Isaac Stephen V. The State (1986)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

On the 9th Octobers. 1986, this appeal came up for hearing, and after hearing submissions and argument of counsel, I dismissed the appeal and reserved the reasons for judgment till today. I now proceed to give my reasons for doing so.

The appellant was charged and arraigned before the High Court, Kwale (Eluaka, J.) for the offence of murder contrary to Section 319(1) of the Criminal Code Cap. 48. Volume II. Laws of Bendel State of Nigeria 1976. The charge alleged that on or about the 3rd of May, 1981, at Igbuku, in the Kwale Judicial Division, he murdered one George Obi. He pleaded not guilty to the charge.

The prosecution’s case was that there was a disagreement between the appellant and a certain woman named Otueme Ogbondu (P. W. 7). It was over a plot of land which Otueme claimed was her husband’s plot and which plot the appellant had cleared without permission. When challenged by Otueme, the appellant told her that he had cleared the plot because he thought Oghondu was not going to use it. But 7 P.W. replied that she too wanted to make use of the land.

In the evening of the same day, appellant went to P.W.7 and demanded from her the sum of N6.00 for his labour in clearing her land. 7 P.W. refused to pay the amount on the ground that she had not employed the appellant to clear the land. The following day, which was the day of the incident, the appellant approached P.W. 7 and ,again, demanded payment but P.W.7 said she had no money. This was in the presence of one Osuaga Ngede (P. W. 4) and George Obi, the deceased. When the appellant persisted in his demand, George Obi appealed to him to go and return later for the money which he, (George Obi) promised to pay. It was alleged that the appellant left the place in anger.

He later returned with a gun and hid himself behind a tree. P. W. 7 testified that she heard the sound of a gunshot which was fired by the appellant, and on looking back she saw George Obi on the ground. He had been hit by bullets and died on the spot. The appellant took to his heels and vanished from the scene of the incident. A report was made to the Police and the appellant was subsequently arrested. On the 12th May, 1981, he voluntarily made a confessional statement to a Police Serpent (P.W.1) which statement he confirmed before a superior Police Officer (6.P.W.) on the same day. The statement was tendered at the trial and marked Exhibits ‘A’.

At the trial a number of witnesses gave evidence for the prosecution. The appellant gave evidence in his defence. He denied killing George Obi intentionally.

At the conclusion of the trial, the learned trial Judge gave very careful consideration to the totalily of the evidence adduced, and held that the charge had been proved against the Appellant. He found him guilty of murder and sentenced him to death.

Being dissatisfied with the decision of the Trial court, the appellant appealed to the Court of Appeal on a number of grounds, and that court, in a unanimous decision given on the 5th March, 1986 dismissed his appeal and confirmed his conviction and the sentence of death passed on him.

The appellant has further appealed to this Court. Both counsel for the Appellant and counsel for the respondent had filed briefs of arguments on which they relied and expatiated in their arguments before us. In his brief, Mr. Shola Rhodes for the Appellant, has formula led the issues for determination in this appeal as follows:-

“1. Whether the trial court considered in detail, the possible defences of provocation, self-defence and accident as required by law;

2. Whether the Court of Appeal was right in holding that all such defences were adequately considered before they were rejected by trial Court;
3. That if such defences were legally considered, would the trial court had (sic) arrived at an alternative verdict of manslaughter instead of murder, and whether such conviction would have been affirmed by the Court of Appeal.”

The gravamen of the appellant’s complaint in this appeal was that the lower Courts did not give adequate consideration to the defences or pleas of provocation, self-defence and accident which were raised by the appellant.

The plea of provocation was raised by the appellant in his confessional statement (Exh. ‘A’) which he made about nine days after the incident. In that statement, he said, inter alia-

“On 3/5/81 at about 6.30 p. m., I clear a portion of land which belongs to our family and Otueme say I should not burn the farm at all, that she was to clear it first. I told her she should give me N6 before I leave the land for her, she said no that she no give me the six Naira, then George Obi told me “who is me”. I said to him why should he say that type of words to me. George Obi told me that if I want to show that type of wiseness, I should go to my father’s land that me wey don sell as a slave to Rivers State, why should I talk to them. I told him how he manage know I am a slave, then I gripped him in his cloth and he twisted my left hand back and he give me a blow and said that if I talk more than that, he will give me a medicine and I will turn to tortoise. Many people started to separate us. The people who separated us are (1) one teacher Oboh, Cortina and Odoslo but I did not know their father’s name. George Obi run inside the house and carry cutlass, I then run inside house and carry dane gun, George Obi rushed to me to cut me, I ran back but no way to run so I fired George Obi on the right hand with my dane gun, all of them rushed on me and I dropped gun there and I run to the nearest police station at Akpe….”

The learned trial Judge, in his judgment dealt with the appellant’s pleas of provocation and said as follows:-

“Coming to the former statement to the police that the deceased person provoked him and therefore went to pick a gun, I think that to go and pick a gun when the deceased picked a matchet, the accused person ought to know that a gun is more lethal weapon and that his intention of picking a gun is to kill…. I accept the view that during the quarrel when the deceased called him a slave he took up a gun and fired the deceased who died as a result. A question has been asked by defence counsel whether in their native place, calling one a slave will amount to a provocation, the answer is that where such person is accused of a slave (sic) the next thing to do is to report to the community who should take proper action. By running away to bring gun, and returning, there was enough time for passion to cool that is if calling (one) a slave could amount to provocation.

This defence I reject also.”

Now Section 318 of the Criminal Code Cap. 48 of the Laws of Bendel State sets out clearly the test applicable when a defence of provocation is raised so as to reduce a charge of murder to that of manslaughter. The Section reads as follows:-

“When a person who unlawfully kills another in circumstances which, but for the provisions of this Section, would constitute murder, does the act which causes death in the heat of passion caused by grave and sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

The circumstances mentioned in the Section in which a defence of provocation can be raised in a murder charge, in order to reduce it to that of manslaughter, were fully examined by this Court in Obaji v. The State (1965) N.M.L.R. 417. In its judgment in that case, this Court said:- “To avail himself of the defence in a charge of murder under Section 318 of the Criminal Code, the accused must have done the act for which he is charged (i) in the heat of passion, (ii) this must have been caused by sudden provocation, and (iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian Courts has been to interpret Sections 283 and 318 of the Criminal Code as impliedly including the mode of resentment or, in other words, that the retaliation must be proportionate to the provocation offerred.”

And in the same judgment, the Court concluded that-

“The Court is of the view that the correct direction in law is that in relation to murder, provocation in Section 318 of the Criminal Code requires consideration of the nature of the weapon or force used as a mode of resentment bearing some reasonable relation to the provocation received, the disproportion being a factor for the jury to consider in determining whether the accused had completely lost control of himself or was acting for a reason other than complete loss of self-control caused by sudden provocation.

In my view all the essential ingredients, which must be established by the appellant in his defence of provocation, as enumerated in Obaji v. The State (Supra) were fully considered by the learned trial Judge in his judgment.

Even though it has been decided in a number of cases that there might be circumstances where words alone could amount to provocation, such circumstances, it has been held, must be related to the status in life of the person provoked. See R. v. Akpakpan (1956) 1 F.S.C. 1 & 2. R. v. Edache (1962) 1 ALL NLR 22. R. v. Adekanmi (1944) 17 NLR. 99 and R v. Igiri (1948) 12 W.A.C.A. 371. In this case the trial judge made a finding based on the evidence before him, that calling a person of appellant’s standing a slave in the appellant’s community could not amount to provocation. It was also the view of the trial Judge that even if the appellant was provoked, there was enough time for passion to cool. He also made a finding that the degree of retaliation used by the appellant, by shooting the deceased with a gun, was not proportionate to the provocation offered. These findings were confirmed by the Court of Appeal in its judgment when it said:-

“Similar consideration applies to the finding of the trial Judge regarding the allegation of the appellant being called a slave. That allegation was also contained in the Appellant’s statement. The trial Judge held the view, and quite rightly so, that calling the appellant a slave was not sufficient provocation to warrant going home to fetch a gun, during which his passion ought to have cooled down, and returning to kill the deceased with it. In my view the defence of provocation was duly considered and rightly rejected.”

I am therefore satisfied that both the trial court and the Court of Appeal, in the light of the evidence before them. gave adequate consideration, in their respective judgments, to the plea of provocation raised by the appellant.

I am also satisfied that both courts were right in coming to the conclusion that in the circumstances of this case, the plea of provocation could not avail the appellant. I therefore see no substance in the complaint that the appellant’s plea of provocation was not adequately considered by the lower courts.

It was also complained that the appellant’s plea of self-defence was not also adequately considered.

Now self-defence is, of course, a complete answer to a charge of murder but to avail himself of this defence the appellant must show that his life was so much endangered by the act of the deceased that the only option left for him to save his own life was to kill the deceased. He must show that he did not want to fight and was prepared to withdraw. See R. v. Lobell (1957) 1 ALL E.R. 734, The State v. John Umunu (1968) NMLR 15 at 20 and Ogbonna Nwede v. The State (1985) 12 S.C. 32 at p. 36.

In the instant case, the appellant raised the plea of self-defence in his statement to the Police- Exhibit ‘A’, as follows:-

“George Obi run inside the house and carry cutlass. I then run inside the house and carry my dane gun. George Obi rushed to me. I ran back but no way to run so I fire George Obi on the right hand with my dane gun. All of them rushed to me and I dropped my gun there. I run to the nearest police station at Alepe who picked me to Ole…”

In his judgment the learned trial Judge gave due consideration to this defence and said:

“I do not accept that contention in that statement that it was when the deceased cornered him with the matchet that he fired the gun. I accept the view that during the quarrel when the deceased called him a slave he took up a gun and fired the deceased who died as a result.”

This same issue was duly considered by the Court of Appeal when the matter was made a ground of appeal in that Court, and it was, rightly in my view, rejected.

The appellant said that he was forced to shoot the deceased during the fight because he was unable to escape when the deceased rushed at him with a matchet. He did not, however, tell the Court what physical object obstructed his escape when, according to his own evidence, the encounter between him and the deceased took place in the open. Again I am satisfied that the appellant’s defence of self-defence was adequately considered by the trail court and rightly rejected.

Finally, in his defence at the trial, the appellant said that the killing of the deceased was accidental. He said that this happened when his gun exploded and the bullets accidentally hit the deceased. It is however, pertinent to note that this plea of accident was never raised by the appellant in his confessional statement (Exh. A) to the Police which was made when the whole thing was fresh in his memory and on which the learned trial Judge substantially based his decision. I am of the view that the plea was nothing but an afterthought which was, in the circumstances, rightly ignored by the trial court.

It was for the above reasons that I dismissed the appeal of the appellant on the 9th day of October, 1986.

ANIAGOLU, J.S.C. (Presiding): The draft of ‘Reasons for Judgment’ just delivered by my learned brother, Kawu, J.S.C. was made available to me before now. I agree with those reasons and hereby adopt them as mine.

On the issue of self-defence raised by the Appellant that defence is disposable because the foundation on which it could have rested had gone, the learned trial Judge having rejected, upon sound reasons, the story told by the Appellant that the deceased chased him to a cul-de-sac, matchet in hand. The learned trial Judge held that there was no such embattled situation.

Coming to the issue of provocation the trial court reasoned on the basis that in fact the deceased called him a slave, but rejected the defence provocation on the grounds-

(i) That the Appellant being called a slave would not justify him reaching for his gun; and

(ii) that even if it would have justified him in so doing, there was enough time for him to cool and regain his composure.

There always appears to be some problem with some lawyers appreciating that when in loose colloquial talk a person says he is “provoked” that dislodgment of equilibrial composure which in ordinary parlance may be and usually is, termed “provocation” is not the legal provocation accepted as satisfying the law under section 318 of the Criminal Code under which, the death must be caused-

(i) in the heat of passion;

(ii) caused by grave and sudden provocation;

(iii) before there is time for his passion to cool’

Once one of the three above elements is missing the defence of provocation is out. No amount of emotional build up by Counsel in the conception of the facts and circumstances of a case will be of avail to an appellant if any of the three above constituents is missing.

In the instant appeal, the “provocation” offered to the appellant in his being called “a slave” was not, in the circumstances, grave. And so the above second constituent was out. Again, as found by the trial Judge, there was time for the Appellant to cool down having regard to the distance he had to run to his house to fetch his gun. Therefore, the third constituent above was also not there and so, the elements for legal provocation were non-existent, in which case, the defence must be rejected by this Court as did, the two Courts below. In recent years this Court had discussed the law of provocation in several cases including Ibanga v, State (1983) 1 S.C 88.

It was for the above reasons and those of Kawu, JSC, that I dismissed this appeal on 9th October, 1980.

COKER, J.S.C.: This appeal from the decision of the Court of Appeal, Benin City Division was dismissed on 9th October 1986, and I indicated then that reasons for my decision will be given today.

The background of the appeal is as follows. The appellant, an ex-service pensioner, was charged with the murder of one George Obi in that he on 3rd May 1981 at Igbuku in Kwale District of Bendel State caused his death by shooting him with a dane a gun. He was found guilty on the evidence of two eye witnesses, his own confessional statements to the police and his oral evidence in court.

The learned trial Judge considered the defence of provocation, self-defence and accident and rejected each of them. He was accordingly convicted of the offence and sentenced to death, His appeal to the Court of Appeal was dismissed in a unanimous judgment. In the lead judgment, Ajose-Adeogun, J.C.A., meticulously considered and dismissed each of the four grounds of appeal and finally came to the decision that having regard to the totality of the evidence before the trial Court and particularly the free and voluntary confession of the appellant, all the grounds of appeal lack merit and consequently dismissed the appeal.

The prisoner further appealed to this court originally on two grounds. He was granted leave to argue two additional grounds. The general ground which was originally ground 2 but renumbered 3 but was not pursued by his counsel. He confined his arguments to grounds 1 and 2, which were the new grounds for which leave was granted.

His contention in the brief was that the trial Judge did not give adequate consideration to the defence of provocation, self defence and accident as required by law. None of the findings of fact of the trial Judge was challenged.

Learned counsel for the appellant submitted that if the trial Judge had given adequate consideration to the defence, he ought to have returned verdict of manslaughter instead of that of murder.

It is therefore necessary to examine the evidence adduced by the prosecution and that of the appellant in court to understand the nature of his defence in the trial and the argument advanced in this court.

1. The 4th and 7th P.W.’s, were eye witness to the incident. Each gave evidence that the appellant and 7th P.W., Otueme, had some difference. It was over the demand of a sum of N6.00 by the appellant for his labour over the clearing of a parcel of farmland. The appellant had cleared the land without informing 7th P.W. who subsequently indicated the intention of farming on it herself. There was no dispute that Appellant had no better right than 7th P.W. It was also not disputed that 7th P.W. refused to pay appellant the N6.00 the appellant demanded. On the following day, appellant repeated his visit to 7th P.W., where he met the deceased, Gabriel Obi, 4th P.W., Osuya Ngede and 7th P.W. clearing an area of land, preparatory to laying the foundation for a house. He again repeated his demand of the N6.00 to 7th P. W. The deceased apparently intervened and advised the appellant to go away, A quarrel ensued between deceased and the appellant during which the deceased abused the appellant by calling him a slave. In annoyance, the appellant left the spot only to return with a dane gun and apparently concealed his presence behind a plantain grove. The three Godwin Obi, 4th P.W. and 7th P.W. were still working clearing the land, when they heard a gun-shot from behind them. The deceased fell and on looking back, 4th and 7th P.W.s saw the Appellant beside the plantain grove with the gun pointed towards their direction. Appellant immediately took to his heels. Godwin Obi died almost immediately. 4th P.W. carried the body from the spot to his parlour and reported the incident the following morning to the Police at Kwale. 1st P.W., Evbaruese Ifeanyi, an Police Inspector was on duty at the time on 4th May 1981 when 4th P.W. reported the case to the police. He then followed 4th P. W. to the scene at Ighuku and saw the corpse in the parlour of 4th P.W.’s house. He observed what looked like gun wounds on the left hand and right ribs. He later conveyed the corpse to the General Hospital. Kwale, where 4th P.W. identified the corpse as that of Gabriel Obi to 6th P.W. Dr. S. I. Odibeatu, who later performed a post mortem examination on the body. The 1st P.W. looked for the gun but could not recover it. He testified that the appellant was on 11/5/81 brought to Kwale from Oleh, where the appellant had reported himself to the police. His report was that he fired a gun at someone at Igbuku. The witness then charged appellant on 12/5/81, cautioned him and he volunteered a statement in English language which he recorded in English language, read it over to the appellant, who after satisfying himself that it was correctly recorded, signed it. The appellant was later taken before the 2nd P.W., the Divisional Police Officer, together with the statement which 2nd P. W. read over again to the appellant. The appellant confirmed the statement and the 2nd P.W. counter signed it.

In his statement (Exh. A) the appellant confirmed he cleared the parcel of farmland and that 7th P.W. Otueme, questioned him for doing so. He admitted in the statement that he demanded N6.00 from her for his services in clearing the farm land, but that George Obi the deceased, supported her decision not to pay him. This statement in part read:-

“I told her (i.e. Otueme) that she should give me N6 before I leave the land for her, she said no that she will not give me the N6. George Obi told me “who is me”. I told him why should he say that type of words to me. George Obi told me that if I want to show that type of wiseness. I should go to my father’s land, that me wey de don sell as a slave to Rivers State, why should I talk to them. I told him how he manage know that I am a slave, then I gripped him in his cloth and he twisted my left hand back and he gave me a blow and said if I talk more than that he will give me a medicine and I will turn to tortoise. Many people started to separate us…George Obi ran inside the house and carry cutlass. I then run inside house and carry my dane gun. Geoge Obi rushed to cut me, I ran back but no way to run so I fire. George Obi on the right hand with my dane gun. All of them rushed on me and I dropped my gun there and I ran to the nearest police station at Akpe, who pick me to Oleh where I stayed for cell for seven days before they take me to Kwale for seven days.

It should be noted that the appellant lived close to the river, which was some distance away from where the incident took place. In his evidence before the court, he retracted from his statement to the police. He denied signing the statement or that he demanded the sum of N6 for his services from 7th P.W. He admitted George Obi spoke to him about the farm of Otueme (7th P.W.) which he had cleared and the deceased warned him not to go to the farm in question again, that Godwin Obi abused him, that he should go to Ijaw land if he wanted to farm, that he called him a slave and that he spoke further “he would turn me into a tortoise.” All these were contained in his statement (Exh. A). He said Godwin Obi wanted to cut him with cutlass and he raised his gun toward off being hit with the cutlass but then hung the gun in his shoulder but Godwin held and drew him back. He continued his evidence.

“The man held me and drew me back and I held him by the waist. As I struggled the ground I was standing slipped me and I fell. As I fell the gun slipped from my shoulder and fell in the ground and there was an explosion from the gun. The man and I was holding each other and fighting when the gun exploded and the man fell on my left side. I carried him 10 metres but he was too heavy and I left him and started to run. After a few yards I came back and carried him again. I was about getting to the town and a house was nearby and there I met 4th and 7th P.W.’s I told them I fought with one George in the bush and he is wounded and is nearby. It was getting dark and one cannot recognize another few yards away. When I saw that Osuya was going to see the deceased I ran to Okpe police station in Isoko Local Government.”

Under cross-examination, the appellant said he was not annoyed when he was called a slave and it was not correct that he met the deceased, 4th and 7th P.W.’s at the scene.

The trial Judge rejected in its entirety the oral evidence given by the appellant in Court that he and the deceased struggled and during the course of the fight, both of them fell and the gun went off and hit the deceased who died from the injuries. That finding disposed the defence of accident. Any further discussion on that defence is therefore academic since the trial Judge did not find that the deceased was shot under those circumstances. Similarly he considered the defence of self defence. That defence could be gleaned partly from his statement (Exh. A) and his testimony in court. The trial Judge did not accept his (appellant’s) territory in this regard.

The trial Judge held:-

“I do not accept the contention in that statement (Exh. A) that it was when the deceased cornered him with a matchet that he fired the gun. I accept the view that during the quarrel when the deceased called him a slave, he took up a gun and fired the deceased who died as a result.. By running away to bring a gun, and returning, there was enough time for passion to cool, that is if calling a slave could amount to provocation. This defence, I reject also. It is my view that the defence of provocation does not avail the accused person and also the defence of self defence cannot avail him because having gone to pick up a gun the accused person made up his mind to murder the deceased.”

The court below held that the trial Judge was quite right that calling the Appellant a slave was not sufficient provocation to justify going home to fetch a gun. I agree that there was sufficient evidence to support the trial court’s rejection of these two defences as also rejection of the plea of accident. I also agree with the judgment of the Court below based on the totality of the evidence by both the prosecution and the defence, there was clearly no miscarriage of justice and the conviction and sentence of the appellant must be affirmed. I agree that case rested principally on facts. It was needless to discuss in vacuum the law relating to the various defences when the facts do not lend themselves to such discussion.

It was for these reasons and those contained in the lead judgment of my learned brother Kawu, J.S.C., that I dismissed the appeal.

KARIBI-WHYTE, J.S.C.: Appellant appealed to this Court against the dismissal of his appeal by the Court of Appeal for his conviction of the offence of murder contrary to S. 319 of The Criminal Code. Cap. 48 Vol. 11 Laws of Bendel State of Nigeria hy Eluaka, J. at Kwale High Court in Bendel State. After argument on the 9th October, 1986. I dismissed the appeal to this Court, and indicated that I will give my reasons for so doing today. Accordingly I hereunder give the reasons.

The facts of the case as found by the learned trial Judge were that Appellant murdered one George Obi. the deceased. The incident which resulted in the death of George Obi, was a quarrel between the appellant and the 7th Prosecution witness in which the deceased George Obi intervened. The 4th prosecution witness Osuya Ngede was present. Only the appellant, 4th prosecution witness and the deceased were involved. The 4th and 7th prosecution witnesses were therefore eye witnesses. There was altercation between Appellant and the deceased in which the Appellant alleged the deceased called Appellant a slave and asked him to go back to the Rivers State where he belonged. The deceased was also alleged to have threatened to turn appellant into a tortoise. The prosecution’s case was that appellant whose piece of land was contiguous to the land of 7th prosecution witness, went to clear a piece of land which belonged to the 7th prosecution witness. On hearing this, 7th prosecution witness Otueme Ogbondu raised objection to appellant doing so. Appellant, after initially claiming that the land belonged to him subsequently asked to be paid the sum of N6 being cost of the work done. Appellant insisted on being paid the same day. 7th prosecution witness was not willing to pay at all. George Obi the deceased, was conciliatory. He appealed to appellant to be patient and that the deceased would find the money for him. Appellant thereafter went to his house nearby, returned with a loaded gun, aimed and shot at the deceased at very close range, fatally wounding him. The deceased died from injury resulting from the shooting a few hours afterwards. The incident was reported to the Police the same day. In his statement to the Police, 4th prosecution witness had said that the incident took place at about 6 p.m. but in his evidence in court he denied saying so maintaining it was 2 p.m. Only the accused, 4th and 7th prosecution witnesses were present at the scene when the deceased was shot at. The medical evidence of the death of the deceased was consistent with the evidence of the prosecution that death resulted from shooting. The evidence of Samuel Okechukwu Odeheatu, the 5th prosecution witness, a Medical Practitioner who performed the post mortem examination on the deceased confirmed that the wound could not have been caused more than twenty fours from noon of the 4/5/81, when he examined the body. The learned trial Judge recorded the evidence of the witness as follows: at p. 51 lines 31 to p. 52 lines 1-10,

“On examination of the body he found multiple entry missile wounds on the right side of the forearms and also exit wounds at the right side of the forearms and also exit wounds at the right of the back fore-arm. The bicepts muscles of the same side and auxiliary blood vessels were damaged though no bullets could be identified inside the tissues. On the chest, similar wounds were found over the right side of the chest: the right rib was damaged and the whole chest cavity was filled with blood. He said that he certified that the probable cause of death was due to bullet wounds,hemorrhage and haemorrptorax. The wounds are not likely to be self-inflicted due to the character of the wounds. The inlet wounds are sharp while the exit wounds were torn.

(Italics mine)

The story of the appellant was different in material respects. He denied shooting at the deceased in his evidence in court. He admitted that there was an argument about payment of money resulting from clearing 7th prosecution witness’s farm. His evidence was that there was a scuffle between the deceased and himself and that the loaded gun he slung on his shoulder during the scuffle went off hit the deceased, killing him when they both fell down. He said that he tried to assist by carrying the deceased, but when he was near to where the 4th prosecution witness was: fearing he would be attacked, he left him and ran away to the Okpe Police Station to lodge a report. This evidence is one of a defence of accident. The story was completely different from his statement to the Police when the account of the incident was fresh in his recollection. It was common ground that appellant and 7th prosecution witness had argument over the clearing of a piece of land claimed by the latter. It was also not disputed that 7th prosecution witness refused to pay appellant for his labour because she did not request that he should clear the portion of land. However, in his statement to the Police, appellant said that in the heat of their quarrel the deceased called him a slave, and when the deceased picked up a cutlass, he went home to take his gun. When the deceased attacked him with a matchet he defended himself with the gun by firing at the deceased.

The learned trial Judge rejected the defence of the appellant. The defence of provocation was specifically considered by the learned Judge when he said at p.64 lines 20-24.

“Coming to the former statement to the Police that the deceased person provoked him and he therefore went to pick a gun, I think that to go and pick a gun when the deceased picked matchet. The accused person ought to know that a gun is a more lethal weapon and that his intention of picking a gun is to kill.” Continuing, the learned trial Judge apparently rejecting the defence of self-defence said, at p.64, lines 24-26.

‘I do not accept his contention in that statement that it was when the deceased ‘cornered’ him with the matchet that he fired the gun.”

Again in his consideration of provocation he said, at p.64 lines 27 – p. 68 line 1.

“I accept the view that during the quarrel when the deceased called him a slave he took up a gun and fired the deceased who died as a result. A question has been asked by the counsel whether in their native place. calling one a slave will amount to a provocation, the answer is that where such a person is accused of a slave the next thing to do is to report to the community who should take proper action.”

In effect what the learned trial Judge was saying is that to call a person a slave in appellant’s community can only constitute a provocating incident sufficient to annoy, the remedy lay in a report to the community to take appropriate action. It should not constitute anger or annoyance of a degree sufficient to induce a person to lose his self-control and to kill.

The learned trial Judge, though not satisfied that there was sufficient act to amount to provocation appears to have considered that were the incident to be accepted as sufficient provocation, he found that appellant had sufficient time within which his passion would have subsided. He said, at p. 65, lines 1-3.

“By running away to bring gun, and returning, there was enough time for passion to cool, that is, if calling a slave could amount to provocation.

He concluded by rejecting both the defences of provocation and self-defence and convicted the accused as charged. He said at p.65, lines 8-16.

“It is my view that the defence of provocation does not avail the accused person and also the defence of self-defence cannot avail him because having gone to pick up a gun the accused person made up his mind to murder the deceased and in fact by bringing a gun he was poised for a fight in which he hoped to get the upper hand: self-defence will therefore not avail him.”

Appellant was accordingly convicted and sentenced to death. His appeal to the Court of Appeal was dismissed. In the Court of Appeal appellant filed and relied on four grounds of appeal, raising issues of (a) burden of proof on the appellant (b) contradictions in the evidence of the prosecution witnesses (c) evidence linking appellant with the death of the deceased (d) weight of evidence. The Grounds of appeal are as follows:

“1. The learned trial Judge erred in law when he proceeded to convict the appellant without making any finding of fact on the essential ingredients of the offence and in shifting the burden on the appellant to prove his innocence.

2. The learned trial Judge failed to adequately consider the effect of contradictions and variation, in the evidence of the prosecution witness and his failure, coupled with the trial Judge’s wrongful attempt to explain them himself led him to erroneously find the appellant guilty of murder on the strength of such evidence.
3. (Original 1) That the learned trial Judge erred in law in convicting the appellant of murder when there was no direct evidence before the court that the Appellant was responsible for the death of the deceased.
4. That the decision of the trial Judge is therefore unwarranted, unreasonable, having regard to the (weight of) evidence.”

It was conceded in argument that the gravamen of grounds 1, 2, and 3 was that the evidence adduced by the prosecution .witnesses were not sufficient to support a conviction for murder. In rejecting this contention the Court of Appeal pointed out that the effect of the evidence of 4th and 7th prosecution witnesses was to attribute the death of the deceased to the act of the appellant. Appellant did not deny this fact. The defence of self-defence and provocation pleaded by the appellant was rejected by the trial Judge. The rejection of the defences were held to be valid and proper by the Court of Appeal. By rejecting his evidence in court the defence of accident was also rejected. I agree entirely with the Court of Appeal when it was said, at p. 132, lines 15-20,

In effect, apart from the testimonies of the aforesaid two witnesses, there was sufficient evidence from the appellant himself in his confessional statement to support his conviction. That statement which could not he seriously challenged was properly admitted in evidence against the appellant. “ It is well settled in law that a free and voluntary confession as appellant’s statement to the Police was alone without corroborative evidence sufficient to support a conviction – See R. v. Omokaro (1941) 17 WACA. 146. The Court of Appeal referred to the evidence of the Appellant and the conduct of his defence before the learned trial Judge and said at p.133, lines 14-19.

“Indeed by the showing of the appellant himself at the trial, it would be difficult to concede that defence to him, since he set up a different plea of accidental killing of the deceased by his gun falling down and going off by itself. The trial court was right to reject both.”

The Court of Appeal considered the contradictions and variations alleged to have been found in the evidence and held that they were not material to the establishment of the ingredients of the offence for which appellant was tried and convicted.

On a further appeal to this Court, appellant filed two grounds of appeal, and with leave of this court sought to file and argue two additional grounds of appeal. The grounds are now constituted by grounds 1 and 2 of the original grounds of appeal, and the two additional grounds of appeal. Mr. Shola Rhodes for the Appellant sought leave to withdraw original ground one which was accordingly struck out. The original ground 2 is now ground 3.

The grounds of appeal are as follows:

“1. That the learned trial Judge erred in law in convicting the appellant of murder of robbery when there was no direct evidence before the court, that the appellant was responsible for the death of the deceased.

2. That the decision of the court below is therefore unwarranted, unreasonable having due regard to the evidence.
3. That further additional grounds of appeal will be filed upon the receipt of the record of proceedings.”

GROUND 1.

“The Court of Appeal erred in law and thereby misdirected itself and came to a wrong conclusion when it held that the defence of provocation was duly considered and rightly rejected by the trial Court when such consideration did not meet the principle required by law in a trial of murder nor did the judgment meet requirement of S.245 of the Criminal Procedure Act.”

Particulars of Error

The trial Court did not consider or make any finding on the effect of the deceased giving the Appellant a slap, calling of the Appellant a slave and the threat that if he said anything further, the Appellant will he turned into a tortoise, considering that the Appellant is an illiterate and a peasant- see R. v. Adekanbi 17 NLR. 99 at 101; R. v. Afonja 15 WACA 26 at 28.

2. The Court of Appeal while affirming the conviction of the Appellant did not have itself guided on the provision of S. 245 of the Criminal Procedure Act that the case of the accused must be fully considered on the point or point for determination and the reasons for any decision arrived at.

GROUND II

“The Court of Appeal erred in law and misdirected itself and thereby arrived at a wrong decision when it held as follows – on the defence of self defence: “Indeed by the showing of the Appellant himself at the trial, it would be difficult to concede that defence to him, since he set up a different plea of accidental killing of the deceased by his gun falling down.”

Particulars of Error

“The attitude of the Appellant during the trial has nothing to do with whether the trial Judge considered the defence of self-defence or accident during a trial for murder. The law enjoins the trial Court to consider in detail, all the possible defences, raised on evidence during a trial for murder. It is not impossible that an accused person could kill his assailant accidentally in his attempt to maim him in self defence and indeed from the outset, from the extra judicial statement he made, his defence raises that of self- defence.”

The submission of Mr. Rhodes both in his brief of argument and in his oral address before us was a very simple one. His contention was that since the defence of provocation and self-defence available to the appellant on the evidence at the trial were not adequately considered by the learned trial Judge, there was nothing the Court of Appeal could have affirmed. In his argument he submitted that there were no specific findings of fact that the appellant was slapped, called a slave and was threatened to be turned to a tortoise,

did not amount to provocation. He referred to the background of the appellant and submitted that that should guide the trial Judge in the determination of what should constitute provocation. Counsel cited R. v. Adekanmi 17 NLR. 99, R. v. Afonja 15 WACA. 26. Counsel submitted that the defence of self-defence available to the Appellant was not properly considered by the trial Judge. On the same hypothesis, the Court of Appeal ought not to have affirmed the dismissal of the defence by the trial Judge.

Mr. Shola Rhodes referred to a number of decided cases. Nigerian, English and Commonwealth to support his contention. Counsel criticised the casual manner in which the trial Judge dealt with the defences and dismissed them without making specific findings of fact on which he relied for dismissing

them. He pointed out that the Court of Appeal fell into the same error as the trial court by saying that it would be difficult to concede the defence of self-defence to the appellant because he set up a different plea of accidental killing of the deceased by his gun falling down and going off by itself, from the defence of provocation or self-defence in his statement to the Police. Counsel contended that where the accused has raised the defence of accident, self defence and provocation in his prosecution, the onus nevertheless

still is on the prosecution, to negative the existence of the defences. Kwaku Mensah v. R. (1945) 11 W.A. C. A. 2 at p. 6 was cited and relied upon for this submission.

Mr. A. J. Alufohai, Senior State Counsel in his submission for the Respondents urged us to dismiss the appeal. He submitted that the issue of provocation, self-defence and accidental killing were carefully considered by the learned trial Judge. Counsel referred to passages in the judgment of the trial Judge, and submitted that the Court of Appeal correctly affirmed the findings. It was submitted that all the grounds of appeal lacked merit and ought to be dismissed. Counsel to the Appellant has formulated three issues

for determination as follows:

“1. Whether the trial Court considered in detail, the possible defences of provocation, self-defence and Accident as required by law;

2. Whether the Court of Appeal was right in holding that all such defences were adequately considered before they were rejected by the trial Court;
3. That if such defences were legally considered, would the trial Court had arrived at an alternative verdict of manslaughter instead of murder, and whether such conviction would have been affirmed by the Court of Appeal.”

I accept the formulation as fairly covering the issues raised in the grounds of appeal filed.

Mr. Shola Rhodes argued all the grounds of appeal together and it is convenient also to consider them similarly. The crux of the appeal is on the consideration why the court did not make specific findings of facts before denying the Appellant the existence of the defence. It is well settled that the Onus on the prosecution to establish the guilt of the accused beyond reasonable doubt remains on the prosecution throughout the trial. This onus is in this case, established by proving facts which demonstrate beyond reasonable doubt that the offence was committed intentionally by the accused, and that the defences of accident, provocation and self-defence are not available to him. A defence of accident can be established where the act resulting from the death did not occur from the operation of the will of the accused. See S.24 of the Criminal Code. In such a circumstance it is not the act of the accused and he cannot be responsible for the consequence. See Iromantu v. The Queen (1964) 1 ALL NLR 311. Where the defence is one of provocation the accused is not contending that it is not a result of his willed act, he is merely saying that he was by virtue of what deceased did to him unable to restrain his passion under the circumstances in which he willed the act which resulted in the death of the deceased. See Obaji v. The State (1965) NMLR 417. Where the deefnce is one of self-defence, appellant admits that he did the act which resulted in the death of the deceased, and was justified in doing so to protect his own life because he was in the risk of imminent death, and would have been killed or was in such fear when he committed the act. – See R. v. Onyeamaizu (1956) N.R.N.L. R. 98; R. v. Nwibo (1950) 19 N .L.R. 93.

Mr. Shola Rhodes has contended before us that there was nothing wrong in appellant pleading accident as a defence, and in the alternative relying upon provocation and-self-defence. It was his submission that the court is obliged to consider all the defences put forward by the appellant as long as the evidence makes it reasonable.

It is well accepted that any defence to which an accused is on the evidence entitled should be considered however stupid or unreasonable for what it is worth. R. v. Fadina (1955) 3 F.S.C. 11, 12. Willie John & Edon Dan v. The State (1966) ALL NLR 211, 212; Udojia v. The State (1984) 12 S.C. On the other hand it is not the role of the court to formulate a defence for an accused person where on a consideration of the totality of the evidence none ought to be available to him. This has been well expressed by Coker J.S.C. in Ojo v. The Swff (1972) 12 SC. 147 .

“It is not part of the duty of any Court to speculate upon possible defences open to accused persons and although it is the duty of the court, in a case of murder to consider all the defences fairly raised on the evidence before the court; it is not the business of that court to scrounge for evidence which may ‘have no effect of raising one type of defence or the other, in answer to the charge.

Counsel argued in his brief that the complaint was not that provocation was not mentioned by the trial Judge, his submission was that it was mentioned cursorily but the principle establishing or negativing the defence were not considered. The contention of Mr. Rhodes seems to me to be that the trial Judge should in every case apart from setting down the facts of the case state the principles of law governing the defence of provocation and come to a conclusion whether or not on the principles so enshrined the facts of the case before him fall within the accepted principles. Undoubtedly, this is the ideal approach, and was not adopted in detail by the learned trial Judge.

But that does not detract from the fact that his finding that in the circumstances of the case, the fact even if believed that the appellant was called a slave would not have provoked a reasonable member of appellant’s community. All he had to do was to report the matter to the community. It was not contended that this finding was not supported by evidence.

This is the effect the vituperative abuse would have had on a reasonable man in the society in which the appellant was, rather than the effect it had on him. This is not different from the principles enunciated in R. v. Adekanmi (1944) 17 N.L.R. 99; at p. 101, taunting accused with impotence: R. v. Okoro (1942) 16 N.L.R. 3: R. v. Igiri (1943) 12 W.A.C.A. 377; Afonja v. The Queen 15 W.A.C.A. 26. 28; Rabiu Ruma v. Daura N.A. (1960) 5 FSC. 93 calling a Muslim a dog. I think the criticism that the trial Judge did not consider the defence of provocation ignored completely the evidence before the court. There was evidence of the distance from the scene of the incident to the house of the appellant where he took his gun to return to shoot at the deceased.

The measurement of the time lag has been one of considerable difficulty as can he determined from the cases of R. v. Green (1955) 15 WACA.73 and R. v. Lesbini (1923) 1.K.B, The issue is not whether appellant had time to reconsider his anger because in his evidence on oath he said he was not annoyed when the deceased called him a slave. Accordingly the trial Judge correctly found that the provocating incident was not sufficient to result in provocation, the question of time for passion to cool was irrelevant as it did not arise.

If the mere calling of a person a slave is accepted as sufficient provocation to reduce murder to manslaughter, the category of such abusive words will he unimaginable, I do not think our societies are still at the state of civilization where personal vanity will justify the killing of another – See Lee Chu-Chueen v. R. (1963) A.C. 220. It must be noted that having rejected the defences of provocation and self-defence, the learned trial Judge went on to slate the effect of rejecting the defences. In his view based on the surrounding circumstances the Appellant made up his mind to shoot and kill the deceased.

I now return to the difficulties of considering the defences of accident, provocation and self-defence in one case, On principle a defence of death resulting from accident is clearly inconsistent with a defence resulting from provocation or self-defence, Whereas a defence of self-defence can merge on provocation and vice-versa (see Sections 236.287 Criminal Code).

The defence of accident is completely different and is inconsistent. – see also R. v Knock (1877) 14 Cox c.c. 1 at p. 2. Where the defences raised before the court are different, inconsistent and irreconcilable as in this case, the trial Judge is entitled to disbelieve the testimony of the accused setting up such defences and rely on the evidence of the prosecution. The principle has been unequivocally enunciated in R. v. Ukpong (1961) ALL NLR 25 that when a witness is shown to have made a statement inconsistent with his evidence at his trial, the Court is entitled to disregard not only the evidences at his trial, but the previous inconsistent statement.

Sceabo Regina v. Golder (1960) 1 W.L.R. 1169 at p.1172. The principle applies mutatis mutandi to the evidence of a person charged with an offence. In this ease the subsequent defence of accident is clearly different, inconsistent and irreconcilable with the earlier defence of provocation and self-defence. The trial Judge was therefore entitled to disbelieve and reject the defences of the appellant. Having so rejected the defence only the case of the prosecution without a defence was before the court. The Court of Appeal was right to have held that on the totality of the evidence before the trial court, and particularly the free and voluntary confession of the appellant, the trial Judge rightly convicted the Appellant. No alternative verdict of manslaughter was on the evidence possible.

These are my reasons for dismissing the appeal of appellant and affirming the conviction and sentence of death imposed by the trial Judge.

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SC.60/1986