Areas of Law:

APPEAL, LAW OF EVIDENCE, CRIMINAL LAW, PRACTICE AND PROCEDURE

Summary of Facts
The Appellant was said to have murdered one Ajing Bisong. The Appellant attended a burial in a neighboring village and was said to have been smoking indian hemp close to the place where the deceased was serving food and drinks. The deceased approached the Appellant and requested him to leave the area but the Appellant refused and a scuffle then ensued in consequence of which the Appellant brought out a jackknife and stabbed the deceased who shouted and collapsed. The deceased was rushed to the hospital by an eye witness to the incident, but the deceased died on their way to the hospital. The Appellant was arraigned before the High Court of Cross River State for the offence of murder and at the end of the trial the Court convicted and sentenced the Appellant to death. Dissatisfied with the decision of the trial court, the Appellant appealed to the Court of Appeal, who eventually confirmed the conviction and sentence by the trial Court. Aggrieved with this decision, the Appellant has appealed to this court.Held
Appeal Dismissed

Issue For Determination

• Whether the court below was right to have upheld the decision of the trial court to wit: that the defence of self-defence and provocation did not avail the appellant

RATIONES:

DEFENCES – THE COURT HAS A DUTY TO CONSIDER ANY DEFENCE TO WHICH AN ACCUSED PERSON IS ENTITLED TO HOWEVER STUPID OR UNREASONABLE
“The law is settled that any defence to which an accused person is, on the evidence entitled to, should be considered however stupid or unreasonable for what it is worth. See Uche Williams V. The State (1992) 10 SCNJ.74, R V. Fadina (1958) SCNLR 250, Udofia V. The State (1984) 12 SC 139, Ojo V. The State (1972) 12 SC 147.In Bozin V. The State (1985) 2 NWLR (pt. 8) 465, this court held that it is an essential principle of a criminal trial that a defence however fanciful, stupid or doubtful is deserving of consideration. See alsoAbdullahi Ada V. The State (2008) 13 NWLR (pt. 1103) 149.”PER J. I. OKORO, J.S.C.

STATEMENT BY AN ACCUSED PERSON – DUTY OF THE COURT TO TAKE A STATEMENT WHICH IS LESS FAVOURABLE TO AN ACCUSED PERSON WHERE HE MAKES TWO STATEMENTS VOLUNTARILY
“The law is quite clear that where an accused person makes two statements voluntarily, with full knowledge of what he is doing and without any form of inducement, a trial judge will be right to take the one which is less favourable to the accused, particularly when that one is first in time. The second one will, in my opinion be an afterthought. See Sule V. State (2009) 17 NWLR (pt 1169) 33 at 66 paras F – G and Ikemson V. The State (1989) 3 NWLR (pt.110) 455 at 473”. PER J. I. OKORO, J.S.C.

DEFENCE OF SELF DEFENCE – THE DEFENCE OF SELF DEFENCE WILL AVAIL AN ACCUSED PERSON WHERE THERE IS AN UNLAWFUL ASSAULT UNPROVOKED BY THE ACCUSED PERSON
“The law is quite clear that by virtue of section 286 of the Criminal Code, when a person is unlawfully assaulted or attacked, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effective 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. In other words, for the defence of self-defence to avail an accused person, there must be an unlawful assault which the unlawful assault was not provoked by the accused. See Apugo V. The State (2006) 16 NWLR (pt. 1002) 227, Uwaekweghinya V.The State (2005) 9 NWLR (pt. 930) 227 at 285”.PER J. I. OKORO, J.S.C.

DEFENCE OF PROVOCATION – REQUIREMENTS FOR AN ACCUSED TO SUCCESSFULLY INVOKE THE DEFENCE OF PROVOCATION
“For an accused to successfully invoke the defence of provocation, he must state clearly the fact or act of provocation to enable the court to determine how much he was provoked. Secondly, he has to show that the said provocation was enough to deprive him of self-control and thirdly, he must show a retaliation which is proportionate to the provocation offered by the deceased to the accused. See Stephen V. The State (1998) 12 SC 450 at 498; Alao Chukwu V.The State (1992) NWLR (pt. 217) 255 at 270; Obaji V. The State (1965) 4 NSCC 210 at 215.”PER J. I.OKORO, J.S.C.

SELF – DEFENCE AND PROVOCATION – DISTINCTION BETWEEN SELF DEFENCE AND PROVOCATION
“The distinction between the defence of self-defence and that of provocation is that while a plea of self-defence if successfully raised will completely absolve the offender from criminal responsibility, a plea of provocation on the other hand, if successful, reduces the offence of murder to manslaughter. See Ajunwa V. State (1988) ( SC 110, AlberLaoye V. The State (1985) 2 NWLR (pt. 10) 832”.PER J. I. OKORO, J.S.C.

INCONSISTENT STATEMENT OF AN ACCUSED –DUTY OF THE COURT WHEN AN ACCUSED PERSON MAKES A STATEMENT INCONSISTENT WITH THE DEFENCE GIVEN AT TRIAL
“The law is that where an accused person is shown to have made a statement previously which is inconsistent with the defence given at the trial, a trial court will be right to conclude that the evidence given at the trial is unreliable, aimed at exculpating the accused from blame: see Amusa V. The State (2005) 1NCC 87 at 91.”PER S. GALADIMA, J.S.C.

SELF-DEFENCE – WHEN WILL SELF-DEFENCE NOT AVAIL AN ACCUSED PERSON
“The defence of self-defence will not avail an accused person if he had no reasonable ground for believing that his life was in danger and the force which he applied to defend himself was unrelated or disproportionate to what he claimed the deceased did to him. SeeUwaekweghina V. The State (supra)”.PER S.GALADIMA, J.S.C.

NATURE OF PROVOCATION – THE NATURE OF THE PROVOCATION MUST BE AS SUCH AS TO DEPRIVE THE PERSON PROVOKED OF THE POWER OF SELF CONTROL
“Under sections 283 and 283 of the Criminal Code, the nature of the provocation must be as such as to deprive of the person provoked of the power of self control; and that he acts upon sudden circumstance and before there is time for his passion to cool, provided that the force is not intended and is not such as likely to cause death or grievous harm”. PER S. GALADIMA, J.S.C.

DEFENCE OF PROVOCATION – ELEMENTS OF THE DEFENCE OF PROVOCATION
“Under the Criminal Code the defence of provocation contains 3 main elements:
i. The fact of pro vocation
ii. The loss of self-control, actual and reasonable
iii. The act of retaliation being proportionate to the provocation”. PER S. GALADIMA, J.S.C.

DEFENCE OF PROVOCATION – THE DEFENCE OF PROVOCATION DOES NOT EXONERATE THE ACCUSED PERSON
In effect, the defence of provocation does not exonerate the accused person. It, only, earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter, Uraku v State (1976) LPELR-SC. 300/1975; [1976] 6 SC 128; Akang v State [1971] 1 All NLR 47, 49; Musa v State (2009) LPELR-SC.323/2006; [2009] 15 NWLR (pt 1165) 465; Ada v State (2008) LPELR-SC.242/2004; [2008] 13 NWLR (pt ll03) 149; [2008] 34 NSCQR 508; Ajunwa v The State [1988] 1SC 110; Laoye v The State [1985] 2 NWLR (pt 10) 832; C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 240; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol II (1973) 93-97”. PER S. GALADIMA, J.S.C.

PROVOCATION – WHETHER A LAWFUL ACT CAN GIVE RISE TO PROVOCATION FOR AN ASSUALT?
“A lawful act is not provocation to any person for an assault. An act which a person does in consequence of excitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that person for an assault”. PER M. U..PETER-ODILI, JSCCRIMINAL RESPONSIBILITY – WHETHER A PERSON IS CRIMINALLY RESPONSIBLE FOR AN ASSAULT COMMITTED UPON A PERSON WHO GIVES HIM PROVOCATION FOR THE ASSAULT
“A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous harm”. PER M. U. PETER-ODILI, J.S.CPROVOCATION –DETERMINATION OF ACTS LIKELY TO DEPRIVE A PERSON OF SELF CONTROL ARE A QUESTION OF FACTS
“Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact”. PER M. U. PETER-ODILI, J.S.C

SELF DEFENCE – 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 A DEFENCE AGAINST THE ASSAULT
“On Section 286 of the Criminal Code Law on self defence, it is provided that 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 an effective 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”. PER M. U. PETER-ODILI, J.S.C

“If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm and the person using force by way of defence believes on reasonable 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. See Iheanyighichi Apugo v The State(2006) 16 NWLR (Pt. 1002) 227 at 232; Samson Nkemji Uwaekweghinya v The State(2005) 9 NWLR (Pt. 930) 227 at 235.”PER M. U. PETER-ODILI, J.S.CPROVOCATION – DEFINITION OF PROVOCATION
“Alochukwu v The State (1992) NWLR (Pt. 217) 255 at 270 per karibi-Whyte, JSC stated thus:
“The term “provocation” as defined in section 283 of the Criminal Code is in relation to an offence of which an assault is an element. It includes “any wrongful act or insult of such a nature as to be likely to when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation or in relation of master or servant, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered”.PER M.U. PETER-ODILI, J.S.CPROVOCATION – ELEMENTS OF PROVOCATION
“There are three essential elements of provocation. There is the act of provocation and in homicide, it must be grave and sudden; then the loss of self-control both actual and reasonable. Then finally, the retaliation, which must not be disproportionate to the provocation.See sections 284 and 318 of the Criminal Code – See Lee Chun Chuenv The Queen (1962) 3 WLR 1461. These are all questions of facts to be established by the person relying on the defence. See Section 138 Evidence Act.“PER M. U. PETER-ODILI, J.S.C

PROVOCATION – FACTORS FOR THE DEFENCE OF PROVOCATION
“In the case of Isaac Stephen v The State (1998) 12 SC 450 at 498 – 499
Where Oputa, JSC stated:
“The defence of provocation cannot be discussed in vacuo. There must exist evidence of:
1. The fact or act of provocation
2. The loss of self control; and
3. A retaliation proportionate to the provocation offered by the deceased to the accused”.PER M. U.PETER-ODILI, J.S.C

NATURE OF A PROVOCATIVE ACT – THE PROVOCATIVE ACT SHOULD BE ONE CAPABLE OF DEPRIVING A REASONABLE MAN OF THE POWER OF SELF CONTROL
“The provocative act or insult proved in evidence should be one capable of depriving a reasonable man and which did in fact deprive the accused of the power of self control to make him for the moment not master of his mind: R. V. Duffy (1949) 1 IALL ELR P.932 at 933″ PER M. U.PETER-ODILI, J.S.C

PROVOCATION – NATURE OF RETALIATION FOR A PROVOCATIVE ACT – ELEMENTS OF PROVOCATION
“In addition to the fact that provocation must be sudden done in the heat of passion and before there is time for passion to cool under the provisions of Sections 283 and 318 of the Criminal Code, the nature of retaliation by the accused must also be proportionate to the nature of the provocation offered.This is because, under the Criminal Code, the defence of provocation contains these main elements:
1. The act of provocation
2. The loss of self control, actual and reasonable
3. The retaliation being proportionate to the provocation”. PER M. U.PETER-ODILI, J.S.C

Statutes Referred To
Criminal Code Act Cap. C. 38 Laws of the Federation of Nigeria, 2004.
Evidence Act