UBONG EFFIONG JAMES v. THE STATE
(2016)LCN/8191(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of February, 2016
CA/C/13C/2013
RATIO
CRIMINAL LAW: THE PLEA OF PROVOCATION; THE DEFINITION OF THE PROVOCATION AND WHAT IT ENTAILS
The Supreme Court per FABIYI, JSC adopted the definition in Black’s Law Dictionary, Sixth Edition at Page 1225 and stated as follows;
Provocation is defined as the act of inciting another to do a particular deed that which arouses, moves, calls forth, causes or occasions such conduct or actions on the part of one person towards another as to tend to arouse rage, resentment, or fury in the later against the former and thereby cause him to do some illegal act against or in relation to the person offering the provocation. It further goes on to say that provocation which will reduce killing to manslaughter must be of such character as will, in the mind of on average reasonable man, stir resentment likely to cause violence, obscure reason, and lead to action from passion rather than judgment. There must be a state of passion without time to cool placing defendant beyond control of his reason. Provocation carries with it the idea of some physical aggression or some assault which suddenly arouses heat and passion in the person assaulted. See GAMBO MUSA VS THE STATE (2009) 39 NSCQR 358 at 379 – 380. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
CRIMINAL LAW: PLEA OF PROVOCATION; WHEN CAN A PLEA OF PROVOCATION AVAIL AN ACCUSED
For a plea of provocation to avail an accused, he has a duty to establish on a balance of probabilities that the act of provocation was grave and sudden, that he was deprived of his power of self-control and that his resentment or retaliation was proportionate to the provocation. See MANU GALADIMA VS STATE (2012) 52 NSCQR 525 at 538-539. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
COURT: IN WHAT SITUATION CAN THE TRIAL COURT REVERSE THE FINDINGS OF A TRIAL COURT
While it is correct that evaluation of evidence and the ascription of evidential value thereto is the duty of the trial Court, an appellate Court will justifiable interfere and reverse findings made by the trial Court where such findings are inconsistent with primary facts already accepted by the trial Court. See ISIBOR VS STATE (2002) 9 NSCQR 248.
According to EJIWUNMI JSC: It must be borne in mind that on Appellate Court will not ordinarily reverse the findings of a trial Court unless there was no evidence to support such finding or conclusion of the trial Court. An Appellate Court may also reverse the verdict of the trial Court if it considers that it is unreasonable in the light of its knowledge both of the primary facts found by the trial Court and of the inferences which the trial Court drew from the primary facts. See ISIBOR Vs STATE (supra) at 262. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
UBONG EFFIONG JAMES Appellant(s)
AND
THE STATE Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(Delivering the Leading Judgment): This in respect of an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division delivered on the 30th day of March, 2012 by Imeh Umanah J.
The appellant was arraigned on a one count charge of murder contrary to Section 326 (1) of the Criminal Code Cap 38, Vol 11 Laws of Akwa Ibom State of Nigeria. The particulars of offence stated as follows:
Ubong Effiong James on the 8th November, 2008 at Idu Uruan Local Government in Uyo Judicial Division murder Mfon Etim Asuquo.
The appellant pleaded not guilty to the charge and at the trial the prosecution called 3 witnesses while the appellant testified from the witness box in his defence. After taking final addresses of counsel, the learned trial judge in a considered judgment found the appellant guilty, convicted and sentenced him accordingly.
Exercising his right of appeal, the appellant filed a Notice of Appeal on the 6th of June, 2012 containing one ground.
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At the hearing of the appeal, his counsel, Mr. Udosen adopted the appellant’s brief filed on 25th February, 2013 but deemed properly
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filed and served on the 10th February, 2016 as the arguments of the appellant in this appeal. Therein he formulated a sole issue for determination from the lone ground of appeal as follows:
Whether from the totality of evidence adduced at the trial Court, the prosecution had proved a case of murder against the appellant.
On his part, Mr. Umoren the learned assistant director in the department of public prosecutions, Ministry of Justice, Akwa Ibom state, adopted the respondent’s brief filed on 16th September, 2013 but deemed properly filed and served on the 16th February, 2016 as the arguments of the respondent in contesting this appeal. Therein he adopted the lone issue formulated for determination by the appellant.
Arguing the said issue, Mr. Udosen submitted that from the totality of the evidence adduced at trial, only the appellant gave an account of how the deceased met his death and that his said account establishes the defence of provocation which whittled down the offence from murder to manslaughter. He urged the Court to hold that the ingredients constituting provocation was established by the appellant. He referred to EDOHO VS
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STATE (2010) 14 NWLR (PT 1214) 651 at 660 and CHUKWU VS THE STATE (2012) 213 LRCN 96 at 100.
Mr. Umoren responded that the trial Court was presented with overwhelming evidence establishing the offence of murder against the appellant and that the evaluation of evidence appropriately carried out by the learned trial Judge should not be disturbed. He referred to AROGUNDADE VS STATE (2009) NSCR 33, ELUWA VS C.O.P (2008) ACLR 139 at 142 and ADAVIA & ANOR VS THE STATE SCM 2.
He urged the Court to dismiss the appeal.
The two sides are not contesting that the deceased died, neither are they contesting that he died from acts attributable to the appellant. What is being contested is whether the circumstances leading to the killing justifies the invocation of the defence of provocation in favour of the appellant to mitigate his conviction from murder to the lesser offence of manslaughter.
The Supreme Court per FABIYI, JSC adopted the definition in Black’s Law Dictionary, Sixth Edition at Page 1225 and stated as follows;
Provocation is defined as the act of inciting another to do a particular deed that which arouses, moves, calls forth, causes
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or occasions such conduct or actions on the part of one person towards another as to tend to arouse rage, resentment, or fury in the later against the former and thereby cause him to do some illegal act against or in relation to the person offering the provocation. It further goes on to say that provocation which will reduce killing to manslaughter must be of such character as will, in the mind of on average reasonable man, stir resentment likely to cause violence, obscure reason, and lead to action from passion rather than judgment. There must be a state of passion without time to cool placing defendant beyond control of his reason. Provocation carries with it the idea of some physical aggression or some assault which suddenly arouses heat and passion in the person assaulted. See GAMBO MUSA VS THE STATE (2009) 39 NSCQR 358 at 379 – 380.
For a plea of provocation to avail an accused, he has a duty to establish on a balance of probabilities that the act of provocation was grave and sudden, that he was deprived of his power of self-control and that his resentment or retaliation was proportionate to the provocation. See MANU GALADIMA VS STATE (2012) 52 NSCQR
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525 at 538-539.
The only account before the trial Court of what transpired between the appellant and the deceased before the unfortunate incident was given by the appellant. It is significant that this account was consistent in his two extra judicial confessions as well as his testimony before the Court.
In summary, the account was that he was sleeping when the deceased came to his house to angrily wake him up late in the night. The deceased then confronted him that he exposed his secret to PW1 with whom the deceased was in an amorous relationship, that he the deceased had impregnated some lady for which reason, PW1 was upset with him. He denied the allegation but the deceased was not impressed with his denial, brought a machete and inflicted wounds on him. The deceased then dropped the machete and ran. He picked the dropped machete ran after the deceased and inflicted injuries on him from which he died on the spot.
With minor variations, this account was consistently narrated by the appellant in his two confessional statements and the oral testimony in Court. The prosecution offered no contrary story and none of the prosecution
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witnesses was present when the event transpired.
From the unchallenged accounts, the murder weapon came from the deceased who was the initial aggressor and had come to the appellant’s residence late in the night to accost him. It was not in issue throughout the trial that PW1 was in an amorous relationship with the deceased and that the deceased and the appellant had a close personal and business relationship prior to the incident. No explanation was offered as to the motive for the killing.
The explanation offered by the appellant is reasonable and consistent with the usual course of events.
The learned trial Judge considered this defence and rejected it. While it is correct that evaluation of evidence and the ascription of evidential value thereto is the duty of the trial Court, an appellate Court will justifiable interfere and reverse findings made by the trial Court where such findings are inconsistent with primary facts already accepted by the trial Court. See ISIBOR VS STATE (2002) 9 NSCQR 248.
According to EJIWUNMI JSC:
It must be borne in mind that on Appellate Court will not ordinarily reverse the findings of a trial Court
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unless there was no evidence to support such finding or conclusion of the trial Court. An Appellate Court may also reverse the verdict of the trial Court if it considers that it is unreasonable in the light of its knowledge both of the primary facts found by the trial Court and of the inferences which the trial Court drew from the primary facts. See ISIBOR Vs STATE (supra) at 262.
The facts disclosed by the appellant here justifiably establishes the plea of provocation and I so hold.
I accordingly resolve the lone issue in favour of the appellant.
The appeal has merit and I therefore allow it.
The conviction of the appellant for murder is hereby commuted to manslaughter.
The death sentence imposed on the appellant is hereby set aside and he is instead sentenced to 10 years imprisonment.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, J.O.K. Oyewole, JCA, made available to me, in draft form, a copy of the lead Judgment, allowing this appeal.
I agree that there is merit in this appeal. I therefore also allow this appeal and I abide by the orders made in the lead Judgment.
PAUL OBI ELECHI, J.C.A.: I
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have read in draft the Judgment just delivered by my Learned brother J. O. K. Oyewole, JCA allowing the appeal.
I agree with him that this appeal is meritorious and therefore is hereby allowed. I agree with him in allowing the appeal and also abide by the Order made in the lead Judgment.
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Appearances
MR. E. UDOSEN, ESQ.For Appellant
AND
MR. J.U. UMOREN, ESQ. with him, DR M.O.J AKS, ESQ.For Respondent
