James Biruwa V. The State (1992)

LawGlobal-Hub Lead Judgment Report

E. O. I. AKPATA, J.S.C 

Provocation which will reduce murder to manslaughter or culpable homicide not punishable with death, must be of such a character as will arouse resentment, deprive self-control and obscure reason which will likely, without time to cool, evoke violence dictated by passion rather than judgment.

The main issue in this appeal is whether the defence of provocation in the light of the above definition is available to the appellant.  The appellant was charged at the Yola High Court with the offence of culpable homicide punishable with death contrary to section 221(a) of the Penal Code in that on or about 21st day of March, 1980 in Chukkol Village in the then Gongola State Judicial Division. he shot Kiliyobas Jabo with an arrow on the neck with the intention of causing his death and did cause his death on or about 26th March. 1980.

A total of seven witnesses were called by the prosecution, six of them testified. The third witness, Al Hamman, the wife of the accused was withdrawn after she had affirmed, given her name and disclosed that she was the wife of the accused, now appellant. She however subsequently testified for the defence as D. W.6. Nine witnesses on the whole were called at the instance of the defence. The accused himself did not testify, but he made a statement from the dock. The simple facts of this case are that on 21st March. 1980. P.W.1. Emmanuel Hammajam. an attendant at the dispensary in Chukkol was on duty when Kiloyobas Jabo, the deceased, came to him in agony having an arrow stuck to his neck. The witness immediately took the deceased to the General Hospital, Yola where the arrow. Exhibit C. was removed by Dr. Aliyu Mohammed Dasir, P.W.7 in the hospital theatre. There was a lot of bleeding after the arrow which penetrated into the base of the skull had been removed. The deceased died in the hospital on 26/3/80 – five days from the date of the incident. According to P.W.7 the cause of death was due to the damage to the vital organs (artery and vein) of pans of the brain arising from the penetration of the arrow to the base of the skull. The accused was arrested at the police station when he gave himself up, and his statement. Exhibit A. was recorded in hausa language by P.W.5, Corporal Gabriel Daudu. The English version of it also recorded by P.W.5 is Exhibit A1. In the statement the accused admitted that “I shot him with it (arrow) on his neck with him for 46 days.

Being a confessional statement, the accused was taken before the Divisional Police Officer. Isaiah Aigbe, who incidentally testified as D.W. 7, and he admitted making the statement Exhibit A. The accused also surrendered to the police a bow, Exhibit B and two arrows Exhibits B1 and B2. Testifying for the accused D.W.1, Ibrahim Hammanjoda a Christian Preacher gave evidence to the effect that the accused complained to him sometime in February, 1980 that the deceased had “seized his wife”. D.W.3, Ladde Barjobo also stated that the accused informed him that the deceased had taken away his wife. D.W.3 in fact saw the wife of the accused in the house of the deceased and explained that the wife was in the house of the deceased for about a month. D.W.6, Al Hamman, the wife of the accused, testified that she was married to the accused for only one year and had a son by him but that he made life unbearable for her. As a result of his cruelty she got “married” to the deceased although she did not return the dowry paid by the accused. She however went back to the house after about a month because the relations of the accused pleaded with her to do so. On her return the accused threatened to shoot her if she ever returned to the deceased.  Regardless of the threat to her life she went back to the deceased. It was on the third day of her return to the house of the deceased that the deceased was shot with an arrow.     In his statement from the dock the accused stated thus: “I do not know Kiliyobas Jabo, I lived in Chukkol. I have never seen exhibit B. B1 and B2 before. I have never seen exhibit C before, I never made any statement to the police at any time and did not make exhibits A. and A1. I do not know P.W.1 Emmanuel Hammanjam. I do not know the woman Liatu Kiliyobas, P.W.2. I do not know why I was arrested by the police.” In his judgment delivered on 12/10/82, Aghahowa, J., after a thorough review of the evidence adduced before him and directing his mind to the defence of provocation and self defence proffered by counsel for the accused, found as a fact that it was the accused that shot the deceased on the neck with an arrow, Exhibit C. and from which shot the deceased died. In coming to his decision he relied on the Statements Exhibits A and A 1. The learned judge went on to describe Exhibit C and came to the conclusion that it was “a very lethal weapon”. He held thatwhen the accused shot the deceased on his neck with Exhibit C on 21/3/80 he did so with the intention of causing his death. He accordingly found the accused guilty of culpable homicide punishable with death and sentenced him to death by hanging.     The appeal of the accused to the Court of Appeal was dismissed in its entirety by a majority decision of Agbaje, J.C.A. (as he then was) and Jacks, J.C.A. In his minority judgment, Macaulay, J.C.A., was of the view that the accused could only be guilty of culpable homicide not punishable with death in terms of section 224 of the Penal Code. He sentenced him to a term of five years imprisonment.     The accused has now brought his grievance before us. Going -by the appellant the following three issues arise from the grounds of appeal filed by him.

1. Whether the defence of provocation is available to the appellant.

2. Whether the Court of Appeal is right to have upheld the trial court’s judgment that the appellant shot the deceased with the intention of causing his death.

3. Whether the trial of the appellant without an order of committal by a Magistrate or leave by a High Court Judge to prefer a charge is lawful and valid,” Respondent’s counsel has stated the issues arising as follows:

(i) Whether the trial of the Appellant before the trial Court was properly commenced. (ii) Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant by the trial Court. (iii) Whether the Appellant is entitled to the defence of provocation so as to reduce his conviction and sentence from the offence of culpable homicide punishable with death to the offence of culpable homicide not punishable with death.” The three issues in both briefs are similar. I will therefore be guided by them. I wish to dispose of first the third issue in the appellant’s brief which is issue No. 1 in the respondent’s brief. It is whether the condition precedent to the trial of the appellant was complied with.  According to Chief Oshe, learned counsel for the appellant, there is nothing in the record of appeal to show that there was an order of committal by a Magistrate. He also made the point that there is nothing to show that leave was sought and granted by a High Court Judge for a charge to be preferred against the appellant. He referred to section 185 of the Criminal Procedure Code which states that no person shall be tried by the High Court unless (a) he has been committed for trial to the High Court in accordance with the provision of Chapter 17 or (b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court.     Chief Oshe has not stated categorically that a preliminary investigation was not conducted and that the appellant was not committed to the High Court for trial. He based his submission on the tenuous ground that the record does not explicitly disclose that the condition precedent to a trial was complied with. As rightly pointed out in the respondent’s brief prepared by Mrs. Goje, Acting DPP, Ministry of Justice. Adamawa State the record of appeal is replete with references by counsel on both sides to pieces of evidence that were given during the preliminary inquiry. For instance at page 19 of the records learned counsel for the appellant in the trial court drew the attention of D.W.7 to his deposition at the preliminary inquiry which is contained at page 8 of the proceedings of the preliminary inquiry (P.I.) For the avoidance of doubt learned counsel for the respondent has attached a copy of the record of proceedings of the P.I. to the respondent’s brief of argument. It is thus obvious that the appellant was committed to the High Court for trial in accordance with the requisite provision of the law.

Where it appears on the face of the record of appeal that an important procedural step was probably not taken at the trial or that what ought to have been done appears not to have been done, a counsel who is coming into the case at the appeal stage before pressing the issue of irregularity, should satisfy himself of the true position by enquiring from his client or counsel who was present during the earlier proceedings, whether in fact there was such procedural act of omission or neglect which should render the proceedings a nullity. Submissions should not be based on assumptions which may turnout to be incorrect. Counsel should not strive at technicalities to defeat the course of justice, particularly where such technicalities apparently arise from an incomplete record that can be put right or the seeming mistake or omission of the court which is not prejudicial to either party.  In tackling the issue of defence of provocation it is necessary to set out fully the statement Exhibit A1. It is contained at pages 56 to 57 of the record of appeal. It reads: “On 21/3/80 at about 7.30 hours, I was going to the bush with my two dogs, when I was going I met with Kiliyobas who also left the town going to School. Then when Kiliyobas saw me by then I was with two arrows and a bow and he was with cutlass, and when he saw me he jumped down on his bicycle and he raised the cutlass up and he started running away, then I also started running after him and I removed one arrow and put it inside the bow and I shot him with it on his neck and Kiliyobas started crying and running, then I also find my way back home. The reason why I shot him with arrow, there was a time he took my wife along with him for 46 days, and when they were together. Kiliyobas said he will pay me my dowry and I tell him that I don’t want the dowry. I only need my wife Ai. Then on 20/3/801 sent our village head one Amado Adibi to go and bring my wife from Kiliyobas. then Ishaya Emmanuel said my wife can not come, then the village head told them that is it how we do it? And they said again that my wife can never come to me. I kept quiet, then the Senior wife of Kiliyobas Mrs. Liyatu said if I am a man why somebody took my wife away from me and I did not do anything and that if I am a man let me do what ever I want to do, and I kept quiet. I did not talk to her. When I left home I left home with two arrows and one bow, and I shot Kiliyobas with one arrow and I returned back home with one arrow. Normally I used to go with my dogs always, then on that day when I was going then I met with Kiliyobas then I shot him with arrow.      By the time he raised up his cutlass. I thought whether he was trying to fight but he did not fight me with it, but he started running and I also started running after him and I shot him with arrow on his neck.”     Chief Oshe submitted that the Court of Appeal did not properly direct its mind to the facts contained in Exhibit A I when it held that there was no threatened attack from the deceased against the accused. He referred to the portion of Exhibit A1 where the appellant said that the deceased “jumped down from his bicycle and he raised the cutlass up by the time he raised up his cutlass I thought whether he was trying to fight me with it.” Learned counsel then submitted that the raising up of the cutlass by the deceased on seeing the appellant amounted to a threatened attack on the appellant and that it should sustain a defence of provocation.     With due respect to learned counsel I find no merit in this submission. What is obvious from Exhibit A1 read as a whole, is that when the deceased saw the appellant he jumped down from his bicycle and “he raised the cutlass up and he started running away”. The appellant then pursued him and shot him with the arrow. It is only if two separate portions of Exhibit A 1 are ‘grafted’ or ‘simulated’ which is not permissible that the submission of learned counsel may appear plausible.     When the attention of Chief Oshe was drawn to the sequence of events, that is, that the deceased was already running away when the appellant pursued and shot him with the arrow, he contended that the appellant having been frightened by the act of the deceased raising up his cutlass the appellant could not erase from his mind the menacing posture of the deceased raising up his cutlass.

Firstly, there is nothing in Exhibit A1 to suggest that the deceased brandished the cutlass at the appellant or that he confronted him in any manner. There is nothing in the statement Exhibit A1 to show that the deceased on getting down from his bicycle took a single step in the direction of the appellant to instill fear into him.  Secondly, it is apparent from Exhibit A that it was the deceased who was frightened by the very sight of the appellant and had to take to his heels. For provocation  to avail the appellant a defence there must have been some act or series of acts by the deceased directed at the appellant which could cause in a reasonable person, and actually did cause in the appellant, a sudden and temporary loss of self control, rendering him so subject to passion as to make him for the moment not master of his mind. This is explicit in section 222(1) of the Penal Code which provides that culpable homicide is not punishable with death if the offender whilst deprived of the power of his self control by grave and sudden provocation or cause the death of the person who gave the provocation causes the death of any other person by mistake or accident. In effect the provocation must be grave and sudden and must have deprived the appellant of the power of self control. See Okonji v. The State (1987) 1 NWLR (part 52) 659 at page 668 and Aganmonyi v. Attorney-General of Bendel State (1987) 1 NWLR (part 47) 26. I see nothing grave and sudden in the act of the deceased. Provocation in law is made up of three parts, namely.

(i) the act of provocation which must be grave and sudden:

(ii) the loss of self control, both actual and reasonable; and

(iii) the retaliation proportionate to the provocation. There must be present in the case for the defence the three elements before the defence can be taken seriously. I am satisfied that the Court of Appeal in its majority decision was right in holding that no such provocation was established by the defence. According to learned counsel for the appellant “the seduction of the appellant’s wife by the deceased, the taunting of the appellant by the deceased’s wife and the raising of a cutlass against the appellant caused a grave and sudden provocation in the appellant” and that he was deprived of power of self control when he shot the arrow at the deceased. There is also no merit in this submission. Sexual immorality is a product of human weakness and many fall prey to it, and many exploit the weakness in others. Seducing another person’s wife is a sinful act not a criminal act. The husband has no moral, societal or legal right to kill the seducer. Indeed the State cannot inflict corporal punishment for a sinful act which has not been made crime by statute. Only providence can. The defence of provocation may however in certain circumstances be available to a husband who kills a man caught in the very act with his wife under his roof. It would be manslaughter not murder, that is, culpable homicide not punishable with death. This is so because the sexual immorality may in such circumstance ignite in the husband “grave and sudden provocation” inducing momentary mental imbalance.  But where a husband already has knowledge of the unfaithfulness and sexual immorality of his wife with another man and she has indeed deserted him, seemingly exercising her right as to whom to associate with, which is a matter of conscience and principle, and he kills that other man subsequently, provocation as a defence is not available to him. It would be brutal murder because there would be nothing sudden in the provocation to deprive him of self control. Passion would have had time to cool down. I find the submission that the taunting of the appellant by the wife of the deceased taken alone or together with the conduct of the deceased at any time relevant to this case was sufficient to provoke the appellant to the extent of his losing self-control. In effect the alleged taunting of the appellant by P.W.2, the wife of the deceased, cannot by any stretch of the imagination be regarded as contributing to any provocation learned counsel is attributing to the deceased.  Now to the issue whether the appellant had intention to kill the deceased. This court granted the appellant leave on 14th February, 1991 to amend the notice of appeal by adding additional grounds of appeal. One of the issues arising from the additional grounds of appeal is whether the Court of Appeal was right to have upheld the trial court’s judgment that the appellant shot the deceased with intention of causing his death. A careful study of the grounds of appeal and the arguments proffered in the Court of Appeal discloses that the issue of whether the appellant had the intention to kill the deceased was not raised in the Court of Appeal. Indeed the issue as formulated is a complaint against the judgment of the trial court and not that of the Court of Appeal. Although the appellant sought and was granted leave to argue additional grounds of appeal he did not specifically seek leave to raise any issue which was not raised in the court below, that is, the Court of Appeal. The issue is therefore incompetent. This being an appeal based on a charge of culpable homicide the punishment of, which is death, if there was a glaring mis-carriage of justice, I would have been minded to bend over backwards by asking the appellant through his counsel to seek leave to raise the issue even at this late hour. The position is that the question whether the appellant had intention to kill the deceased was fully and meticulously considered by the trial judge who came to the conclusion that the arrow used was a lethal weapon. In the circumstance this issue cannot now be re-opened.     In sum the appeal fails in its entirety. It is dismissed. The judgment of the Court of Appeal affirming the conviction and death sentence passed on the appellant by the trial High Court is upheld.

M. L. UWAIS, J.S.C: I have had the opportunity of reading in draft the judgment read by my learned brother Akpata, J.S.C. I entirely agree with the judgment and have nothing to add.

A. B. WALI, J.S.C: I have been privileged to read in advance. a copy of the lead judgment of my learned brother, Akpata, J.S.C. with which I entirely agree. For the same reasons stated therein which I hereby adopt as mine. I also dismiss this appeal as it is lacking in merit. The judgments of the trial Court and the Court of Appeal are confirmed.

U. OMO, J.S.C: I have had a preview of the judgment or my learned brother AKPATA, J.S.C., and I entirely agree with him and for the reason, therein stated that there is no merit in this appeal and that it should accordingly he dismissed. I intend to make a few remarks mainly on some aspects of the defence of provocation canvassed,  In the submission of appellant’s counsel the defence of provocation raised in favour of the appellant is based on what he called ‘cumulative acts”. These consist of (a) the seduction of the appellant’s wife by the deceased (b) the refusal of the deceased to release the wife of the appellant. (c) the taunting of the appellant by the deceased’s senior wife, to the effect that if he was a man he should do something about the “Seduction” of his wife. The contention of appellant’s counsel is that these acts are sufficiently proximate to the “chance” meeting of the appellant and the deceased to constitute provocation which led to the killing of the deceased by the appellant. For any act to constitute provocation it must come from the person who became the victim of the resultant attack vide Ukwunnenyi v. The State (1989), 4 NWLR (Pt, 114) 131 at 136. The evidence before the court is not to the effect that the deceased seduced the appellant’s wife, rather it shows that the appellant’s wife ran away on two separate occasions, of her own free volition, to the house of the appellant, to live with him, because of the intolerable treatment she was subjected to by the appellant. The act(s) complained of in this respect did not therefore come from the deceased. Nor is it correct that he refused to release the appellant’s wife. She it was who refused to return to the appellants house. As to the alleged taunting of the deceased’s wife, this cannot constitute provocation from the deceased. The appellant has himself to blame if he allowed himself to be prompted by such “taunting” to kill the deceased. What is more all these acts taken singly or cumulatively are far from grave and sudden as to lead to the loss of self control which must occur before any resultant act can be said to have been provoked vide Stephen v. The State (1986) 5 N.W.L.R. (Pt.46) 978 at 979. There is no substance in the submission that intention to kill was not established because Exhibit C (the arrow) was not ascertained as the one used by the appellant. The prosecution evidence showed how the deceased got to the hospital and the arrow was removed whilst the appellant himself confessed to shooting the deceased with an arrow, The evidence as to the weapon used is more than satisfactory vide evidence of P.W.6 and the P.W.7. Appellant cannot therefore rely on the case of Umaru Gwandu v. Gwandu N.A. (1962) 1 A.N.L.R. (Pt. 4) 545 for the defence that evidence of the weapon used being unsatisfactory, the correct verdict should be culpable homicide without intention to kill which is therefore not punishable by death. It is important also to observe however that this issue of the shooting being done “without the intention to kill” was never raised either in the High Court nor in the Court of Appeal nor is it part of the grounds of appeal in this Court. It cannot therefore be properly entertained in this appeal.      For these and the other reasons set out in the judgment of my learned brother Akpata, J.S.C., I hereby also dismiss this appeal and affirm the conviction and sentence of the former Gongola State High Court.

Other Citation: (1992) LCN/2501(SC)