Mbanengen Shande V. The State (2005)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This appeal may be rightly described as the fury or rage into which a jealous wife could be driven. Before the appellant in this appeal was arraigned before the High Court of Benue State in the Benue State Judicial Division, holden at Makurdi upon the application of the prosecution to prefer a charge brought pursuant to section 185(b) of the Criminal Procedure Code. The said application was supported by proofs of evidence, the statement of the appellant and the medical report of the deceased. As the learned trial Judge, having read the said application with the documents attached thereto, granted leave for the preferment of the charge against the appellant. The court also ordered that the appellant be served with the proofs of evidence and the charge.

After the orders of the court were duly effected on the appellant, the plea of the appellant was taken. Before the plea was taken, the charge was read out to the appellant by the court clerk in the English language and was read out in the Tiv language to the accused who admitted that she understood the charge. The appellant, who was then asked for her plea, said “the allegation is not true” and the learned trial Judge then entered a plea of not guilty for the appellant.

The charge to which appellant pleaded read thus:-

“That you Mbanengen Shande, on or about the 9th day of May 1997, at Achia Village, Kwande Local Government Area within the Benue State Judicial Division did commit culpable homicide punishable with death in that you caused the death of Mrumun Dera by pouring kerosene on her body while she was asleep and setting her ablaze with the knowledge that her death would be the probable consequence of your act and thereby committed an offence punishable under section 221 of the Penal Code.”

At the trial of the appellant, four witnesses gave evidence for the State and only the appellant gave evidence in defence of the charge. The evidence led by the respondent may be summarized briefly as follows: PW1, whose names are Benjamin Iorumun Shande is a civil servant and the husband of the appellant. They apparently lived together at Achia, where they have their matrimonial home.

The witness said that on account of his work, he stays more regularly at Adagi but he does go home regularly. On the 8th May 1997 while at Adikpo, he learnt that Mrumum Dera the deceased, had enquired after him. He therefore went over to see her at Jato-Aka where she lived. The next day which was the 9th of May, he agreed with the deceased that she should come to his home at Achia. There, according to the witness she would join his own wife, the appellant to plant groundnuts. PW1 said that he arrived at Achia on that day before the deceased. He also did not meet his wife who had gone to the school where she was a teacher. He then went to the farm. By the time he came back, the appellant had returned home and prepared dinner for the family. It was soon after that the deceased arrived.

When she arrived, she joined the witness where he was sitting with his father and junior brother. Though she was offered food, the deceased declined the offer as she had also brought some food along with her and which she served to the people she met at the table under the ‘Ate’. The appellant also joined them there, as she was invited so to do by PW1. Some two hours after they had eaten, PW1 stated that as the deceased told him that she was feeling cold and would like to sleep, he instructed the appellant to prepare the room for her. The room, a thatched round hut, belonged to the witness within the compound of PW1’s father. And it is the room according to the witness, where the deceased and the appellant slept when the deceased visit them.

He claimed that sometime after the appellant had gone into the room, he heard a cry from the room. He and his brother then ran to the room/hut. As they could not easily gain entrance into the room, his brother, PW2 had to kick the door open. Inside it they found the deceased with fire on her body. She was then quickly rushed out of the room to a clinic. In the room, the two children of PW 1 were found sleeping. The appellant was also in the room when they entered. The deceased was later rushed to the hospital where she died. PW1 admitted that the deceased had been his friend between 1995-1997, and that the deceased and the appellant had been friends and did exchange visits in the period. He was not aware of any trouble between them.

The appellant as I have stated above gave evidence on his own behalf. Also tendered and admitted is the extra-judicial statement ex. 5 made to the police by the appellant after she was arrested.

Also admitted in evidence are exhibits 1- 4 which are (1)4L gallon ex. 1; (2) kerosene inside the 4L gallon ex. 1A; (3) some burnt pieces of cloths ex. 2; some grass ex. 3; medical report on the post mortem on the deceased, ex. 4, and ex. 5. The appellant in her oral evidence admitted that she made ex. 5. But she went on to give oral evidence of what happened in the room before and after the fire incident that led to the death of the deceased. She also gave evidence about the relationship between PW1 and the deceased. It is manifest from her oral statement and the extra-judicial statement exhibit 5, that the appellant had not clearly accepted the ‘lovers’ relationship between the deceased and her husband PW1. Indeed from what she gave in evidence, it is I think, manifest that she greatly resented the relationship as she was convinced that it was because of it that her husband had on many occasions abandoned her and the responsibilities of the appellant for the upkeep of the family. I will later in this judgment have cause to dwell further on this aspect of the case.

In the mean time, let me say that the trial court rejected her oral testimony with regard to how the deceased met her death. Exhibit 5 her extra-judicial statement then formed the pivot of the judgment of the trial court for reaching its conclusion, about the guilt of the appellant. Before arriving at this conclusion, the trial court duly considered whether the defences of provocation and of accident was open to the appellant but the trial court held that those defences were not available to her. She was accordingly found guilty of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. As the appellant was very dissatisfied with the judgment and orders of the trial court, she appealed to the court below. As that court affirmed her conviction by the trial court, she has filed a further appeal to this court.

Pursuant thereto, four grounds of appeal were filed against the judgment of the court below. And in consonance with the rules of this court, briefs of argument were filed and exchanged by the parties.

After a perusal of the two briefs filed by counsel on behalf of the parties, it is clear that they are agreed that there are only two issues for the determination of this appeal. They read thus:-

“(a) Whether the learned Justices of the Court of Appeal were light in law in holding that the appellant committed culpable homicide punishable with death even though the prosecution has failed to discharge the onus placed upon it to prove the guilt of the appellant beyond reasonable doubt.

(b) Whether the defence of provocation can avail the appellant to reduce the offence from murder to manslaughter considering the circumstances of this case.”

On the first issue, which is, whether the court below was right to have upheld the conviction of the appellant, learned counsel submits that apart from the extra-judicial statement made by the appellant, there is no other evidence before the court to prove that it was the appellant who killed the deceased. It is his further submission that the court cannot convict the appellant on exhibit 5, the extra-judicial confession of the appellant. And he further submitted that as the court failed to consider whether there was any other evidence that corroborated the facts disclosed in the said confessional statement. Where, submits counsel, as in this case no such evidence was disclosed nor considered by the trial court, then the court should have refused to convict the appellant on exhibit 5.

For the respondent, its learned counsel is contending that it must be noted that there is no dispute that exhibit 5 was the voluntary confessional statement of the appellant. It is his further submission that the free and voluntary confession of an accused may be the basis for his conviction for the offence for which he was being prosecuted. In support of this submission he referred to Osakwe v. The State (1992) 2 SCNJ 57 at 66 and also Nwaebonyi v. The State (1994) 5 SCNJ 88; (1994) 5 NWLR (Pt. 343) 138. The argument of the appellant and the respondent thereto on this issue, were canvassed before the court below. In respect of that submission, the court below held thus: –

“From the evidence adduced in the case, it is clear that the appellant had admitted making the confession. A written confession of an accused person is relevant and should not be discarded or ignored simply because the accused had later retracted it or resiled from that voluntary statement. Once a confessional statement is proved to have been made voluntarily, as in this instant case and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction regardless of the fact that the maker resiled therefrom or retracted the same completely at the trial, as such retraction does not make it inadmissible or that the trial court should not act on it”

Having regard to the provisions of section 27(1) & (2) of the Evidence Act, I think that the courts below cannot be faulted with their approach with regard to the extra-judicial statement made by the appellant.

Section 27(1) and (2) of the Evidence Act provides:

“27(1) Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.

(2) Confessions, if voluntary are deemed to be relevant facts as against the persons who make them only.”

In this respect, permit me to refer to the decision of this court in Queen v. Itule (1961) 2 SCNLR 183, All NLR 462 at 484 where Brett Ag. C.J.F. said

“The Judge referred to exhibit E in his judgment, and to the fact that it had been “retracted”, by which he presumably meant that the appellant had denied ever making it, but by an unfortunate omission, he failed to record any finding on the question whether the appellant had in fact made it. A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. R v. Philip Kanu & Anor. 14 W.A.C.A. 30. (Italics mine)

In this appeal, it is not the case of the appellant that exhibit 5 was not made voluntarily. Indeed at the trial, the appellant readily admitted it as her statement, which she made to the police. It is also not the case for the appellant that courts below failed to take cognisance of it. Rather the court below accepted it and apparently convicted the appellant on the facts disclosed in the statement, exhibit 5. It is manifest that without the evidence that emanated from exhibit 5, the prosecution would not have had any evidence to establish the guilt of the appellant. Having regard to the evidence disclosed in the said exhibit 5, the courts below were right to have held that the appellant clearly knew or ought to have known that the pouring of kerosene on the body of the deceased and setting it alight would result in the death of the deceased. Issue 1 will therefore be resolved against the appellant.

I now turn to consider the second issue. This is whether the defence of provocation can avail the appellant to reduce the offence from murder to manslaughter considering the circumstances of this case. The question raised by this issue (sic) fails to be considered in the light of the provisions of S. 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 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.”

This question as to whether the defence of provocation was available to the appellant was resolved against her after referring to -the provisions of section 222(1) quoted above and to her evidence in exhibit 5. Learned trial Judge then referred quite properly to the case of Oladipupo v. The State (1993) 6 SCNJ 233, (1993) 6 NWLR (Pt. 298) 131 where at p. 139 this court held that:-

“It is settled law that to avail himself of the defence of provocation, the appellant must have done the act for which he is charged

(i) in the heat of passion;

(ii) the act must have been caused by sudden provocation;

(iii) the act must have been committed before there was time for passion to cool;

(iv) the mode of resentment must be proportionate to the provocation offered.

These four requirements must co-exist before the defence can succeed.”

The trial court then went on to hold as follows: –

“I think the provocation which will avail the accused is that offered immediately before the act complained of while the acts of the deceased may have annoyed the accused person, they certainly do not amount to provocation as defined above. There is no evidence from the accused or in exhibit 5 that when they got to the room, the deceased attempted to assault her or even said anything to her that provoked her.”

As the learned trial Judge was of the view that the past incidents concerning the relationship between the deceased and the appellant’s husband had occurred before the deceased and the appellant do not amount to provocative acts of the deceased, the conclusion was reached that the defence of provocation was not available to the appellant.

Before the court below, the question of whether the defence of provocation was available to the appellant was also considered by that court and it was rejected on the basis of the portion of the statement of the appellant in exhibit 5. But in my humble view, it is necessary in order to appreciate the events of the 9th of May, 1997 that led to the incident of that day, that a fuller portion of exhibit 5 should have been considered by both the court below and the trial court. For that reason, the portion of exhibit 5, which I consider germane in the circumstances, are as follows: –

“On the 9th May, 1997, my husband arrived from Turan in the morning and the deceased lady arrived around 8 p.m. She went straight and joined my husband’s father at his “Ate” (round hut in the centre of the compound).

By this time I was eating in the room with my husband and when her bag was brought to our room by the children, my husband after eating went out and joined her at “Ate” and I later followed my husband to “Ate” where I met the deceased and we greeted each other and thereafter I left. I tried to get some food for her from the wife of my husband brother but the deceased declined to eat. I went and bath (sic) and later joined them at “Ate”. While we were there at about 10 p.m., my husband noticed the deceased was feeling sleepy and he touched her and asked her whether she wants to go and sleep and she replied yes. It was then that my husband asked me to go and arranged a place for her to sleep. I complied and took her to my room and arranged bed for her and she slept on the bed covering her face and body with cloth. My two children were sleeping on the other bed in the same room. I tried to sleep with my children on the other bed but my mind could not rest because of the deceased who have caused my husband not to do my part time N.C.E. course, not to farm for me, clothes (sic) me and to take me and our children for treatment when need arise. Also my husband (sic) failure to pay the debt outstanding against me in our local bank. I had in mind to cause her some bodily injuries in order to make her keep away from my husband and so I took kerosene in a container poured it on her and light matches and dropped it on her and her body catches (sic) fire and she waked (sic) up and started shouting and in her attempt to rushed (sic) out of the hut, fire catches (sic) on the roof of the thatched house and I started using the drinking water in the pot to put it off.”

Now, before deciding whether the courts below were right in their resolution of this question as to whether the defence of provocation was available to the appellant, it is necessary to advert to the provisions of section 222(1) of the Penal Code quoted above.

It is I think, patent that a careful reading of its provisions reveal that what is paramount in the consideration of this section is, whether the act of the offender was done whilst the offender was deprived of the power of self control by grave and sudden provocation.

It is clear from the evidence adduced and accepted by the court that the deceased had been the lady friend of PW1, the husband of the appellant. It is also clear that PW1 wished to have as established that the appellant accepted that relationship. But it is manifest from exhibit 5 that the appellant totally rejected that relationship of the deceased with her husband. A careful reading of her statement shows very clearly her resentment of this relationship, more so when she felt that it was that relationship that deprived her of the love and care of herself and family: the failure ofPW1 to repay to her account in her bank the sum of N10,000 she had lent to the husband PW1. It may be said that these are matters, which a reasonable person should accept and carryon with life. Be that as it may, matters came to a head on the 9th of May, 1997 when at about 8 p.m., the deceased arrived in the compound of the father of PW1. It is in the same compound where the house (hut) of PW1 is situated and where the appellant lived with him. When she came that night, appellant and PW1 were having their dinner. PW1 immediately abandoned the appellant and her dinner to join the deceased who had taken a seat with the father of PW1. Later, the appellant joined them at the invitation of PW 1. After some time after the deceased had intimated to PW1 that she wanted to sleep, PW1 then directed that the appellant should prepare a place for her to sleep. The appellant dutifully took the deceased to the room, which she shares with her two sons. There the deceased slept on the bed of the appellant.

It is clear from this narrative that the appellant cannot be described as happy in all the circumstances. The question then is, whether a woman who had been the subject of such neglect by PW1, would not feel provoked towards the deceased, the lover of her husband sleeping as if nothing was wrong on her own bed in her 9wn house. Or the question put in another way is, whether a reasonable woman would not be provoked seeing an acknowledged lover of her husband, and who had been the object of pampering before her, not be deprived of the power of self control by the conduct of PW1 and the deceased. But before this question is answered, it must be noted that neither the court below nor the trial court considered whether having regard to the peculiar circumstances, the appellant was in full control of herself and/or was not deprived of

the power of self-control. I do not think that it was right not to have considered the entire statement of the appellant as per exhibit 5, before determining the guilt of the appellant. Indeed in so far as the trial court had decided that exhibit 5 is what would be accepted as the defence of the appellant, then the court has a duty to examine fully the statement in the con of her defence. I have before now set out the relevant portion of the statement of the appellant, exhibit 5. This statement clearly set out what happened before the 9th of May, 1997 and which culminated with the outward conduct of the deceased and the PW1, who directed the appellant to prepare where the deceased would sleep when he knew that the only place available is the hut where the appellant sleeps with her children.

In my view, it is the duty of the trial court to have considered whether a reasonable person in such circumstances in consequence of such conduct, and the history of the existing relationship between the appellant and the deceased might be so rendered subject to passion or loss of control as to be led to use violence with fatal results and secondly, that the appellant was in fact under the stress of such provocation. It is after a careful evaluation of such facts that the view can be formed as to whether manslaughter or murder is the appropriate verdict.

Now, though the courts below did not approach the question raised, as they should have done, the question then is, whether the case be sent back for retrial. But having regard to the principles laid down in the case of Abodundu v. Queen (1959) SCNLR 162, I do not think that the justice of the case demands that a re-trial be ordered.

In the result, the appellant is discharged and acquitted. The judgments of the courts below are hereby set aside.

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SC.184/2004