[Provocation] – [Meaning of] – [When Plea will not avail Accused]
ISSUES FOR DETERMINATION:
Whether the appellant was rightly convicted for murder or not?
FACTS:
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 Supreme Court, in a unanimous decision, dismissed the appeal.
The appellant and three other “Bakassi Boys”, Ezeji Oguikpe, Emmanuel Eze and Adiele Ndubuisi, who belonged to a vigilante group known as “Bakassi”, were convicted and sentenced to death for the murder of two persons at the Safari Restaurant, Umuahia, on 9/7/1999, and this appeal turns on the issue of whether the conviction for murder should be substituted with manslaughter.
The appellant was the fourth accused at the Abia State High Court, and after his conviction for the offence of murder as charged, he appealed to the Court of Appeal, which affirmed the decision of the trial court, including his conviction for murder and the sentence of death passed by the trial court
HELD:
On Meaning of “provocation”:
Provocation is an act, or series of acts, done by the victim to the accused person, which would cause in any reasonable person, and actually caused in the accused person a sudden and temporary loss of self-control rendering the accused person vulnerable or susceptible to passion so much so that, for the moment, he or she was no longer the master of his or her mind.
On Ingredients of defence of provocation:
The three conjunctive elements, which a defendant who wants to avail himself of the defence of provocation must prove are that:
- There was the deceased person’s act of provocation which caused his loss of self-control;
- he killed the deceased in the heat of passion; and
- at the time of the killing, the heat of passion had not waned.
NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:
- Ahmed v. State (1999) 7 NWLR (Pt. 612) 641
- Ajunwa v. State (1988) 4 NWLR (Pt. 89) 380
- Akalezi v. State (1993) 2 NWLR (Pt. 273) 1
- Akang v. State (1971) 1 All NLR 46
- Alagba v. R. (1950) 19 NLR 128
- Alao v. A.C.B. Ltd. (1998) 3 NWLR (Pt. 542) 339
- Amala v. State (2004) 12 NWLR (Pt. 888) 520
- Amusa v. State (2003) 4 NWLR (Pt. 811) 595
- Bello v. A.G., Oyo State (1986) 5 NWLR (Pt. 45) 828
- Ben v. State (2006) 16 NWLR (Pt. 1006) 582
- Edoho v. State (2010) 14 NWLR (Pt. 1214) 651
- Eze v. State Unreported Appeal No. SC.487/2015
- Galadima v. State (2012) 18 NWLR (Pt. 1333) 610
- George v. State (1993) 6 NWLR (Pt. 297) 41
- Ibe v. State (1997) 1 NWLR (Pt. 484) 632
- Igwe v. State (1982) 9 SC 174
- Igwilo v. C.B.N. (2000) 9 NWLR (Pt. 672) 302
- Kaza v. State (2008) 7 NWLR (Pt. 1085) 125
- Kumo v. State (1967) SCNLR 507
- Maiyaki v. State (2008) 15 NWLR (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
- Nwokearu v. State (2010) 15 NWLR (Pt. 1215) 1
- Obaji v. State (1965) NMLR 417
- Obodo v. R. (1959) 4 FSC 1
- Odunlami v. Nigerian Navy (2013) 12 NWLR (Pt. 1367) 20
- Ojo v. Anibire (2004) 10 NWLR (Pt. 882) 571
- Onwuama v. Ezeokoli (2002) 5 NWLR (Pt. 760) 353
- Onyia v. State (2006) 11 NWLR (Pt. 991) 267
- Queen v. Akpakpan (1956) SCNLR 3
- R v. Afonja (1955) 15 WACA 26
- R v. Blake (1942) WACA 118
- Sadiku v. State (1972) 2 SC 169
- Shande v. State (2005) 12 NWLR (Pt. 939) 301
- Sheidu v. State (2014) 15 NWLR (Pt. 1429) 1
- Shorumo v. State (2010) 19 NWLR (Pt. 1226) 73
- Stephen v. State (1986) 5 NWLR (Pt. 46) 978
- Ubani v. State (2003) 18 NWLR (Pt. 851) 224
- 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 N.A. (1956) SCNLR 79
- Yusuf v. State (1988) 4 NWLR (Pt. 86) 96
FOREIGN CASES REFERRED TO IN THE JUDGMENT:
- Abbott v. R. (1976) 3 All ER 140
- Mancini v. DPP (1942) AC l
- 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. Ransford (1874) 13 COX CC 9.
NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:
- Constitution of the Federal Republic of Nigeria, 1999 (as amended), Ss.33,36(4)(5)(6)
- Criminal Code Act, Cap. C38, Laws of the Federation of Nigeria, 2004; Ss.278, 279, 317, 318 and 325
- Criminal Code, Vol. 1, Cap. 30, Laws of Eastern Nigeria, 1963.
BOOKS REFERRED TO IN THE JUDGMENT:
- Black’s Law Dictionary, 8th Edition, page 1262
- Criminal Law in Nigeria, C.O. Okonkwo, 2nd Edition, Ibadan: Spectrum Books, 2000, page 240
- NIALS’ Laws of Nigeria (Anotated), Criminal Justice Administration, Vol.1, Lagos: NIALS, 2008, page 686
- The Unlawful Act, Doctrine and the Defence of Accident in the Nigerian Bar Journal, Vol. 11, 1973, pages 93-97
FULL JUDGMENT
AUGIE, J.S.C. (Delivering the Leading Judgment):
The position of the law on the defence of provocation is, therefore, very clear, the deceased must have said or done something, right there in the presence of the accused person, which caused the accused person to suddenly and temporarily lose his self-control; rendering the accused person so subject to passion as to make him or her for the moment not master of his mind. See R. v. Duffy (supra); Kaza v. State (supra) and Akalezi v. State (supra). So, the question is what did the deceased persons do or say to the Bakassi Boys that provoked them to butcher the deceased persons with such savagery?
The first deceased had a degree (B.SC) in Zoology, and lived in Lagos, where he was Operational Manager of Uncle James Sea Food. His father, Nze Samuel Nwachukwu, testified as PW1 that he did not know his son was in Umuahia, until Chukwuma Mark, the Manager of the Safari Restaurant, came to inform PW1 that the first deceased had been attacked while waiting for him, the Manager, at the restaurant. PW1, further testified as follows:
“I saw blood flowing from the Restaurant into the gutter (drainage), dark red blood flowing from the two men that the Bakassi men had killed … I saw all the accused persons at the scene … I identified my son’s body …On close observation of my son’s body, I saw a sharp knife cut at the back of his neck, a big machete cut on one of the shoulders, it severed the shoulder, open wound on the stomach, which could be from a gunshot. As I was looking at the two bodies, the bodies had been set ablaze and were burning.”
The second deceased was a Spy Sergeant, who had gone to the Restaurant with his younger brother, Solomon Maduekwe (PW3) to collect the drinks earlier ordered by their elder brother, for their sister’s traditional wedding. PW3 testified that when the second deceased went in, he heard him shout “we are here for drinks, I am not an armed robber.” Two men blocked PW3. One of them stabbed him on the head, and pushed him into the restaurant, where he saw his brother being held down by some people with machetes. PW3 went on to describe what happened to them thereafter.
The “Bakassi Boys” group was a security welfare association, privately set up and politically motivated to resort to self-help to combat crime by arresting and killing thieves. This was an unlawful association, which operated independently of the Police and wholly indulged in the process of self-help in administering what they perceived to be justice. The common practice was to respond to complaints of criminal activity and have the alleged criminals dealt with by extreme measures which flagrantly breached the provision of the law on fair hearing. They were contracted by the Secretary to the Government of Abia State and sent on a mission to deal with persistent criminal activity in Umuahia area. They were informed of the criminal activity by an official from the Government House, named Ndukwe Okereke, and motivated to act. They were then transported by the official, who took them to a restaurant called Safari Restaurant, being the location of persons suspected to be armed robbers disturbing that area. The persons were there and then identified by the official and left at the mercy of the group.
Can this be said to be a valid defence in the eyes of the law? The appellant admitted, and blatantly too, that the Bakassi vigilante group was an unlawful association that dealt with alleged criminals with extreme measures, “which flagrantly breached the provision of the law of fair hearing”. Self-evidently, 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 this land with such relish and killed the two deceased persons with reckless abandon and having been convicted for murder, the appellant is asking this court to set aside the judgment of the Court of Appeal, and substitute his conviction for murder with that of manslaughter, because they were incited by a third party to kill the two deceased persons.
Finally, for the defence of provocation to avail the appellant, there must be something said or done by the deceased persons in his presence that caused the appellant to “suddenly and temporarily” lose his passion and self-control. The appellant’s defence that he was incited by the Abia State Government to kill the two deceased persons, who did not do or say anything to him and the other Bakassi Boys, before they were savagely killed, cannot amount to provocation, and his attempt to convince this court otherwise failed woefully.
The respondent is right; the appellant embarked on a futile journey of proving provocation, which does not arise in this case, as the testimony of the witnesses confirm that the appellant and his cohorts committed the crime “with utmost dispatch and barbarity, without any provocation or incitement.” What is more, there is more than enough evidence established by the prosecution to support the concurrent findings of the trial court and the Court of Appeal. In the circumstances, this court is not in the position to intervene.
This appeal totally lacks merit; and it is, therefore, dismissed. I affirm the decision of the Court of Appeal, which affirmed that of the trial court.
Appeal Dismissed.
LIST OF COUNSEL:
I.A. Akaraiwe Esq., J. O Nnani Esq., S. M. K. Akaraiwe Esq., E. E. Okoro Esq., – for the Appellant
Uche Ihediwa Esq. – for the Respondent.