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.

Can the Appellant plead self-defence in the circumstances None of the parties, it should be noted, has made an issue of the finding by the lower Court that “on the evidence before the (trial) Court, especially Exhibits 1, 2 and the testimonies of the PW.1 and the Appellant at the trial, the defence of provocation” under Section 222(1) of the Penal Code had been established.

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The learned trial Judge had correctly espoused the law on self-defence, relying on the authorities of OMOREGIE v. THE STATE (2008) 12 S.C.N.J. 723 at 741, and UWAEKWEGHINYA v. THE STATE (2005) 9 N.W.L.R. (Pt. 930) 227 at 230, to the effect that the accused person pleading self-defence must himself be free from blame in bringing the encounter, and that for the defence to avail him:

a. There must be present an impending peril to life or of great bodily harm, real or so apparent, as to create honest belief of an existing necessity.

b. There must be no safe or reasonable mode of escape by retreat; and

c. There must have been a necessity for taking life.

One piece of evidence that stands resolutely stubborn against the Appellant’s plea of self-defence in this case is the fact that he seized from the deceased, his assailant, the offensive weapon, the iron pipe. Having disarmed the deceased, the Appellant had thus removed from the deceased, his attacker, “the present impending peril to his life or of great bodily harm.” For the defence of the right to self-defence to avail the accused and exclude his criminal

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responsibility, there must be evidence showing that the accused at the material moment was faced with imminent apprehension of death or grievous hurt from the attacker: UWAGBOE v. THE STATE (2008) 12 N.W.L.R. (Pt. 1102) 621 at 639; ADEYEYE v. THE STATE (2013) 11 N.W.L.R. (Pt. 1364) 47 at 70. In the instant case, the Appellant was not the aggressor, unlike the accused person in UWAGBOE v. STATE (supra). The fact that the Appellant had effectively disarmed the attacker, who also was the aggressor, would deny him the benefit of the plea of the right of self-defence. This fact escaped the Appellant’s Counsel. The material fact, contrary to the forceful submission of the Appellant’s Counsel, is not whether the Appellant had an opportunity to escape, which route of escape was allegedly blocked by the deceased attacker. The issue, rather, is: whether the Appellant having disarmed his attacker was still at the moment exposed to any present or impending peril to his life or grevious bodily harm This is a question of fact. The concurrent findings of fact by the trial Court and the lower Court are not in any way perverse to warrant this Court’s interference with them.

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The principle of law on this is quite explicit and reasonable. The defence of self-defence does not avail a person who killed his attacker after successfully disarming the attacker since that person’s life was no longer in danger: OKORO AMEH v. THE QUEEN (1958) S.C.N.L.R.33 at 34.

The factual circumstance of this case does not warrant the Appellant’s plea of self-defence, a statutory defence under Section 59 the Penal Code entitling the accused person to acquittal. Accordingly, I hereby resolve this issue against the Appellant. The lower Court, therefore, was right in affirming the trial Court’s finding that the Appellant did not establish the statutory right of self-defence.

Issue 2, in actuality, is a complaint that the lower Court had erroneously imposed the life sentence on the Appellant under Section 222(1) of the Penal Code, instead of Section 224 of the same Penal Code. Section 222(1) of the Penal Code, as correctly submitted by the Appellant’s Counsel, “has nothing to do with sentencing but provides for situations when culpable homicide is not punishable with death such as provocation, mistake or accident.” Section 224 of the Penal Code, on the other hand,

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provides the penalty or punishment for the offence created by Section 221(1) of the Penal Code. For clarity, I hereby reproduce the two provisions, to wit:

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.

224. Whoever commits culpable homicide not punishable with death shall be punished with imprisonment for life or for any less term or with fine or both.

There is no doubt whatsoever that the Appellant was sentenced under the definition section (i.e. Section 222(1) of the Penal Code for the offence of culpable homicide not punishable with death. The appropriate provision of the Penal Code prescribing punishment for the offence created by Section 222(1) of the Penal Code is Section 224 thereof. Mr. Shaseet of Counsel for the Respondent, conceding that although the lower Court sentenced the Appellant under a wrong provision of the Penal Code, submits that the error would not render the sentence imposed, upon the

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exercise of the Court’s discretion, a nullity; the Appellant having not proved the injustice he had suffered by that error. The Appellant, submits in response, that the lower Court in sentencing the Appellant under a wrong provision of the Penal Code, “simply connotes that (it) did not know or failed to avert its mind to the exact Section of the law applicable and consequently the Court is not aware of the discretion provided by law.”

Now, apart from merely “standing on the pedestal of technicality to knock justice on its face” what miscarriage of justice has the Appellant suffered by the mere fact that the Appellant was sentenced under Section 222(1) of the Penal Code instead of Section 224 of the same Penal Code for the offence created by Section 222(1) of the Penal Code The same Appellant has, in paragraph 6.06 of his Brief, urged us, my Lords, to-

set aside the sentence of the Appellant to life imprisonment under Section 222(1) of the Penal Code and in its place sentence the Appellant under Section 224 of the Penal Code –

This is a clear admission that the error of the lower Court stating that the sentence was under Section 222(1) of the

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Penal Code, instead of Section 224 of the same Penal Code, was an innocous slip that has actually not occasioned any miscarriage of justice to the Appellant.

In OGBOMOR v. THE STATE (1985) 1 N.S.C.C. 224 this Court made it clear that a mere misdescription of the law under which charge has been brought does not necessarily render the offence charged one not known to the law at the time of its commission; and that as long as the charge discloses an offence in a written law and such law exists at the time of the commission or omission of the act alleged in the charge to be an offence such information, though merely defective, is valid. Only recently OKORO, JSC, in BONIFACE ADONIKE v. THE STATE (2015) L.P.E.L.R – 24281 (S.C) page 22, in the same refrain, had stated that a conviction under a wrong law is not fatal if there is a provision under the law on which the conviction can stand unless the Appellant establishes that he was infact misled by such error or that a miscarriage of justice has been occasioned by the reason of some error. Such error, it is settled, cannot be held to fundamentally vitiate the judicial act.

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Equity, it is said, looks at the substance and not the form.

It needs only be stressed that not every error committed in a case by the lower Court will result in the appeal being allowed.

Only such error(s) that occasion miscarriage of justice, which are regarded as fundamental will be the basis of disturbing the decision appealed: OJENGBEDE v. ESAN (2001) 18 N.W.L.R. (Pt. 746) 771 (S.C). Buoyed by these authorities I will, and do hereby invoke Section 168(1) of the Evidence Act, 2011 to presume the validity of the sentence imposed on the Appellant, the decision appealed having been done in a manner substantially regular.

Issue 2 is hereby resolved against the Appellant. The lower Court clearly had convicted the Appellant under Section 222(1) of the Penal Code and had intended to sentence the Appellant for that offence under the existing provisions of Section 224 of the same Penal Code.

The sentence imposed on the Appellant for the offence under Section 222(1) of the Penal Code is life imprisonment.

The Penal Code, in Section 224 thereof, gives the Court the discretion to punish the Appellant “with imprisonment for life or for any less term or with fine or with both.”

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Section 224 of the Penal Code has thus given the Court, upon convicting an accused person for an offence under Section 222 of the Penal Code the liberty to impose one of the four options provided in Section 224 of the Penal Code.

Provocation under Section 222(1) of the Penal Code mitigates the rather serious or harsh punishment for culpable homicide punishable under Section 221 of the same Penal Code. It is not totally exculpatory unlike the defence of the right to self-defence under Section 59 of the Penal Code.

The maximum sentence the Court can impose on the convict upon conviction for culpable homicide not punishable with death under Section 224 of the Penal Code is life imprisonment. It connotes, or implies that the prisoner so sentenced shall remain in custodial imprisonment for life, though the prisoner may become eligible for release on good behaviour, rehabilitation, or the like – Black’s Law Dictionary 9th Ed.

Under this issue 3, it is not the contention of the Appellant that the life imprisonment he was sentenced to serve is excessive. That is not his case, and it could not have been also, because excessive sentence connotes

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that the Court had imposed a sentence more than, or in excess of the term allowed by law. If it is ultra vires the sentencing power of the Court.

The Appellant, from the manner the issue is couched or phrased, seems to suggest that the sentence he was ordered to suffer or undergo is “too harsh, given the options provided by Section 224 of the Penal Code.” The word “harsh,” shorn of the prefix too (an adverb), is an adjective meaning or conveying the meaning of the sentence being cruel, severe and unkind. It is also suggestive of the feeling that the sentence is severe, unfeeling, brutal etc: Geddes & Grosset – English Thesarus.

Both Counsel, M/S Okoro and Shaseet, respectively for the Appellant and the Respondent, are idem that Section 224 of the Penal Code gives the lower Court some discretion in the sentence to impose. They are also idem that this Court can only vary the exercise of the discretion by the lower Court if it is shown as my Lord, Rhodes-Vivour, JSC, stated in OGUNSANYA v. THE STATE (2011) 12 N.W.L.R. (Pt. 1261) 401 at 438:

An appellate Court is always reluctant to interfere with the way a trial Judge exercised his

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discretion but would be compelled to do so if –

a. the discretion was wrongly exercised;

b. the exercise of the discretion was tainted with some illegality or substantial irregularity;

c. there is miscarriage of justice, or

d. it is in the interest of justice to interfere.

It behoves the Appellant, complaining that the discretion was wrongly exercised, to show or establish in what ways or manner the discretion exercised in his regard was wrongly exercised. It is not enough for him to loudly whine and whimper, and submit rather sentimentally that the ends of justice demand that the sentence of life imprisonment be reduced to a lesser term of imprisonment. This is a Court of law, and also of justice. It is trite that sentiments command no place in judicial deliberations: EZEUGO V OHANYERE (1978) 6 S.C. 17; MOHAMMED IDRISU v. MODUPE OBAFEMI (2004) 11 N.W.L.R. (Pt. 884) 396 at 409. Fabiyi, JSC said it all in STATE v. JOHN (2013) L.P.E.L.R. that “a judex should avoid sentimental adjudication” and must call a spade a spade.

On this note, without the Appellant, showing in what respects the lower Court had wrongly exercised its

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discretion when; upon finding that the Appellant ought to have been convicted for the offence under Section 222(1) of the Penal Code, punishable underSection 224 of the same Penal Code; and upon convicting the Appellant for culpable homicide not punishable with death and setting aside the conviction for culpable homicide punishable with death and substituting therefore the sentence of life imprisonment, is asking us to further interfere with the discretion thus exercised in his favour.

The facts of OKORO AMEH v. THE QUEEN (supra) are almost on all fours with the facts of this case. In that case, this Court, upon finding that the defence of self-defence does not avail an accused person who vengefully killed his attacker, after disarming the attacker, with the same weapon seized from him (the attacker), affirmed the conviction and sentence imposed by the trial Court. The same scenario had played out in this case. The lower Court in this case, however convicted the Appellant for a lesser offence and thereafter reduced the sentence in its discretion exercised under Section 15 of the Court of Appeal Act, 2004 read together with Section 224 of the Penal Code.

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If any person should complain about the manner the lower Court exercised this discretion, it should not be the Appellant, but the Respondent, as the prosecutor.

The two principles regarding the exercise of discretion by the Courts, below which have been mentioned and applied in the appellate Courts in this realm, as formulated by Heward, LCJ, in SAMUEL v. GUMBS 19 C.A.R. 74 at 75, are:

1. That the appellate Court never interferes with the discretion of the Court below merely on the ground that the appellate might have passed a somewhat different sentence, and/or
2. For the appellate Court to interfere with sentence and revise it, there must be some error in principle.

Taylor, J cited with approval the above authority in I.G.P. v. AKANO & ORS (1957) W.N.L.R 103. These principles are very much now part of our jurisprudence. And I ask: what error in principle has this appellant laid before us in this appeal to warrant any interference with the sentence imposed on him by the lower Court in exercise of its discretion None!

This issue is accordingly resolved against the Appellant.

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On the whole, I find no substance in this appeal, and it is accordingly dismissed in its entirety. Appropos, the decision appealed contained in the appeal No. CA/J/211C/2014 delivered on 31st March, 2015 by the Court of Appeal, Jos is hereby affirmed. Appeal dismissed.

SC.696/2015