TINA OKORODUDU v. THE STATE (2014)

TINA OKORODUDU v. THE STATE

(2014)LCN/7299(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/B/322C/2012

RATIO

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CRIMINAL CASES

Let me start with the basic principle of adducing evidence under our criminal law system. It is that in all criminal trials, the burden of proof is always upon the prosecution in proving the guilt of the accused person beyond reasonable doubt, and where it fails to discharge the, burden the prosecution’s case fails, and the accused entitled to a discharge and acquittal. This is because by S. 35(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, an accused person is presumed innocent, until proven guilty. per. HAMMA AKAWU BARKA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF MURDER; THE BASIC INGREDIENTS OF THE OFFENCE OF MURDER

It is the law that for the prosecution to succeed in establishing the offence of murder, he must prove three basic essential ingredients of the offence thus,
1. That the deceased died.
2. That it was the act of the accused that caused the death of the deceased.
3. That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm would be the probable consequence of the act. Mbong V. The State (2007) All FWLR (Pt. 372) 1863; Uwagboe V. The State (2008) All FWLR (Pt. 419) 425; Okoro V. The State (1988) NWLR (Pt.94) 255 at 267; Chibueze Edo V. The State (2006) 1 CLPR 52 at 58. per. HAMMA AKAWU BARKA, J.C.A.

CRIMINAL LAW: SELF DEFENCE; THE PROVISION OF THE CRIMINAL CODE ON SELF DEFENCE AND HOW THE DEFENCE OF SELF DEFENCE IS DETERMINED
In the consideration of self defence as raised, S. 286 of the Criminal Code become relevant. It provides:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault. Provided that the force used is not intended and is not such as is likely to cause death or grievous harm. If the nature of the assault is much as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on unreasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him, to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
I have before now mentioned that the trial court appreciated this responsibility, which it laboriously considered in his judgment at pages 118 to 142 of the record. The Supreme Court, in Adeyeye V. The State (2013) 11 NWLR (Pt. 1364) 47 per Ogunbiyi JSC, settled the law to the effect that the defence of self defence by nature is determined essentially on facts and circumstances of each case. See also Omoregie V. The State (2008) 12 SCM (Pt. 2) 599 at 611. It is the law therefore, established from the case of Adeyeye v. the state (supra), that the guiding principle of self defence is necessity and proportion. per. HAMMA AKAWU BARKA, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT

It is the court of trial that hears the evidence first hand, see the witnesses and assesses their demeanour and thus findings of facts from a court of trial is rarely disturbed on appeal unless found to be perverse. It was held in Mr. C.I.D Maduabum V. Hon. Ben Chuks Nwosu (2010) 13 NWLR (Pt. 1212) 623 at 634. “The function of the trial court is to observe the demeanour of the witnesses. The determination of credibility of a witness is strictly within the province of the trial court. Where the veracity of a witness is in doubt, his evidence should carry no weight at all.” See also Benedict O. Nwoti V. T.O.C. Ubonu (1991) 7 NWLR (Pt. 206) 737 at 745; Fashanu V. Adekoya (1974) 6 SC 83. per. HAMMA AKAWU BARKA, J.C.A.

CRIMINAL LAW: THE DEFENCE OF SELF DEFENCE; WHAT AN APPELLANT MUST SHOW TO WARRANT THE DEFENCE OF SELF DEFENCE

I find the principle offered in the case of Adeyeye v. The State (supra) at P. 71, very illuminating as to the point an appellant must show to warrant the defence of self defence exercised in his favour. It must be shown that,
(a) There was an act of grave and sudden provocation.
(b) There was the loss of self control both actual and reasonable.
(c) The retaliation must also be proportionate.
The three elements must co-exist and within a reasonable time. The apex court restated:
“The guiding principles of self defence further replete are necessity and proportion. If the accused person will show the necessity of his conduct on the facts as he reasonably believed them to be a valid defence sufficient, his acquittal can be made. If however the threat offered is disproportionate with the force used in repelling it then the defence cannot avail the accused.”
R V. Nwibo (1950) 19 NLR 124; R. V. Onyeamizu (1958) NRNL 293. per. HAMMA AKAWU BARKA, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE

I am satisfied that the trial court’s finding is supported by evidence, and that this court has no business interfering with its findings in the, circumstance, see Fashoanu V. Adekoya (1974) 1 All NLR (Pt. 1) P. 36 at 41; Chibuzueze Ede v. The State (2006) 1 CIIPR 52 at 61.
In Edo V. The State (supra) at P. 63, this court said: “I must say, that it has been established by several authorities that a Court of Appeal must approach the findings of fact of a trial Judge with extreme caution. The principles under which a court of appeal can interfere have been well settled. To mention a few see: Woluchem V. Cindi (1981) 5 SC 291 at 309; Ebba V. Ogodo (1984) 1 SCNLR 372 at 378 – 379; Kate Enterprises Ltd v. Daewoo Nig. Ltd (1985) 2 NWLR (Pt. 5) 116 at 128-129. per. HAMMA AKAWU BARKA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAGWU Justice of The Court of Appeal of Nigeria

Between

TINA OKORODUDU Appellant(s)

AND

THE STATE Respondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Delta State High Court sitting in Otor-Udu judicial Division, in suit No, OUHC/5C/2008, delivered on the 29th day of March, 2010. The appellant on the 30th of April 2007, arraigned before the High Court on the allegation that she murdered one Mr Jerry Adarerhi (m) at Ovwian village within the Otor-udu judicial division. The one count charge against the appellant reads;

Statement of offence count 1
Murder punishable under S. 319 (10 of the criminal code caps 48 vol. 11 laws of the defunct Bendel State of Nigeria 1976, as applicable to Delta State.

Particulars of offence
Tina Okorodudu (f) on the 30th day of April 2007 at Ovwian in the Udu Judicial division murdered one Jerry Adarerhi (m).

The appellant pleaded not guilty to the one count charge and the case proceeded to trial, in the course of which the prosecution called five witnesses (PW1 – PW5), and tendered a total of five exhibits.
The appellant gave evidence in her defence in support of her case calling no further witness. At the close of evidence from both sides and the filing and exchange of written addresses by counsel, the learned trial judge in a considered judgment, found the appellant guilty and convicted her accordingly.

Dissatisfied with the decision of the court of trial, the appellant on the 12th of May, 2010 filed a notice of appeal containing five grounds.

The appellant’s brief of argument settled by Ayo Asala and filed on the 8th of November 2012, and deemed filed on 25th of September, 2013 formulated a single issue for determination.
“1. Whether having regard to the evidence on the record especially the defence of self defence and Provocation, and the circumstances of this case, was the Learned Trial Judge right when he held that the prosecution proved the one count charge of murder against the appellant beyond reasonable doubt.”

The Respondent on his part filed a brief of argument, on the 18th of December 2012, and deemed filed on the 25th of September, 2013; and settled by Enenmo O.F. Two issues were formulated on behalf of the respondents.
“1. Whether having regard to the state of evidence, before the court, the learned trial Judge was right in law, when he held that the Prosecution proved the case of murder against the appellant beyond reasonable doubt.
2. Whether the defence of Provocation and self defence will not avail the appellant in this case.
Both, counsel adopted their brief of arguments on the 6th of May 2014.

Arguing this sole issue formulated from the five grounds of appeal, learned counsel for the appellant submits that from the totality of the evidence before the court, the prosecution failed to prove the offence of murder against the appellant beyond reasonable doubt. He argues that in establishing the offence of murder as in the instant case, the prosecution must prove that,
(a) That a person is dead.
(b) That the death of the deceased person resulted from the act of the accused; and
(c) That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

He cited the cases of Uwagboe V. The State (2008) All FWLR (Pt. 419) 425; Mbong V. The State (2007) All FWLR (pt.372) 1863.
He posits that the three ingredients of the offence must co-exist and where one is absent or tainted with doubt, the charge cannot be said to have been proved.
He contends that from the evidence on record, especially exhibits A and E, the testimony of the appellant, the defence of self defence and provocation are available to the appellant. Citing copiously from the record of trial, counsel argues that for the defence of provocation to succeed, it must be shown that,
“(a) That the act relied upon by an accused person is obviously provocative.
(b) That the provocation had deprived the accused of self control, that is to say, the provocative act is such as to let the accused person actually and reasonably lose self control.
(c) The provocative act came from the deceased.
(d) The sudden fight between the accused and the deceased was continuous with no time for passion to cool down, that is, the retaliatory act of the provocation must be shown to be instantaneous to the act reacted against.
(e) The force used by the accused in repelling the provocation is not disproportionate in the circumstance. Thus, it must be shown that the retaliatory act to the provocation must be proportionate to the act reacted against.
And that all the ingredients set out must co-exist. He placed reliance on the case of Lado V. The State (1999) 9 NWLR (Pt. 619) 369.

Counsel submits on self defence that the accused person must establish that the deceased initiated the unprovoked attack, which is sudden and unavoidable and that the accused person cannot escape the fight when the unprovoked fight began. Counsel referred to page 15 of the record, where the court considered and rejected the defence, and submits that the findings of the trial court were wrong in law.

He argues that in raising the defence of self defence, the appellant relied on Exhibit E which the judge later refused to attach weight to as against Exhibit A, contending that any defence raised by the accused must be considered as decided in the case of Waziri V. The State (1997) 3 NWLR (Pt.496) P.689 at 717. He went further to say that though Exhibit ‘A’ was admitted after a mini trial; the Judge ought to have subjected the statement to the test enumerated in Kazeem V. The State (2009) All FWLR (Pt. 465) 1749 at 1776.
Submits that none of the prosecution witnesses gave eye witness account on how the deceased was stabbed, and there was no other independent evidence to support Exhibit A. He submits also that the findings of the trial judge, at Page 133, lines 10 – 13, are inconsistent with his earlier findings that PW2 and PW3 did not give direct eye witness account. He argues that the appellant was consistent in both Exhibits A and E, where she said the deceased was pressing her neck and she had to use the bottle in hitting him to free herself.

On the issue of proportionality, counsel refers to the decision in Lado V. The State (supra) at P. 38 as to the manner and life style of the accused person, and as to whether the accused person intended to kill the deceased, He referred to the conduct of the accused person after the incident, reporting at the police station, contending that the intention of the accused person was that of self defence, meant to save herself from imminent danger of death.
He urged the court to so hold and to discharge the accused person on the authority of Ahmed V. The State (1999) 7 NWLR (Pt. 612) P. 641.
Submits that appellant raised the issue of provocation and the trial court’s approach to his findings was not in leading consonance with the Supreme Court decision in Asanya V. The State (1991) 3 NWLR (Pt. 180) 422 at P.452.

He argues that where the defence of provocation was raised, it was for the prosecution to give evidence negating it, concluding that the appellant is entitled to the defences of self defence and provocation having regard to the evidence adduced, that even if the court were to hold that the act of the appellant was not proportionate to the provocative act, the appellant would still be entitled to the defence of provocation thus reducing the offence from murder to man-slaughter. He urged the court to allow the appeal accordingly.

The respondent in his brief argued the appeal on his two issues. On the first issue, he submits that from the state of evidence, the trial court was right in holding that the prosecution has proved the case of murder against the appellant beyond reasonable doubt, and referred to the cases of Ogunzee V. The State (1998) 58 LRCN 3512 at 3551 and Edamine V. The State (1996) 3 NWLR (Pt. 38) 530, at 531 as to the burden and standard of proof in criminal cases. He argues that the evidential proof could be in either of the following ways;
1. Credible evidence of witnesses.
2. Circumstantial evidence and
3. By admissions and confessions of the very person accused of the crime.

Learned counsel enumerated the basic ingredients grounding the offence of murder, and submits that from the evidence of the prosecution: witnesses and Exhibits A – E, the findings of the trial court are in line with the evidence led. He submits further, that an appellate court should not interfere with the findings of a trial court unless such finding are perverse and not in tune with the evidence. He thus urged the court to dismiss the appeal and affirm the judgment of the learned trial judge.

On the second issue, counsel submits that from the facts on record, the defence of self defence and provocation are not available to the appellant in this case. Counsel argues that for the accused person to establish a plea of provocation, the following ingredients must be established. They are:
“(a) That the act relied upon by the accused is obviously provocative.
(b) That the provocative act had deprived the accused of self control, that is to say, the provocative act is such as to let the accused actually and reasonably lose self control.
(c) The provocative act came from the deceased.
(d) The sudden fight between the accused and the deceased was continuous with no time for passion to cool down, that is, the retaliatory act of the provocation must be shown to be instantaneous to the act reacted against.
(e) The force used by the accused in repelling the provocation is not disproportionate in the circumstance. Thus, it must be shown that the retaliatory act to the provocation must be proportionate to the act reacted against.”
And that the ingredients must co-exist. He cited the case of Shande V. The State (2004) All FWLR (Pt. 223) 1955 at 1972 in support of his preposition.

He submits that the facts believed by the trial Judge do not support the defence of provocation, arguing that the appellant in establishing the defence ought to have adduced credible and positive evidence supporting the allegation. He argues that the Court of Appeal, in the absence of facts that the finding was perverse or not based on evidence, cannot interfere.

On the defence of self defence, counsel submits that there was evidence on the record which the trial court believed, especially the evidence of PW2 and PW3, and therefore the defence is open only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous bodily harm. Where the act is committed after all danger from the assailant is past, the defence would not be available to the accused person. Counsel cites on this point the authority of Uwagboe V. The State (2010) 8 LRCNCC 71, and urged the court to affirm the findings of the trial court.

On corroboration, counsel argues that the trial court subjected the confessional statement to a veracity test as in Kazeem V. The State (2009) All FWLR (Pt. 465) 1749 at 1776, and found corroboration in the evidence of PW1 to PW2, and concludes that evidence on record proved the case of murder against the accused person, and the facts believed by the court does not support the defence of provocation and self defence.

I have carefully studied the respective briefs of argument, of the learned counsel and the case law cited therein, and given consideration to the entire circumstances of the case. I consider the issues raised by both counsel to be similar. I shall therefore determine the appeal based on the issue formulated in the appellants brief.

It is the law that for the prosecution to succeed in establishing the offence of murder, he must prove three basic essential ingredients of the offence thus,
1. That the deceased died.
2. That it was the act of the accused that caused the death of the deceased.
3. That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm would be the probable consequence of the act.
Mbong V. The State (2007) All FWLR (Pt. 372) 1863; Uwagboe V. The State (2008) All FWLR (Pt. 419) 425; Okoro V. The State (1988) NWLR (Pt.94) 255 at 267; Chibueze Edo V. The State (2006) 1 CLPR 52 at 58.

A consideration of the case at hand shows that there is no dispute as to the first and second ingredients of the offence. It is not in contention, that one Jerry Adarerhi is dead. All evidence is conclusive on that regard. There is equally no dispute to the fact that the deceased death was caused by the appellant’s act, when she stabbed him with a broken bottle. In the consideration of the first ingredient of the offence, an examination of the evidence shows PW1 at page 47, stating as follows;
“Despite all that they did in UBTH, including blood transfusion, drugs, etc, he passed away on Monday night that is 30/4/2007. My husband died after 6 days from the stabbing”.

PW 3 on this point, gave evidence to the effect that,
“My father is dead. My father died 6 days from when the incident happened. The incident happened on 24/4/2007, and he died 30/4/2007”.

These pieces of evidence rhymes with that of PW4, who investigated the case, when he said:
“After two days he was referred to UBTH Benin. There he finally died on 30/4/2007”.

There is no dispute whatsoever, as to the fact that the deceased actually died. I accept the lower courts finding in that respect.
I next consider the second ingredient of the offence. As to what or who caused the death of the deceased, ample evidence conclusively points to the appellant, who stabbed the deceased with a broken bottle. In the appellant’s statement in exhibit A, the appellant said;
“I used the bottle to stab him because he was pressing my neck, and I did it out of annoyance”

PW 2 on this at page 49, stated as follows;
“The landlord was behind me, she came and stabbed him at the back of the head, and the rib”.

In the light of the evidence on the record, I find the lower courts holding to the effect that the 1st and 2nd ingredients of the offence as having been proved as unassailable. The point of contention that arose at the court below, and before this court is whether the appellant in doing what she did was provoked, and or acted in self defence. In order words, whether in the circumstance of the entire case, the defence of provocation and self defence can avail the appellant.

Learned counsel for the appellant submitted and rightly in my view, that the twin defences of self defence and provocation were raised by the accused person at the trial court. The learned trial judge identified these defences when he stated at P. 125 of the record thus:-
“The accused did not only raise the twin defence of provocation and self defence in her evidence in court but in all her statement (sic) to the police that is Exhibits ‘A’ and ‘E’. Exhibit ‘A’ was the statement made on 24/4/07 at Ovwian Aladja police station while exhibit ‘E’ was the statement at state CID Asaba. I therefore do not agree with learned senior state counsel that the defences of provocation and self defence are an afterthought. The accused may not have raised it in an elegant legal style in exhibit ‘A’ but a court of law can reasonably deduce same in the statement. In exhibit ‘A’, she said:
“I used the bottle to stabbed (sic) him because he was pressing my neck and I did it out of annoyance.”
The accused is not a lawyer so as to couch the defence in our refined legal style. The simple deduction when a person does something out of annoyance is that he is provoked. When a person’s hand is on another neck, the other person can do things to release the hold to avoid choking to death. That is self defence.”

In resolving these issues, the trial court considered both defences in tune with the judicial pronouncement that a court is duty bound to consider all the defences raised by an accused person no matter how stupid or inappropriate it may seem. Fatai Olayinka V. The State (2001) 153 LRCN 166; Yeki V. The State (2008) 160 LRCN 1.
In the consideration of self defence as raised, S. 286 of the Criminal Code become relevant. It provides:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault. Provided that the force used is not intended and is not such as is likely to cause death or grievous harm. If the nature of the assault is much as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on unreasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him, to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
I have before now mentioned that the trial court appreciated this responsibility, which it laboriously considered in his judgment at pages 118 to 142 of the record. The Supreme Court, in Adeyeye V. The State (2013) 11 NWLR (Pt. 1364) 47 per Ogunbiyi JSC, settled the law to the effect that the defence of self defence by nature is determined essentially on facts and circumstances of each case. See also Omoregie V. The State (2008) 12 SCM (Pt. 2) 599 at 611.
It is the law therefore, established from the case of Adeyeye v. the state (supra), that the guiding principle of self defence is necessity and proportion.

Indeed the nature of the assault must be such as to cause reasonable apprehension of death or grievous harm. The extent of force used, which could be acceptable as a defence, must be from the belief on reasonable grounds that death or grievous harm was the last result, and that self defence must be used as a resort.

The learned trial court evaluated the evidence on the material issue at pages 134 to 135 of the record, evaluated the evidence of the five witnesses called and the exhibits tendered, being the statements of the accused person marked Exhibit A and E. Exhibit A, bears the statement of the accused person made on the 24/4/2007, wherein the accused stated:
“It is true the Landlord and myself fought, but his family members jointly fought me and get me beaten up, even the daughter was dragging my hair while the father and the mother was hitting me on the back. It was the people around that managed to separate them from me, and I went upstairs immediately to break a coca cola bottle, which I later came down while he was beating me I struggling brought out the coca cola bottle and used it to stab him.”

The evidence of PW2 on this point is as follows:
“When I got there, I met a quarrel in the compound between a tenant and the Landlord. The Landlord’s house is close to my house. The tenants name is Tina Okorodudu. Tina ran upstairs and came down with two broken coca cola bottles. The Landlord was behind me. She came and stabbed him where he was standing behind me. She stabbed him at the back of the head and the rib.”

PW3 on his part stated that:
“I was going back to the house when something caught my attention I heard a loud noise and I turned. I saw the accused with two sharp edged broken coca cola bottle. There was blood everywhere. She had stabbed my Dad at the back and head.”

Exhibit E, on the other hand, was the statement of the accused person before the state CID Asaba. This latter statement and the evidence of the accused person given in court are in agreement.
“As he was beating me, PW3 joined the fight by holding my hair. There was no way I could escape as PW3 and me were fighting. In the process, she bit me on my left hand. When the father saw that I over powered his daughter he pushed me from her top, he sat on my chest, held my throat. At this time PW3 was hitting me with her hands. There were neighbours who were trying to secure me. At this time, PW1 said I should be arrested by the Police. The agent left. The Landlord strangled me while I was on the ground, while I was struggling to be free from his hold of my neck/throat I got hold of an instrument and hit him with it on his head so that I could free myself from his hold. I eventually freed myself.

On being cross-examined, the appellant, stated thus:
“It was at the police station I knew that the instrument I used on my Landlord is an empty coca cola bottle. It is not true that it was after we were separated that I went up stairs to my room and returned with two broken bottles of coca cola to stab my Landlord. It is not true I suddenly attacked my landlord with broken bottle. PW2 was not present during the incident of 24/4/07.”

It is this piece of evidence that the trial court evaluated, believed the contents of Exhibit A corroborated by PW2 and PW3 as against the evidence of the appellant and the latter statement Exhibit E.

It is the court of trial that hears the evidence first hand, see the witnesses and assesses their demeanour and thus findings of facts from a court of trial is rarely disturbed on appeal unless found to be perverse.
It was held in Mr. C.I.D Maduabum V. Hon. Ben Chuks Nwosu (2010) 13 NWLR (Pt. 1212) 623 at 634.
“The function of the trial court is to observe the demeanour of the witnesses. The determination of credibility of a witness is strictly within the province of the trial court. Where the veracity of a witness is in doubt, his evidence should carry no weight at all.”
See also Benedict O. Nwoti V. T.O.C. Ubonu (1991) 7 NWLR (Pt. 206) 737 at 745; Fashanu V. Adekoya (1974) 6 SC 83.

Exhibit A was rightly established by the trial court, when it conducted a trial within trial to determine its voluntariness, and having also found that the evidence of PW2 and PW3 corroborated the statement in Exhibit ‘A’, the trial court cannot be faulted when he relied and preferred it in arriving at his findings, especially as to the aspect leading to the stabbing of the deceased. I am not unmindful of the trial court holding that PW2 and PW3 were not eyewitnesses to the stabbing. I don’t know what stops them from being such eye witnesses in the circumstances of the case. I am however mindful that the issue is not in contest. It is my view however that their evidence which was not controverted stands, and was rightly used in corroborating Exhibit A on the matter.

Applying these set of legal principles to the case at hand and the findings of the learned trial court, I am of the view that the trial court rightly held that the appellant was not entitled to the defence of self defence raised.

I will next consider whether the appellant was in the circumstances of the case provoked in acting the way she did.
In his the consideration of the defence of provocation, the trial court at P. 137 of the record stated:
“The accused in my opinion did not act in the heat of passion. She had enough time to reflect over the consequences of her act when she climbed the staircase to her room reached for empty bottle, broke it and then came back using the staircase, located the deceased and stabbed him. The accused was provoked but had enough time to reflect on her conduct…….the accused has not satisfied the requirement of passion not being able to cool down before carrying the act ….. It is my firm view that the accused background of primary six does not avail her in this regard of proving passion, cooling down.”

It has been held in the case of Obaji v. The State (1965) NMLR 417, per Ademola CJN:
1. To avail himself of the offence of murder under S. 319 of the criminal code, the accused must have done the action for which he is charged in the heat of passion.
2. This must have been caused by sudden provocation, and
3. The act must have been committed before there is time for his passion to cool, and that the retaliation must be proportionate to the provocation offered.”

It is clear, therefore, that the complaint that the trial judge did not consider the defence raised by the appellant, is a statement not borne from the record. The trial court considered Exhibit E and refused to believe the evidence adduced by the accused person. The state of the law is that, a finding of fact made by a trial court that saw, heard and observed the witnesses cannot be substituted by an appellate court in the absence of it being perverse or not flowing from the evidence adduced.

I am satisfied that the trial court’s finding is supported by evidence, and that this court has no business interfering with its findings in the, circumstance, see Fashoanu V. Adekoya (1974) 1 All NLR (Pt. 1) P. 36 at 41; Chibuzueze Ede v. The State (2006) 1 CIIPR 52 at 61.
In Edo V. The State (supra) at P. 63, this court said:
“I must say, that it has been established by several authorities that a Court of Appeal must approach the findings of fact of a trial Judge with extreme caution. The principles under which a court of appeal can interfere have been well settled. To mention a few see: Woluchem V. Cindi (1981) 5 SC 291 at 309; Ebba V. Ogodo (1984) 1 SCNLR 372 at 378 – 379; Kate Enterprises Ltd v. Daewoo Nig. Ltd (1985) 2 NWLR (Pt. 5) 116 at 128-129.

I am satisfied that the prosecution, having proved the three ingredients of the offence of murder, the lone issue is hereby determined against the appellant.

I am of the firm view that the findings of the trial court are supported by the evidence relied on, and the judgment supported by evidence.

In the light of the foregoing, I see no merit in this appeal and its hereby dismissed by me. I affirm the judgment of the lower court determined on the 29th March, 2010.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the judgment in draft prepared and just delivered by my learned brother, the Hon. Justice H.A. Barka, JCA, Having equally perused the briefs of argument of the respective counsel vis-a-vis the record of appeal, as a whole, I cannot but concur with the reasoning and conclusion ably reached therein, to the effect that the instant appeal is devoid of merits.

Hence, I hereby equally dismiss the appeal and affirm the Judgment of the Delta State High Court, holden at Otor-Udu Judicial, which was delivered on 29/3/10 in suit (charge) No. OUHC/5C/2008.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The Appellant, who was a tenant in a house belonging to the deceased, Jerry Adarerhi, was convicted by the High Court of Delta State for the offence of murder and sentenced to death. In so far as can be garnered from the Records of Appeal, the facts disclose that the Appellant was engaged in a fight with the deceased. At some stage in the fight, the Appellant stabbed the deceased with a broken bottle and the deceased sustained injuries, from which he later died.

At the trial of the matter before the lower court, the Appellant raised the defences of provocation and self-defence. The lower court did not find these defences as availing, and consequently convicted the Appellant, hence this appeal.
I was privileged to have read in draft, the judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA. I am at one with his reasoning and conclusion that there is no merit in the appeal. The lower court which has the primary duty of evaluating the evidence discharged this duty creditably before arriving at the conclusion that the defences of provocation and self-defence were not available to the Appellant on the peculiar facts and circumstances of this matter and that the prosecution had proved the case beyond reasonable doubt.

The twin defences of provocation and self-defence constitute some of the defences available to an accused person in a criminal trial. Though provocation as a defence does not excuse the offence of murder; it has the effect of reducing it to the lesser offence of manslaughter. Self-defence on the other hand is a complete answer to the charge of murder. However, these defences cannot be set up in vacuo. For any of the defences to be availing, there ought to be enough credible evidence on which each of the defences can be founded. See SANUSI vs. THE STATE (1994) LPELR (3007) 1 at 13 and AJUNWA vs. THE STATE (1988) LPELR (308) 1 at 10 – 11 or (1988) 4 NWLR (PT 89) 380.

For the defence of provocation to be availing, it is of paramount importance that the act held out as the natural and justifiable action of the provoked person is done not in self-revenge, but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the action: URAKU v. THE STATE (1976) 6 SC 128 or (1976) LPELR (3424) 1 at 11 – 12, VINCENT CHUKWU vs. THE STATE (1966) NLR 274, AKANG vs. THE STATE (1971) 1 ALL NLR 46 at 49 and NJOKWU vs. THE STATE (2013) LPELR (1989) 1 at 24 – 25.

By Section 286 of the Criminal Code, where a person who did not provoke an assault is unlawfully assaulted, the law expects him to defend himself. But in defending himself, he is expected to use such force on his assailant as would be reasonable to make an effective defence. Where the defence is disproportionate to the assault, self-defence will not avail. Furthermore, the defence must not be intended to cause death or grievous harm. See ODUNLAMI vs. THE NIGERIAN ARMY (2013) LPELR (20701) 1 at 21 – 22.
From the evidence accepted by the lower court, the Appellant in the course of the fight went and got bottles, broke them and used them to stab the deceased. Thus clearly showing that the motivation of the Appellant was not self-defence, but self-revenge, since as rightly found by the lower court, the action of the Appellant in stabbing the deceased was not in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occasion: AKANG vs. THE STATE (supra).
In the words of Belgore, JSC (as he then was) in NJOKU vs. THE STATE (1993) 6 NWLR (PT 299) 272 or (1993) LPELR (2041) 1 at 9B – D:
“For defence of self-defence there must be clear and unambiguous evidence before the court of trial that the victim was attacking or about to attack the appellant in a manner that grievous hurt and or death was possible and had to defend himself; that the self-defence was instantaneous or contemporaneous with the threatened attack; and the mode of self-defence was not greater or disproportionate with the threatened attack.”

Having carefully perused the Records, I do not entertain any doubts that the evidence before the lower court clearly showed that the reaction of the Appellant was neither instantaneous nor contemporaneous since there was sufficient interlude for the passion occasioned by the acclaimed provocative act to have cooled. Consequently, the lower court properly evaluated the evidence in arriving at the conclusion that the defences of provocation and self-defence did not avail the Appellant and that the prosecution discharged the onus of proving the case beyond reasonable doubt.

It is for the above reasons and the more detailed reasons contained in the judgment of my Lord, Barka, JCA that I agree that this appeal is totally devoid of merit. The same is dismissed and the decision of the lower court convicting the Appellant for the offence of murder and the sentence of death imposed is hereby affirmed.

Appearances

Ayo AsalaFor Appellant

AND

O.F. Enenmo Deputy Director of Public Prosecution with C. U. AgbagwuFor Respondent