Emmanuel Eze V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant is one of the “Bakassi Boys”, leaders and members of the Abia State Vigilante Group known as “Bakassi’, who were convicted and sentenced to death for the murder of two persons, Chukwudozie Nwachukwu and Okechukwu Maduekwe, and this Appeal turns on the issue of whether the conviction for murder should be substituted with conviction for manslaughter instead.

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, Stanley Azogu. and Adiele Ndubuisi, 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 this 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 be substituted with a verdict of Manslaughter.

The Respondent formulated a similar Issue for Determination in its Amended Brief of Argument, but couched differently, that is –

Whether or not the Court of Appeal was not right when it affirmed the conviction for the offence of

murder handed down to the Appellant.

The Issues formulated by both Parties raise the same question – whether the Appellant was rightly convicted for murder or not

The Appellant contends that the Court of Appeal “burdened by sentiments over the setting ablaze of the victims after their death” upheld his conviction for murder “despite the fact that the evidence on record did not support a conviction for murder”.

He argued that the defence of provocation was successfully established by the evidence on record and the Court of Appeal “ought to have set aside sentiments at the admittedly bestial treatment of the dead bodies and substitute the conviction for murder with that of manslaughter. He cited the following on the definition of manslaughter, and the ingredients thereof vis-a-vis that of murder – Sections 317 and 325 of the Criminal Code Act. Akang V. state (1971) 1 All NLR46, Stephen V. State (1986) 5 NWLR (Pt. 46) 978 and Ukwunnenyi V. State (1989) 4 NWLR(Pt. 114) 131.

He further submitted that the defence of provocation is an

extenuating factor that reduces the harshness of punishment of death for murder; and that it is pertinent to determine whether the said defence availed him, and if so, whether the verdict of Murder ought to have been substituted for that of Manslaughter. He proffered arguments under the following subheadings –

Whether he was provoked
Whether the provocation was grave
Whether the act causing death occurred in the heat of passion
Whether there was time to cool before the occurrence of the act causing death
Whether the act causing death was proportionate to the provocation

On the first question – whether he was provoked, he referred to Black’s Law Dictionary 8th Ed. on the definition of provocation, which includes “the act of inciting another to do something, especially to commit a crime, and R v. Doughty(1986) 83 Crim LR 625, and in answer to the question whether the crime committed on 9/7/199 was “incited or caused”, he submitted as follows –

The Government had incited the group by not only informing them of the whereabouts of suspected criminals, but by also proceeding to identify

the suspected criminals and leaving them at the mercy of the group. – – The death of the deceased persons – – – were principally caused by the words (the complaint) and the actions (transporting the group to the location of the victims and identifying the victims as armed robbers) of the Government official, who delivered the said individual into the hands of a group motivated in arresting and killing thieves. [He] was most definitely provoked into committing the crime. His dedication and disposition towards combating crime by arresting and killing criminals was manipulated by the Government of Abia State, who incited, used, and caused him to indulge in the killing of the deceased persons on the allegation by the Abia State government official, who in turn was instructed by the Secretary to the State Government, that the deceased persons were criminals.

As to whether the provocation was grave, he cited the following – Njokwu V. State (2013) LPELR-19890(SC), Akang V. State (supra) Stephen V. State (supra) and Ukwunnenyi V. State (supra), and argued that a reasonable man, like the Bakassi Boys, who were “blinded

by sheer will and desire to see to it that criminals were brought to justice” and who are “dedicated and transfixed on a mission to eradicate crime and “clean” the society by arresting and killing thieves”, would have reacted the same way they did, by attempting to ‘arrest and/or kill suspected armed robbers’.

As to whether the said act occurred in the heat of passion, he submitted that it was after the identification of the suspects by Mr. Ndukwe Okereke, that they (Bakassi Boys) “descended into anarchy and resultantly killed the deceased persons”: and that it was in the course of a scuffle (fight) with the deceased that they killed the deceased by striking him dead with their machetes.

On whether there was time to cool before the act occurred, he argued that the time that passed between the provocation and killing was so brief that he had no time to regain his composure: that if he had been able to compose himself between that time, the defence of provocation will not lie, citing Obaji V. State (1965) NMLR 417. Odunlami V. Nigerian Navy (2013) LPELR-20701 (SC), and

R v. Ibrams and Gregory(1981) 74 Cr App R 154; and that there was no cooling time between the said complaint, the carriage of the team to the venue where the suspected criminals lay siege, the resistance of the deceased, and the killing of the deceased .

On whether the act causing death was proportionate to the provocation, he cited Odunlami V. State (supra), and submitted –

The prevention squad, a.k.a. “Bakassi Boys” proceeded to the venue designated as the haven of persons suspected to be armed robbers, accompanied by an official from the Government House, who subsequently identified the persons suspected of the crime. [They] proceeded by probing into the details of the suspects but were met with resistance which fortified the allegation against the suspects. There was an ensuing fight which resulted in the deceased persons being stabbed to death by machete cuts. Cutting of the victims was a proportionate reaction by a reasonable man bearing the Appellant’s characteristics, to the provocative acts that preceded the action.

On its part, the Respondent proffered arguments touching on the ingredients of the offence of murder, which must be

established, particularly proof of the common intention to commit the crime.

However, as I stated earlier, the Appellant is not contesting the fact that he and the other Bakassi Boys convicted with him, caused the death of the two deceased persons. He is saying that there were extenuating circumstances that differentiated killing of the deceased persons from a killing with malice aforethought.

On this point, the Respondent submitted that for the plea of provocation or incitement capable of reducing a murder charge to manslaughter to succeed, the Appellant must show elements or acts of provocation in the circumstances of the facts available, citing Galadima V. State (2013)3 NWLR (Pt. 1431) 530. Section 318 of the Criminal Code Act CAP C38 LFN, 2004 (in pari materia) with the Criminal Code Vol. 1 CAP 30, Laws of Eastern Nigeria, 1963), Edoho V. State (2010) 14 NWLR (Pt. 1214) 651 SC, Nwokearu V. State (2010) 15 NWLR (PT 1215) 1, Sheidu V. State (2014) 5 NWLR (PT 1429) 1. and Paul Onyia V. State (2006) 11 NWLR (Pt. 991) 267.

It argued that there was no provocation at the Restaurant, and even if the “Bakassi Boys” were “incited” and “provoked” at Aba, as they claimed, the journey from Aba to Umuahia or from Government House, Umuahia to the Restaurant on Azikiwe Road, should have allowed them enough time for their passion to cool down, citing Ajunwa V. The State (1988) NWLR (PT89) 380.

It further submitted that the defence of provocation cannot succeed as the alleged incitement is unlawful, and no person, who is compelled to obey an order, which is manifestly unlawful, is obliged to obey such order, citing Section 278 and 279 of the Criminal Code, Obodo V. R. (1959) 4 FSC 1, Alagba V. R. (1950) 19 NLR 123, and Abbott V R. (1976) 3 All ER 140; and that there was no provocation offered to the Appellant by Abia State Government, nor the deceased persons, causing him to lose his self-control and leading to the act of killing the deceased persons on that day.

It also argued that there was no evidence of provocation to warrant him asking this Court to embark on such an arduous task of trying to decipher provocation from non-

existent facts; that such a task is tantamount to looking for a needle in a hay stack, and Courts do not conduct investigation, citing Igwillo V. CBN (2000) 9 NWLR (Pt. 672) 302, and that the Appellant and his cohorts were merely blood thirsty murderers, and nothing more.

Furthermore, that there is concurrent finding of facts by the two lower Courts that there was no provocation or incitement, and this Court cannot disturb same – Ben V. State (2006) 4 FWLR 7507, Onwuama V. Ezeokoli (2002) 2 SCNJ 271, Amusa V. State (2003) 1 SCNJ 518, Ubani & 2 Ors V. State (2003) 18 NWLR (PT851) 247, Ojo & Ors V. Anibire & Ors (2004)5 SCNJ 56, Shurumo V. State (2010) 19 NWLR (PT.1226)73, lgwe V. State (1989)9 SC 174, and Eze Ibeh V. The state (1997) I NWLR (PT 484),632 at 641cited.

The Appellant did not file a Reply Brief but at the hearing of this Appeal and sister Appeals Nos. SC.488/2015 & SC.489/2015. filed by Adiele Ndubuisi and Stanley Azuogu respectively, their learned counsel, I. A. Akaraiwe. Esq., urged the Court to use their situation, as a test case, to expand the definition of provocation.

The word “expand simply means to become or make larger or more extensive – Dictionary.com. So, the Appellant is saying that provocation, as conceptualized in Nigerian law is restricted and he made this point clear, as follows. at page 5 of his Brief –

Provocation is defined at P. 1262 of Black’s law Dictionary. 8th Ed., as:

The act of inciting another to do something, especially to commit a crime
Something (such as words or actions) that affects a person’s reason and self-control. especially causing the person to commit a crime impulsively. Provocation is therefore, words and actions that incite another to commit a crime. We submit as persuasive authority the English Court of Appeal decision of R v. Doughty (1986) 83 Crim Appeal Reports 319. it was held that the persistent crying of a 17 -day old baby sufficiently provoked a parent into killing his child, and a conviction of Murder was consequently substituted with that of Manslaughter.

In arguing as he did, the Appellant lost sight of the fact that there was no third party involved in R v. Doughty(supra): a parent was provoked by the persistent crying of a baby

into killing the baby. In R. v. Duffy(1949) 1 AER 932. Devlin. J.. made the point clear 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.

This definition of “provocation” by Devlin, J.. in R. v. Duffy(supra), has been adopted by this Court in numerous cases – Akalezi V. State (1993) 2 NWLR (Pt. 273) 1 SC, George V. State (1993) 6 NWLR (Pt. 297) 41 SC, Uluebeka V. State (2000) 7 NWLR (Pt. 665) 404 SC, and it is clear there-from that any such killing(s) is triggered by rage or anger, etc., on the part to the Accused to the person that offered the provocation. It is, therefore. a direct confrontation; there is no third party inciting the Accused to kill the deceased – see Kaza V. State (2008) LPELR-1683(SC), where Tobi, JSC. said:

Provocation is an action or conduct which arises suddenly in the heat of anger. Such action or

conduct is precipitated by resentment, rage or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage or fury, as there is time for passions to cool. The very act of reportage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage or fury of the Accused.

In this case, the Appellant was charged with the murder of only one deceased person, Chukudozie Nwachukwu, but the evidence adduced at trial revealed that on the same day, time and venue, the second deceased, Okechukwu Maduekwe, was also killed by the same Bakassi Boys. The question is what did the deceased persons do or say to the Appellant and his cohorts that provoked them to

butcher the deceased persons with such utter savagery

Who were these two deceased persons The first deceased had a degree (B.SC) in Zoology, and was not resident in Umuahia. He was Operational Manager Of Uncle James Sea Food, in Lagos.

His father. Nze Samuel Nwachukwu. who testified as PW1. did not know he was even in Umuahia, until one Chukwuma Mark. the Manager of the said 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 two corpses lying at the front of the Restaurant – – 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 with others who are not here. 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 matchet 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 person 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 into the Restaurant, he heard him shout “we are here for drinks, I am not an armed robber”. He rushed in but two men blocked him. One of them stabbed him on the head with a matchet, and pushed him into the Restaurant. where he saw his brother being held down by some people with matchets.

PW3 clearly said that the Appellant in this Appeal cut him on his back with a matchet and kicked his eye with his safety boots. He went on to describe what happened thereafter. In his words:

I shouted that I am not an armed robber that we should be taken for proper identification. After beating me, the 2nd Accused [Appellant] tied my hands backwards and ordered that I should be taken away. My brother got up and brought his ID Card out to identify himself as a Policemen and says we should

be taken to the Police Station for further identification. The 3rd Accused snatched the ID Card from my senior brother. By this time, the person lying down on the floor was dead. The 3rd Accused said is it because he is a Policemen that he was proving stubborn and asked the 1st Accused to shoot my brother. The people were armed, some with machetes, some with guns. After the order from the 3rd Accused, the 1st Accused raised his kaftan and brought out his pistol and shot my brother at close range. My hands were still tied. I was forced into the bus and ordered under the seat of the bus. While I was in the bus, the four Accused Persons and others (about eleven people) brought the two bodies outside the Restaurant and set the bodies on fire.

The question I asked earlier remains unanswered what did the deceased persons do or say to provoke the Appellant that day Nothing, absolutely nothing. The deceased persons said nothing; the Appellant and his gang went into the Restaurant, ready to kill. PW2. Chiedozie Nwosu, who was working at the said Restaurant, testified that about fifteen Bakassi Boys came out of a White Bus,

and one of them came into the Restaurant and demanded for a bottle of beer. When he brought the beer, the man broke the beer with his matchet, then gave PW2 a matchet cut on his right ankle (inner part), and cut his left palm with the broken bottle of beer.

The two lower Courts came to the same conclusion that the Appellant and the other members Of the Bakassi Vigilante Group, went to the Safari Restaurant in Umuahia, with the intent to kill. The learned trial Judge, C. N. Uwa, J. (as he then was) held thus –

Each of the four Accused Persons as DW1 to DW4 also confirmed in their oral evidence before this Court that they set the deceased body ablaze. It is in evidence that part of the neck was severed, the left shoulder was severed, the chest was severely cut open, big open wound on the abdomen exposing the gut, lower part of the abdomen cut open, severe cut on the upper arm, compete amputation of both feet at the ankles before the deceased body was set ablaze. With this type of injury inflicted by the “Bakassi Boys”, (even if it is for the purpose of arrest) could the deceased have survived these injuries by

the slightest stroke of luck I am afraid not. – – The extent of the injuries inflicted by the Accused Persons showed clearly that they were heartless, callous and inhuman and their intention in that Restaurant on that fateful day was not to arrest but to kill, and that they achieved – – Learned defence counsel’s argument that the aim of the type of injuries inflicted by [them] on the deceased was to arrest, not to kill, therefore, fails. With the extent of the injuries nothing else could be envisaged but death. A dead man cannot be “arrested”. The Accused Persons never intended to leave their victims alive right from when they took off on the bus from Aba to Umuahia. Their aim was to use lethal weapons on their victims, and knew the consequences of using such weapons on their victims, which is death.

On his defence of provocation, the learned trial Judge held that:

The evidence— shows that the Accused Persons were the aggressors and it was injuries inflicted on the deceased that caused the death, which were completely disproportionate to any imagined provocation. therefore, neither the defence of self

defence nor provocation would avail the Accused persons. I reject the defence of self defence and provocation.

The Court of Appeal also considered his defence of provocation and in rejecting this line of defence as being unavailable to him. Agube, JCA, who wrote the lead Judgment, observed as follows:

There is no doubt that they left Umuahia from Aba for the purpose of killing armed robbers and in the process, killed Chukwudozie Nwachukwu at the Safari Restaurant. They not only shot at the deceased persons but dealt them very deadly matchete cuts. To further demonstrate that their intention was to kill and not only to arrest armed robbers, the Appellants and their cohorts, in a most barbaric and reprehensible manner set the bodies of the deceased ablaze. Whatever altruistic or lawful reasons that may have brought them to Umuahia or plea of self defence or provocation they may have proffered, were vitiated by that singular act of setting the bodies of their victims ablaze— In any case, [they] were not licensed to carry dangerous weapons and even if the deceased persons resisted arrest they

would have shot them on the legs to immobilize them. This was not, however, to be as the Appellants not only shot and dealt deadly matchete cuts on the persons of the deceased but went further to roast them like animals, as can be seen in Exhibit (101), the photograph of the mutilated and roasted body of Chukwudozie Nwachukwu a holder of BSC. Degree in Zoology. That was the height of exhibition of intention and criminal negligence on the part of the Appellant and his cohorts. l, therefore, hold that there is no amount of provocation that could justify the dastardly acts of the Appellant and his cohorts.

After considering other Issues raised, he concluded as follows:

The action of the Appellant was definitely in excess of that of a reasonable man in the circumstances. He was most irrational and is bound to pay the price. The Court below has rightly held that the defences of provocation and mistake of facts as raised here on appeal do not avail the Appellants. The learned trial judge, therefore, was not in error to have held that the defence of mistake of facts does not avail the

Appellant as the killing of the deceased by the Appellants were borne out of a conscious and intentional and unreasonable and dishonest belief.

The Appellant’s contention against the concurrent findings of the Abia State High Court [trial Court] and the Court of Appeal is that the lower Courts erred by upholding his conviction for Murder, when there were extenuating circumstances differentiating the killing of the deceased from a killing with malice aforethought. The “extenuating circumstances” being that they, Bakassi Boys, were incited by Officials of the Abia State Government to kill the persons identified as armed robbers. As he put it in his Brief –

Arresting and killing criminals was second nature to the Appellant and his members. The Government had incited the group by not only informing them of the whereabouts of suspected criminals, but by also proceeding to identify the suspected criminals and leaving them at the mercy of the group.

He also conceded in his Brief of Argument the Bakassi Vigilante Group was an unlawful association. He submitted as follows –

The “Bakassi Boy’ 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.

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Is this a valid defence in the eyes of the law Section 33 of the 1999 Constitution, which guarantees right to life, stipulates that –

(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria

(2) A person shall not be regarded as having been deprived of his life in contravention of this Section if he dies as a result of the use, to such extent and in such circumstance as are permitted by law, of such force as is reasonably necessary-

(a) For the defence of any person from unlawful violence or for the defence of property;

(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained: or

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 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 –

Even though it is in evidence from both the Prosecution and Defence Witnesses that the Accused Persons were invited to Umuahia by the

Government through the SSS man, Ndukwe Okereke, or the then S.S.G, J.E Nwogbo, there is no evidence to the effect that the instruction was to come into the area the armed robbers were said to be operating, and slaughter whoever they saw in the vicinity.

Even the most primitive and/or tyrannical Government could not do that The Accused persons made it clear that the armed robbers were not described to them, their photographs were not given to them and they were not identified by them – – – It is in evidence that the instruction from Government was to come and watch over the area said to have been disturbed by armed robbers the previous night. Certainly, the instruction was not to kill whoever is seen in the area, with no interrogation or arrest. Even if the deceased and others in the Restaurant on the fateful day, drinking and sleeping were armed robbers (which they were not), did he deserve to be slaughtered on the spot If every suspected armed robber armed robber, or mistaken armed robber was to be slaughtered on the spot by any individual or group, whether individual or security men, vigilante

groups such as the – Bakassi or even by law enforcement agents like the Police (who are authorized to fight crime), every one of us would be living in perpetual fear and danger of being killed/or butchered at any time. This would be unbearable to live in. The action of the “Bakassi Boys” was barbaric in a civilized world, in a peaceful town like Umuahia, in a democratic dispensation, and would have been so even in the primitive Stone Age. The Accused Persons could not have acted as agents of Government in committing the offence as they tried to make out in their defence our criminal law does not permit it.

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.

In other words, 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 Prosecution Witnesses confirm that the Appellant and his cohorts committed the said crime “with utmost dispatch and barbarity, without any provocation or incitement.” This Appeal totally lacks merit; it is, therefore, dismissed.

SC.487/2015

LAWGLOBALHUB

Emmanuel Eze V. The State (2018) LLJR-SC

Emmanuel Eze V. The State (2018)

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