Legalpedia Citation: (2013-06) Legalpedia (SC) 11119
In the Supreme Court of Nigeria
Fri Jun 14, 2013
Suit Number: SC.81/2012
CORAM
MUHAMMAD SAIFULLA MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
MUSA DATTIJQ MUHAMMAD JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
MUHAMMAD SAIFULLA MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
PARTIES
YEKINI AFOSI APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant was charged at the trial court with the offence of murder of one Mufutau Amusa, at the conclusion of the trial, the court found the appellant guilty as charged and was convicted and sentenced accordingly. On appeal, the court below, found the appeal unmeritorious and was dismissed. He further appealed to the Supreme Court.
HELD
APPEAL DISMISSED
ISSUES
1. Whether the lower court was right in holding that the prosecution has proved murder against the appellant beyond reasonable doubt with credible evidence. (Grounds 1,3,4,5 and 6)?
2. Whether the lower court was right in its holding that the defence of self defence and or provocation will not avail the appellant (Grounds 2, 7, 8 and 9)?
RATIONES DECIDENDI
OFFENCE-MURDER-DEFINITION OF
“Murder as an offence is defined as the taking of human life by a person who either;
(a) has a malicious and wilful intent to kill or do grievous bodily harm; or
(b) is wickedly reckless as to the consequences of his act upon his victim. Therefore, for murder, there must be an evil intent, that is, a criminal intent, although it is not necessary that there should be an intent to kill”. PER OLU ARIWOOLA, JSC
DEFENCE- PROVOCATION-REQUIREMENT FOR A SUCCESSFUL PLEA OF
“It is settled law that to avail himself of the defence of provocation the appellant must have done the act for which he is charged:
(i) In the heat of passion;
(ii) The act must have been caused by sudden provocation;
(iii) The act must have been committed before there was time for passion to cool;
(iv) The mode of resentment must be proportionate to the provocation offered.
These four requirements must co-exist before the defence can succeed.” PER OLU ARIWOOLA, JSC
OFFENCE-MURDER-PROOF OF TO SECURE CONVICTION
“It is already settled law, that for the prosecution to secure conviction for murder, the following must be proved beyond reasonable doubt;
(a) That the deceased had died;
(b) that the death of the person was caused by the accused person;
(c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence”. PER OLU ARIWOOLA, JSC
DEFENCES- SELF DEFENCE-INGREDIENTS OF
“The following are the ingredients of self defence:-
(a) The accused must be free from fault in bringing about the encounter.
(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(c) There must be no safe or reasonable mode of escape by retreat, and
(d) There must have been a necessity for taking life.” PER OLU ARIWOOLA, JSC
DEFENCES-SELF-DEFENCE-NATURE OF
“The plea of self defence may afford a defence where the party raising it uses force, into merely to counter an actual attack, but mainly to ward off or prevent an attack which he has honestly and reasonably anticipated. In that case, the anticipated attack must be imminent”. PER OLU ARIWOOLA, JSC
OFFENCE – MURDER-PROOF OF-STANDARD REQUIRED
“Following must be proved beyond reasonable doubt;
(a) That the deceased had died;
(b) That the death of the person was caused by the accused person;
(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.” PER OLU ARIWOOLA, JSC
DEFENCES- SELF DEFENCE- WHEN NOT RAISED BY THE ACCUSED-WHAT TO BE CONSIDERED
“The position of the law is that where an accused person has not expressly raised issue of self defence this issue could only be considered if from the available evidence the defence avails him so that the court will advert to” PER OLU ARIWOOLA, JSC
DEFENCES-SELF DEFENCE-WHERE RAISED BY AN ACCUSED
“Generally, raising defence of self defence by an accused person charged with murder presupposes that the appellant committed the offence. The reason is that in the administration of Criminal justice, self defence admits of the offence by the accused. All the accused person says is that he committed the offence in self defence. In other words, he says he had no choice in the matter than to commit the offence, the reason being that if he did not do that, the deceased could have killed him.” PER OLU ARIWOOLA, JSC
DEFENCES-PROVOCATION-DUTY OF THE ACCUSED IN ESTABLISHING THE DEFENCE OF PROVOCATION
“In order to establish the defence of provocation, it is the duty of the accused person to adduce credible and positive evidence to support the allegation of provocation. Where an accused person fails to adduce such required credible evidence in support of his defence of provocation, the trial court is entitled to rely on the evidence before it as adduced by the prosecution.” PER OLU ARIWOOLA, JSC
DEFENCES- SELF DEFENCE-INGREDIENTS OF
“The following are the ingredients of self defence:-
(a) The accused must be free from fault in bringing about the encounter.
(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(c) There must be no safe or reasonable mode of escape by retreat, and
(d) There must have been a necessity for taking life.” PER OLU ARIWOOLA, JSC
DEFENCES- SELF DEFENCE- WHEN NOT RAISED BY THE ACCUSED-WHAT TO BE CONSIDERED
“The position of the law is that where an accused person has not expressly raised issue of self defence this issue could only be considered if from the available evidence the defence avails him so that the court will advert to” PER OLU ARIWOOLA, JSC
DEFENCES-PROVOCATION-DUTY OF THE ACCUSED IN ESTABLISHING THE DEFENCE OF PROVOCATION
“In order to establish the defence of provocation, it is the duty of the accused person to adduce credible and positive evidence to support the allegation of provocation. Where an accused person fails to adduce such required credible evidence in support of his defence of provocation, the trial court is entitled to rely on the evidence before it as adduced by the prosecution.” PER OLU ARIWOOLA, JSC
OFFENCE-MURDER-DEFINITION OF
“Murder as an offence is defined as the taking of human life by a person who either;
(a) has a malicious and wilful intent to kill or do grievous bodily harm; or
(b) is wickedly reckless as to the consequences of his act upon his victim. Therefore, for murder, there must be an evil intent, that is, a criminal intent, although it is not necessary that there should be an intent to kill”. PER OLU ARIWOOLA, JSC
OFFENCE – MURDER-PROOF OF-STANDARD REQUIRED
“Following must be proved beyond reasonable doubt;
(a) That the deceased had died;
(b) That the death of the person was caused by the accused person;
(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.” PER OLU ARIWOOLA, JSC
DEFENCES-SELF-DEFENCE-NATURE OF
“The plea of self defence may afford a defence where the party raising it uses force, into merely to counter an actual attack, but mainly to ward off or prevent an attack which he has honestly and reasonably anticipated. In that case, the anticipated attack must be imminent”. PER OLU ARIWOOLA, JSC
OFFENCE-MURDER-PROOF OF TO SECURE CONVICTION
“It is already settled law, that for the prosecution to secure conviction for murder, the following must be proved beyond reasonable doubt;
(a) That the deceased had died;
(b) that the death of the person was caused by the accused person;
(c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence”. PER OLU ARIWOOLA, JSC
DEFENCE- PROVOCATION-REQUIREMENT FOR A SUCCESSFUL PLEA OF
“It is settled law that to avail himself of the defence of provocation the appellant must have done the act for which he is charged:
(i) In the heat of passion;
(ii) The act must have been caused by sudden provocation;
(iii) The act must have been committed before there was time for passion to cool;
(iv) The mode of resentment must be proportionate to the provocation offered.
These four requirements must co-exist before the defence can succeed.” PER OLU ARIWOOLA, JSC
DEFENCES-SELF DEFENCE-WHERE RAISED BY AN ACCUSED
“Generally, raising defence of self defence by an accused person charged with murder presupposes that the appellant committed the offence. The reason is that in the administration of Criminal justice, self defence admits of the offence by the accused. All the accused person says is that he committed the offence in self defence. In other words, he says he had no choice in the matter than to commit the offence, the reason being that if he did not do that, the deceased could have killed him.” PER OLU ARIWOOLA, JSC
CASES CITED
Ogba Vs. The State (1992) 2 NWLR (pt 222) 163Monday Nweze Vs. The State (1996) 2 NWLR (pt 428) 1 at 11Uchenna Nwachukwu Vs. The State (2002) 12 SCM 143 at 15Ehot Vs State (1993) 4 WLR (Pt. 290) 644Frank Uwagboe Vs The State (2008) 7 SCM 152 at 162-163Silas Sule Vs The State (2009) 8 SCM 177Rtd Captain Jairo Musel Liya Vs The State (1998) 2 NWLR (Pt.538) 397Kwaghsir Vs State (1995) 3 NWLR (Pt.386) 651Nwambe Vs. State (19945) 3 NWLR (Pt.384) 385Oladipupo Vs. The State (1993) 6 SCNJ 233R. Vs. Viockers (1957) 2 All ER 741 at 744.R Vs Chisam (1963) 47 Cr App. R. 130 at 134 Iheanyighiehi Apugo Vs The State (2006) 12 SCM (Pt.l) 148 at 168.
STATUTES REFERRED TO
Sections 32(3) and 286 of the Criminal Code