APPEAL NO: SC. 488/2015

AREAS OF LAW: APPEAL, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS:

The Appellant and three other Bakassi boys, namely, Ezeji Oguikpe, Emmanuel Eze and Stanley Azogu, were invited from Aba, where the said group is based, to the Government House, Umuahia, by Ndukwe Okereke, a State Security Service Official. At the Government House, they met the then Secretary to the State Government, Dr. Elekwachi Nwaogbo, who instructed the S.S.S. official, Ndukwe Okereke, to take them (Bakassi Boys), to the Safari Restaurant at Umuahia, where they confronted the people they met with dangerous weapons, including cutlasses, knives and guns. In the process of the confrontation, two persons were killed and their mutilated bodies dragged to the main road, where their remains were set ablaze by the said Bakassi Boys. The Abia State High Court found the Appellant, who was the second Accused, guilty of the offence of murder, convicted and sentenced him to death accordingly. The Court of Appeal was also convinced after reviewing the evidence, that he was guilty of the offence of murder, and affirmed the trial Court’s decision. Further aggrieved, the Appellant has appealed to this Court.

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HELD:

Appeal Dismissed

ISSUE FOR DETERMINATION:

• Whether the conviction for Murder ought not be substituted with a verdict of Manslaughter

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RATIONES:

DEFENCE OF PROVOCATION- CONDITION FOR THE DEFENCE OF PROVOCATION TO AVAIL AN APPELLANT

“Finally, and more importantly, for the defence of provocation to avail the Appellant, there must be something said or done by the deceased persons in his presence, which caused the Appellant to “suddenly and temporarily lose his passion and self-control. See R v. Duffy (1949) 1AER 932, where Devlin, J„ observed that:

Provocation is some act, or series of acts, done by the dead man to the Accused, which would cause in any reasonable person, and actually 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.

• PER A. A. AUGIE, J.S.C.

“PROVOCATION”- DEFINITION OF “PROVOCATION”

“This definition of “provocation” has been adopted by this Court in numerous cases – Akalezi V. State (1993) 2 NWLR (Pt 273) JSC, George V. State (1993) 6 NWLR (Pt 297) 41 SC, Uluebeka V. State (2000) 7NWLR(Pt. 665) 404 SC, and it is clear that such killing(s) is triggered by rage or anger, etc.. on the part to the Accused to a person that offered the provocation. It is a direct confrontation; there is no third party inciting the Accused to kill the deceased – see Kaza V. State (2008) LPELR-1683(SC), where Tobi, JSC, said:

Provocation is an action or conduct, which arises suddenly in the heat of anger. Such action or conduct is precipitated by resentment, rage or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind, which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage or fury, as there is time for passions to cool. The very act of reportage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage or fury of the Accused.”

• PER A. A. AUGIE, J.S.C.

DEFENCE OF PROVOCATION – ELEMENTS A DEFENDANT MUST PROVE FOR THE DEFENCE OF PROVOCATION TO AVAIL HIM

“The three conjunctive elements which a defendant, who wants to avail himself of this special defence, must prove are that:

(a) There was the deceased person’s act of provocation which caused his loss of self-control;

(b) He killed the deceased in the heat of passion and

(c) At the time of killing, the heat of passion had not waned, Amala v State [2004] 12 NWLR (pt 888) 520; R v Afonja (1955) 15 WACA 26.” PER C. C. NWEZE, J.S.C.

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DEFENCE OF PROVOCATION – REQUIREMENT FOR THE ELEMENT OF THE DEFENCE OF PROVOCATION TO AVAIL A DEFENDANT

“These Trinitarian elements, which must be read conjunctively, require the defendant to prove that due to the deceased person’s sudden act of provocation, he [defendant] killed him [the deceased person] on the spur of the moment before his [defendant’s] passion could abate or vapourise, Uluebeka v State [2000] 7 NWLR (pt 665) 404; Nwede v State [1985] 3 NWLR (pt 13) 444; Yusuh State [1988] 4 NWLR (pt 86) 96; R v Afonja (supra)”. PER C. C. NWEZE, J.S.C.

DEFENCE OF PROVOCATION- NATURE OF THE PROVOCATIVE ACT

“In a word, the provocative act must be such that would deprive him of self-control suddenly and temporarily, Ahmed v The State [1999] 7 NWLR (pt 612) 641; Wonaka v Sokoto Native Authority [1956] SCNLR 79; Kumo v State [1967] 5 NSCC 286; Akalezi v State[1993] 2 NWLR (pt 273)1; Queen v Akpakpan [1956] SCNLR 3; Musa v State (supra)”. PER C. C. NWEZE, J.S.C.

ABETMENT OF AN OFFENCE- ELEMENT OF A CHARGE OF ABETMENT OF AN OFFENCE

“Abetment of an offence is itself an offence. In a charge of abetment of an offence, as stated by Coker, JSC in Patrick Njovens & Ors. v. The State (1973) 5 S.C 12, the initial element is the instigation or the positive act of encouragement to do the act that constitutes the offence.” PER E. EKO, J.S.C.

CRIME – MEANING OF INSTIGATING A CRIME

“Instigating a crime is no more than to goad or incite another to do an act that is a crime. It is a specie of the offence generally referred to as criminal conspiracy. Even at common law it is an indictable offence for one person to incite or instigate another to commit an offence: R. v. Rams Ford 13 Cox 9.” PER E. EKO, J.S.C.

ILLEGALITY- WHETHER AN ACCUSED PERSON CAN RELY ON AN ILLEGALITY AS JUSTIFICATION OF THE COMMISSION OF A CRIME

“An instigation or incitement to commit a crime, is itself an offence of abetment of crime. When it is admitted as a fact, it cannot be the basis on which an accused person, who admits that he committed the alleged offence upon his being so instigated or incited, can predicate his defence of provocation. Our jurisprudence or law recognises the truism that illegality, in law, is not capable of creating any right: Bello & Ors v. A. G. Oyo (1986) 1 SC 1 at 76. Thus, as Onu, JSC, later puts it in Alao v. A. C. B Ltd (1998) 1 – 2 SC 177: a party cannot rely on a transaction that is bemirched with illegality.” PER E. EKO, J.S.C.

 

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria, 1999

Criminal Code Act

Criminal Code, CAP 30, Laws of Eastern Nigeria, 1963

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