Ashare Ayaba V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
The appellant, and his co-accused persons/ were arraigned at the Yauri Judicial Division of the Kebbi State High Court for the offence of Culpable Homicide punishable with death under Section 221 (b) of the Penal Code. Sequel to the not-guilty plea of the appellant, the case went to trial. The Prosecution’s case was presented by five witnesses. The following exhibits were tendered, namely, exhibits A and A1, the first accused person’s statements; exhibit B, medical report; exhibits E and E1 and F and F1, statements of the second accused person; exhibits, G, H and H1, two cutlasses and their shields, respectively.
The appellant, who testified as DW2, denied knowledge of the Prosecution’s witnesses. He equally, disclaimed any knowledge of the incident that prompted his trial. The Prosecution’s case was that on April 28, 2007, at Jajjaye village, Shanga Local Government Area, the appellant, and a co-accused person, the deceased person and other people attended a traditional marriage ceremony. One Gano Jaye, who, allegedly, had stolen the wife of one Koshi Magaji, a
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brother to the co-accused person, also, was at the ceremony.
The said Gano was ordered out of the ceremony. As he did, the co-accused person, armed with a stick, followed him. The co-accused person cut the deceased person with his cutlass on his shoulder. Meanwhile, the appellant, who was outside, saw Gano Jaye running out of the place. When he [the appellant], saw the deceased person on the ground, he cut him [the deceased person] on the head whereupon he [the deceased person] died.
The High Court (hereinafter, simply, referred to as the trial Court) convicted and sentenced them to death. Having lost his appeal at the Court of Appeal, Sokoto Division, the appellant, further appealed to this Court entreating it to determine a sole question his counsel framed thus:
Whether the Court of Appeal was right in holding that there was no evidence of provocation to be considered in favour of the appellant as it was not raised by the appellant, nor was it raised or alluded to, at all in the evidence before the Court
The respondent adopted the sole issue. The appeal would, therefore, be determined based on this sole issue.
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ISSUE FOR DETERMINATION
APPELLANT’S SUBMISSIONS
At the hearing of this appeal on February 22, 2018, Adedapo Tunde-Olowu, learned counsel for the appellant, adopted the brief filed on June 13, 2016, although, deemed properly filed and served on February 22, 2018.
It was conceded that the appellant did not adduce evidence of provocation in his defence. It was nonetheless, contended that the trial Court should have considered all defences available to him whether he raised them or not, Uche Williams v State (1992) 8 NWLR (pt 261) 515,522; R v Fadina [1958] SCNLR 250; Udofia v State[1984] 12 SC 139; Laoye v State [1985] 2 NWLR (pt 10) 832, 833; Lado v State [1999] 9 NWLR (pt 619) 369,382; Eyop v State (2012) LPELR – 20210; Edoho v The State (2010) LPELR – 1015 (sic).
He cited an excerpt from the judgment of the lower Court and opined that the appellant’s grouse was that it [the lower Court] erred. Counsel submitted that, from exhibits D; A; A1; E; E1; F and F1, being appellant’s statements to the Police, the elements of provocation were evident and should have been considered. He submitted that by the combined
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reading of exhibits D, the statement of PW2, exhibits A and A1, the accused person’s statements, it was obvious that there were elements of provocation.
It was submitted that the provocation here was a combination or series of acts. In his submission, as a defence, provocation consists of three elements, the act of provocation, otherwise referred to as the provocative incident; the loss of self-control which must be both actual and reasonable and the retaliation or mode of resentment which must be proportionate to the provocation, Uwagboe v The State [2008] All FWLR (pt 419) 425 – 448; Jideonwo v The State [1997] 1 NWLR (pt 209) (sic); Biruwa v The State [1985] 3 NWLR (pt 11) 167. These three fundamental elements must co-exist for the defence to succeed, Agunbiade v The State {1999} 4 NWLR (pt 599) 391; Akang v The State (I971) ANLR 48, 51.
Learned counsel canvassed the view that the three elements of provocation co-exist in the circumstances of this case. In his submission, the exhaustive acts or words that are likely to cause provocation have not been judicially laid down. Thus, the question whether a particular act, abuse or insult
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constitutes provocation is a question of fact, Lado v The State [1999] 9 NWLR (pt 619) 369, 380.
He thus contended that the Court is required to take into consideration the accused person’s background and his status in life and to determine whether an ordinary person in the accused person’s social standing would have been provoked by such act, abuse or insult, R v Akpankpan [1956] SCNLR 3; Kumo v The State (1967) ANLR 309.
He contended that it was clear from the evidence that the appellant was not only abused but was also attacked during the fracas. He referred to the PW2’s statements to the Police dated April 29, 2007, exhibit D1 and exhibits A and A1, first accused person’s statement to the Police, citing Ladds case at page 371; William v The State (1992) 8 NWLR (pt 261) 515, 516-517.
He contended that the Prosecution failed to prove the absence of provocation..The lower Courts, in his submission, failed to consider all the defences which were manifest in the evidence, Lado (supra) at page 373. Accordingly, he invited the Court to consider the said defence and set aside the appellant’s conviction, Anekam and Ors v The State (1971) ANLR 53, 57;
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Kechi v The Queen (1963) 1 All NLR 333; Shande v The State [2005] All FWLR (pt 279) 1342. He urged the Court to allow the appeal.
RESPONDENT’S ARGUMENTS
On his part, S. M. Kibo, Assistant Director, Public Prosecutions, Ministry of Justice, Kebbi State, for the respondent, adopted the brief filed. on December 18, 2014. It was contended that the duty of the Court is to consider all defences raised by evidence in the record no matter how weak or stupid, Abdullahi Ada v State (2008) 3 NCC 549, 551 – 553.
Learned counsel cited Section 222 (1) of the Penal Code and Abdullahi Ada v State (supra) 182, 189 – 190. He contended that the lower Courts opinion was right, citing page 112 of the record. He pointed out that the lower Court evaluated the convicted person’s statement, exhibit E1 and the appellant’s statement, exhibit F1, pages 110, 111, 113 and 114 of the record. He reproduced exhibit A1, page 13 of the record and the statement of PW2 to Gano Jaye, pages 11 and 29 of the record.
He explained that, from that page, it was obvious that the exact words which the deceased person used in abusing the appellant were not set out. This, in his submission, would
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have assisted the Court in determining whether such words were capable of inducing provocation, Frank Uwagboe v The State (2008) 3 NCC 636, 638; Uwaekweghinya v The State [2005] 1 NCC 369, 372.
It was pointed out that, in exhibit D1, neither the deceased person nor Gano Jaye stated that they hit anybody. On the contrary, it was the appellant and his group that started biting Gano Jaye. The deceased person only came and stood in between them to stop them from biting the said PW2, Gano Jaye.
Counsel pointed out that, in exhibit A and A1, it was not stated that the deceased person cut anybody. On their part, neither the first accused person nor the appellant, in their statements in Court and before the Police, exhibits A and A1; D, E, E1, F and F1, indicated that either the PW2, Gano Jaye or the deceased person inflicted any injury on any of them. He submitted that the Prosecution’s evidence removed any iota of the defence of provocation from the case.
He invited the Court to find that, from the concurrent findings of the lower Courts, neither the defence of provocation nor any other defence availed the appellant. What
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is more, the appellant failed to show that the findings were perverse. He, then, urged the Court to affirm the conviction and sentence which the lower Courts awarded the appellant.
RESOLUTION OF THE ISSUE
As indicated earlier in this judgment, learned counsel for the appellant inveighed against the judgment of the lower Court on the ground that it failed to consider all the defences which were manifest in the evidence,” citing Lado (supra) at page 373. Is there any justification for this allegation
My Lords, due to counsel’s imputation against the lower Court, I would revert to the judgment of that Court to determine the veracity vel non of learned counsel’s submission. First, I invite attention to page 109 of the record. The Court proceeded thus:
Counsel for the appellant argued that the trial Courtdid not consider the angle of provocation regarding the fight that occurred during the traditional marriage ceremony on the fateful day…
…the appellant did not raise the issue of fighting or being provoked by the deceased [person] and his retaliation, in his viva voce evidence before the trial Court…
[Italics supplied for emphasis]
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The Court set out excerpts form exhibit F1, and found that:
From the above, the appellant was not at all provoked in any fight and that in fact, the deceased [person] did not provoke him. According to the appellant in exhibit F1, it was the first accused (person) (now the first convicted person), Wakil Magaaji, that was provoked and was the one that inflicted a cut on the deceased (person) with a cutlass. The appellant who was not provoked and especially who was not provoked by the deceased (person) at all, inflicted a cut on the head of the deceased (person), with his sword, and he fell to the ground.
Clearly, therefore, exhibit F1 did not raise any issue of provocation of the appellant by the deceased [person]. Further, therefore, no evidence was led in Court by the appellant in his oral testimony, by the prosecution witnesses in their oral testimonies and by the appellant in his confessional statement in exhibit F1 raising the defence of provocation of the appellant by the deceased [person] in a fight. So the trial Court would not have been said to have failed to consider the
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defence of provocation in respect of the appellant, as it was not raised by the appellant, nor was it raised or alluded to, at all, in the evidence before the Court.
(Pages 111 l12 of the record; italics supplied for emphasis)
My Lords, I entertain no doubts that, from the above excerpts, the lower Court, actually, considered the possibility of the inurement of the defence of provocation in favour of the appellant. The truth, however, is that the said Court did. It was after that exercise that it came to the conclusion that “…the trial Court would not have been said to have failed to consider the defence of provocation in respect of the appellant as it was not raised by the appellant nor was it raised or alluded to, at all, in the evidence before the Court.”
[Page 112 of the record; italics supplied for emphasis]
Against this background, I take the view that learned counsel for the appellant, unfairly, pilloried the lower Court’s findings and conclusion. I find no justification for that indefensible approach. As this Court held in Uluebeka v The State (2000) LPELR – 3354 (SC) 48; B – D:
It is trite law that in a criminal trial,
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a Court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See, Umani v. The State (1988) 1 NWLR (pt. 70) 274. It is also common ground that a defence of provocation properly raised will result in reducing the offence of murder to that of manslaughter. See, Ajunwa v. The State [1988] 4 NWLR (pt. 89) 380.
However, in Annabi v State (2008) LPELR – 495 (SC) 26; A- C, this Court was emphatic that:
…the defences open to an accused person which a Court whether trial or appellate has a duty to consider, in my respectful view, must be, the defences or such defence or defences that appear or are contained in the evidence before the Court or that appear or are contained in the Record of Proceedings. In other words, the duty of the/a Court, is to consider all defences raised in evidence in the record of proceedings even if the accused person did not specifically raise them and this is regardless of whether such defence or defences is or are hopeless, weak or stupid. See, the cases of Njoku v. The State (1993) 7 SCNJ (pt. 1) 36, 41, where it was held that it would be a different thing, if a trial Court,
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merely conjectures such defences and citing the cases of Apishe and Ors. v. The State (1971) ANLR 53 and Okpere v. The State (197) (sic) ANLR 1; Grace Akpabio and Ors. v. The State (1994) 7-8 SCNJ. (Pt. III) 429; Ofoke Nwambe v. The State [1995] 3 SCNJ 77, just to mention but a few. Thus, it is not a matter of speculation by the Court to consider every and all imaginable defences open to an accused person not raised in evidence before the Court or contained in the record of proceedings. It cannot be by any stretch of imagination in my humble and respectful view. It is not, I repeat, it is not the duty to any Court including this Court, to look for all possible exculpatory evidence that is not borne out in the Records, in favour of an accused person. It is not the law.
[Italics supplied for emphasis]
In the earlier case of Ogbodu v State (1987) 3 SC. 497, 304, Obaseki, JSC, had expressed similar views thus:
There is no duty on the Court to unearth any defences in order to make a finding on it. lt is, however, the duty of the Court to consider all defences implicit in the evidence though not specifically raised.
(Italics supplied for emphasis)
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From all I have said above, it is obvious that the sole issue canvassed in this appeal was just a hypothetical academic exercise: an exercise does not engage the attention of Courts since they are not the proper fora for its ventilation, Imegwu v Okolocha [2013] 9 NWLR (pt 1359) 347. As it is well known, such issues have no utilitarian value, Abe v UNILORIN [2013] 16 NWLR (pt 1379) 183.
In all, therefore, I hereby enter an order dismissing this appeal as it is bereft of any redeeming feature. Appeal dismissed. I affirm the concurrent findings and conclusion of the lower Courts. In consequence, I, further, affirm the lower Courts’ conviction of, and sentence on the appellant. Appeal dismissed.
SC.260/2013