[Action]- [Limitation of Action] – [How Determined]
ISSUE FOR DETERMINATION:
Whether the conviction for murder ought not to be substituted with a verdict of manslaughter.
FACTS:
The appellant is one of the “Bakassi Boys”, and one of the leaders of the Abia State Vigilante Group known as “Bakassi.”
On 9th July 1999, one Mr. Ndukwe Okereke, a State Security Service (SSS) official invited the appellant and three other Bakassi Boys, namely, Ezeji Oguikpe, Stanley Azogu and Adiele Ndubuisi from Aba where the group was based, and took them to the Government House, Umuahia. At the Government House, they met Dr. Elekwachi Nwaogbo, then Secretary to the State Government, who instructed Mr. Ndukwe Okereke to take the armed Bakassi Boys to the Safari Restaurant at Azikiwe Road, Umuahia. When they got there, they met some people. The appellant and his co-accused persons attacked the people with knives, cutlasses and guns. And they killed two persons. After, they dragged the mutilated bodies of the deceased persons to the main road, and set them ablaze.
Subsequently, the appellant and Ezeji Oguikpe, Stanley Azogu and Adiele Ndubuisi were charged for murder. In its judgment, the trial court found the appellant and his co-accused persons were the aggressors; that the injuries they inflicted on the two deceased persons caused their death; and that the injuries were completely disproportionate to any imagined provocation. The trial court held that the pleas of self-defence or provocation did not avail the appellant and his co-accused persons. The trial court found the appellant guilty of murder, convicted him, and sentenced him to death accordingly. On appeal, the Court of Appeal, upheld the trial court’s findings and affirmed its judgment. The appellant appealed to the Supreme Court, which dismissed the appeal.
HELD:
On when the defence of provocation can avail party:
For the defence of provocation to avail the appellant, there must be something said or done by the deceased persons in his presence, which caused the appellant to ‘suddenly and temporarily’ lose his passion and self-control. R. v. Duffy (1949) 1 AER 932.
NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:
- Afonja v. Queen (1955) 15 WACA 26
- Ahmed v. State (1999) 7 NWLR (Pt. 612) 641
- Ahungur v. State (2012) 12 NWLR (Pt. 1313) 187
- Akalezi v. State (1993) 2 NWLR (Pt. 273) 1
- Akang v. State (1971) 1 All NLR 46
- Alao v. A. C. B. Ltd. (1998) 3 NWLR (Pt. 542) 339
- Amala v. State (2004) 12 NWLR (Pt. 888) 520
- Bello v. A.-G., Oyo (1986) 5 NWLR (Pt. 45) 828
- Biruwa v. State (1992) 1 NWLR (Pt. 220) 633
- Edoho v. State (2010) 14 NWLR (Pt. 1214) 651
- George v. State (1993) 6 NWLR (Pt. 297) 41
- Ibeh v. State (1997) 1 NWLR (Pt. 484) 632
- Igwe v. State (1982) 9 SC 174
- Jimmy v. State (2013) 18 NWLR (Pt. 1386) 229
- Kale v. Coker (1982) 12 SC 252
- Kaza v. State (2008) 7 NWLR (Pt. 1085) 125
- Kumo v. State (1967) SCNLR 507
- Maiyaki v. State (2008) 15 (Pt.1109) 173
- Musa v. State (2009) 15 NWLR (Pt. 1165) 467
- Njokwu v. State (2013) 9 NWLR (Pt. 1360) 417
- Njovens v. State (1973) 5 SC 12
- Nwede v. State (1985) 3 NWLR (Pt. 13) 444
- Obaji v. State (1965) NMLR 417
- Odunlami v. Nigerian Navy (2013) 12 NWLR (Pt. 1367) 20
- Queen v. Akpakpan (1956) SCNLR 3
- Sadiku v. State (1972) 2 SC 165
- Shande v. State (2005) 12 NWLR (Pt. 939) 301
- Sheidu v. State (2014) 15 NWLR (Pt. 1429) 1
- Shurumo v. State (2010) 19 NWLR (Pt. 1226) 73
- Stephen v. State (1986) 5 NWLR (Pt. 46) 978
- Ukwunnenyi v. State (1989) 4 NWLR (Pt. 114) 131
- Uluebeka v. State (2000) 7 NWLR (Pt. 665) 404
- Uwaekweghinya v. State (2005) 9 NWLR (Pt. 930) 227
- Wonaka v. Sokoto Native Authority (1956) SCNLR 79
- Yusuf v. State (1988) 4 NWLR (Pt. 86) 96
FOREIGN CASES REFERRED TO IN THE JUDGMENT:
- Mancini v. DPP (1942) AC 1
- R v. Blake (1942) WACA 118
- R v. Doughty (1986) 83 Crim LR 625
- R v. Ibrams and Gregory (1981) 74 Cr App R 154
- R v. Duffy (1949) 1 All ER 932
- R v. Ramsford 13 COX 9
NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:
- Constitution of the Federal Republic of Nigeria, 1999 (as amended), Ss.33, 36(4)
- Criminal Code Act, 2004, Ss. 278, 279, 317, 318, 325
- Criminal Code Laws of Eastern Nigeria, 1963, S. 319(1)
BOOKS REFERRED TO IN THE JUDGMENT:
- Black’s Law Dictionary, 8th Ed.
- C.O. Okonkwo: Criminal Law in Nigeria (2nd Ed.) (Ibadan Spectrum Books, 2000) 240
- C.O. Okonkwo: “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol. 11 (1973) 93 – 97
- NIALS “Laws of Nigeria” (Annotated) Criminal Justice Administration Vol.I (Lagos: NIALS, 2008) 686
FULL JUDGMENT
AUGIE, J.S.C. (Delivering the Leading Judgment):
This was an appeal against the decision of the Court of Appeal, which upheld the judgment of the High Court, which convicted and sentenced the appellant to death for the murder of two persons. The facts as established at the Abia State High Court is that on 9/7/1999, the appellant and three other Bakassi Boys, namely, Ezeji Oguikpe, Emmanuel Eze and Stanley Azogu, were invited from Aba, where the said Group is based to Government House, Umuahia by Ndukwe Okereke, a State Security Service Official.
At the Government House, they met the then Secretary to the State Government. Dr. Elekwachi Nwaogbo, who instructed the S.S.S. official, Ndukwe Okereke, to take them, Bakassi Boys to the Safari Restaurant at Umuahia, where they confronted the people they met with dangerous weapons, including cutlasses, knives and guns. In the process, the said two deceased persons were killed and their mutilated bodies dragged to the main road, where their remains were set ablaze by the said Bakassi Boys.
The Abia State High Court found the appellant, who was the second accused, guilty of the offence of murder, and convicted and sentenced him to death accordingly. The Court of Appeal was also convinced, after reviewing the evidence, that he was guilty of the offence of murder and affirmed the trial court’s decision. Further aggrieved, the appellant has appealed to the Supreme court with a notice of appeal containing five grounds of appeal and he formulated one issue for determination in his brief of argument:
“Whether the conviction for murder ought not to be substituted with a verdict of manslaughter.”
The respondent formulated a similar issue for determination in its brief of argument, which it couched differently as follows:
“Whether the Honourable Justices of the Court of Appeal were right in affirming the conviction and verdict of murder of the appellant instead of substituting same with a verdict of manslaughter.”
The issues formulated by both parties raise the same question:
“Whether the appellant was rightly convicted for murder or not”?
There is abundant evidence to show that the appellant and his cohorts are notorious killers masquerading under the name of vigilante group, a euphemism used by them to murder fellow citizens of Nigeria extra-judicially and in a very reckless manner. There is also evidence that upon being invited to Umuahia and without any prior briefing by the Abia State Government of the purpose and nature of the assignment being given to the Bakassi boys, the boys left Aba, fully armed with machetes, guns and other paraphernalia of violence. Being fore-armed and fully prepared with deadly weapons even before knowing the nature of their impending assignment shows that they are nothing but a killer squad needing no prompting or incitement/provocation to embark on their stock-in-trade. This element, of their preparedness to unleash violence at short notice, was confirmed by the accused persons in their various extra- judicial statements to the Police and evidence before the trial court. Having ab initio armed themselves and made up their minds to deal decisively with whoever is referred to them as armed robbers, the appellant and his co-convicts needed no prompting, incitement and/or provocation to kill and no one, not the Abia State Government officials incited or provoked them to kill the deceased persons.
I agree with the respondent completely. It had a lot more to say in its brief of argument, but the arguments captured above, go to the essence of what is at stake in this appeal, which is the issue of whether appellant can successfully plead provocation. Obviously, the respondent is right on all counts that he cannot. It is clear from the evidence of prosecution witnesses and defence witnesses, including appellant, who testified as DW3, that the appellant and his cohorts went to the Safari Restaurant in Umuahia on that day of 9/7/1999, with the sole intention to kill.
The appellant admitted that the Bakassi Vigilante Group to which he belonged was an unlawful association that dealt with alleged criminals with extreme measures, “which flagrantly breached the provision of the law of fair hearing.” The Bakassi Boys were nothing but outlaws; lawless persons operating outside the law, who relished breaking the laws of the land, in their unlawful and misguided quest to dispense justice by killing alleged criminals. Having desecrated the laws of the land with such relish and reckless abandon, and having been convicted for murder accordingly, the appellant is urging this court to allow the appeal, set aside the judgment of the Court of Appeal delivered on 5/5/2010, and substitute his conviction for murder with that of manslaughter, since he was incited by a third party to kill the deceased persons. But there are a few things wrong with that line of defence. Firstly, it is more of implicating the Abia State Government in the crimes they had committed rather than a valid defence in law. Secondly, the learned trial Judge, C. N. Uwa, J. (as he then was), debunked his insinuation that the Abia State Government had a hand in the killing of the deceased persons, when he held that:
“Finally, and more importantly, for the defence of provocation to avail the appellant, there must be something said or done by the deceased persons in his presence, which caused the appellant to ‘suddenly and temporarily’ lose his passion and self-control. See R. v. Duffy (1949) 1 AER 932, where Devlin, J. observed that: “Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
The Court of Appeal aptly concluded as follows:
“There is no substance in the contention that the learned trial Judge was wrong in convicting the Appellant. We shall, therefore, decline the invitation on us to so hold or to substitute a verdict of manslaughter for murder. The Appellant and his cohorts, who in their overzealousness and brigandage, accused, tried and condemned the deceased person to death summarily in the most barbaric, horrendous and reckless manner, must pay the supreme price for their dastardly acts of taking laws into their hands.”
I could not have put it any better. It is for the very same reasons that I also reject the invitation to substitute the conviction of the Appellant for murder with that of conviction for manslaughter.
This Appeal totally lacks merit; it is, therefore dismissed.
Appeal Dismissed.
LIST OF COUNSEL:
I. A. Akaraiwe, Esq. (with him, J. O. Nnani, Esq.; S. M. K. Akaraiwe, Esq.; and E. E. Okoro, Esq.) – for the Appellant
K. K. Udeochu, Esq. – for the Respondent