Karibi Nunyiewa Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The appellant in this case has appealed to this court against his conviction by the High Court, Port Harcourt (Wai-Ogosu, Ag. J.) of the murder of one Osiga Nwine. One of the eye-witnesses to the killing of Osiga Nwine was Lebia Maebu, a sister-in-law of the appellant. According to her, on the day of the incident she was in her house with one Kuku Nwine, the appellant and Osiga Nwine (later deceased). The appellant was eating a meal when Osiga Nwine insisted on eating with the appellant. This was resented by the appellant and as Lebia Maebu observed this, she provided Osiga Nwine with his own food. Osiga ate part of his own but later suddenly left his own food and went over to the appellant again insisting on eating with the appellant his own (appellant’s) share of the food. The witness stated that at this stage she advised Osiga Nwine to leave the appellant alone to his meal but Osiga did not heed the advice. Instead, he carried the plate of food away from the front of the appellant and both of them struggled to partake of the food on the plate. In the course of this struggle, Osiga Nwine threw the soup at the left leg of the appellant. What happened thereafter is best said in the words of the witness herself who testified further thus:-

“The accused attempted to dip the ball of foofoo again the second time when the deceased poured the soup on the left leg of the accused. The accused therefore got up; I held him; but he asked the deceased why he was treating him thus like a child. He held the deceased by the neck and pushed him against the wall near to the door.

I tried to pacify the accused and to dissuade him from pursuing with his annoyance and suggested to him that I would provide him with soup to finish his food and soap and water to wash away the mess on him. When the accused pushed the deceased to the wall he knocked him down and trampled him on his neck. The deceased died on the spot. The accused did not heed my entreaties, and I even held him by the waist. There was no fight between them, not even an exchange of blows. I shouted when I saw this and other people came.”

This story of the killing was also told by another witness, Kuku Nwine who had been invited to her home by the witness Lebia Maebu. Kuku Nwine testified to the action of Osiga Nwine in forcing himself upon the appellant repeatedly to eat out of the food of the appellant and the struggle that followed thereafter. She stated, inter alia, that:-

“Then holding on to one of the hands of the deceased and with the other hand on his leg he knocked the man on the ground on his neck. Then he kicked the deceased on his stomach. When the deceased was thus knocked he hit his forehead on the ground. Blood flowed out of his nose; and he died immediately.”

A police constable, P.C. Brierly Josaiah, who was invited to the scene, met the appellant in the house of one Chief Douglas “being guarded by the natives”. He later saw the corpse of Osiga Nwine with a deep punctured wound on the forehead. According to the deposition of Dr. Wafaie Wadoud, who performed the post-mortem examination on the corpse of the deceased (but was not available to give oral evidence at the trial) it seemed that the assault on the deceased took place whilst he was eating a meal. The doctor also stated that there was morbid contusions and lacerations all over the body and bleeding from the nose and mouth was very severe. He thought that the deceased died as a result of internal haemorrhage and shock which could have been the result of a direct hit on the face and that injuries on the stomach could have been as a result of a kick on that part of the body.

a After his arrest, the appellant made a statement to the police and the statement was admitted in evidence at his trial as Exhibit “1”. In it he described how Osiga Nwine had tried to deprive him of his own share of food at the party and the struggle that ensued over the removal of the food plate that was before him by Osiga. He further stated:-

“After finishing his own he came to our own table and told me to get up and not to eat anymore, there as I was about to swallow the last one in my hand, he the deceased immediately carried the plate of soup and poured on my right hand. I then held the hand of the deceased Osiga Nwine (m) and asked him why he has done so. He did not say anything. He there resisted from my hand, later fell down with the force he applied. He immediately died on the very spot.”

At the trial, the appellant gave evidence in his defence stating that he adopted his written statement, Exhibit “1”, as his testimony in court. In the course of his cross-examination he stated as follows:-

“It was then that I got up and held him, then we fought because I was annoyed. We fought with our hands. We exchanged blows in the course of the fight. We did not exchange blows for long when deceased fell down and died.”

In his address to the court, learned counsel for the appellant stressed the plea of provocation and submitted that in the circumstances of the case the defence of provocation should be considered as established.

The learned trial Judge did give some consideration to the defence of provocation. He summarised the principal arguments and submissions of counsel on both sides appertaining to the issue of provocation and then observed as follows:-

“I am in agreement with counsel for the prosecution that from the facts of this case there was time or interval for the passion of the accused to cool down. There was no evidence that at that time the accused was behaving like an animal i.e. accused was not master of his mind. The circumstances of life too of the accused cannot excuse his action, for it is in evidence that one of the key witnesses – P.W.1 – said “if someone poured soup on my leg I would quietly move away in order to avoid trouble.” This woman is an ordinary woman in the ordinary society in which the accused moved and had his being. The ordinary man in the society to which the accused belongs could not have behaved or reacted in the way he did.”

He eventually rejected the plea of provocation and, as stated, convicted the appellant of the murder of Osiga Nwine.

This appeal is from that judgment. Several grounds of appeal were argued before us by learned counsel for the appellant but the only one that deserves any consideration is the ground of appeal dealing with the adequacy or otherwise of the consideration given by the learned trial Judge to the plea or defence of provocation for it was the complaint of learned counsel for the appellant that the learned trial Judge misdirected himself on the facts by not holding that provocation was established.

In the course of his judgment, the learned trial Judge had observed concerning the plea of provocation as follows:-

“And the question whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact. These are points clearly decided or emphasised by that case to which I was referred.”

Manifestly, the matters to which the learned trial Judge had referred are matters of fact but certainly the inference to be drawn from their consideration is very often a matter of law. In Chukwu Obaji v. The State (1965) 1 All NLR 269, this court at p.275 of the Report made the following observations when dealing with the element of proportionality in the concept of provocation:-

“It is not disputed that in applying this doctrine in the light of the interpretation given by the Nigerian courts, the background of the accused and the circumstances of his locality are relevant facts which a jury should decide. It is, however, the view of two members of the court that the question whether or not the retaliatory force can be disproportionate to the offending act or insult is a matter of law as being implicit in the connotation of the plea of provocation within the combined meaning of Sections 283 and 318 of our Criminal Code. They also take the view that the question of proportionality, that is, whether or not a certain act of reaction could be disproportionate, must be a matter of law. What on that point the jury must decide is whether on the evidence such act was, in fact, disproportionate. Their view is that a trial Judge is entitled to withhold the question of provocation from a jury where there is either insufficient material or no material at all on a view of the evidence most favourable to the accused for a reasonable jury to form the view that a reasonable person could be driven through transport of passion and loss of self-control to the degree and method of continuance of violence which produced the death of the victim.”

Provocation in law is not the equivalent of anger, though the latter may be and very often is an element of it and the concept of provocation is the very representation of a particular mental and physical reaction at a given time under the proved circumstances.

In Chukwu Abaji v. The State, supra, at p.275 this court observed on this aspect of provocation as follows:-

“To avail himself of the defence in a charge of murder under Sec.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 offered. In this connection, and in consonance with this interpretation by the Nigerian courts, the doctrine has developed of “the behaviour of the average man in the community to which the accused belongs” – see R. v. John Okoro (1942) 16 NLR 63 at pp.65 and 66 and R. v. James Adekanmi (1943) 17 NLR 99 at pp.101 and 102.”

In the case in hand, the learned trial Judge had placed a premium, and perhaps too high a premium, on the answer of the witness, Lebia Maebu in court to a question as to what she would have done if someone poured soup on her leg. She answered that she would quietly move away in order to avoid trouble. We think this piece of evidence is not worth a penny-piece and that the learned trial Judge mis-directed himself on the facts by holding out this woman as an example of the ordinary man or woman in the community of the appellant. She certainly was not speaking the truth and the learned trial Judge should have known that her answer to the question in the fashion in which it was given was stage-managed. With respect, what the learned trial Judge was expected to assess and employ in his consideration of the plea of provocation was what the ordinary man or woman in the particular community would do in the particular instance and not what any person states that he would do.

We have come to the conclusion that there was clearly a misconception here of his duty by the learned trial Judge resulting in a misdirection of a serious nature. There was evidence, which the learned trial Judge himself has accepted, that it was Osiga Nwine, later deceased, who had insisted on inflicting himself upon the appellant; it was he who insisted on eating by force out of the share of food of the appellant; it was he who threw soup on the leg of the appellant and it was he who struggled with the appellant over what to the knowledge of all of them was the food or meal of the appellant. The struggle by them over the plate of food was with their hands and it is not suggested that the appellant was at any time carrying anything dangerous by way of weapons. We think that from the totality of the evidence fairly considered, the reaction of the appellant to the conduct of the deceased on the day in question was not abnormal and that he did nothing which by a fair consideration of his case could be described as disproportionate within the concept of provocation; we think also that the learned trial Judge should have inferred or concluded that the defence of provocation was established.

In the result, the appeal succeeds and it is allowed. The conviction of the appellant for murder and the sentence of death passed on him are set aside. It is adjudged that a verdict and conviction for manslaughter be substituted in his favour and that the sentence of the court upon him shall be imprisonment for five years, I.H.L., beginning from the date on which he was convicted.

Other Citation: (1972) LCN/1259(SC)