John Iwuaya Okonji V. The State (1987)
LawGlobal-Hub Lead Judgment Report
NNAMANI, J.S.C.
The appellant herein was charged in the High Court, Kano with the following offence.
“That you, John Iwuaya Okonji, on or about the 4th day of May, 1982 at Sabon Gari Kano within Kano Judicial Division did commit culpable homicide punishable with death in that you caused the death of Lawal Mohammed by doing an act to wit: stabbing him in the stomach with a piece of broken bottle with the knowledge that his death would be the probable consequence of your act and thereby committed an offence punishable under Section 221(b) of the Penal Code”
To this charge the accused pleaded not guilty. On the 19th July, 1983, after 3 witnesses for the prosecution had given evidence, Miss Maryam Wali, now Acting Senior State Counsel applied, as she was entitled to do, under Sections 207 and 208 of the Criminal Procedure Code for an amendment of the charge by replacing the words in the charge “with a piece of broken bottle” with the words “with a knife.”
The amendment, not being opposed by counsel for the accused person, was granted. The prosecution called 4 witnesses while the appellant defended himself but called no witness. At the end of the trial the learned Chief Judge, Musdapher, C.J. (as he then was) convicted the appellant and sentenced him to death. The appellant appealed to the Court of Appeal (Maidama, Akpata and Babalakin J.J.C.A.) which on 9th July, 1985 dismissed his appeal. The appellant has now appealed to this Court.
Originally two grounds of appeal were filed. They were:
“1. The Court of Appeal erred in law and misdirected itself when it held that the defence of self-defence was not available to the appellant. Particulars:
There was evidence before the trial Court which showed clearly that it was the deceased who first picked a weapon to attack the appellant.
- The decision of the Court of Appeal and the Trial Court cannot be supported having regard to the evidence.
Particulars:
There is evidence before the Trial Court that the deceased met his death in the course of a sudden fight and in accordance with Section 222(4) of the penal code, it is wrong to convict the appellant under Section 221 of the Penal Code.”
By leave of this Honourable Court, the appellant filed 2 additional grounds of appeal which I shall set down without the particulars.
They were:
“1. The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held as follows:-
‘I do not agree with the learned counsel for the appellant that there is no evidence in which the learned trial Judge can infer that the appellant had knowledge that death would be a probable consequence of this act’ thus occasioning substantial miscarriage of justice
……………………………………………….
- The learned Justices of the Court of Appeal erred in law in dismissing the appellant’s appeal on the ground that the appellant did not establish the defence of self defence and provocation before the trial court.”
In his brief of argument, learned counsel to the appellant, M.T. Ajala identified 2 issues as the issues for determination in this appeal. These in his view, were –
“(1) Whether the Court of Appeal was right in holding that the appellant knew that death would be the probable consequence of his act.
- Whether having regard to the totality of the evidence before the Court and the circumstances of this case, was a case of culpable homicide punishable with death under Section 221(b) of the Penal Code proved beyond reasonable doubt against the appellant and whether the appellant is entitled to a conviction for a lesser offence of culpable homicide not punishable with death under Section 222(4) of the Penal Code, having regard to the defence of provocation and self defence put forward by the appellant.”
Learned Counsel for the respondent, Aliyu Umar, Deputy Director of Public Prosecution of Kano State, in his own brief of argument saw the issues differently. I shall set down his own conception of the issues for determination as I think that both of them will set out all the matters due for determination in this appeal. In Mr. Umar’s view, the issues for determination were as follows:-
“(a) Whether the defence of provocation as defined under Section 38 of the Penal Code can be applied in favour of the appellant based on the evidence adduced at the trial.
(b) Whether the defence of “self defence” as provided for under the provisions of Sections 60, 62, 65 and 222(2) of the Penal Code can be applied in favour of the appellant in the light of the evidence accepted by the trial court.
(c) Whether knowledge of events cannot be inferred from the circumstances of facts proved and accepted as the truth of what happened during the course of such events
(d) Whether a Court of Appeal can interfere with the findings of facts of a trial Court in a situation where it is shown that the trial judge has made use of the advantage he enjoyed of seeing the witnesses and watching their demeanour
(e) Whether details of happenings elicited (sic) under cross-examination on behalf of an appellant, renders the whole evidence of a witness unreliable because such details were not given during examination in Chief”
Both learned counsel made submissions in line with the argument in their briefs and I do not consider it necessary to set down such argument in any detail. I shall refer to them if and where necessary. This is in every sense a tragic case. The deceased was a houseboy to the wife of appellant’s brother.
It seems to me that there are some issues that were common ground between the prosecution and the defence in the trial court. The first matter is that there was a fight or struggle between the appellant and the deceased. In his testimony the star prosecution witness, Isa Haruna, said at page 7 of the record:
“Lawal Mohammed objected and asked the accused to stop wasting his matches. The accused took offence and dared Lawal Mohammed to take any step he deemed fit. Then the accused invited Lawal Mohammed to go away in a secluded place to show who was who (i.e. who was stronger). There and then they started to struggle and the accused caused Lawal Mohammed to fall on the ground”
Under cross-examination, the same witness said at page 8 of the record of proceedings,
“He did not take him to a separate street, but he pulled him to small place away from people and stabbed him. They agreed and walked together to have a fight. I followed them to the place where they fought. I tried to separate them.”
The appellant in his statement to the Police, Exhibit II said of the encounter,
“From there, Lawal Mohammed gave me a slap on my left hand side of my face. Both of us struggled and later dragged ourselves from No.30 Sanigiwa to one foot path which links Sanigiwa and Obadia Street 5/9 Kano, when both of us reached the above mentioned foot path, it was there I started fighting with Lawal Mohammed on the ground and sat on him.”
The other matter which was not contested was that it was the act of the appellant that caused the death of the deceased. Isa Haruna. In his testimony to which I made reference said further, “The accused brought a knife and stabbed Lawal Mohammed in his right side of his back and stomach – all on his right. Then Lawal Mohammed ran to the house of one woman – P.W.l) identified and fell outside her door, then she opened the door and came out. I went with her to the place where the accused fought with Lawal. When we came back a taxi was sent for to take Lawal Mohammed to the Hospital. Lawal Mohammed is now dead, he died inside the compound when we put him in the taxi he was already dead.”
The appellant in Exhibit 2, his statement to the Police said,
“it was there Lawal Mohammed picked a bottle from the ground and hit me on my head. Then I collected the pieces of the bottle from him and retaliated by stabbing him but I could not remember the part of his body where I stabbed him. I could remember that it was in the stomach.”
The learned trial Chief Judge in his judgment stated as follows:-
“I have no hesitation in finding accused (sic) I hereby find as a fact that the accused pulled a knife and stabbed the deceased on the right side of his abdomen and neck which act of the accused caused the death of Lawal Mohammed.”
The medical report which was tendered as Exhibit 1 at p. 38 of the records reads as follows:-
“(1) State (stab) (sic) wound length I inch deep upper inner quadrant abdomen right hand.
(2) Stab wound length 1 inch through the wall of the chest between the collar and 1 inch ribs on the right side with injury at upper lobe of lung.
(3) Menothorax – right side. I certify the cause of death in my opinion to be due to shock and heacorokept (sic) resulting from field injuries which might have been caused by a sharp cutting weapon.”
The only matter which appears to have been in serious dispute between the prosecution and the defence was the question of the weapon used by the appellant – was, it a knife or a bottle In fact before he made his findings on this issue, the learned trial Chief Judge identified this controversy when in his judgment he said:-
“In his statement to the Police Exhibit 3, the accused admitted mostly what P.W.3 said except that he and the deceased fought over the matches, he knocked the deceased down and sat on him and it was when the deceased picked a bottle and hit him on his head, he overpowered the deceased and took away the pieces of the broken bottle and stabbed the deceased on the abdomen.”
The question of what weapon was actually used assumes some importance, first, because it may well affect one or two of the defences which were canvassed on behalf of the appellant. But second, and much more important, it could be relevant to the second issue for determination as postulated by appellant’s counsel i.e. whether in all the circumstances of this case, the case put up by the prosecution could be said to have been established without any lingering doubts, or in more familiar parlance beyond all reasonable doubt
Perhaps before coming to the question of the weapon used I ought to dispose of some of the defences which were canvassed in this Court in favour of the appellant. In my view they would be unavailable to him whether the weapon used was a knife or pieces of broken bottle. First is the issue of self defence. It was contended on behalf of the appellant that in the circumstances of the case the appellant was entitled to the defence of self defence. Learned Counsel relied on my statement in Adeyinka Albert Laoye v. The State (1985) 2 N.W.L.R. (Part 10) 832 that
“In ordinary language the law would excuse a killing if the killer had reasonable grounds for believing that his own life was in danger and that he had to kill in order to preserve it. From the authorities, it is settled that the belief of the prisoner in such a case would be tested on objective grounds. In other words, the test is an objective one. Several factors would necessarily arise in determining this objective belief. For instance, the quality of the force used on the deceased must be the same as that with which the prisoner defends himself.”
This passage related to Sections 223 and 224 of the Criminal Code of Oyo State. The equivalent sections under the Penal Code are Sections 65 and 222(2). Section 65 provides that –
“the right of private defence of the body extends, under the restrictions mentioned in Sections 62 and 63, to the voluntary causing of death only when the act to be repelled is of any of the following descriptions namely –
(a) an attack which causes reasonable apprehension of death or grievous hurt.”
…………………………………………….
Section 222(2) on the other hand provides that “Culpable homicide is not punishable with death if the offender. in the exercise in good faith of the right of private defence of person or property, exceeds the powers given him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.”
Following the principles laid down by this Court in the Laoye case, I do not see how the defence of self defence can avail the appellant. The principal portions of the passage from that case that I set down above are one, the reasonable belief that one’s life is in danger, and two, the fact that the quality of the force used on the deceased must be the same as that with which the prisoner defends himself. If the weapon used was a knife then of course there is no way the appellant can be heard to raise this defence. The evidence of Isa Haruna was that the deceased merely picked up a stone to throw at the appellant but this was taken away from him. Where was the danger to the appellant’s life If one accepted the appellant’s contention that the deceased first slapped him and later hit him on the head with a bottle, was it the same force to stab the deceased more than once with a broken bottle and cause such fatal injuries as were contained in the medical report I think not.
Where was this reasonable apprehension of death when the appellant, at the time he was hit on the head with the bottle, as per his own account, was actually on top of the deceased! The position is the same if one examined Sections 65 and 222(2) of the Penal Code. Under Section 65, the attack must cause a reasonable apprehension of death or grievous hurt.
In respect of Section 222(2) it has been settled that where the accused sets up the principle of self defence the question to consider is whether the accused had any reasonable apprehension that he would be hurt particularly in a case in which he has caused death, whether he was under any reasonable apprehension of grievous hurt or death to himself. I have already ruled out in the circumstances of this case any such reasonable apprehension whichever weapon he used in killing the deceased.
As regards provocation, the Courts have in several decisions dealt with the provisions of Sections 284 and 318 of the Criminal Code. See the cases of Obaji v. The State (1965) N.M.L.R. 417; R. v. Nwanjoku (1937) 3 W.A.C.A. 208; R v Afonja (1955) 15 W.A.C.A. 26. Under the Penal Code the relevant Sections are 38 and 221(1). Section 222(1) provides that:
“Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”
The provocation under this section must be grave and sudden and must be such as to take away from the accused the power of self control. See also the Queen v. Ngba Haaba (1961) N.N.L.R. Mancini v. D.P.P. (1946) 2 All E.R. 124; Aganmonyi v. A.-G. Bendel State (1987) 1 N.W.L.R. 26. In all these cases there has to be a grave and sudden provocation; the act of killing must have been done in the heat of passion before there was time for passions to cool; then there must be retaliation not disproportionate to the provocation offered. In this case I cannot myself see any grave and sudden provocation offered. It would appear that it was the appellant who provoked the deceased by wasting his matches. Even if one accepted the appellant’s account of this incident in which he alleged that the deceased dragged him back and slapped him I would not regard that as grave provocation capable of making the appellant lose his self control. Furthermore, even if the appellant’s version of the incident is accepted, is his retaliation proportionate to the provocation allegedly offered -i.e. a slap and a hit on the head with a bottle. On the other hand, the prosecution case which was accepted by the learned trial Chief Judge and the Court of Appeal was that the appellant hit the deceased with his fist and he (deceased) fell down. They were separated. The deceased picked up a stone to throw on the appellant and Isa Haruna took it away from him. The appellant then stabbed the deceased with a knife. On such facts how could a defence of provocation ever arise What was the provocation offered the appellant by the deceased Was there a proportionate retaliation I am of the view that on the defences of self defence and provocation the learned trial Chief Judge’s conclusion which was upheld by the Court of Appeal cannot be faulted. On the issue of self defence the learned Chief Judge said –
“The deceased no doubt took a stone considering the facts of this case which I believe in order to protect his person from the unwarranted attack on his person by the accused the stone was taken away from the deceased by P. W.3. It was after that the accused took out a knife and stabbed the deceased with a knife and stabbed the deceased with it more than one time on the abdomen and neck.
I hold that what the accused did went far beyond the defence of his person.”
and on provocation, after considering relevant authorities, the learned trial Chief Judge concluded.
“Applying these principles, in my opinion Subsection 1 of Section 222 does not apply to the facts of this case ……………………….
At the time the accused stabbed the deceased, he was in no danger and from the facts it was the accused who caused the provocation No.1 by wasting matches of the deceased, and by knocking him down. There was no grave and sudden provocation as defined. See the case of the Queen v. Ngba Haaba (1961) N.N.L.R, 14.”
In his additional ground 1, learned counsel to the appellant also complained that the learned Justices of the Court of Appeal misdirected themselves in holding that there was evidence from which it could be inferred that the appellant had knowledge that death would be a probable consequence of his act. In his view it was not established by the prosecution beyond reasonable doubt, that the appellant knew or had reason to know that death would be the probable and not only a likely consequence of his act or of the bodily injury which the act was intended to cause.
In the High Court the learned Chief Judge after examining the provisions of Section 221 (b) of the Penal Code arid after referring to the case of Umaru Gwandu v. Gwandu N.A. (1962) All N.L.R. 545 held that “at the time the accused stabbed the deceased on his neck and stomach, the accused knew or had reason to know that death would be the probable and not only likely consequence of his act. Lamba Kumbin v. Bauchi N.A. (1963) N.R.N.L.R. 49.” The Court of Appeal agreed with this. Maidama J.CA. in rejecting this defence observed,
“Whether death is likely or a probable consequence of a person’s act is a question of degree. If a weapon is used the question will generally resolve itself by the consideration of the weapon used, the part of the deceased’s body where it was struck and the amount of force used. A thin stick is not as dangerous as a sword, knife, or other lethal weapon; a blow struck on a limb is not as dangerous as a blow struck on a head; a hard blow is more dangerous than a light one. All these matters would have to be considered in determining whether the accused person has knowledge of the consequence of his act” Section 221(b) of the Penal Code provides that –
“Except in the circumstances mentioned in Section 222 Culpable Homicide shall be punished with death –
(a) ……………………………
(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause. Whether death was the probable or only a likely consequence of an act or of any bodily injury is a question of fact. See Idigbe, J.S.C in A. Nyam & Ors. v. The State (1965) N.M.L.R. 50 at 52. In Lamba Kumbin v. Bauchi N.A. (1963) N.N.L.R. 49 at pp. 51 and 52 Reed, Ag. S.P.J. said –
“We think the distinction between “likely” and “probable” can be explained as follows: The act of a person is “likely” to cause death if death was something which he, as a reasonable man, knew might well happen. In applying the ‘reasonable man’ test, the court must take into consideration the background, education and worldly knowledge of the individual.”
In Umaru Gwandu v. Gwandu N.A. (Supra) the Federal Supreme Court refused to uphold a sentence of death because having regard to the nice distinction between a ‘likely’ and a probable’ consequence of an act, on which the sentence is decided” the High Court could not decide this without seeing the mortar in that case and considering its size and weight. The Court thought it would not be safe in view of the unsatisfactory identification of the mortar, to allow the sentence of death to stand. It seems therefore clear from all the authorities that the question whether death was a likely or probable consequence of the act of the prisoner being one of fact would be determined from all the surrounding circumstances. As Maidama, J.C.A. said in the passage I referred to above,
“if a weapon is used the question will generally resolve itself by the consideration of the weapon used, the part of the deceased’s body where it was struck and the amount of force used.”
It seems to me therefore that this brings into focus the doubt which must necessarily arise in the circumstances of this case as to the weapon used. If a knife was used in the circumstances accepted by the two lower courts, it would seem to me that knowledge that death would be the probable not likely consequence of such an act would be imputed to the appellant. If on the other hand a bottle was used in the circumstances alleged by the appellant, I am not so sure that one can come to the same conclusion. It seems therefore useful to examine this question of the weapon used.
I propose to start at the point when the appellant was charged to Court. Learned Senior State Counsel, Miss Wali, who prosecuted the case in the High Court, made an opening statement in which she stated the case of the prosecution thus:
“The accused is charged with Culpable Homicide punishable with death under Section 221 of the Penal Code. Evidence will be led to show that the accused and the deceased had a quarrel over a box of matches belonging to the deceased and started lighting the matches, where upon the deceased became upset and tried to regain the box of matches. A quarrel ensued and people came to separate them. The accused refused to settle the matter even after somebody offered him another box of matches. The accused challenged the deceased to follow him to a footpath where the accused stabbed the deceased with a broken bottle. The accused ran away and informed a friend of his to enquire about the health of the deceased. The accused was apprehended a month later. The deceased when he was stabbed ran into a compound seeking for help. He was rushed to the hospital where he died.”
After the evidence of the third prosecution witness the charge was amended from bottle to knife as indicated earlier in this judgment. Miss Wali in her submission to this Court explained that in the statements made to the Police, bottle was mentioned. When she interviewed Isa Haruna, he insisted it was knife not bottle that was used. As she drafted the charge based on the materials in the statements made to the Police, she had to amend the charge. She said she had in fact decided on that before P.W.3’s evidence. Both in his evidence in Court and in his statement to the Police the appellant’s case was that the deceased hit him on the head with a bottle, that he wrested a broken piece of it from the hands of the deceased and in retaliation stabbed him in the stomach. At the end of the case for the prosecution and the defence, the learned trial judge in his attempt to resolve this conflict said:
“I have watched the accused when giving evidence, he said he stabbed the deceased only once. I think I shall accept the version of P.W.3 as what happened. His evidence is consistent with that contained in the Medical Report. He said he saw the accused stabbing the deceased on the right side of neck and abdomen and the Medical Report taken of those injuries all on the right side of the body. I believe P. W.3 and disbelieve the accused when he said he forced a piece of broken bottle from the hands of the deceased and stabbed him only once on the stomach. I believe the 3rd P. W. whose evidence tallies with the Medical Report which was admitted without any objection …………………..I have no hesitation and in finding accused and I hereby find as a fact that the accused pulled a knife and stabbed the deceased on the right side of his abdomen and neck which act of the accused caused the death of Lawal Mohammed.”
It is now almost trite law that the trial court which has the advantage of seeing the witnesses and watching their demeanour is a master in the domain of findings of fact, and that except in some special circumstances, an appeal court should not interfere with them. See Chief Victor Woluchem and Ors. v. Chief Simon Gudi and Ors. (1981) 5 S.C. 291 at 326; Idigbe, J.S.C. at page 295 said that –
“When the decision of the trial Judge is based mainly and substantially on his assessment of the quality and credibility of witnesses who testified before him, a Court of Appeal must in order to reverse not merely entertain doubts whether the decision below is right, but be convinced that it is wrong.”
See also Frank Ebba v. Ogodo (1984) 1 S.C.N.L.R. 37. The Court of Appeal, apparently restating these principles quoted the views of this Court in Military Governor of Western State v. Chief Afolabi and Anor. (1974) 10 S.C. 227 at p. 233. There this Court observed that-
“Once again we are constrained to emphasise that the ascription of probative value in the evidence produced in the court proceeding is a matter coming within the special province of a court of trial and that in this case the learned trial Judge who saw and heard witnesses would appear to have come to the right conclusions on the evidence placed before him.”
The effect of all this is that the finding of fact by the learned trial Chief Judge as to what weapon was used by the appellant ought to have been the end of the matter. Regrettably the matter is not free from doubt. This is firstly due to the strange manner in which the charge, notwithstanding the statement to the Police of the appellant, and the statement of P.W.3 started with allegation of the use of a bottle. Secondly, the use of the words “I think I shall accept the version of P. W.3 as what happened” in the portion of the learned trial Chief Judge’s judgment did not convey the impression that his own mind was free from doubt. In other words, the finding was not unequivocal and positive. Furthermore, although in that passage of the judgment the learned trial Chief Judge was liberal in the use of the words “I believe” it has long been held that that is far from being the determining factor in such situations. In Samuel Bozin v. The State (1985) 2 N.W.L.R. (Part 8) Oputa, J.S.C. writing the lead judgment of the Court said:
“There is neither magic nor sanctity in the words and expression “I believe” or “I am satisfied” and they should not therefore be used as a sanctuary. Belief and satisfaction should represent the courts reaction towards facts and possibilities and probabilities based on those facts.”
It will be less than fair to say that the learned trial Chief Judge found a sanctuary in “I believe” and “I do not believe.” At least he indicated that he had watched the demeanour of the appellant when giving evidence. Unfortunately, however, the other ground of his belief does not appear to me to be reliable. Talking of the evidence of P.W .3, he said it was consistent with that contained in the medical report. P.W. 3, he said, saw the appellant stabbing the deceased on the right side of neck and abdomen and the medical report talks of those injuries all on the right side of the body. It would appear to me that what the learned Chief Judge was saying was that he believed P.W.3 because the injuries in the medical report would seem to have been caused by a knife. The appellant had alleged that after the deceased hit him on the head with a broken bottle, he forced out a piece from the deceased’s hand and it was with it that he stabbed the deceased. Learned Deputy Director of Public Prosecutions urged this Court to hold that the injuries could not have been caused by a bottle. Could such a conclusion be reached without the evidence of the Doctor The medical report in this case was tendered under Sections 249 and 250 of the Criminal Procedure Code. The Doctor did not give evidence. If he did, perhaps he would have explained what he meant by “a sharp cutting weapon.” Another matter which has caused lingering doubt over this issue of the weapon is the fact that the appellant’s allegation that they fought in a place littered with bottles was not, and perhaps could not have been, investigated. Under cross-examination, the appellant had said:
“It is not true that there were no bottles there. The bottle broke when the deceased hit me with it on my head and I forced the remaining piece out of his hands and used it on his stomach.”
The appellant was arrested one month after the tragic incident of Lawal Mohammed’s death. The knife allegedly used was never recovered. The investigating police officer, P.W.4 did not understandably check on appellant’s story about the bottles for he (the Police Officer) heard that story one month after the incident. In cross-examination P.W.4 said-
“I was the I.P.C. in this case. I went to the scene of the incident i.e. quarrel. I saw blood stain and followed the stains up to the house of P.W.1. I did not see any other thing apart from the blood stains. The accused person said he used a broken bottle to stab the deceased, it took a month before his arrest. I do not find the weapon used by the accused.”
The implication is that he did not advert his mind to bottles as it took one month before the accused was arrested. The blood stains he saw must have been on the day of the incident. There is nothing to indicate that he visited the scene again after the appellant was arrested and his statement recorded. It seems to me from all this that there was a lingering doubt as to what weapon was used by the appellant. It is trite law that where there is doubts in the mind of the Court in a criminal matter it ought to be resolved in favour of the accused person. The consideration of the case in the High Court and the Court of Appeal had been based on the finding that a knife was the weapon. Any doubt on that finding must inevitably affect the result of this appeal. It will not affect it to the extent of an acquittal for the appellant himself has admitted being in a fight in the course of which he inflicted injuries on Lawal Mohammed from which he died. It would seem to me that in such circumstances, this case falls within the provisions of Section 222(4) of the Penal Code. That Section provides that –
“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel and unusual manner …
It has been settled that it is immaterial in such cases which party first provoked the other or commits the first assault. There was, as agreed on all sides, a sudden fight, sudden quarrel over matches, heat of passion and the injuries which resulted in death. In the annotated version of the Penal Code by Richardson the author in explaining this subsection said – “The word ‘sudden’ implies that the fight should not have been pre-arranged. Being merely involved in a fight does not entitle an accused to invoke this subsection; to bring in the subsection the fight must be unpremeditated. If, in any sudden quarrel blows pass without any intention to kill and in the course of the scuffle after the parties are heated by the contest, one kills the other with a deadly weapon this subsection may well have effect. The lapse of time between the quarrel and the fight which ensues is therefore a very important consideration. If there are intervals and sufficient time for passion to subside and for reason to interpose itself the killing may be culpable homicide punishable with death. The fight must not only be sudden but the party assaulted must be on equal footing from the point of view of defence at least at the beginning of the fight.”
In Stephen Oji v. The Queen (1961) N.R.L.R. 93 or (1961), All N.L.R. 262 the Federal Supreme Court said –
“The person entitled to the benefit of the subsection is the person actuated solely by the natural aggressiveness which the heat of passion in a sudden fight must be expected to inspire and a person acting in a cruel or unusual manner is deprived of the benefit of the subsection because he shows by his action that he is not actuated solely by natural aggressiveness. “Acting in a cruel manner” means acting in a manner which indicated a delight in causing pain for its own sake. “Acting in an unusual manner” means acting in a manner which indicated some other intrusive motive.”
Having previously held that there was a lingering doubt as to what weapon was used in this case, I am of the view that this case falls within the principles enunciated in the Oji case. I am therefore of the view that a defence under Section 222(4) of the Penal Code is available to the appellant. In all these circumstances, I would allow the appeal and set aside the judgment of the Kano High Court dated 19th March, 1984 and the judgment of the Court of Appeal, Kaduna Judicial Division dated 9th July, 1985. In their place, I find the appellant guilty of Culpable Homicide not punishable with death and convict him accordingly. The appellant is sentenced to 10 years imprisonment to take effect from the 19th March, 1984.
ESO, J.S.C. (Presiding): I had a preview of the judgment of my learned brother Nnamani J.S.C. and I am in full agreement that this appeal should be allowed, the judgments of the Kano High Court, and the Court of Appeal sitting in Kaduna set aside. I also abide by the order that a verdict of homicide not punishable with death be entered against the appellant, and he is sentenced to ten years imprisonment with hard labour.
This appeal did cause me some anxiety and it was not easy for me to come to the conclusion this Court has now arrived at. The evidence, as contained in the medical report. would be consistent with either a knife stab wound or broken bottle wound, though the P.W.3 said in his evidence that it was knife stab wound the appellant gave the deceased.
In other words, the stab wound is consistent with the story told by the appellant when he said he seized the bottle from the deceased as it would be consistent with the story of the 3rd P.W. that the appellant stabbed the deceased with a knife. This no doubt creates a doubt in my mind, as to the weapon used and a fortiori, as to the incident itself.
I agree with my learned brother, Nnamani J.S.C., that a doubt in the mind of the Court should always be resolved in favour of the Accused.
I agree therefore that section 224 of the Penal Code applies to this case and that the appellant shall suffer the punishment prescribed by section 222(4) of the Penal Code. See also Oji v. The Queen (1961) N.R.L.R. 93.
The appeal is accordingly allowed and a sentence of imprisonment for ten years substituted.
SC.59/1986
