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‘Where Appellant Had Long Planned To Kill, Defence Of Provocation Fails’

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FACTS

The Appellant who claimed to be the husband of one Felicia Achiaga, suspected that one Prince Ade Adedoyin (the deceased) was having an affair with his wife, Felicia Achiaga. According to him he approached the deceased a number of times and pleaded with him to steer clear from his wife. On the 4th of June, 2005, the Appellant met the deceased in his wife’s beer palour where she also sold palm wine and hot drinks and first of all greeted him before he sought to find out why he was there despite several warnings from him that he should steer clear from his wife. The deceased told him that Felicia Achiaga was now his. It was at this point that he brought out a cutlass. When the deceased raised his hands to protect his head, the Appellant dealt a machete cut on the deceased that chopped off his two hands. As the deceased was being conveyed to the hospital by the police, he died on the way.

The Appellant herein was arraigned before the High Court of Osun State charged for the murder of Ade Adedoyin contrary to Section 319 of the Criminal Law Cap. 34 Vol. 11 Laws of Osun State 2003. He pleaded not guilty. In order to prove his case, prosecution called three witnesses while the Appellant testified in his defence and called no further witnesses. Learned counsel on each side addressed the court. In a reserved and considered judgment, delivered on the 16th March, 2010, Shiyanbola J. found the Appellant guilty as charged and sentenced him to death by hanging. Being aggrieved with the decision of the trial court, the Appellant appealed to the Court of Appeal (lower court). His notice of appeal to the lower court pages 71-76 of the record of this appeal contained four grounds of appeal. The lower court heard the appeal and in a unanimous judgment delivered on the 29th November, 2011 dismissed the appeal and affirmed the judgment of the trial court. The instant appeal is against the decision of the lower court. The Appellant’s notice of appeal at pages 139-142, filed on the 12th December, 2011 contains three grounds of appeal.

ISSUES FOR DETERMINATION

Appellant’s brief of argument filed on March 20, 2012 formulated a single issue for determination of this appeal, and it reads as follows:

‘’Whether the Court of Appeal was wrong to have confirmed the judgement of the trial court that the defence of provocation did not avail the appellant?”

Mr. Adewale Afolabi, learned Attorney General, Ministry of Justice, Osun State on page 3 of the Respondent’s brief of argument filed on the 1st February, 2013, also formulated one issue only for determination of this appeal, and it reads thus:

“Whether the defence of provocation raised by the Appellant could avail him.”

The sole issue formulated by the Appellant is similar to the issue formulated by the learned counsel for the Respondent. I will therefore consider them together.

ARGUMENT

The Appellant after inflicting the machete, cut on the deceased, reported himself to the police and produced the cutlass which he used in inflicting the injury that led to the death of the deceased. The only defence that is pleaded by the Appellant is that the killing of the deceased was done under provocation. In arguing the appeal, learned counsel for the Appellant submitted that the learned Justices of the Court of Appeal were wrong to have confirmed the decision of the trial court that the Appellant’s defence of provocation failed when there were ample evidence of things said and things done which amounted to provocation serious enough to have caused the Appellant temporary loss of self-control. Learned counsel urged this court to allow this appeal on the ground that the Appellant being a peasant farmer was easily provoked at the news that the deceased was having an amorous relationship with his wife. Learned counsel urged this court to commute the sentence passed on the Appellant to life imprisonment.

JUDGEMENT

From the submission of the learned counsel for the Appellant, it is very clear that the only defence the Appellant is relying on, is the mitigating defence of provocation. By pleading the defence of provocation, the appellant has admitted that he committed murder but that he acted when he was seized with provocation.

From the definition of provocation as stated above, it is very clear that the defence is made up of some elements which must be present before the defence can be taken seriously. These elements are: 1.The act of provocation must be grave and sudden. 2. Loss of self-control both actual and reasonable 3. The act must be done before there is time for passion to cool. See Leechun Chuen vs The Oueen (1962) 3 WLR 1461; Biruwa vs State (1992) 1 NWLR 643.

Where these elements are present the court is then enjoined to take into account the back ground of the accused and the circumstances of his locality. See Akang vs State (1971) 1 ALL NLR 46 at 49.

The Appellant, in his confessional statement which was admitted and marked Exhibit 6, admitted commission of the offence.

It will appear that the only words that provoked the Appellant is the statement by the deceased that Felicia Achiaga was now his. This is so because when the Appellant met the deceased at the beer palour, he did not attack him immediately. According to the Appellant he greeted the deceased before he queried his presence in that shop. It was when the deceased said that Felicia was now his that he was provoked and proceeded to attack him. Were those words uttered by the deceased sufficient to deprive the Appellant the power of self-control? In other words were the words capable of engendering provocation so grave and sudden and by its gravity and suddenness deprive the Appellant the power of self-control? It is not all provocation that will reduce the crime of murder to manslaughter.

For provocation to have that result, it must be such which deprives the person provoked of the power of self-control as a result of which he commits the unlawful act which caused the death. The test to be applied is that of the effect of the provocation on a reasonable man.

The Appellant in 1980 was enlisted into the Nigerian Army and undertook military training at Army Depot in Zaria, after passing out from primary school. He later left the army and worked in Ogun/Osun River Basin Development Authority for four years before he was retrenched. He worked with one Alhaji before he settled in Iwo and took to farming. Learned counsel for the Appellant has asked this court to take into account the station in life of the Appellant as a peasant farmer and an average African man who is jealous to a fault when it comes to extra-marital relationship between his wife and a strange man, in reaching a decision in this appeal. From the back ground of the Appellant, he is not a typical peasant farmer and an average African who has not been so exposed to a civilized way of life. Evidence abound that the Appellant was not lawfully married to Felicia who he was living with as a girlfriend. It is also in evidence that the Appellant and Felicia were not in the best of terms as a result of the deceased’s relationship with her. It will appear that the Appellant was aware and suspected that the deceased had amorous relationship with Felicia for a long time before the attack that resulted in the killing of the deceased.

Why did he not report his suspicion to the law enforcement agencies instead of taking the law into his hands by confronting the deceased and ultimately terminating his life in a very cruel manner? Coming to the question I asked elsewhere in this judgment as to whether the words uttered by the deceased are capable of depriving the Appellant the power of self-control, I am of the firm view that those words are not capable of doing so. In Edache vs The Oueen (1962) NRNLR 56 this court held that, circumstances could exist when words alone could give rise to provocation, grave enough to deprive an offender power of self-control, but that whether words alone can give rise to provocation will depend on the circumstances of the case. In the instant case where the Appellant had all the time to report his suspicion to the law enforcement agencies, he failed to do so. Instead he was prepared to take the law into his hands, as such, the justification for provocation was clearly not available to him. In Oji vs The Queen (1961) NRNLR 93, this court upheld the judgment of Hurley C. J. in the Northern High Court on the issue of provocation arising out of a statement by the deceased that the accused was a thief. The Chief Justice said that such word did not amount to provocation grave enough to reduce the offence of the accused. In Oueen vs Ngba Haaba (1964) NNLR 14, the appellant found the deceased with his Wife in a room and went and called his brother to witness what he had seen, before he attacked and killed him, it was held that the appellant did not immediately lose his self-control, since he called his brother to see what had occurred. In the instant case, the Appellant did not meet the deceased with his wife. The statement that “the Appellant’s wife was now his,” is incapable of bringing to existence provocation so grave enough as to reduce the offence of murder to manslaughter, taking into account the status and the back ground of the Appellant.

As I have said elsewhere in this judgment, the Appellant had every opportunity to have the issues between him and the deceased resolved by a competent authority. He did not follow that path. By going to Felicia’s shop with a cutlass which he hid under his dress, it is right to conclude that he had made up his mind to kill the deceased and resolve their disagreement once and for all. For where the provocation inspires the actual intention to kill or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized and that is the actual finding of a spouse in the act of adultery. See Holiness vs DPP (1946) 3 ALL E. R 124.

Finally the weapon used by the Appellant is disproportionate with the provocation he claimed to have been seized with. To resort in the heat of passion induced by provocation to a simple blow is a different thing from making use of a deadly instrument like a concealed cutlass as in the instant case: the cutlass concealed and conveyed to the scene of crime by the appellant is a clear indication that the Appellant had long planned to kill the deceased, and the words complained of as having provoked him is a mere search of straw to hang on. I therefore agree with the lower court when it held: “The learned trial Judge was right in holding that the defence of provocation set up by the appellant failed and that the prosecution established a case of murder against the Appellant.”

The attitude of this court is that it does not interfere with the concurrent decision of the two lower courts, i.e. the trial court and the Court of Appeal, unless exceptional circumstances exist that will warrant such interference.

In the circumstances of this case, I find no such exceptional circumstances. The sole issue formulated by the learned counsel for the Appellant is resolved against him. I find no merit in this appeal. Accordingly same shall be and it is accordingly dismissed. The judgment of the trial court which was affirmed by the Court of Appeal, is further affirmed by me. Appeal dismissed.

 

Paul Adamu Galinje, JSC

 

Representations:

 

Mr Awoniyi A. Alabi Esq, —for the appellant

Mr K. Adekilekun Tijani Esq (ADPP M.O.J Osun State) for the respondent

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