SALIHU MUHAMMED v. THE STATE
(2019)LCN/12672(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/J/152C/2018
RATIO
APPEAL: WHETHER ISSUE FOR DETERMINATION SHOULD BE FORMED FROM GROUND OF APPEAL
“It is trite that issues for determination must be formulated from the parameters of a ground of appeal and the ground of appeal must be against the judgment of the Court against which appeal is lodged. See OKEKE V. ORUH (1999) 6 NWLR (PT. 606) 175, KHALED BARAKAT CHAMI V. U.B.A. PLC (2010) LPELR 841, AFRICAN INTERNATIONAL BANK LTD V. INTEGRATED DIMENSIONAL SYSTEM LTD & ORS (2012) LPELR-9710, BIOCON AGRO CHIMECALS (NIGERIA) LTD & ORS V. KUDU HOLDING (PTY) LTD AND ANOR (2000) 115 NWLR (PT.691) 497.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
CRIMINAL LAW: INGREDIENTS OF HOMICIDE
“It is the law that in order for the prosecution to secure a conviction for the offence of culpable homicide punishable with death the prosecution must proof the following.
1) That the death of a human being actually occurred.
2) That it was coursed by the act or acts of the accursed.
3) That the act/acts were done with intent of causing death or
4) That the accused knew that death was the probable consequence of his act.
See the following cases OMINI V. THE STATE (1999)12 NWLR (PT. 630) 168, IGAGO V. THE STATE (1999) 14 NWLR (PT. 637) 1, EDOHO V. THE STATE (2010) 14 NWLR (PT. 1214) 651 AND AUDU V. STATE (2003) 7 NWLR (PT. 810) 516.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
CRIMINAL LAW: DEFENCE OF PROVOCATION
“What is next is the defence of provocation. A plea of provocation unlike that for plea of self defence which may exonerate an accused from culpability, the plea if successful will reduce the offence of murder to manslaughter. Since the consequence, is not the same hence their requirement are also not same. For a successful plea of provocation the accused must establish in evidence the foregoing:
1) There was sudden act of provocation by or from the deceased.
2) That he lost self control as a result of the provocation.
3) That he reacted in the feat of passion and before there was time for his passion to cool, and
4) That the acts were proportional to the provocation.
See the following cases OLADIRAN V. STATE (1986) 1 NWLR (PT. 14) 75, UKWUNNENYI V. THE STATE (1989) 4 NWLR (PT. 114) 131, BARUWA V. STATE (1992) 1 NWLR (PART 219) 511, EDOHO V. STATE (2010) 14 NWLR (PT. 1214) 651 and URAKU V. STATE (1976) 6 SC 128.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
CRIMINAL LAW: CONDITIONS TO AVAIL SELF DEFENCE
“The conditions that must be satisfied by an accused person to be availed by the plea of self defence are (i) the accused must be free from fault in bringing about the encounter; (ii) there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity; (iii there must be no safe or reasonable mode of escape by retreat; and (iv) there must have been a necessity for taking life. All these conditions must co-exist and be established for the defence to be sustained – Musa Vs State (2009) 15 NWLR (Pt 1165) 467, Jeremiah Vs State (2012) 14 NWLR (Pt. 1320) 248.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
SALIHU MUHAMMED Appellant(s)
AND
THE STATE Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
The Appellant in this appeal was arraigned before the High Court of Justice Bauchi, Bauchi State on a two Counts charge.
The two Counts are:
COUNTS 1
That you SALIHU MOHAMMED of Gwallaga area of Bauchi metropolis in Bauchi Local Government Area of Bauchi State on or about 18th day of May 2016 at about 0730 hours. Within the jurisdiction of this Court, you committed the offence of voluntarily causing hurt or grievous hurt by dangerous means by stabbing one Abdullrahman Kabiru on his chest with knife where he sustained injury and thereby committed on offence contrary to Section 248 of the Penal Code and triable by this Court.
COUNT 2
That you SALIHU MOHAMMED of Gwallaga area of Bauchi, metropolis in Bauchi Local Government Area of Bauchi State on or about 18th day of May 2016 at about 0730 hours within the jurisdiction of this Honourable Court did commit culpable homicide punishable with death to wit: you stabbed One Abdulrahman Kabiru (Now deceased) with a knife on his chest leading to his death, knowing or having reason to know that death would be the probable consequences of your act thereby you committed an offence contrary to Section 221 of the Penal Code and triable by this Court.
The Appellant pleaded not guilty to the two Counts charge.
The summary of the facts leading to the arrest and trial of the Appellant is that on the 18th May, 2016, at Gwallaga, Bauchi State, the Appellant Salihu Mohammed on sighting the deceased Abdulrahman Kabiru, accused him of abusing him the previous day at sale Manga Primary School football field. The Appellant refuted. The deceased was said to have given the Appellant some strokes of the cane. In order to revenge, the Appellant was said to have left the scene, went inside the house, equipped himself with a knife and returned to the scene and allegedly stabbed the deceased on the chest. Blood started quashing out of deceased chest. People gathered and rushed the deceased to the hospital. But before they got the hospital, the deceased Abdulrahman Karibu gave up the ghost. The Appellant was arrested and subsequently charged to Court.
He was tried and convicted. Against his conviction hence this appeal which is predicated on the notice of appeal dated 25th day of October, 2017 and filed on the 26th day of October, 2017.
It has five Grounds. They are:
GROUNDS OF APPEAL
1) The learned Trial Court erred in law when he considered and relied on the extra judicial Statement of Appellant without subjecting the Statement to any examination whatever.
2) The learned Trial Court erred in law when he found that the evidence of the defendant?s constituted corroboration of the confessional Statement when he held that:
The Court’s view on this is that the confessional statement of the accused which has been admitted in evidence has proved the litmus test set out by the Supreme Court. The said statement had also been corroborated by the evidence of DW1?.
3) The learned Trial judge erred in law when the Court failed to consider the defence of self defence or provocation as shown from the evidence led at the trial of the Defendant.
4) The learned trial Court Judge erred in law when he found the accused person guilty of the offence of culpable homicide punishable with death notwithstanding that he is aware that the appellant is covered under the children and Young persons Law of Bauchi State.
5) The learned Trial Court judge erred in law when he failed to consider the issue raised on behalf of the Appellant as to whether the prosecution have proven the mental element of the offence of culpable homicide punishable with death.
Briefs of argument were filed and exchanged by respective Counsel. The brief of argument of the Appellant is dated and filed on 31/7/2018 while that of the Respondent was filed on the 16th day of August 2018. They both adopted their respective brief.
ISSUES FOR DETERMINATION
APPELLANT
The Appellant formulated a lone issue for the determination of this Appeal thus:
Whether the judgment of the trial Court was in tandem with our jurisprudence in view of the failure of the learned trial Court judge to consider the possible defences open to the Appellant in view of the facts of the case? (Distilled from grounds 3 and 5)
RESPONDENT
The Respondent formulated two issues.
They are:
1) Whether the prosecution has established the case against the Appellant beyond reasonable doubt?
2) Whether there are provable defence of self Defence or provocation vitiating the trial Court sentence of the Appellant.
I have carefully read the respective issues for determination put forward by respective Counsel in this appeal. Since the sole issue formulated by the Appellant falls squarely within the scope of his complaint as amplified in his grounds 3 and 5 of the grounds of appeal, I will adopt his sole issue for the determination of this appeal. But before going into the consideration of the sole issue, I will like to put on record that the Appellant has not distill any issue from grounds 1, 2 and 4 of the grounds of appeal.It is trite that issues for determination must be formulated from the parameters of a ground of appeal and the ground of appeal must be against the judgment of the Court against which appeal is lodged. See OKEKE V. ORUH (1999) 6 NWLR (PT. 606) 175, KHALED BARAKAT CHAMI V. U.B.A. PLC (2010) LPELR 841, AFRICAN INTERNATIONAL BANK LTD V. INTEGRATED DIMENSIONAL SYSTEM LTD & ORS (2012) LPELR-9710, BIOCON AGRO CHIMECALS (NIGERIA) LTD & ORS V. KUDU HOLDING (PTY) LTD AND ANOR (2000) 115 NWLR (PT.691) 497.
Haven said these, it therefore stand to reason that grounds of Appeal from which no issue for determination has been formulated becomes impotent, deemed abandoned and liable to an order of Striking out. See AFRIBANKS (NIG) PLC V. YELWA (2011) 12 NWLR (PT. 261) 286, GEORGE V. FRN (2011) 10 NWLR (PT.1254) 1., OLAIYA V. STATE (2010) ALL FWLR (PT.514) 1, ISIKILU OLANIPEKUN V. THE STATE (2016) LPELR ? 40440.
Accordingly therefore, grounds 1, 2 and 4 from which no issue has been formulated are deemed abandoned and are hereby struck out. From here, I will proceed with the consideration of the lone issue for determination by the Appellant which is:
Whether the judgment of the trial Court was in tandem with our jurisprudence in view of the failure of the learned Trial Court judge to consider the possible defences open to the Appellant in view of the facts of this case. (Grounds 3 & 5)
The argument of the learned counsel representing the Appellant on this issue kicked off from the angle of private defence. He referred to Sections 59 and 65 of the Penal Code Law which says:
SECTION 59
“Nothing is an offence, which is done in the lawful exercise of the right of private defence.”
SECTION 65
When right of private defence extends, under the restrictions mentioned in Section 62 and 63 to the voluntary causing of death only when the act to be repelled is of any of the following descriptions.
(a) An attack which causes reasonable apprehension of death or grievous hurt.
In addition to the foregoing he sought in aid the provision of Section 241 (g) of the Penal Code Law on the definition of grievous Hurt thus:
“Any hurt which endangers life or which causes the sufferers to during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuit.”
Based on the foregoing provisions of the Penal Code Law, he submitted that the evidence before the lower Court could have afforded the Appellant of the defence having regard to the testimony of DW1. Who said:-
“I was at home when they started fighting then the deceased person took something and beat the accused person and injured him and the accused person also retaliated.”
He contented that there was no enquiry of the extent of the attack of the deceased on the accused by the prosecution. He argued that the Court must presume that the attack was aimed at retaliation only. He said that by the confessional statement of the appellant it was the deceased that approached the appellant and accused him of insulting him at school the previous day. He referred to that part of the confessional statement of the Appellant where he said:
“From there, he brought out a cane and beat me upon my hands severally. Due to the severity of his action, I went home and brought a knife and stabbed him on his chest as a result, blood suddenly started coming out from his chest.”
He argued that there was no interrogation of this statement and no evidence rebutting the fact that the stabbing was due to the retaliation or that the canning was severe on the Appellant. The cane used was not brought to enable the Court determine whether the retaliation was commensurate. He therefore, contended that the portion of the statement of the Appellant is suggestive of the foregoing
(a) The deceased first attached the accused.
(b) The actions of the deceased caused injury to the accused.
(c) It was in the course of retaliating that the deceased was killed.
(d) That the accused person had no criminal intention towards the deceased.
He argued that these elements were also contained in the Appellants confessional statement which was admitted in evidence and marked as ‘Exhibit A. and A2’. He said the prosecution must be taken to have admitted this state of fact. The import of this evidence is that the Appellant was on his own minding his business when the deceased came to him accusing him of insulting him the previous day and using a cane to hit him severally and that it was after the Appellant sought to retaliate. He contended further that it is not everyday that a deceased father will give evidence against his own son. The son must have done something wrong to warrant the father giving evidence against him and seeking an exculpation of the son.
On defence of provocation he cited the case of MUHAMMED V. STATE (2017) 13 NWLR (Part 1583) page 397 ratio 12 where the Court stated as follows:
‘By the provision of Section 222(1) of the Penal Code for the defence of provocation to succeed, it must be shown that death was caused, in the heat of passion. By grave and sudden provocation as to deprive the accused of self-control;
Before there is time for passion to cool.’
He submitted that these three requirements must co-exist before the defence can be made out. He relied on the case of CHUKWU V. STATE (2013) 4 NWLR PT. 1343 AND THE CASE R. V. DUFFY (1949) 1 ALLER 932, WHERE DEVLIN J. defined provocation as:
‘Some act or service of act done by the dead man to the accused which would cause injury reasonable person?a sudden and temporary loss of self control, rendering the accused so subject to passion to make him or her for the moment not master of his mind.
He also relied on the following cases: MUSA V. STATE (2007) 11 NWLR (PT. 1045) Page 281, TSOHO V. STATE (1986) 4 NWLR (PART 38) 710 781 TO 723.
On the 3rd line of defence he argued that the Court should consider the defence of the accused person how ever stupid. He relied on KAVUWA TAKIDA V. THE STATE (1969) 1 ALL NLR 270. A case of culpable homicide under Section 221 of the Penal Code, where the Supreme Court held that it is the duty of a judge to consider any line of defence arising from the evidence whether or not the accused or his Counsel expressly raised it. He argued that there is no doubt on the face of the confession of the Appellant that he committed culpable homicide as defined in Section 220 of the Penal Code. What is to be considered therefore, is whether or not the offence falls under Section 221 of the Penal Code in which case the culpable homicide is punishable with death or whether or not the Appellant could avail himself of any defence under Section 222, or Section 59 to 67 thereof. He relied on the case of THE QUEEN V. OJI (1961) ALL NLR P. 262 at PP. 265-266.
Relying on the case of MANCINI V. DIRECTOR OF PUBLIC PROSECUTIONS (1942) A.C. P.19, he argued that for a defence of provocation to succeed, it must be based on facts, acts or words that caused anger which result in a sudden and temporary lost of self control, whereby malice or intention to kill or inflict grievous harm is negative, as a result of which he commits the unlawful act which causes death, the retaliation of the accused being proportionate to the provocation. He added that the test is objective and not subjective, that is, the effect of such provocation on a reasonable man in the standing or situation in life of the person. He relied on OLADIRAN V. THE STATE (1986) 1 NWLR (PT. 14) P. 75 AT P. 81.
Still on private defence, he submitted that the Onus of proof lies on the Appellant. To take benefit of the defence, he should do no more to hurt his assailant than is necessary for such defence, unless the Appellant believes that it was either he preserves his own life by killing the assailant or the assailant would kill him. He referred to Section 62, 60 and 222 (2) of the Penal Code. He added that private defence will also be considered with the defence of sudden fight in the heat of passion, quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner under Section 221 of the Penal Code. Submitting on ?undue advantage? where in a person who begins a fight in circumstances of undue advantage or position of strength by being better armed, whereas under Section 222(4) the undue advantage may exist not only at the beginning of the fight but also in the course of the fight. He added that it is not undue advantage if the Appellant, as in this case, in the course of the fight possesses himself of the weapon with which the other was armed at the beginning of the fight and immediately uses it on the other party.
He submitted that based on the foregoing, the decision of the trial Court ought to be reviewed in the light of the defence of provocation as self defence. Again he reiterated that any defence raised by the accused however inconsequential must be considered and given attention. He cited the following cases; APISHE V. THE STATE (1971) 1 ALL NLR 53., TAKITA V. THE STATE (1969) 1 ALL NLR 270, WILLWIAM V. IGP (1965) NMLR 470, ASIKOJE V. STATE (2012) LPELR 7918, MAMMAN V. STATE (2017) LPELR-43188 and UMANA & ANOR V. STATE (2018) LPELR 44403. Finally he urge the Court to resolved this issues in favour of the Appellant on the following grounds:
(a) There is evidence before the Court which the Court could use to determine whether there is a defence of private Defence and provocation.
(b) The trial Court did not avert its mind to either of these defence.
(c) Had the Court averted its mind to these defence, the Court could have delivered a different sentence.
The assumption should weigh in favour of the Appellant and the decision of the Court reviewed in that light.
(d) The review should lead to either a reversal of the conviction leading to a discharge and acquittal or a mitigation of the conviction to culpable homicide not punishable with death.
In his own adopted brief of argument the response of the learned Counsel to the Respondent on this issue is that the duty of the trial Court or this appellate Court to consider possible defence to the accused person is never absolute. He relied on ANNABI V. STATE (2008) LPELR 495.
On the contended defence of provocation, he relied on the case of GALADIMA V. THE STATE (2012) 12 SCNJ. 921 at 934 – 935. Where the Apex Court said thus:
‘For a plea of provocation to avail the accused the burden is on him to establish:
(a) The act of provocation was grave and sudden.
(b) He must have been deprived of the power of self control.
(c) The mode of resentment, degree or extent of retaliation must bear a reasonable relationship or proportionate to provocation offered.’
He argued that in this case the Appellant was beaten with cane once. The Appellant left the scene where he was beaten to a house and fetched a knife and came back to meet the deceased and when he came back he stabbed the deceased on the chest. He submitted the three element of provocation were not met in this case.
He referred to the case of THE STATE V. IBE (1965) NWLR 465. He added that the Appellant retaliation to a beating with a mere cane was not immediate and the retaliation was not proportionate to the attack. Therefore the defence of provocation can not avail the Appellant.
On the defence of self defence he argued that for it to avail an accused, it must be in line with the condition laid down in plethora of authorities. He relied on the decision of this Court per J. S. ABIRIYI JCA in the case of BETMAN GIDEON V. THE STATE IN APPEAL NO CA/YL/69C/2016 where the Court said as follows:-
‘The defence of self defence is available only to an accused person who is able to prove that he was a victim of on unpresented assault causing him reasonable apprehension of death or grievous harm. The accused will be entitled to use the said force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm.’
Self defence that will have on impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable.
Again he referred to the case of AFOSI V. THE STATE (citation not supplied) and on that note he submitted that the defence can not avail the Appellant.
Based on the foregoing he urged the Court to uphold justice and dismiss the appeal for lacking in merit and uphold the decision of the trial Court.
Upon my careful reading of all the foregoing, bearing in mind the adopted sole issue of the Appellant which is anchored on grounds 3 and 5, I have discovered that the Appellant failed to register any complaint regarding grounds five in the Notice of Appeal. I herein under reproduce grounds 5 and the sole issue for purposes of clear understanding.
GROUNDS 5
‘The learned trial judge erred in law when he filed to consider the issue raised on behalf of the Appellant as to whether the prosecution have proven the mental element of the offence of culpable homicide punishable with death.’
ISSUES FOR DETERMINATION
“Whether the judgment of the trial Court was in tandem with our jurisprudence in view of the failure of the learned trial Court judge to consider the possible defence open to the Appellant in view of the fact of the case.”
My understanding of the foregoing sole issue is that the learned trial judge failed to consider private defence which is same as self defence and the defence of provocation. By his lone issue the complaint on lack of consideration of mental element of the offence is missing out. The consequence of this is that no issue has been made out of ground five for the determination of this Appeal hence grounds 5 is also deemed abandoned having not been tied to any issue for determination. Ground five therefore is also struck out and arguments there to are discountenanced.
The Court is now left with ground 3 from which the sole adopted issue for determination is distilled. The complaint of the Appellant encapsulated in ground three is that the Court failed to consider the defence of self defence and provocation raised by the Appellant in his finding and that if considered might have changed the conviction under Section 221 of the Penal Code to that under Section 222 of the Penal Code. The said ground 3 is herein under reproduced;
GROUNDS THREE
‘The learned Trial Court judge erred in Law when the Court failed to consider the defence of self defence or provocation as shown from the evidence led at the trial of the Defendant.’
Let me start with the complaint of failure to consider the defence of self defence which is same as the term private defence. Sections 59 & 65 of the Penal Code Law define the phrase private defence and its applicability. I reproduce herein under the two provisions.
SECTION 59 PENAL CODE
Nothing is an offence which is done in the lawful exercise of the right of private defence.?
SECTION 65 PENAL CODE LAW.
When right to private defence extends under the restrictions mentioned in Sections 62 and 63, to the voluntary causing of death only when the act to repelled is of any of the following descriptions,
(a) An attach which causes reasonable apprehension of death or grievous hurt.
Under Section 241 (g) of the Penal Code, grievous hurt is defined as:-
“Any hurt which endangers life or which causes the sufferer to enduring the space of twenty days in severe bodily pain or unable to follow his ordinary pursuit.”
Considering the forgoing the pertinent question is whether the Trial Court considered the defence of private defence in the circumstance of the fact of this appeal and whether the said defence avails the Appellant.
At the trial, the defence of the Appellant is anchored on the substance of his confessional statement tendered and admitted as Exhibit A and A2. It is in these Exhibits that what led to the stabbing of the deceased at the chest with a knife by the Appellant was brought to lime light. In his confessional statement (Exhibit A & A2) the Appellant said, hear him;
“…I could remember on 18/5/2016 at about 0730 hours, one Abdulrahman Kabiru ?M? of Unguwan Gwallaga met me at the frontage of our house, there and then he told me that I have abused him yesterday at sale Manga Primary School football field and I told him that I did not abuse him.
From there, he brought out a cane and beat me upon my hand severally. Due to the severity of his action, I went home and brought a knife and stabbed him on his chest as a result, blood suddenly started coming out from his chest. After that people came and made a crowd and was at the police station Township when information reached me that Abdulrahman Kabiru is dead.”
The foregoing is all that the Appellant said that is before the Trial Court. Other than this, which is a confessional statement admitted without any objection, the Appellant gave no evidence but called one witness as DW1 his uncle. The evidence of D1. Can be found on pages 20 – 22. I herein under reproduce his testimony before the Trial Court. It goes thus:
‘I live in Gwallaga Bauchi, a motor cycle Okada rider. Yes. I know why I am in Court today. I know the Accused person and the Deceased is my son. The Accused person also lives in my house, he is my brother’s son. I was at home when they started fighting then the deceased person took something and beat the Accused person and injured him and the Accused person also retaliated then I separated them but find out that deceased was injured and it was the deceased person that hit the Accused person first and then the victim was taken to hospital; some people took him to hospital on keke Napep but before reaching the hospital the victim died.
There was nothing between them before the incident. The accused is studying at Sa’adu Zungur while the deceased had finished Secondary School.
I am not happy that my son died and also not happy that the Accused was arrested.
Had it been the victim did not start beating the accused, the death could not have been dead. (sic)
I am pleading with the Court to assist and discharge the accused since I had pardon the Accused, they are my sons.
CROSS EXAMINATION
– The victim has died
– As a result of fighting between him and the Accused person his relative.
– The victim died as a result of the injuries he sustained.
– I don’t know what the victim use to beat the Accused person.
– I don’t know the object the Accused use in beating the victim.
– I was there when the incident happened.
– Yes I was at home cleaning my achaba motor cycle when the fighting ensured.
– I was there when the Accused beat the deceased.
– Those that took the victim to hospital returned his body, I did not follow them to the hospital to know whether the Doctor has Certified him dead.? It is from the foregoing and in particular the confessional statement of the Appellant that the issue of self defence was introduced. Probably from that part of the statement where the Appellant said he was beaten severely on his hand and due to the severeness of the beaten he want to fetch a knife from the house and returned and stabbed the deceased on the chest. In this circumstance, the issue of self defence is inferred. Haven said this and considering the position of the Law that every defence by an accused should be considered, this would therefore warrant the Court to look at the judgment of the Trial Court so as to discover whether or not the position of the Appellant was considered. From pages 53, of the record, the Court started the consideration of the ingredient of the offence with which the Appellant was charged. i. e. Culpable homicide. In page 55 paragraph 2 he started considering Exhibit A & A2 from where the issue of self defence is inferred. This Exhibit being a confessional statement was considered in that con. See pages 55 ? 57 Not this alone the Court considered the evidence of the sole witness of the Appellant DW1 who is his uncle and father of the deceased. See pages 57 -58. The issue of the taking of the knife by the appellant was also considered on pages 58. The Trial Court?s conclusion can be found on pages 58 ? 59.
It is the law that in order for the prosecution to secure a conviction for the offence of culpable homicide punishable with death the prosecution must proof the following.
1) That the death of a human being actually occurred.
2) That it was coursed by the act or acts of the accursed.
3) That the act/acts were done with intent of causing death or
4) That the accused knew that death was the probable consequence of his act.
See the following cases OMINI V. THE STATE (1999)12 NWLR (PT. 630) 168, IGAGO V. THE STATE (1999) 14 NWLR (PT. 637) 1, EDOHO V. THE STATE (2010) 14 NWLR (PT. 1214) 651 AND AUDU V. STATE (2003) 7 NWLR (PT. 810) 516.
From the facts before the Court, it is not in doubt nor was it contested that the ingredient of the offence herein before are not established at the trial. What now is in contest is the inferred defence of self defence. For a successful plea of the defence by an accused charged with an offence of culpable homicide punishable with death under the Penal Code, the following must be established by credible evidence (underline is mine).
(1) That his life was actually threatened or and angered by the acts of the deceased;
(2) That the only option that was opened to him to safe his own life was to use force which was necessary on the deceased at the material time;
(3) That amount of force used on the deceased was proportionate to the threat or danger posed by the act of the deceased;
(4) That he did not take an undue advantage of the deceased in the process of saving his own life from the danger or threat posed by the deceased;
(5) Show that he did not want to fight and that he was at the material time prepared to withdraw from the danger posed to his life by the deceased. See the following cases: NWUZOKE V. THE STATE (1988) NWLR (PT.727) 529, STEPHEN V. STATE (1986) 5 NWLR (PT.46) 979 AND OKONJI V. STATE (1987) 3 SC 175.
From the records, there is no where any scetilla of evidence from the Appellant viva voci raising this defence can be found other than his confessional statement. This is why I said some where in this judgment that the defence was inferred. The requirement of the law is that the foregoing preconditions must be established by credible evidence. Apart from the confessional statement of the Appellant, Exhibit A. A 1, and the evidence of DW1 which did not lay down any of the preconditions, in no where is the issue of the defence was raised. Therefore, the non specific mention of it by the Trial Court cannot be termed to be failure of the Court to consider the defence. For the Court to consider the said defence, same must be raised by credible evidence and not inferred nor raised in the written address or brief by Counsel. Where it is not raised by evidence there will be nothing before the Court to consider. It is trite that something can not be put on nothing, it will collapse like pack of cards. See the cases of SKEN CONSUL (NIG) LTD V. UKEY (1981) 1 SC 6, BILANTE INT?L. LTD V. N.D.I.C. (2011) ALL FWLR (PT. 598) 804 at 825, MACFOY V. UAC. (1962) AC 152 and ONAYEMI V. IDOWU (2008) 9 NWLR (PT. 1092) 306.
In the light of the foregoing, the Court cannot be found wanting nor accused of failure to consider a defence not raised in evidence nor by credible evidence.
What is next is the defence of provocation. A plea of provocation unlike that for plea of self defence which may exonerate an accused from culpability, the plea if successful will reduce the offence of murder to manslaughter. Since the consequence, is not the same hence their requirement are also not same. For a successful plea of provocation the accused must establish in evidence the foregoing:
1) There was sudden act of provocation by or from the deceased.
2) That he lost self control as a result of the provocation.
3) That he reacted in the feat of passion and before there was time for his passion to cool, and
4) That the acts were proportional to the provocation.
See the following cases OLADIRAN V. STATE (1986) 1 NWLR (PT. 14) 75, UKWUNNENYI V. THE STATE (1989) 4 NWLR (PT. 114) 131, BARUWA V. STATE (1992) 1 NWLR (PART 219) 511, EDOHO V. STATE (2010) 14 NWLR (PT. 1214) 651 and URAKU V. STATE (1976) 6 SC 128.
Again, considering the circumstance of the fact of this case and the confessional statement of the Appellant vis a vis the evidence of DW1, the uncle of the Appellant, there is nothing suggesting the presence of any of the four conditions for the successful plea of provocation in this appeal. Like the plea of self defence, this defence of provocation can also not be traced to any evidence from the Appellant and his sole witness. There is therefore no evidence before the Court laying the foundation for the applicability and consideration of the plea of provocation.
In the event that my conclusion on the two arms of the defence raised is not correct, the fact of the circumstance that led to the stabbing of the deceased also is not in favour of the Appellant. It is on record and in the confessional statement of the Appellant and that of his sole witness DW1, that after the alleged canning by the deceased on his hand, he went into the house, fetched a knife, returned to the deceased and stabbed him in the chest and which led to the death of the deceased.
For him to enjoy this defence of self defence the Onus of proof lies on the Appellant. He is not expected to do more to hurt his assailant than is necessary for such defence. In the instant appeal and as I said before, the Appellant left the place where he was canned, went into the house to fetch a knife, returned to meet the deceased who canned him and stabbed him on the chest. This led to the death of the deceased. One cannot compare a knife to be proportionate to a cane. He did not attack the deceased with a cane on the hand or leg but with a knife on the chest which in my view is a very sensitive part of the body. The Appellant again has not shown that anything happened to his hand as a result of the strokes of cane he received to warrant a retaliation with stabbing with a knife. The act of stabbing is outrageous and most unreasonable in the circumstance. I accordingly so hold.
In the over all consideration of the forgoing, I resolve this issue against the Appellant and in favour of the Respondent.
The appeal therefore, is devoid of any merit and same be and is hereby dismissed.
The judgment of the High Court of Justice Bauchi State in Suit No: BA/52C/2016 delivered on 10th day of October 2017, coram Hon. Justice S. I. Zadawa is affirmed.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the judgment just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the conclusion reached in dismissing the appeal.
I also affirm the judgment of the High Court of Bauchi State delivered 10th October, 2017 by S.l. Zadawa, J. in Suit No. BA/52C/2016.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Mudasiru Nasiru Oniyangi, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with and abide by the conclusion reached therein.
The core complaint of the Appellant in this appeal is that the lower Court failed to consider the defences of self-defence and provocation that were available to him on the evidence led at the trial. It is a settled principle that in all cases attracting capital punishment, it is incumbent on the Court to consider all the defences put up by the accused person, express or implied, in the evidence before the Court. No matter the level of the defences whether they are full of figments of imagination, fanciful, replete with porous lies or even doubtful, the Court must not be wary to give them due consideration. Thus, if from the totality of evidence, a particular defence avails an accused person in a criminal matter, he should be given the benefit of that defence notwithstanding the fact that he did not specifically raise it.
However, the Court is only under an obligation or duty to consider such defences open to an accused person as disclosed or supported by the evidence on the printed record. A Court of law will not presume or speculate on the existence of facts not placed before it – Ani Vs State (2003) 11 NWLR (Pt 830) 142, Yaro Vs State (2007) 18 NWLR (Pt 1066) 215, Shalla Vs State (2007) 18 NWLR (Pt 1066) 240, Edoho Vs State (2010) 14 NWLR (Pt 1214) 651.
Thus, the question that arises is whether there was any available evidence in the cases presented before the lower from which the defences of self-defence and/or provocation were deducible? I will start with self-defence.
By Section 222 (2) of the Penal Code, culpable homicide is not punishable with death if the offender, in the exercise of good faith of the right of private defence of a person or property, exceeds the powers given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. For the defence to avail an accused person, however, he must not be the aggressor in the first instance. He must have acted in good faith without premeditation and intention of doing more harm than necessary and the act of the deceased must be sufficient to excite in the accused person a reasonable apprehension of imminent danger of death or grievous harm to justify using appropriate defence. The conditions that must be satisfied by an accused person to be availed by the plea of self defence are (i) the accused must be free from fault in bringing about the encounter; (ii) there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity; (iii there must be no safe or reasonable mode of escape by retreat; and (iv) there must have been a necessity for taking life. All these conditions must co-exist and be established for the defence to be sustained – Musa Vs State (2009) 15 NWLR (Pt 1165) 467, Jeremiah Vs State (2012) 14 NWLR (Pt. 1320) 248.
It is not enough for an accused person to rely on the defence of self-defence without leading credible evidence to show the circumstances under which he is claiming self defence to exculpate him from the offence of culpable homicide punishable with death – Odunlami Vs Nigerian Navy (2013) 12 NWLR (Pt. 1367) 20. In Nwuzoke Vs State (1988) NWLR (Pt. 72) 529, the Supreme Court explained the defence of self defence thus:
‘One point that must be emphasized with respect to the defence of self defence in cases of murder in our law is that it is a child of necessity. It is available to a defendant only when he proves that he was at the time of the killing in reasonable apprehension of death or grievous harm and that it was necessary at the time to use force which resulted in the death of the deceased in order to preserve himself from the danger.
The force used by the defendant must also be shown to be proportionate to the force used or imminently threatened against him and reasonable in the circumstances in which it was used. There must be reasonable grounds for the accused person to believe that the only way he could escape death or grievous bodily harm to himself was to kill the assailant.’
Reading through the records of appeal, the Appellant did not testify in his defence and there was nothing stated by the sole defence witness to suggest that at the time the Appellant stabbed the deceased in the chest he was under reasonable apprehension of death or grievous body harm from the deceased. In the confessional statement, Exhibit A, the Appellant stated that on the day of the incident, the deceased met him in the front of his house and
“…. there and then he told me that I have abused him yesterday at Sale Manga Primary School football field and I told him that I did not abuse him. From there, he brought out a cane and beat me upon my hand severally. Due to the severity of his action, I went home and brought a knife and stabbed him on the chest as a result blood suddenly started him coming out from his chest…”
There is obviously no suggestion in this statement that the Appellant was under a reasonable apprehension of death or grievous body harm from the deceased as at the time he stabbed him. The defence of self-defence was not available to the Appellant from the evidence on the records. Thus, the failure of the lower Court to consider the defence was of no moment.
This takes us to the defence of provocation. It is provided for under Section 222 (1) of the Penal Code and to constitute a defence under the section, provocation must be grave and sudden as to deprive the accused of the power of self-control. It must be established not only that the act was done under the influence of some feeling which took away from the person doing it all control over his action, but that that feeling had an adequate cause. It must be understood that not all provocation will reduce the crime of murder to manslaughter. The test to be applied is that of the effect of provocation on a reasonable man so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the tests in the defence of provocation, it is of particular importance to (a) consider whether sufficient interval has elapsed since the provocation to allow a reasonable man time to cool; and (b) take into account the instrument with which the homicide was effected, for to retort in the heat of passion induced by provocation by a simple blow is a very different thing from making use of a deadly instrument like a concealed knife, and the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter – Musa Vs State (2007) 11 NWLR (Pt. 1045) 202, Shalla Vs State (2007) 18 NWLR (Pt 1066) 240.
In other words, under our criminal jurisprudence, provocation which is not at large and which will reduce what would otherwise amount to murder to manslaughter, is a legal concept which is made up of a number of elements which must co-exist within a reasonable time. They are: (a) the act of provocation was done in the heat of passion; (b) the loss of self-control, both actual and reasonable, occurred before there was time for cooling down; and (c) the retaliation is proportionate to the provocation.
In other words, where a person who unlawfully kills another, does the act which causes death in the heat of passion caused by grave and sudden provocation and before there is time for passion to cool down and the act causing death is proportionate to the provocation, he is guilty of manslaughter – Uraku Vs State (1976) 6 SC 195, Nwede Vs State (1985) 3 NWLR (Pt 13) 444, Ahmed Vs State (1999) 7 NWLR (Pt 612) 641, Shalla Vs State (2007) 18 NWLR (Pt 1066) 240, Edoho Vs Sate (2010) 14 NWLR (Pt 1214) 651. It is trite that in order to establish the defence of provocation, it is the duty of the accused person to adduce credible and positive evidence to support the allegation of provocation – Akalezi Vs State (1993) 2 NWLR (Pt 273) 1, Kaza Vs State (2008) 2 SCNJ 373, Galadima Vs State (2013) 3 NWLR (Pt 1333) 610, Afosi Vs State (2013) 13 NWLR (Pt 1371) 329.
Again, as stated above, the Appellant did not testify in the lower Court and he gave no evidence to support the defence of provocation and neither did the testimony of the sole defence witness contain any such evidence. The above reproduced contents of the confessional statement, Exhibit A, shows that the Appellant did not act in the heat of passion brought on by a grave and sudden provocation before the passion had time to cool. The alleged act of provocation from the deceased had ceased before the Appellant vent into the house to get a knife to stab the deceased in the chest. This was a premeditated act, and was not one caused by sudden provocation. The defence of provocation was thus also not open to the Appellant on the evidence on record and failure of the lower Court to consider the defence was of no moment.
It is for the above reason and the fuller exposition of the law in the lead judgment that I agree that there is no merit in the appeal. I too hereby dismiss the appeal and affirm the judgment of the High Court of Bauchi State delivered by Honorable Justice S. I. Zadawa in Charge No HC/BA/52/2016 delivered on the 10th of October, 2017.
Appearances:
For Appellant(s)
H. I. Magaji, Eqs. (SSC, Ministry of Justice Bauchi State)For Respondent(s)
