Christopher David V. Commissioner Of Police Plateau State Command (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant was charged and tried for culpable homicide punishable with death under Section 221 of the Penal Code Law of Plateau State. At the trial he raised defences of self-defence and provocation which did not impress the trial Court. His defences were dismissed. He was convicted as charged and sentenced to death. He appealed, and the Court of Appeal (the lower Court) however found, at pages 226 – 227 of the Record, that;

on the evidence before the lower Court, especially Exhibit 1, 2 and the testimony of PW.1 and the Appellant at the trial, the defence of provocation has been established to warrant its application to reduce offence of culpable homicide punishable with death under Section 221(a) (of the Penal Code) to the other homicide not punishable with death under Section 222(1) of the Penal Code. For the law is settled, where the defence of provocation succeeds, the punishment for committing the offence under Section 221(a) of the Penal Code cannot be death but such offender is to be sentenced under Section 222(1) of the penal Code.

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Accordingly, the death sentence imposed on the Appellant, upon his being convicted for culpable homicide punishable with death, was set aside and in its stead the Appellant was “sentenced to life imprisonment under Section 222(1) of the Penal Code.” It is against this judgment of the lower Court that the Appellant has further appealed to this Court. The Respondent, as the Prosecutor, presumably accepting the decision, has not appealed it.

Section 222(1) of the Penal Code provides thus –

222(1) 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.

The parties herein have adopted the following three (3) issues for the determination of this appeal. That is:

1. Whether the learned Justices of the Court of Appeal were right to have held and affirmed the decision of the trial Court that the Appellant did not establish self defence in the circumstances.
2. Whether the learned Justices of the Court of Appeal were right to have sentenced the Appellant

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to life imprisonment under Section 222(1) of the Penal Code instead of Section 224 which gave (sic) options of life or less term of imprisonment or with fine or with both and if the answer is in the negative, whether the Court below was not misled by such error to the effect that the only option it had was to sentence the Appellant to life imprisonment

3. Whether in the circumstances of the case, the imposition of life imprisonment on the Appellant by the Court below is not too harsh given the options provided by Section 224 of the Penal Code

The facts on which the Appellant rests his plea of self- defence are, as can be seen from his extra-judicial statements (Exhibits 1 & 2) and his testimony at the trial Court, that while he was talking with a friend (one Zakka) at a beer parlor the deceased came in and interrupted the conversation, held him by the shirt and asked him (the Appellant) if he was the only person drunk there That the deceased (one Emmanuel), in addition to rebuking him (the Appellant) proceeded to head-butting him (the Appellant) on the nose and mouth. The Appellant fell down; while the deceased went out of the beer parlor.

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That as he (the Appellant) was leaving the beer parlor the deceased obstructed him. The deceased had returned with an iron-pipe. He struck the Appellant on the chest with the iron pipe, and that as he was about to strike the Appellant the second time, the Appellant seized the iron pipe and hit him (the deceased) on the head with the same iron pipe.

The evidence of the PW.I, however, suggests that the Appellant upon seizing the iron-pipe from the deceased, had hit him twice on the head with it, and that the deceased, as a result, fell down and was bleeding from his mouth and nose. The PW.2 observed at the scene that the deceased was “hit near the left ear and on his head.” Exhibit 7, the medical report, put the cause of death as “the hurt caused” to the deceased.