CORAM

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MUHAMMAD SA1FULLAH MUNTAKA-COOMASSIE    JUSTICE, SUPREME COURT

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PARTIES

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HARRISON OWHORUKE    APPELLANTS

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COMMISSIONER OF POLICE

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant was arraigned on a one count charge for murder punishable under section 319(1) of the Criminal Code Cap. 48, Vol. ii Laws of the defunct Bendel State of Nigeria, 1976 as applicable to Delta State. The Appellant stabbed the deceased Augustine Eveh with a broken bottle on his neck in a struggle that ensued between both of them which led to his death before he could get to the hospital. At the trial court, the Appellant pleaded not guilty and admitted that though he stabbed the deceased which resulted to his death, it was not intentional. The trial court rejected the defences of self defence, provocation and accident. The court consequently found the Appellant guilty and convicted him for the offence of murder. On appeal to the lower court, the Court of Appeal affirmed the judgment of the trial court, hence a further appeal to this court.

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HELD

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Appeal Dismissed

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ISSUES

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1. Whether the learned justices of the Court of Appeal were right in upholding the decision of the trial court that the Appellant is not entitled to the defence of self defence and provocation?

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RATIONES DECIDENDI

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FAIR TRIAL – TRANSPARENCY IN THE INVESTIGATION OF CRIME BY THE POLICE PRESUPPOSES FAIR TRIAL

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“A fair trial presupposes that police investigation of the crime for which the accused person stands trial was transparent. In that regard it is time for safeguards to be put in place to guarantee transparency”. PER O. RHODES-VIVOUR, J.S.C

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CRIME – THE INTENTION TO KILL OR CAUSE GRIEVOUS HARM CAN BE INFERRED FROM THE NATURE OF THE WEAPON USED

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“The intention to kill or cause grievous harm can be inferred from the nature of the weapon used. See Garba V. The State (2000) FWLR (Pt. 24) 1448 at 1459 “. PER C.B. OGUNBIYI, J.S.C

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CAUSE OF DEATH – CAUSE OF DEATH CAN BE INFERRED FROM THE EVIDENCE ADDUCED BEFORE THE TRIAL COURT

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“The cause of death could, no doubt be inferred from the totality of the evidence adduced before the trial court from which the court is entitle to draw necessary inference there from; see the case of Onyejekwe V. The State (1992) 3 NWLR (Pt. 230) 444 at 456”. PER C.B. OGUNBIYI, J.S.C

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CONCURRENT FINDINGS BY THE LOWER COURTS – AN APPELLATE COURT IS ENTITLED TO ACCEPT AND AFFIRM THE FINDINGS OF LOWER COURTS WHERE SAME IS NOT PERVERSE

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“On the concurrent findings by the two lower courts, the law is trite that the appellate court is entitled to accept and affirm the findings of the trial court, which have not been shown to be perverse or not supported by the evidence. See Durugo V. The State (1992) 7 NWLR (Pt. 255) 525 at 535.” PER C.B. OGUNBIYI, J.S.C

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PROVOCATION – DEFINITION OF PROVOCATION – SECTION 283 OF THE CRIMINAL CODE

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“Section 283 of the Criminal Code defines provocation to include not only wrongful acts but also spoken words”.PER O. RHODES-VIVOUR, J.S.C

 

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DEFENCE OF PROVOCATION – A DEFENCE OF PROVOCATION CAN AVAIL AN ACCUSED PERSON WHEN HE CAN PROVE THAT THE ACT WAS DONE IN THE HEAT OF PASSION CAUSED BY SUDDEN PROVOCATION

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“On the defence of provocation also, same can only avail an accused person where he can prove that the act for which he is charged must have been done in the heat of passion caused by sudden provocation and also that the act must have been committed before there is time for his passion to cool. See Uwagboe Vs. State (2008) 12 NWLR (Pt. 1102) 621 at 638”. PER C.B. OGUNBIYI, J.S.C

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CONFESSIONAL STATEMENTS – REQUIREMENT FOR TAKING CONFESSIONAL STATEMENT FROM AN ACCUSED PERSON

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“It is seriously recommended that confessional statements should only be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner. Where this is not done such a confessional statement should be rejected by the court.” PER O. RHODES-VIVOUR, J.S.C

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DEFENCE OF SELF DEFENCE – INGREDIENTS AN ACCUSED PERSON MUST ESTABLISH TO SUCCEED IN THE DEFENCE OF SELF DEFENCE

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To succeed on the defence of self defence, the accused/appellant must show:
(a) That the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm to the accused.
(b) That the accused in fact apprehended death or grievous bodily harm. See Laoye Vs. The State (1985) 2 NWLR (Pt. 10) 832 at 842; Uwagboe Vs. The State 13 NWLR (Pt. 1102) 621 at 648”. PER C.B. OGUNBIYI, J.S.C

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DEFENCE OF SELF DEFENCE – FOR THE DEFENCE OF SELF DEFENCE TO AVAIL AN APPELLANT, HE MUST ESTABLISH THAT THE ACT OF THE DECEASED ENDANGERED HIM

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“For such defence to avail the appellant, he must first ensure and show by evidence that he was so much endangered by the act of the deceased that the only means of escape from imminent death was to kill the deceased. See the case of Ekpenyong V. The State (1991) NWLR (Pt. 200) and Amaka Vs. State 1995 NWLR (Pt.399).” PER C.B. OGUNBIYI, J.S.C

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PROVOCATION – ELEMENT OF PROVOCATION

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“Provocation consists of the following:
(a) the act of provocation;
(b) the loss of self control;
(c) the retaliation must be proportionate to the provocation”. PER O. RHODES-VIVOUR, J.S.C

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INTERFERENCE WITH CONCURRENT FINDINGS OF FACT BY THE LOWER COURTS – INSTANCES WHERE THE CONCURRENT FINDINGS OF FACTS BY LOWER COURTS CAN BE INTERFERED WITH BY THE APEX COURT

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“In view of concurrent findings of fact by the two lower courts, this court will not interfere with such findings unless special circumstances are shown, such as the findings are perverse, or there was a serious error of procedural or substantive law which has resulted in a miscarriage of justice. See Lasisi v State (2013) 3-4 SC (pti)p.58, Ndulue & anor. v Ojiakor & 2 ors. (2013) 1-2 SC (pt.ii) p.91 .” PER O. RHODES-VIVOUR, J.S.C

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PROVOCATION – DEFINITION OF PROVOCATION

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“In R v. Afonja (1955) 15 WACA p.26 the West African Court of Appeal accepted the definition propounded by Delvin J in R v. Duff y 1949 1ALL England Report p.952 that:
“Provocation is some act or series of acts done by the deceased to the accused which would cause in any reasonable person and actually does cause in the accused a sudden and temporary loss of self control rendering the accused so subject to passion as to make him for the moment not master of his mind. See also Annabi v State (2008) 4-5SC (ptii) p.229, Kaza v State (2008) 12 SC p.151, Shalla v State (2007)7-10 SC p.107”. PER O. RHODES-VIVOUR, J.S.C

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CASES CITED

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STATUTES REFERRED TO

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Criminal Code Laws Cap 48 Laws of the Defunct Bendel State of Nigeria as applicable to Delta State

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CLICK HERE TO READ FULL JUDGMENT

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