SHUAIBU FULANI ABDU v. THE STATE (2015)

SHUAIBU FULANI ABDU v. THE STATE

(2015)LCN/7839(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of March, 2015

CA/K/442/C/2013

RATIO

CRIMINAL LAW: THE DEFENCE OF PROVOCATION; WHAT IS PROVOCATION, WHAT THE ACCUSED PERSON MUST ESTABLISH TO AVAIL HIMSELF OF THE DEFENCE OF PROVOCATION, WHAT THE COURT CONSIDERS IN DETERMINING WHETHER THERE WAS PROVOCATION AND WHICH OF THE PARTIES HAS THE BURDEN OF ESTABLISHING PROVOCATION

Provocation is an action or conduct which arises suddenly in the heat of anger. Such action or conduct is predicted by resentment, rage or fury on the part of the accused person to the person that offered the provocation and because of the anger, resentment or fury, the accused person suddenly and temporarily loses his passion and self control which result in the commission of the offence. The defence of provocation is only available to an accused person who did the killing in the heat of passion before there is time to cool down. For an accused person to avail himself of the defence of provocation, he has to establish by evidence the following conditions;
a. that the act of provocation is grave and sudden;
b. that the accused lost self control, actual and reasonable;
c. the degree of retaliation by the accused must be proportionate to the provocation offered.
See the following cases;
UWAGBOE v. STATE (2008) 12 NWLR (PT.1102) PG.621 AT 638
KAZA v. STATE (2008) 7 NWLR (PT.1085) PG. 125 AT 171- 172. It is trite law that in determining whether there was provocation, the Court will consider whether a reasonable man in the street or situation of the accused would have been provoked to commit the offence. See; KAZA v. STATE (SUPRA) AT 181-182. The defence of provocation by its nature must be predicated upon the evidence accepted by the Court. The burden of establishing provocation lies on the accused person. See; SHALLA v. STATE (2007) 18 NWLR (PT.1066) PG 240 AT 291. In the instant case the Appellant did not raised any defence of provocation and there was no evidence in the record of proceedings to avail the appellant of the defence of provocation. per. ABDU ABOKI J.C.A.

CRIMINAL LAW: THE DEFENCE OF PROVOCATION; WHETHER IT IS ALL PROVOCATION THAT WILL REDUCE THE OFFENCE OF MURDER TO MANSLAUGHTER

It is not all provocation that will reduce the offence of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self control, as the result of which he committed the unlawful act which causes death. per. ABDU ABOKI J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

In criminal proceedings the burden is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt and the burden never shifts. The prosecution has the duty to prove all the ingredients of the offence charged beyond reasonable doubt and no more. The standard of proof is such that if there is any doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See: OMOGODO v. STATE (1981) 5 SC 5;
AMODU v. STATE (2010) 2 NWLR (PT.1177) PG.47 AT 68-69. per. ABDU ABOKI J.C.A.

EVIDENCE: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

EVIDENCE: STANDARD OF PROOF; WHETHER BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ALL SHADOW OF DOUBT

The expression beyond reasonable doubt does not mean proof beyond all shadow of doubt, it simply means that the evidence of the prosecution against an accused person must be strong and direct, leaving no remote possibility which can be dispensed with. In other words the prosecution is required to produce positive and credible evidence which must be direct that a Court could safely rely on it to decide the case. See the cases of; AMODU v. THE STATE (2010) 2 NWLR (PT.1177) PG.47 AT 69. ADETOLA v. THE STATE (1992) 4 NWLR (PT.235) PAGE 267;
MBENU v. STATE (1988) 3 NWLR (PT.84) PAGE 615. per. ABDU ABOKI J.C.A.

JUSTICES:

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

SHUAIBU FULANI ABDU – Appellant(s)

AND

THE STATE – Respondent(s)

ABDU ABOKI J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Jigawa State High Court of Justice delivered on 29th March, 2012 by Nana Aisha Abdullahi J.

The brief facts of the case are as follows;-
The Appellant was charged with the offences of culpable homicide punishable under Section 221 (b) of the Penal Code CAP 107 Laws of Jigawa State, Laws of Jigawa State 1998.

The accused person was alleged to have caused the death of one SALE KURMA by stabbing him with matchet on his head and hand. The deceased died as a result of injuries he sustained. The offence was alleged to have been committed at Farin Duste village in Gwaram Local Government Area of Jigawa State on or about the 16th day of March 2010.

The prosecution called three (3) witnesses to establish its case against the accused person.

The Defendant gave evidence in person and did not call any other witness in his defence.

At the end of the trial, the learned trial judge found the accused person guilty as charged and sentenced him to death. Peeved by this decision of the trial Court, the convict appealed to this Court

pursuant to his Notice of Appeal dated 8th November, 2013 containing nineteen (19) grounds of appeal.

In accordance with the Rules of this Court the parties filed and exchanged their briefs of argument in this appeal.

In the Appellant’s brief of argument prepared by Nassir Abdu Dangiri Esq a lone issue is distilled for the determination of this appeal from the nineteen grounds of appeal raised in his notice of appeal. The issue reads as follows:-
“Whether from the facts and circumstances of this case the prosecution has proved its case beyond reasonable doubt against the Appellant”

The Respondent in its brief prepared by M.A Lamin Esq distilled two issues from the Appellant’s grounds of appeal No. 17 and 13. The issues are adumbrated as follows;
1. Whether the prosecution from the circumstances of this case succeeded in proving the offence of culpable homicide punishable with death beyond reasonable doubt against the Appellant.
2. Whether the defense of provocation was available to the Appellant and whether same will avail him.

I have examined the issues formulated by the parties; it is my view that the two issues formulated

by the respondent could be subsumed into the lone issue formulated by the appellant. Therefore, the lone issue distilled by the Appellant is adopted in the determination of this appeal.

Learned Appellant’s counsel submitted that in convicting the Appellant for the offence he was standing trial, the learned trial judge after evaluating the evidence of the prosecution witnesses and the defence, discountenanced all the defences available to the Appellant and held at pages 73-74 of the record of the appeal that:
“From the foregoing, it clearly shows that the action of the accused was not instantaneous in that he did not personally see Saleh Kurma when he was having sexual intercourse with his wife. He was only told which could equally be termed as hearsay”.

He referred the Court to page 73 of the printed record where the learned trial judge held as follows:
“In the instant case though the accused in Exhibits 1 and 1A based his action on what his wife Bilki told him that:
“One Saleh Kurma of Kayal Bode Village Area of Gwaram attacked her and used force on her and have sexual intercourse with her and went away.
From thereafter some

days I met with one Dadjo and told him to go and warn Saleh Kurma and Amoloke to stop chasing my wife Bilki….” From there, on 5/10/2009 at about 2400 hrs I took my cutlass and went to Saleh Kurma House”.

He submitted that it is clear from the appellant’s extrajudicial statement that he had at the earliest opportunity raised the defence of provocation that the deceased forced his wife to have sexual intercourse with him and that he told one Dadjo to go and warn the deceased and Amoloke to stop chasing his wife.

He maintained that based on the social background of the Appellant as a cattle rearer and was staying in a village, it is not clear from the printed record whether the police and the prosecution investigated the thorny issues raised in his extra judicial statement. And as if that is not enough, the police witness (PW3) through whom the extra-judicial statement of the Appellant Exhibit 1 and 1A were tendered admitted under cross examination at page 26 of the printed record as follows:
“I cannot remember the No. of witnesses I called in the course of my investigation. I recorded the statement of some witnesses. The people mentioned in the

statement of the accused were called to give evidence in cause of my investigation. The wife of the accused was also invited. The statement of the witnesses which I recorded is all in the case diary”.

He submitted that yet, for reasons best known to the prosecution and the police, the case diary was not tendered before the Court. He contended that this is a clear case of the prosecution withholding evidence and failure to proper cause investigation into the matter.

He insisted that even if investigation was caused into the allegation contained in the extra-judicial statement of the Appellant, none was produced before the trial Court in the interest of justice. This he submitted has occasioned a miscarriage of justice against the Appellant.

He argued that when prosecution was being cross-examined by the learned defence counsel, attempt was made to retrieve the statement of PW1 which was in the case diary. And surprisingly, the learned prosecution counsel objected and had to be overruled. He referred the Court to the proceedings at page 5 of the printed record.

He submitted that considering the social background of the accused, being Fulani

cattle rearer, who holds his wife very dear. The evidence disclosed clearly raises the defence of provocation. He referred the Court to Section 222 (1) of penal code of Jigawa State which provides thus:
“Culpable homicide is not punishable with death of the offender whilst deprived of power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident”.
Explanation:-Whether the provocation was enough to prevent the offence from amounting to culpable homicide punishable with death is a question of fact”.

Learned counsel submitted that the learned trial judge ought to have given serious consideration as to why the Appellant who was not described as insane or abnormal by PW1 and PW2 who claimed to have known the Appellant should attack the deceased for no apparent reason. He contended that had the learned trial judge considered all the pieces of evidence he could not have escaped coming to the conclusion that there were exchanges between the deceased and the Appellant which resulted in a fight.

He contended that the law does not tabulate

the acts that are likely to cause or produce provocation, but it is concerned with the creation and existence of provocation, and what acts constitute provocation under Section 222 (1) of the Penal Code is a question of fact as provocation may be verbal or physical or both. He referred the Court to the case of LADO v. THE STATE (1999) SCNJ 1 AT PAGES 8-11.

Learned counsel submitted that, it is also the law that where there is a fight between the deceased and the Appellant as it is in the instant case, then the deceased is deemed by law to be the aggressor. He referred the Court to the case LADO VS THE STATE (supra) at page 10 where Wali JSC (as he then was) stated thus:
“Where there is a possibility of a presumption one way or the other as to what brought about the clash between the accused and the deceased as in this case, the presumption is that the deceased must have been the aggressor. See R v Amadu Adamu 10 W.A.C.A 161″.

He maintained that the learned justice of Supreme Court went further at the same page 10 of the law report to hold thus:
“….it is pertinent to bear in mind that where two primitive propel (like the deceased and

the Appellant in this case) are engaged in a fight with lethal weapons, it is “apt to make a thorough job of it and this does not necessary show that he was not bound to kill in order to save his own life.” See R v Amadu Adamu (supra).
Once there is evidence of provocation either from the prosecution or from the defence, the onus is on the prosecution to prove the absence of such provocation. See R v. Macpherson (1957) 41 Cr App R 213…”

He referred the Court to the case of KRUWA TAKIDA v. THE STATE (1969) ALL NLR 260 and argued that this could have led him to have considered the issue of provocation as provided in Section 222 of the Penal Code.

Learned counsel contended that the failure of the learned trial judge to apply the principles in Lado v. The State (supra) to the facts and circumstances of this case has occasioned miscarriage of justice against the Appellant; for the defence of provocation has been properly raised in the extra judicial statement of the Appellant.

He insisted that there are some lapses in the investigation of the episode by the prosecution as well as the evidence presented to prove the charge under Section 221

of the penal code. He referred the Court to the cases of AREMU v. THE STATE (1984) ALL NLR 314 AT 316 LADO v. THE STATE (SUPRA)

Learned counsel submitted that in the present case irrespective of whether the accused/Appellant gave evidence on his own behalf or not, the accused person can also rely on evidence of provocation that can be seen or that is in the testimonies of the prosecution witnesses. He placed reliance in the case of; LADO v THE STATE (SUPRA) AT P.10 where the Court held thus:
“Once there is evidence of provocation either from the prosecution or from the defence, the onus is on the prosecution to prove the absence such provocation. See R v. Mcphercon (1957) 41 CR app. R 213″.

He insisted that had the learned trial judge properly considered the defence of provocation proffered, he would have sentenced the Appellant to a term of imprisonment instead of death by hanging and he urged the Court to so hold.

Learned Respondent’s counsel on the other hand submitted on behalf of the respondent that for prosecution to be said to have successfully proved the offence of culpable homicide punishable with death under Section

221(b) of Penal Code, it must establish by way of proof the essential ingredients of the said offence beyond reasonable doubt against the Appellant as pronounced by superior Courts of record in plethora of cases. He referred the Court to the case MUSA v. STATE (2009) 15 NWLR (PT.1165) 467 AT 486, where the said ingredients are succinctly listed as follows:
(i) That the death of a human being has actually taken place;
(ii) That such death was caused by the accused;
(ii) That the accused knew or had reason to know that death would be the probable and not only likely consequence of his act.

Learned counsel also referred the Court to the following cases;
OCHEMAJE v. STATE (2008) 15 NWLR (PT. 1109) 57 AT 86:
STATE v. AZEEZ (2008) 14 NWLR (PT. 1108) 439 AT 477 AND
ADAVA v. STATE (2006) 9 NWLR (PT. 984) 152 AT 167.

He submitted that, in its attempt to prove the first ingredient i.e the death of human being, the prosecution led evidence through PW1 and PW2 who both stated in their evidence before the lower Court that they found the deceased with serious cuts and in pool of his blood and the deceased was taken to hospital where

he died.

He referred the Court to PW1’s testimony where he stated thus:
“I was at my house when I came to Saleh’s house and find that he was stabbed at 3 places, on the head, hand and shoulder. He was alive I got a vehicle and conveyed him to the hospital at B/Kudu, the Federal Medical Center. The wounds were stitched but by around 8 am he died. It is eleven months now since Saleh died. When his death was confirmed, the DCO Gwaram Police Post was called. He took us along with the corpse of Saleh to Gwaram. He got buried according to Islamic rites”

PW2 also stated thus:
“I was at my house at Gwamsai, when at about 3:
am one Mai Unguwa Ilyasu sent his brother to come and call me, to come and see what happened to Saleh. We came together and found Saleh in pool of blood…the doctors there referred us to b/kudu FMC…Saleh was then admitted. The wounds on his head was (sic) stitched. While that on his shoulder was being stitched he gave up the Doctor informed us so…we requested for release of the corpse for burial”

Similarly, the medical report which was tendered by the prosecution and admitted by the Court and marked exhibit No.

3 shows that the deceased had died.

Learned counsel urged the Court to hold that the prosecution proved the first ingredient beyond reasonable doubt, since none of the above mention pieces of evidence was contradicted or discredited by the Appellant during the trial.

On the second ingredient i.e that it is the accused that caused the death of the deceased, he contended that the prosecution had established it through the best evidence in criminal trials as stated in the case of ADIO v. STATE (1986) 2 NWLR (PT. 24) 581 at 593 that is the confessional statement of the accused person. He also referred the Court to the case of; AKPA v. STATE (2008).

He submitted that the said statement was tendered and admitted as Exhibit 1 and 1A wherein the Appellant categorically described how he stabbed the deceased with a cutlass on his shoulder resulting in serious injuries which led to the death of the deceased.

Learned counsel maintained that a confessional statement which is direct, positive and voluntary and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence. He referred the Court to the cases of;
EMEKA

v. STATE (2001) 5 MJSC 1 at 62.
NWACHUKWU v. STATE (2007) 17 NWLR (PT. 1067) 341.

Learned counsel maintained that in the instant case the confessional statement of the Appellant though challenged during the trial, yet the trial Court overruled the objection and admitted the statement. He referred the Court to page 18 of the printed record.

The said cutlass was admitted in evidence without any objection and marked Exhibit as 2. He also referred the Court to page 25 of the printed record.

Learned counsel submitted that based on the confessional statement, it is obvious that the prosecution had proved the second ingredient of the offence beyond reasonable doubt. He urged the Court to so hold.

On the third ingredient, learned counsel rely on the confessional statement of the Appellant Exhibit 1 and 1A at page 76-79 of the printed record.

He argued that in the said statement the Appellant admitted that he stabbed the deceased with cutlass on his hand and shoulder. Further PW1 in his evidence in chief stated that after the Appellant’s attack on the deceased, he found the deceased stabbed in three places, on the head, hand and

shoulder.

Learned counsel contended that it is very clear that the Appellant intended causing bodily injury to the deceased.
He argued that, whether the Appellant knew or had reason to know that death would be the “probable” and not “likely” consequence of the bodily injury he caused to the deceased could only be answered after having recourse to the definition of the words “likely” and “probable”.

He referred the Court to Section 19 (1) of the Penal Code where “likely” is defined thus:
“An act is said to be “likely to have a certain consequence or to cause a certain effect if the occurrence of that consequence would cause no surprise to a reasonable man”.

While the term “probable” is defined under Section 19 (2) thus:
“An effect is said to be probable consequence of an act if the occurrence would be considered by a reasonable man to be the natural and normal effect of the act”.

He submitted that from the above definition of the two terms, whether an act or effects is likely or probable to cause death is a question of fact to be determined by taking into consideration all the facts and evidence adduced before the Court.

He maintained that in determining whether culpable homicide is punishable with death the relevance of the weapon used comes to fore. Consideration is given to the nature of the weapon used, its weight and size. He referred the Court to the case of; MICHEAL v. STATE (2008) 13 NWLR (PT. 1104) 361 at 377.

He insisted that in the instant case the Appellant used a deadly weapon (cutlass) to stab the deceased, which affected the right radius and ulna bones according to the medical report (Exhibit 3) at page 80. He contended that this clearly shows the Appellant intends the natural consequence of his act which is the killing of the deceased.

Learned counsel submitted that the proof of intention in culpable homicide has always been difficult to establish with direct evidence. Except where the accused confessed orally that his intention was to kill, the proof of intention has always been through inference and circumstantial evidence.
He placed reliance on the case of; AREBAMEN V. STATE (1972) 7 NSCC 194 at 200 where the Court held thus:
“intent is of Course difficult to prove affirmatively without a confession from the accused and can frequently

only be determine by looking at all the surrounding circumstances and deciding therefrom whether the natural inference is that such must have been the intention. A material factor must be the action or conduct of the accused”.

He urged the Court to answer the first issue in positive and hold that the prosecution had proven the case against the Appellant beyond reasonable doubt.

Learned Respondent’s counsel submitted that the Appellant’s counsel also placed heavy reliance on the case of LADO v. STATE (1999) 9 NWLR (PT. 619) 369 and contended that, the Appellant had at the trial raised the defence of provocation and the onus was on the prosecution to negate the defence which they (prosecution) did not do.

He maintained that the Appellant’s counsel under paragraphs 4.02 and 4.03 of his brief of argument submitted that the Appellant had at the earliest opportunity raised the defence of provocation.

He argued that it is settled principle of law that the burden of establishing the defence of provocation lies squarely on the shoulders of the accused person. He referred the Court to the case of; SHALIA v. STATE (2007) 18 NWLR (PT. 1066) 240 AT

291.

Learned counsel maintained that from the records of the lower Court there is nothing to suggest that the Appellant had raised the defence of provocation. He maintained that the Appellant should have raised it during his defence when he testified as DW1 but he rather chooses to deny the charge against him. He refers the Court to pages 36-40 of the printed record.

He contended that the case of LADO (supra) could easily be distinguished from the instant case. He maintained that in Lado’s case the Court is of the view that once evidence of provocation is established, then the onus is on the prosecution to prove absence of such provocation. While in the instant case it is the Appellant that is alleging the presence of provocation which has not been established before the Court.

He submitted that in the case of YARO v. STATE (2007) 18 NWLR (PT. 1066) 215 at 233, the Supreme Court stated inter-alia thus:
“The defence of provocation like all other defences cannot hang on the air without supporting evidence. Nor can it be built on scanty foundations. In order to establish it, it is the duty of the accused person to adduced credible or

positive evidence to support the alleged provocation”.

He contended that the Appellant’s claim is therefore belated and he urged the Court to so hold.

Learned counsel submitted further that, assuming the argument of the Appellant counsel under paragraphs 4.02, 4.03 and 4.04 of the Appellant’s brief of argument holds water, the question is could that be said to have constituted valid defence of provocation? In answering the above poser he maintained that recourse would first be made to the provisions of Section 222 (1) of the Penal Code which provides thus:
“Culpable homicide is not punishable with death if the offender whilst deprived of power of self control by grave and sudden provocation causes the death of the person who gave the provocation or Causes death of any other person by mistake or accident”

He maintained that whether provocation was grave and sudden enough to prevent the offence from amounting to culpable homicide not punishable with death under Section 222 (1) of the Penal Code, the Accused person must establish the ingredients therein, which are:
(a) That the act of provocation was grave and sudden:
(b) That he lost

self control, actual and reasonable:
(c) That the degree of retaliation from him was proportionate to the provocation offered.

He referred the Court to the case of; SHALLA v. STATE (2007) 18 NWLR (1066) pg 240 at 272-273.

Learned counsel submitted that the Appellant’s counsel argued that a portion in the Appellant’s confessional statement which was admitted and marked Exhibit A and A1 respectively on pages 76-79 of the printed record constituted the provocation. He reproduces it thus:
“in the instant case even though the accused based his action on what his wife Bilki told him that: ‘ one Saleh Kurma of Kayal Bode Village Area of Gwaram attacked her and used force on her and had sexual intercourse with her and went away. From thereafter some days I met with one Dadio and told him to go and warn Saleh Kurma and Amoloke to stop chasing my wife Bilki from there on 5/10/2009 at about 2400hrs I took my cutlass and went to Saleh Kurma House”.

He contended that it is very clear the act of the Appellant was not sudden in other words it was not instantaneous. As there was ample time for his passion to cool.

He maintained that, the act of

the deceased which would have constituted the provocation was a mere hearsay. He submitted that it is now settled law that an act of provocation based on hearsay could not avail an accused person with the defence. He referred the Court to the case of; SHALLA v. STATE (supra) Pg 273.

Learned counsel urged the Court to answer the second issue for determination in negative, affirm the conviction and sentence of the Appellant and discountenance with the argument of the Appellant counsel as contained in his brief of argument.

For an accused person to avail himself of the defence of provocation, he has to establish by

evidence the following conditions;
a. that the act of provocation is grave and sudden;
b. that the accused lost self control, actual and reasonable;
c. the degree of retaliation by the accused must be proportionate to the provocation offered.
See the following cases;
UWAGBOE v. STATE (2008) 12 NWLR (PT.1102) PG.621 AT 638
KAZA v. STATE (2008) 7 NWLR (PT.1085) PG. 125 AT 171- 172.

It is trite law that in determining whether there was provocation, the Court will consider whether a reasonable man in the street or situation of the accused would have been provoked to commit the offence. See; KAZA v. STATE (SUPRA) AT 181-182.

The defence of provocation by its nature must be predicated upon the evidence accepted by the Court. The burden of establishing provocation lies on the accused person. See; SHALLA v. STATE (2007) 18 NWLR (PT.1066) PG 240 AT 291. In the instant case the Appellant did not raised any defence of provocation and there was no evidence in the record of proceedings to avail the appellant of the defence of provocation.

In the instant case the appellant himself in his voluntary confessional statement Exhibit 1

and 1A from which his counsel says the defence of provocation can be inferred said as follows;
“… I could remember sometimes this year 2009, my wife Balki coming back home from Gwaram Town and myself following her back, but with a distance. From there I met her on the way before reaching home and ask her why she did not reach home up to that time, she told me that it is one Sale Kurma of Kayal Bode village Area of Gwaram that attack her and used force on her and have sexual intercourse with her and went away. From there after some days I met with one named Dadjo … and told him to go and warned Sale Kurma and Amoleke to stop chasing my wife Balki.… From there sometimes the same year one named Iliyasu…. organized a traditional play of his daughter, where Sale Kurma went and told one Shadai….that he attack my wife Balki and have sexual intercourse with her and Shadai come and informed me of what Sale told him…from there on 5-10-2009 at about 2400hrs I took my cutlass and went to Sale Kurma’s house… I cut him on his shoulder and his hand with the cutlass…the following day 6-10-2009 I heard that sale whom I cut him with cutlass

died….”

From the above statement it must have taken sometime in between after Shadai told the appellant what the deceased told him on 5-10-2009 to the next day when the appellant stabbed the deceased. In the interval should the power of self control have eluded the appellant even if what he was told was enough to provoke him? I do not think so.

In the instant case the trial Court in its judgment at pages 73 and 74 of the printed record properly considered the defence of provocation raised by the accused person and there was no provocation that deprived the appellant of the power of self control.

The standard of proof is such that if there is any doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See:
OMOGODO v. STATE (1981) 5 SC 5;
AMODU v. STATE (2010) 2 NWLR (PT.1177) PG.47 AT 68-69.

In the instant case the prosecution called 3 witnesses and tendered 3 Exhibits to prove its case. Exhibit 1 and 1A is the confessional statement of the Appellant.

The contention of the Appellant under this issue is that the prosecution failed to prove beyond reasonable doubt the offence of culpable homicide against the Appellant.

It is settled that the guilt of an accused person can be proved by:
a. The confessional statement of the accused;
b. Circumstantial evidence, or
c. Evidence of eye witness of the crime.
In the instant case there is a confessional statement of the Appellant which is direct, positive and admitted by the trial Court.

can be dispensed with. In other words the prosecution is required to produce positive and credible evidence which must be direct that a Court could safely rely on it to decide the case. See the cases of;
AMODU v. THE STATE (2010) 2 NWLR (PT.1177) PG.47 AT 69.
ADETOLA v. THE STATE (1992) 4 NWLR (PT.235) PAGE 267;
MBENU v. STATE (1988) 3 NWLR (PT.84) PAGE 615.
In the instant case the evidence before the trial Court drowns the presumption of innocence of the Appellant and the Court is entitled to convict him.
In criminal case, if the evidence adduced by the prosecution is adequate in implicating an accused person as in the instant case, the prosecution would then have succeeded in proving the guilt of the accused beyond reasonable doubt. See the cases of;
BAKARE v. STATE (1987) 1 NWLR (PT.52) 579.
TANKO v. STATE (SUPRA) AT 640.

Considering the totality of evidence before the trial Court in the instant case, there is no doubt that the Appellant committed the offence which he was charged.

This lone issue is resolved in favour of the Respondent. There is no merit in this appeal and it is hereby dismissed.

The conviction and sentence passed on the appellant by the trial Court are hereby affirmed.

UWANI MUSA ABBA AJI, J.C.A.: I had a preview of the lead judgment of my learned brother, Abdu Aboki, JCA, just delivered.

I agree with the judgment of my learned brother that this appeal is devoid of any merit. It is also dismissed by me. The judgment of the Lower Court delivered on the 29th day of March 2012 convicting and sentencing the Appellant is hereby affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

The Appellant was charged with culpable homicide punishable with death under the provisions of Section 221, (1) (b) of the Penal Code Law of Jigawa State The Appellant was alleged to have caused the death of one Sale Kurma on the 16th of March, 2010 in Farin Dutse Village in Gwaram Local Government Area of Jigawa State by hitting him with a machete on

the head and hand with the knowledge that death would be the probable consequence of his act. The lower Court found the Appellant guilty as charged and sentenced him accordingly.

The grouse of the Appellant in this appeal against the judgment of the lower Court was that the lower Court failed to properly consider the defence of provocation which Counsel said was available on the face of the evidence led at trail and that the lower Court thus occasioned a miscarriage of justice. Provocation is a partial defence for murder in cases where the act or omission causing death was provoked by some conduct of the deceased. It reduces a charge of murder to manslaughter, i.e. charge of culpable homicide punishable with death to culpable homicide not punishable with death, and the idea behind the defence is basically the recognition of human frailty and the tendency to overreact.

Provocation means some act or series of acts done by the deceased to the accused which would cause in a reasonable man, and did 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.

The defence of provocation 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 v. State (2007) 11 NWLR (Pt.1045) 202, Shalla v. State (2007) 18 NWLR (Pt.1066) 240.

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 v. State (1993) 2 NWLR (Pt.273) 1, Ysaza v. State (2008) 2 SCNJ 373, Galadima v. State (2013) 3 NWLR (Pt.1333) 610, Afosi v. State (2013) 13 NWLR (Pt 1371) 329. The starting point is that the accused person must of necessity admit the commission of the offence in the first place before going on to explain the circumstances in which it was committed and then contend that due to the circumstances surrounding the commission of the offence of murder, the offence be reduced from murder to manslaughter – Njokwu v. State (2013) 9 NWLR (Pt 1360) 417. The Appellant in the instant case did not admit the commission of the offence in his oral testimony before the lower Court. The Appellant denied

knowing the deceased, Salah Kurma, or having anything to do with him and stated that he did not attack or kill the deceased. The testimony of the Appellant was antithetical to a defence of provocation.

Going further, a trial Court is also obligated to consider the defence of provocation on the evidence led by the Respondent – Afosi Vs State supra, Njokwu Vs State supra. This is in furtherance of the 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 of 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 v. State (2007) 18 NWLR (Pt 1066) 215, Shalla v. State (2007) 18 NWLR (Pt 1066) 240, Edoho v. State (2010) 14 NWLR (Pt 1214) 651.

Thus, the question that arises is whether there was any available evidence in the case presented by the Respondent against the Appellant from which the defence of provocation was deducible? Counsel to the Appellant referred to a portion of the confessional statement of the Appellant which he stated that, when read and taken along with the social background of the Appellant, ought to have grounded the defence of provocation. The portion of the confessional statement referred to by Counsel read thus:
“… I could remember sometimes this year 2009, my wife Balki coming back home from Gwaram Town and myself following her back, but with a distance. From there I met her on the way before reaching home and ask her why she did not reach home up to that time, she told me that it is one Sale Kurma of Kayal Bode village Area of Gwaram that attack her and used force on her and

have sexual intercourse with her and went away. From there after some days I met with one Dadjo … and told him to go and warn Sale Kurma and Amoleke to stop chasing my wife Balki…From there sometimes the same year one named Iliyasu, ward Head of Gonsu ward in Kayal Bode Village, organized, a traditional play of his daughter, where Sale Kurma went and told Shadari of Gadala Village … that he attacked my wife and had sexual intercourse with her and Shadari came and informed me of what Sale was telling to Shadari. I saw them because myself I attended the traditional play. From there on 5/10/2009 at about 2400 hrs I took my cutlass and went to Sale Kurma house … I cut him on his shoulder and his hand with the cutlass … the following day I heard that Sale whom I cut with cutlass died…”

The records of appeal show that the lower Court did consider the defence of provocation in favour of the Appellant by reason of the above excerpt of the confessional statement and it concluded that the action of the Appellant in attacking the deceased was not instantaneous as to support the defence of provocation.

Counsel to the Appellant stated that considering

the social background of the accused and the deceased, being a Fulani cattle rearer, he holds his wife very dear. Counsel stated that the lower Court ought to have given a serious consideration as to why the Appellant who was described to be sane with no evidence of any mental incapacity should attack the deceased for no apparent cause and that if the lower Court had given consideration to these pieces of evidence, it would not have escaped coming to the conclusion that there were exchanges between the deceased and the Appellant which resulted in a fight and led to the attack on the deceased. Counsel made copious references to the decision of the Supreme Court in Lado vs The State (1996) 6 SCNJ 1. Now, from the contents of the confessional statement from which Counsel urged this Court to deduce the defence of provocation, the Appellant never said there was a fight between him and the deceased and during which he attacked the deceased.

The lower Court thus had no business inferring an imaginary fight and this would amount to speculation which is not part of the business of a Court – Universal Trust Bank (Nig) Plc v. Ozoemena (2007) 3 NWLR (Pt.1022) 448

and Yaro v. State (2007) 18 NWLR (Pt 1066) 215.

It is settled in our criminal jurisprudence that 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 v. State (2010) 14 NWLR (Pt.1214) 651.

A proper interpretation of the contents of the confessional statement 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 Appellant did not catch the deceased with his wife. The Appellant left his house armed with a cutlass to search for the deceased in the deceased’s house. It was not the case of the Appellant that he was suddenly provoked to act by something said by the deceased when he met up with the deceased. There was nothing to suggest that the Appellant acted on the spur of the moment and in the heat of passion before there was time for temper to cool and the fact that he left home armed with a cutlass suggests that he had planned what to do. The defence of provocation was not available to the Appellant on the state of the evidence – Biruwa vs State (1992) 1 NWLR (Pt 220) 633 and Ahungur vs State (2012) 12 NWLR (Pt 1313) 181. I cannot thus fault the finding of the lower Court on the point.

Counsel to the Appellant did not make out any case to warrant this Court tampering with the judgment of the lower Court. It is for these reasons, and fuller exposition in the lead judgment, that I find no merit in this appeal. I too hereby dismiss the appeal and

affirm the judgment of the High Court of Jigawa State in Suit No JDU/32C/2010 delivered by Honorable Justice Nana Aisha Abdullahi on the 29th of March, 2012.

Appearances:

M. E. Sheriff For Appellant(s)

M.A. Lamin (ACSC) For Respondent(s)

Appearances

M. E. Sheriff For Appellant

AND

M.A. Lamin (ACSC) For Respondent