the Appellant and his cohorts. l, therefore, hold that there is no amount of provocation that could justify the dastardly acts of the Appellant and his cohorts.

After considering other Issues raised, he concluded as follows:
The action of the Appellant was definitely in excess of that of a reasonable man in the circumstances. He was most irrational and is bound to pay the price. The Court below has rightly held that the defences of provocation and mistake of facts as raised here on appeal do not avail the Appellants. The learned trial judge, therefore, was not in error to have held that the defence of mistake of facts does not avail the

Appellant as the killing of the deceased by the Appellants were borne out of a conscious and intentional and unreasonable and dishonest belief.

The Appellant’s contention against the concurrent findings of the Abia State High Court [trial Court] and the Court of Appeal is that the lower Courts erred by upholding his conviction for Murder, when there were extenuating circumstances differentiating the killing of the deceased from a killing with malice aforethought. The “extenuating circumstances” being that they, Bakassi Boys, were incited by Officials of the Abia State Government to kill the persons identified as armed robbers. As he put it in his Brief –
Arresting and killing criminals was second nature to the Appellant and his members. The Government had incited the group by not only informing them of the whereabouts of suspected criminals, but by also proceeding to identify the suspected criminals and leaving them at the mercy of the group.

He also conceded in his Brief of Argument the Bakassi Vigilante Group was an unlawful association. He submitted as follows –

The “Bakassi Boy’ group – – was a security welfare association, privately set up and politically motivated to resort to self-help to combat crime by arresting and killing thieves. This was an unlawful association, which operated independently of the Police and wholly indulged in the process of self-help in administering what they perceived to be justice – – The common practice – – was to respond to complaints of criminal activity and have the alleged criminals dealt with by extreme measures which flagrantly breached the provision of the law on fair hearing. – -[They] were contracted by the Secretary to the Government of Abia State and sent on a mission to deal with persistent criminal activity in Umuahia area – – [They] were informed of the criminal activity by an official from the Government House, named Ndukwe Okereke, and motivated to act. They were then transported by the official, who took them to a restaurant called Safari Restaurant, being the location of persons suspected to be armed robbers disturbing that area. The persons were there and then identified by the official and left at the mercy of the group.

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Is this a valid defence in the eyes of the law Section 33 of the 1999 Constitution, which guarantees right to life, stipulates that –
(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria
(2) A person shall not be regarded as having been deprived of his life in contravention of this Section if he dies as a result of the use, to such extent and in such circumstance as are permitted by law, of such force as is reasonably necessary-
(a) For the defence of any person from unlawful violence or for the defence of property;
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained: or
(c) For the purpose of suppressing a riot, insurrection or mutiny.

The Appellant admitted that the Bakassi Vigilante Group to which he belonged was an unlawful association that dealt with alleged criminals with extreme measures. “which flagrantly breached the provision of the law of fair hearing”. The Bakassi Boys were nothing but outlaws;

lawless persons operating outside the law, who relished breaking the laws of the land, in their unlawful and misguided quest to dispense justice by killing alleged criminals.

Having desecrated the laws of the land with such relish and reckless abandon, and been convicted for murder accordingly, the Appellant is urging this Court to allow the Appeal, set aside the Judgment of the Court of Appeal delivered on 5/5/2010, and substitute his conviction for murder with that of manslaughter, since he was incited by a third party to kill the deceased persons.

But there are a few things wrong with that line of defence. Firstly, it is more of implicating the Abia State Government in the crimes they had committed rather than a valid defence in law. Secondly, the learned trial Judge. C. N. Uwa. J. (as he then was), debunked his insinuation that the Abia State Government had a hand in the killing of the deceased persons, when he held that –
Even though it is in evidence from both the Prosecution and Defence Witnesses that the Accused Persons were invited to Umuahia by the

Government through the SSS man, Ndukwe Okereke, or the then S.S.G, J.E Nwogbo, there is no evidence to the effect that the instruction was to come into the area the armed robbers were said to be operating, and slaughter whoever they saw in the vicinity.
Even the most primitive and/or tyrannical Government could not do that The Accused persons made it clear that the armed robbers were not described to them, their photographs were not given to them and they were not identified by them – – – It is in evidence that the instruction from Government was to come and watch over the area said to have been disturbed by armed robbers the previous night. Certainly, the instruction was not to kill whoever is seen in the area, with no interrogation or arrest. Even if the deceased and others in the Restaurant on the fateful day, drinking and sleeping were armed robbers (which they were not), did he deserve to be slaughtered on the spot If every suspected armed robber armed robber, or mistaken armed robber was to be slaughtered on the spot by any individual or group, whether individual or security men, vigilante

groups such as the – Bakassi or even by law enforcement agents like the Police (who are authorized to fight crime), every one of us would be living in perpetual fear and danger of being killed/or butchered at any time. This would be unbearable to live in. The action of the “Bakassi Boys” was barbaric in a civilized world, in a peaceful town like Umuahia, in a democratic dispensation, and would have been so even in the primitive Stone Age. The Accused Persons could not have acted as agents of Government in committing the offence as they tried to make out in their defence our criminal law does not permit it.

Finally, and more importantly, for the defence of provocation to avail the Appellant, there must be something said or done by the deceased persons in his presence, which caused the Appellant to “suddenly and temporarily” lose his passion and self-control.

In other words, the Appellant’s defence that he was incited by the Abia State Government to kill the two deceased persons, who did not do or say anything to him and the other Bakassi Boys, before they were savagely killed,

cannot amount to provocation, and his attempt to convince this Court otherwise failed woefully.

The Respondent is right; the Appellant embarked on a futile journey of proving provocation, which does not arise in this case, as the testimony of the Prosecution Witnesses confirm that the Appellant and his cohorts committed the said crime “with utmost dispatch and barbarity, without any provocation or incitement.” This Appeal totally lacks merit; it is, therefore, dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother AMINA ADAMU AUGIE JSC just delivered, I agree with the reasoning and conclusion in the said judgment that the appeal lacks merit and same be dismissed.

The appellant insists that he is entitled to the defence of provocation the two Courts below adjudged does not avail him. Relying onAkang V. State (1971) 1 ALL NLR 46 and Stephen V. State (1986) 5 NWLR (Pt 46) 978, learned appellant counsel submits that the lower Court’s verdict of

murder under Section 317 of the Criminal Code Act instead of one of manslaughter under Section 325, of the same Act is perverse.

Learned respondent counsel insists, and correctly too, that the appellant is not entitled to the defence of provocation on the basis of his being incited by the Anambra State Government which officials, he claimed, transported him to and identified the deceased as one of the criminals to be arrested or killed.

I entirely agree with learned respondent’s counsel that what entitles an accused to the defence of provocation has long been settled. If indeed the appellant is incited to kill the deceased by official of the State Government, the incitement being one to do an unlawful act, does not entitle the appellant to the defence of provocation. The defence only avails the appellant if the incitement was occasioned by the words or act of his victim which rendered him incapable of controlling himself thereby resulting in committing the crime for which he is convicted. See George V. State (1993) 6 NWLR (Pt 297) 41 and Kaza V. State (2008) LPELR-1683 (SC).

In the case at hand there was nothing on record said or done by the deceased to the appellant for the latter to assert as the former’s provocation. The two Courts are right in their concurrent findings that appellant does not come within the defence of provocation. It is for this and the fuller reasons adumbrated in the lead judgment that I also dismiss the appeal. The concurrent decisions of the two Courts convicting and sentencing the appellant for murder are hereby further affirmed.

JOHN INYANG OKORO, J.S.C.: My learned brother Amina Adamu Augie, JSC obliged me in draft a copy of the lead judgment just delivered to which I am in total agreement that this appeal is devoid of merit and ought to be dismissed. My learned brother has exhaustively dealt with the salient issues submitted by the parties for the determination of this appeal. Both the reasoning and the conclusion accord with mine and I hereby adopt same as mine.

The two Courts below i.e the Abia State High Court and the Court of Appeal have earlier found the appellant

guilty of murder and sentenced him to death. The concurrent findings on both issues of fact and law raised in this case are justified as they are and well supported by the evidence. This Court does not, in practice, disturb such concurrent findings unless they have been shown to be perverse. See Olagunyi & Ors v Oyeniran (1996) 6 NWLR (Pt 453) 127, (1996) LPELR – 24847 (SC), Bashaya & Ors v. State (1998) 5 NWLR (pt. 550) 351, (1998) LPELR – 755 (SC).

The appellant in this matter has not shown any reason whatsoever why the sentence of death should be reduced in view of overwhelming evidence against him. I agree with my learned brother in the lead judgment that this appeal is unmeritorious and I accordingly dismiss it. I abide by all consequential orders made in the lead judgment. Appeal Dismissed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Augie, JSC, obliged me with the draft of the leading judgment delivered now. I agree that this appeal is, totally, devoid of merit. Like the leading judgment, I hold that the defence of

provocation did not avail the appellant [as an accused person at the trial Court]. This Court has, insightfully, illuminated the nuances 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].
What emerges from my survey of the extant 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.
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

waned, 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 abate or vapourise,Uluebeka v State [2000] 7 NWLR (pt 665) 404; Nwede v state [1985] 3 NWLR (pt 13) 444; Yusufu 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 613) 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 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 613) 641; Wonaka v Sokoto Native Authority (1956)

SCNLR 79; Kumo v State (1967)5 NSCC 286; Akalezi v State (1993) 2 NWLR (pt273) 1; Queen v Akpakpan [1956] SCNLR 3; Musa v State (supra).
Put differently, the situation must have been such that, 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 (1973) 93-97; NIALS’ Laws of Nigeria (Annotated) Criminal Justice Administration Vol One (Lagos: NIALS, 2008) 686.

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In the instant case, the lower Court affirmed the findings of the trial Court that the defence was unavailing. Listen to the views of Agube, JCA, who read the leading judgment of the lower Court:
The action of the appellant was definitely in excess of that of a reasonable man in the circumstances. He was most irrational…The Court below has rightly held the defences of provocation and mistake of facts raised here on appeal do not avail the appellants… [Italics supplied for emphasis]
In very simple terms, the lower Court’s position was that the appellant’s, rather, vicious act of savage temper must rule out his weak-kneed plea of provocation, Sadiku v The State (supra); Yaki v State (supra). I, entirely, agree with His Lordship’s unanswerable concurrence.

It is for these reasons, and the more detailed, reasons in the leading judgment that I, too, shall dismiss this appeal. Appeal dismissed.

EJEMBI EKO, J.S.C.: I stand on the summary of facts

contained in the lead judgment just delivered in this appeal by my lord, HON. JUSTICE AMINA ADAMU AUGIE, JSC. I read in draft the said judgment and I whole heartedly not only endorse it, but also adopt it.

The appeal raises one salient jurisprudential question: whether an accused person who admits the constituent facts of a crime can plead, as a defence, the fact that he was instigated or incited to commit the offence by another person

Abetment of an offence is itself an offence. In a charge of abetment of an offence, as stated by Coker, JSC in PATRICK NJOVENS & ORS. v. THE STATE (1973) 5 S.C 12, the initial element is the instigation or the positive act of encouragement to do the act that constitutes the offence.
Instigating a crime is no more than to goad or incite another to do an act that is a crime. It is a specie of the offence generally referred to as criminal conspiracy. Even at common law it is an indictable offence for one person to incite or instigate another to commit an offence: R. v. RAMSFORD 13 COX 9.

The facts of this case clearly establish pre-meditated murder committed by the Appellant. The fanciful and capricious defence offered by the Appellant in his plea, as argued by his Counsel, that his conviction for murder should “be substituted with a verdict of manslaughter” is that he was, admittedly, instigated or incited by one Dr. Elekwachi Nwogbo, then Secretary to the Government of Abia State to do what he did; that is: to kill the persons he and his cohorts killed at the locus criminis the Safari Restaurant, Umuahia. He seemed to suggest that because the said Secretary to the Government of Abia State had incited and/or instigated him to extra-judicially kill suspected the alleged armed robbers or these particular victims at the Safari Restaurant he had been duly licensed to kill human beings. It is on this distorted and convoluted reasoning that the Appellant’s Counsel argues that “the extenuating circumstances” exist entitling the Appellant to plead provocation. The factor of criminal responsibility reducing the verdict of murder to one of manslaughter, as the Appellant posits, is the fact that he did what he did on

the incitement or instigation of officials of Abia State Government to kill any person identified as armed robber. On the alleged charter given to the “Bakassi Boys”, the killer group the Appellant belongs, the learned Appellant’s Counsel submits inter alia:-
The Government had incited the group by not only informing them of the whereabouts of suspected criminals, but by also proceeding to identify the suspected criminals and leaving them at the mercy of the group.
The horrifying or sordid submission of the Appellant’s Counsel, on the licence to members of the Bakassi Boys to extra-judicially kill alleged suspected armed robbers, defies due process of law offered by Section 36(4), (5) & (6) of the Constitution that inter emphasise respectively that –
(4) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or tribunal.
(5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty (by his accusers at a law Court or tribunal), and

(6) Every person who is charged with a criminal offence shall be entitled to-
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence; to be given adequate time and facilities for the preparation of his defence;
(b) to be given adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or by his legal practitioner of his own choice;
(d) to examine in person or by his legal practitioner witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to the witnesses called by the prosecution.
(e)——
The Appellant who is advocating that, upon his investigation or incitement to kill other human beings labeled simply as criminals or suspected criminals, he had licence to kill and that such licence entitles him to plead provocation or extenuating circumstances that reduce his conviction for murder to one of manslaughter, had himself enjoyed the due process of law offered by the law or

Constitution. He seemed, erroneously, to operate under the notion that the criminal who does not acknowledge the law should be adjudged without it. That notion is negated by our law that emphasises due process as a fundamental principle of the Rule of Law.
An instigation or incitement to commit a crime, is itself an offence of abetment of crime. When it is admitted as a fact, it cannot be the basis on which an accused person, who admits that he committed the alleged offence upon his being so instigated or incited, can predicate his defence of provocation. Our jurisprudence or law recognises the truism that illegality, in law, is not capable of creating any right: BELLO & ORS v. A. G. OYO (1986) 1 SC 1 at 76. Thus, as Onu, JSC, later puts it in ALAO v. A. C. B LTD (1998) 1-2 SC 177: a party cannot rely on a transaction that is besmirched with illegality. Accordingly, an accused person, as the Appellant herein, who committed murder cannot rely on the fact that he was instigated or incited by another person to commit the alleged murder, that he admits, in

order to plead provocation.

The provocation, recognised as extenuating circumstances, reduces the verdict of murder to one of manslaughter. It must come not, of course, from instigation. The two affirmative facts constituting provocation which the accused person must establish in order to succeed in the defence are- (1) Whether there was evidence of provocation of the accused person, and (2) Whether there was any evidence that the provocation caused him to lose his self-control These facts are absent in this case. They are negated by the admission that the Appellant, a rational person, was instigated, albeit illegally or criminally, to kill alleged suspected criminals or armed robbers.

In concurrence with my learned brother I must, and do hereby, dismiss this appeal. It lacks substance. Allowing this opprobrious plea of provocation, only on the basis that the Appellant was instigated to kill alleged suspected criminals pointed out to him by his instigators, will enthrone a regime of anarchy, self-help and extra-judicial killing in total defiance of due process or rule of law.

Appearances: