ONUWA KALU VS. THE STATE
April 16, 2025AKINLO IFEDAYO V THE STATE
April 16, 2025Legalpedia Citation: (2017) Legalpedia (SC) 11470
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Apr 13, 2017
Suit Number: SC.141/2013
CORAM
PARTIES
ABBAS MUHAMMAD
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
None
SUMMARY OF FACTS
The Appellant was charged at the Kano State High Court with the offence of culpable homicide punishable by causing the death, of one Nura Muhammad. The Appellant during trial did not deny that there was a fight between him and the deceased but claimed to have been provoked by the deceased and acted in self defence. The trial Court at the conclusion of trial, found him guilty as charged, convicted and sentenced him to death. Dissatisfied with the verdict the Appellant appealed to the Court of Appeal which affirmed the verdict of the trial Court, Further dissatisfied, the Appellant has lodged the instant appeal before this court.
HELD
Appeal Dismissed
ISSUES
Whether the learned justices of the Court of Appeal were right, in the circumstances of this case, to affirm the conviction and sentence of the Accused Person (sic)? Whether the learned justices of the Court of Appeal were right in holding that the defence of provocation and self-defence will not avail the Appellant?
RATIONES DECIDENDI
RAISING FRESH POINT ON APPEAL- CONDITION FOR RAISING FRESH POINT ON APPEAL
“A fresh, point is a matter that was not canvassed at the trial nor in the Court of Appeal, and it is settled law that it is too late to raise such matter here unless new evidence emerged that was not available at tria1 and no human ingenuity could have foreseen it -see Mohammed V. State (1991) 5 NWLR (Pt. 192) 438 at 453 SC. See also Akpabio V. State (1994) 7 NWLR (Pt 359) 635 SC, where this Court, per Iguh, JSC, explained the position, as follows – The question as to exclusion of the statement in issue was neither raised before nor pronounced by the Court below. It was, in fact, neither made a ground of appeal in that Court nor before us. It is well to bear in mind – – that an appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised and pronounced upon by the Court below unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter and such a course of action is necessary to prevent an obvious miscarriage of Justice. It is also settled that a point raised for the first time in this Court can only be argued with the leave of the Court because this Court, as an appellate Court only has Jurisdiction to correct the errors of the Court below, and to know in what respect it can exercise its supervisory jurisdiction to correct any errors of the Court below -see Director, SSS V. Agbakoba (1999) 3 NWLR (Pt. 595) 314 SC.”
WEIGHT OF EVIDENCE -IMPORT OF WEIGHT OF EVIDENCE
“Weight of evidence is the persuasiveness of some evidence in comparison with other evidence – Black’s Law Dictionary 9th Ed”.
APPEALS IN CRIMINAL CASES – WHETHER APPEALS IN CRIMINAL CASES WILL BE ALLOWED ON GROUNDS THAT THE VERDICT REACHED BY THE TRIAL COURT IS CHALLENGED FOR BEING CONTRARY TO THE WEIGHT OF EVIDENCE
“It is settled that in appeals in criminal cases, an appeal Court will not allow an appeal merely because the verdict reached by the trial Court is challenged on the grounds of its being contrary to the weight of evidence, and will only do so if it can be shown that the said verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence – see Adi v. R 15 WACA 6, where the West African Court of Appeal [WACA] clearly stated – The last point – – was that the decision was contrary to the weight of evidence, This is not a proper ground of appeal in criminal cases in which the point is not the preponderance of evidence on one side, which outweighs the evidence on the other side. The proper ground should have been that the ”’verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence.”
CONFESSIONAL STATEMENT – WHETHER MERE RETRACTION OF A CONFESSIONAL STATEMENT RENDERS IT INADMISSIBLE
“It is settled that mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt – Egboghonome V. State (1993) 7 NWLR (Pt 306] 333; Joseph Idowu V. State (2000) 7SC (Pt. 11)50, Dibie V. The State (2007) 3 SCNJ 160 cited”.
CONFESSIONAL STATEMENTS -MEANING OF CONFESSIONAL STATEMENTS – SECTION 28 OF THE EVIDENCE ACT 2011
“The position of the law as regards confessional statements is not without its peculiarities. Section 28 of the Evidence Act 2011, says a confession is an admission made by a person charged with a crime, stating or suggesting the inference that he committed it.”
CONFESSIONAL STATEMENT- APPROPRIATE TIME TO OBJECT TO THE ADMISSIBILITY OF CONFESSIONAL STATEMENT
“This Court has repeatedly stated that the appropriate time to object to the admissibility of a statement said to be a confession is when the statement is sought to be tendered – see Oseni V. State (2012) LPELR-7833(SC), wherein I.T. Muhammad, JSC, observed – There was no objection to the admissibility of the Appellant’s confessional statement. It is rather too late to raise such an issue on appeal. – It [is] regrettable that Appellant’s counsel at the trial stage did not object to the admissibility of [his] confessional statement, yet he went on to blame the trial Court in not treating Appellants confessional statement with Utmost caution. It will appear to be too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived. – – It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is always taken as an afterthought, which Courts are not ready to accommodate.”
PROOF – STANDARD OF PROOF IN CRIMINAL CASES
“It is an ironclad principle that the Prosecution must prove its case beyond reasonable doubt, and this remains so even if the accused admits in his Statement to the Police that he committed the crime; the Prosecution must still prove it beyond reasonable doubt – see Adekoya V. State (2012) LPELR-7815(SC), and Madu V. State (2012) LPELR-7867(SC), where this Court, per Adekeye, JSC, said – The Prosecution has the burden to prove the guilt of an accused beyond reasonable doubt, regardless of the plea of the accused or where he admitted the commission of the crime in his statement to the Police.”
ERROR IN JUDGEMENT –WHETHER EVERY ERROR OR WRONG INFERENCE MADE BY A COURT WILL LEAD TO A REVERSAL OF ITS JUDGMENT
“It is not every error or wrong inference made by a Court that will lead to the reversal of its Judgment An Appellant must show that the error or wrong inference, as in this case, has occasioned a miscarriage of justice and/or substantially affected its decision -see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt 316) 182 SC.”
DEFENCE OF PROVOCATION – INSTANCES WHEN THE DEFENCE OF PROVOCATION IN A CHARGE OF CULPABLE HOMICIDE CAN AVAIL AN ACCUSED PERSON
“When does a defence of provocation succeed in a charge of culpable homicide punishable, with’ death? Section 222(1) of the Penal Code that is applicable in Kano State provides as follows – Culpable homicide is not punishable with death if the offender whilst deprived of the 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. Evidently, a plea of provocation does not exculpate the accused, but is only a mitigating factor when it comes to the sentencing. For the defence to avail the accused, the burden is on him to establish that the act of provocation was “grave and sudden”; that he must have been deprived of the power of self-control; and the extent of retaliation is proportionate to the provocation offered – see Galadima V. The State (2012) LPELR-15530(SC).”
DEFENCE OF PROVOCATION – CONDITIONS UPON WHICH WORDS CAN CONSTITUTE PROVOCATION
“It is also settled that ‘words can constitute provocation but this depends on the actual words used, and what they mean to a reasonable person having a similar background with the accused – see Akalezi V. State (1993) 2 NWLR (Pt. 273) 1 SC, wherein this Court, per Wali, JSC, stated as follows on this particular point – For words to suffice, certain basic ingredients must be satisfied. The words – must be such as to incense a reasonable man of such an accused person’s standing and education in life to anger of such a nature as to lead him to passion or loss of self-control, and the accused person must not have had the time to cool down before he did the act with fatal results, which led to the charge. So, the definition of provocation must be considered in the light of particular facts and circumstances of the case, which includes the station in life of the accused, and the society in which he lives -see Lado V. The State [1999) 9 NWLR (Pt 619) 369 SC.”
DEFENCE OF SELF DEFENCE = RIGHT OF A CITIZEN TO DEFEND HIS PERSON
“It is recognized that a citizen has the right to defend his person, family and property against unwarranted aggression, trepass or threat. Section 33(2) of the 1999 Constitution (as amended) provides:- A person shall not be regarded as having been deprived of his life in contravention of this Section, if he dies as a result of the use, to such and in such circumstances as are permitted by law, of such force as is reasonably necessary- For the defence of any person from unlawful violence or for the defence of property. DEFENCE OF PROVOCATION-INGREDIENTS AN ACCUSED PERSON MUST PROVE TO SUCCEED IN THE DEFENCE OF PROVOCATION “To succeed in proof of the defence of provocation, a person accused must prove the following ingredients, to wit-.- 1 Sudden fight between the appellant and the deceased, which was continuous with no time for passion To cool down. Thai in the course of that fight the accused was deprived of his self-control. That the provocative acts came from the deceased. That the force used by the accused in repelling the provocation was not disproportionate in the given circumstance. The provocation must be grave and sudden and must be such as to take away from the accused the power of self-control. See Chukwu v State (1992) 23 NSCC (Pt. 1) 44 at 53. (1992) 1 NWLR (Pt. 217) 255 at 270: Ekpenyong v State (1993) 5 NWLR (Pt. 295) 513 at 521 – 522.”
DEFENCE OF PROVOCATION – REQUIREMENT FOR THE DEFENCE OF PROVOCATION TO SUCCEED
“For the defence of provocation to succeed, it must be shown that death was caused:- In the heat of passion, By grave and sudden provocation as to deprive the accused of self-control. Before there is time for passion to cool.” These three requirements must co-exist before the defence could be made out. See Section 222(1) of the Kano State Penal Code.”
DEFENCE OF PROVOCATION – WHETHER WORDS CAN CAUSE PROVOCATION
“Words can cause provocation, but that would depend on the actual words used and what these words mean to a reasonable person in the class of the Appellant. See Akalezi v State (1993) 2 NWLR (Pt. 273)1”.
PROOF OF DEFENCE OF PROVOCATION – CIRCUMSTANCE WHERE A COURT WILL FIND IT DIFFICULT TO REACH A DECISION THAT THERE WAS PROVOCATION
“Where the words relied upon in proof of the defence of provocation are unknown, the court will find it difficult to reach a decision that there was provocation so grave enough to have pushed the Appellant to commit the act complained of. See Shalla v State (2007) 18 NWLR (Pt. 1066) 240”.
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999(as amended)|Penal Code|ABBAS MUHAMMAD v. THE STATE|
