Ganiyu Olatokunbo Oladiran V. The State (1986) LLJR-SC

Ganiyu Olatokunbo Oladiran V. The State (1986)

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KAZEEM, J.S.C. 

The appellant was charged with the murder of his wife, one Modupe Ajuah Oladiran under Section 254 of the Criminal Code, Cap.28 of the Laws of Western Nigeria (applicable in Oyo State), and was convicted by Ogundere J. at the High Court of Justice, Ibadan on 25th August, 1983. He was then sentenced to death.

The facts leading to the conviction are straight-forward. Apparently, since the marriage of the appellant and his wife – the deceased – in 1980, the situation in their matrimonial home had not been quite peaceful. There had been allegations of infidelity and bickering by both parties which had been taken to their parents-in-laws for settlement.

Particularly, the deceased had always accused the appellant of showing immoral interest in their maid, a girl of about 13 or 14 years of age; and that he was bringing other women to the matrimonial home in her absence. On the other hand, the appellant had also accused the deceased of smoking cigarette which he disliked, and of going to places without his permission.

These accusations got to a head on the 21st September, 1982 when the appellant again reported the deceased to her parents; and the matter was again settled for them at about 10 p.m. that night. Nevertheless, the appellant refused to take his wife home; and after he left, the deceased’s father with another friend took her to the appellant’s house. On reaching there, they found that the appellant had locked the door of the flat. However, after some persuation by his landlord, the appellant opened the door for them.

The matter was again discussed by those present including the appellant’s landlord; and it was apparently settled once more. The deceased’s father then left for his own house. Shortly thereafter, an alarm was raised and the deceased was found by the appellant’s landlord sprawling on the concrete floor of their flat with bruises on her head. She was then rushed to a private hospital, but she died on the way. There was no eyewitness as to what happened before the deceased was found by their landlord with bruises on her head.

However, in a statement made to the police by the appellant, Exh. P3, he had these to say:-

“At this point I got fed up with everything in life and wanted to end my life that night. In fact I could not control myself. I did not know what I was doing. About ten minutes when the father left, I went to the yard to find what I could use. I found a club and it was then that I remembered that I had a knife which I bought on Sunday, September 19th……. then I decided to take my last food on earth. So I requested for tea, To God who made me, I did not have the intention of killing her but wanted to know why I was going to commit suicide, so I stabbed her once or so and she ran out. I started stabbing myself and hitting my head with the club so that my head would be fractured. When I saw my intestine coming out and blood rushing from my head, I thought death would come in time. In order that I would die in time, I took the car key and started driving subconsciously I think to Ring Road where I with intent and with a high speed hit the roundabout, and that when I die and she is alive, she would realise the damage she had done to my life.”

Moreover, early in the morning of September 22nd 1982, the wreckage of the appellant’s Passat car was found by the police at around Ring Road in Ibadan. The appellant was also found at the Spot with several injuries and a punctured stomach. He was subsequently rushed to Adeoyo Hospital, Ibadan.

During the investigation of the case, the-police on searching the appellant’s premises, found therein a blood-stained dagger or knife, and a cudgel which were tendered as Exhs. P1 and P2. Another knife tendered and marked as Exh. P6 was also found by the police in the appellant’s car. At the post-mortem examination of the deceased’s corpse, the Chief Consultant Pathologist made the following findings:-

“The body was that of a young female adult. There was a gaping stab wound on the right chest wall, just below the right breast 11cm from the midline and overlying the space between the 6th and 7th rib. There was a second lacerated wound on the forehead 4cm. There was a third lacerated wound on the scalp 4cm. The edges of the wounds were clean out and straight. On internal examination the chest wound perforated the cest wall and also perforated the pericadium the covering membrane of the heart. There was an accumulation of blood and blood clot in the pericadium. The cause of death in my opinion was due to the injury to the heart which was consistent with one inflicted by a sharp object.”

At the trial, the appellant in his defence retracted some portions of what he said in his statement – Exh. P3. He denied stabbing the deceased intentionally and he said that he had to do it only in self defence, after he was provoked. As to the events of 21st September, 1982 he inter-alia testified thus:-

“During the abuses and curses (by the father-in-law) I intervened. It was at this time that he wanted to assault me, those around restrained him. I was frightened by his statement and confused: When he was about to leave, I asked him to take his child, my wife away. On hearing this, he wanted to assault me again at last he left. So about few minutes later, I wanted to eat and sleep. I told my wife to prepare food for me, she refused, and said that I should go to my second wife, the maid of 12-14 years old and that henceforth, the maid would be preparing food for me. She started abusing me and referred to what her father had said. At this point, there was a fight. When she noticed that I was getting the upper hand, she seized the knife on the table and with a very fast movement, she stabbed me in the stomach. I fell down. She wanted to stab me again.

I seized the knife in her hand. I was totally confused. I had to stab her in return so she ran out of the apartment. I did not know when I took the car key and where I was driving to.”

Learned counsel for the appellant at the trial addressed the court and submitted that from the facts of the case, it was obvious that the deceased after provoking the appellant first stabbed him and it was in his self-defence that the appellant in return stabbed the deceased which caused her death. The learned trial Judge after fully considering the totality of the evidence before him made the following findings:

(a) that the appellant and the deceased lived a ‘cat and dog life’ always quarelling and it would seem that their two characters were incompatible.

(b) that as was stated in Exh.2 P3 the appellant’s statement to the police, he was provoked by the anxious concerns of his father-in law for his daughter, the deceased;

(c) that the appellant as a result of the provocation stabbed his wife, the deceased and hit her with the cudgel;

(d) that the provocation was by nagging for which the appellant might have been justified to flog or beat up his deceased wife; but there was certainly not enough provocation to justify the brutal killing by stabbing the deceased three times with a knife one on the chest which penetrated the covering of the heart and two other stabs to the head;

(e) that the defence of provocation in such circumstances is negatived where the provocation inspires an actual intention to kill or to inflict grievous bodily harm as in this case. See the cases of R v. Holmes 31 C.A.R. 139 and R v. Akpakpan, (1956) 1 F.S.C pages 1 & 2.

(f) that according to the evidence at the trial, the Appellant was the aggressor; and as such, an agressor cannot avail himself of the plea of self-defence. See Adi v. The State (1980) 2 NCR 323 at page 331.

Finally, the learned trial Judge found the appellant guilty as charged. He then convicted and sentenced him to death.

In an appeal to the Court of Appeal in Ibadan, issues of provocation and self-defence were again raised. But after considering the submissions of learned counsel for the appellant on those issues, it was held that the evidence of abuses and curses suffered by the appellant from his father-in-law taken along with those of the deceased which the trial Judge referred to as ‘nagging’ could not amount to either group provocation as in the case of R v. Shehu Dunmenni (1955)15 WACA 75 at page 76 or to cummulative provocation as in the case of MehemetAli v. R (1957)59 WALR 28. Moreover, that court also held, following the decision of the Supreme Court in The State v. Obaji (1965) 1 All N.L.R. 269 at pages 273 and 274, that the force used by the appellant in retaliation by stabbing the deceased was not proportionate to the alleged provocation of the deceased. And after preferring the decision in Akpakpan’s Case (Supra) to that of Lee-Chun-Chuen v. R (1963) A.C. 220, the appellant’s appeal was dismissed.

The appellant has further appealed to this Court; and with leave of the court Dr. Aremu, his learned counsel has filed and argued five additional grounds. Therein, he complained that the Court of Appeal erred in law and misdirected itself by holding:-

(a) that the provocation by words, that is the “abuses and curses” rained on the appellant by the deceased amounted in effect to “nagging” which could not justify the stabbing of the deceased by

the appellant;

(b) that merely because the provocation in this case was offered by appellant’s father-in-law and the deceased wife could not in its view be described either as “group provocation” or amount to “cumulative provocation” but would just be mere “nagging” which could not justify the killing of the deceased by the appellant;

(c) that there was nothing to negative the inference that there was a cooling down (by the appellant), that he had not acted in the heat of passion or that such final incident broke down his self-control;

(d) that Akpankpan’s Case (1956)1 F.S.C. 1 (a Supreme Court decision) must be preferred to Lee Chun-Chuen’s Case (1962) 3 W.L.R. 1461 (a Privy Council decision) on the ground that the former is binding on the Court of Appeal; and that it erred in confirming the holding of the learned trial Judge that the dictum in R v. Holmes 31 C.A.R. 139 to the effect that the defence of provocation is negatived where the provocation inspires an intention to kill or to inflict grievous harm, is still good law.

In support of ground 1, Dr. Aremu submitted that the “abuses and curses” went beyond mere “nagging” since the allegation of the appellant’s immoral dealing with the housemaid, a girl of between 12 and 13 years, was tantamount to an offence punishable under Sections 221 to 222A or 373 of the Criminal Code of Oyo State; and for that reason, the provocation was enough to make the appellant lose his self-control before stabbing the deceased his wife.

He relied on the decisions of R v. Edache (1962) 1 All N.L.R. 22 and R v. Adekanmi (1944)17 N.L.R. 99, two cases where the Court considered the effect which the provocation had on a person from a primitive community. However, the submissions of learned counsel and the authorities relied upon in support of ground 2 and 3 were the same as those canvassed before the Court of Appeal. Moreover after reiterating all the incidents which were regarded as group provocation or cumulative provocation, learned counsel relying on the decisions of R v. Duffy (1949) 1 All E.R. 932 and R v. Afonja (1955) 15 WACA 26 which define provocation as “an act or series of acts done by the deceased……, submitted, that in the present case there were series of provocative acts capable of provoking a reasonable man; that those acts did provoke the Appellant; that he had a “brainstorm” and loss of self-control; that he acted in the heat of passion before there was time for his passion to cool, thereby causing the death of the deceased.

With respect to Ground 4, learned counsel submitted that the dictum in Holmes Case which was approved in Akpakpan’s case was disapproved of in Lee Chun-Chuen’s Case in 1962 by the Privy Council; and at the time that tribunal had not ceased to be the Supreme Judicial authority for this country. Hence he further submitted that the decision in Lee Chun Chuen’s should still be binding on the Court of Appeal and should have been applied by that court to reduce the offence of the appellant from murder to manslaughter. It is to be observed that all these grounds and the submissions made in support are not new in that they have all been canvassed before in the Court of Appeal; and it is not therefore surprising that Dr. Aremu learned counsel for the appellant could not in this court, improve upon what he did in the Court of Appeal.

However, I think the most important issue for consideration in this appeal is whether the series of provocative acts allegedly suffered by the appellant are sufficient enough to render a reasonable person of the appellant’s station in life to be subject to such passion and loss of control so as to inflict injury of such magnitude found on the body of the deceased by the pathologist. There has been certain concurrent finding of fact by both the trial court and the Court of Appeal; and there is nothing to suggest that those findings were perverse or that they might result in a miscarriage of justice.

Firstly, it was found that the appellant and his deceased wife had always been quarrelling and as such lived a cat and dog life, hence it was assumed that their two characters were incompatible.

Secondly, it was also found that the appellant was provoked by his deceased wife by refusing to cook for him; by asking him to call on their maid (a girl between 12 to 14 years old) whom she described as his second wife to do so; by alleging that the appellant was having immoral dealing with the maid, an allegation described by the appellant’s counsel as criminal; and by also abusing him in the process; all those things which the learned trial Judge regarded as “nagging”.

Even though it has been decided in a number of cases, that there might be circumstances where words alone could amount to provocation, it has however been held that such circumstances must be related to the station in life of the person provoked. See R. v. Akpakpan (Supra) R. v. Edache (1962) 1 All N.L.R. 22; R. v. Adekanmi (1944) 17 N.L.R. 99. In R. v. Igiri (1948) 12 WACA 377, a wife taunted her husband with incompetence and insulted him by spitting on his face. The West African Court of Appeal in reducing the offence from murder to manslaughter, observed that: ‘in primitive communities where the subjection of women is accepted as natural and proper, such an insult from a wife arouses more passion than in more sophisticated societies.’

The test therefore in the instant case is what effect all the provocative acts complained of would have on a reasonable man in the appellant’s station in life who was an Administrative Secretary to a Company in a sophisticated society in Ibadan within Oyo State. The Courts below found that these provocative acts could not justify the act of stabbing the deceased by the appellant; and that finding has not been faulted in this Court.

Thirdly, it was also found that the appellant was provoked by the abuses and curses by his father-in-law on the occasions when they went to him for settlement of their disputes; but there was sufficient time for his temper to cool before the act of stabbing his deceased wife. Hence this act of provocation together with that of the deceased wife could not be regarded as either group provocation or cumulative provocation to justify the killing of his wife.

Fourthly, the two courts found that the series of provocative acts complained of were not sufficient to make the appellant lose his self-control; and they could not justify the stabbing of the deceased by the appellant. Moreover, it was considered that the mode of retaliation adopted by the appellant in stabbing the deceased was not proportionate with the provocation offered by both the deceased and her father. It seems quite clear from the evidence adduced by the appellant and the contents of his confessional statement – Exh. P3, together with the nature of the injuries found by the pathologist on the body of the deceased, that but for the series of provocation allegedly suffered by the appellant, he would not have formed the intention to kill her or cause her grievous bodily harm. In the circumstances, I am of the view that the court below was right in applying the dictum in R. v. Akpakpan (Supra) that ‘where provocation inspires an actual intention to kill, or to inflict grevious bodily harm, that doctrine that provocation may reduce murder to manslaughter seldom applies’.

Even though the Lee Chun-Chuen’s case (Supra) a decision of the Privy Council might have disapproved of the above dictum as laid down in the case of R. v. Holmes 31 C.A.R. 139, I am firmly of the view that at the time this appeal was heard and decided in this country in 1983, it was the decision in R. v. Akpankpan (Supra) and nor the decision in Lee Chun Chuen’s Case (Supra) that was binding on the Court of Appeal. That was because the Privy Council ceased to be the supreme judicial authority in this country since 1963. Moreover, the essential elements of what amounts to provocation in law as confirmed in Lee Chun-Chuen’s case (1962)3 W.L.R. 1461 are not in any way different from what had been decided in our Courts. In that case, the Privy Council at page 1468 observed that:

“Provocation in law consists mainly of three elements – the act of provocation, the loss of self-control, both actual and reasonable and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements. They are not detached. Their relationship to each other – particularly in point of time, whether there was time for passion to cool- is of the first importance. The point that their Lordships wish to emphasise is that provocation in law means something more than a provocative incident. That is only one of the constituent elements”.

Under the Nigerian law, sections 318 of the Criminal Code had laid down the test applicable when a defence of provocation is raised so as to reduce a charge of murder to one of manslaughter. That Section provides as follows:-

“When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter.”

In Obaji v. The State (1965) 1 All N.L.R. 269, a full panel of this Court dealt with all the circumstances in which a defence of provocation can be invoked in a murder trial to reduce a charge of murder to one of manslaughter.

In the course of its judgment it extensively examined the provisions of Sections of sections 283, 284, 316 and 318 of the Criminal code which are relevant to a consideration of the subject; and it reviewed all the Nigerian as well as foreign authorities on the point. Then it first said:

“To avail himself of the defence in a charge of murder under Sec.318 of the Criminal Code, the accused must have done the act for which he is charged (i) in the heat of passion, (ii) this must have been caused by sudden provocation, and (iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian courts had been to interpret sections 283 and 318 of the Criminal code as impliedly including the mode of resentment or, in other words, that the retaliation must be proportionate to the provocation offered.”

And later it concluded that:

“The Court is of the view that the correct direction in law is that in relation to murder, “provocation” in section 318 of the Criminal Code requires consideration of the nature of the weapon or force used as a mode of resentment being some reasonable relation to the provocation received, the disproportion being a factor for the jury to consider in determining whether the accused had completely lost control of himself or was acting for a reason other than complete loss of self-control caused by sudden provocation.”

Thus it is now settled law that in order to avail himself of a defence of provocation under Sec. 318 of the Criminal Code, so as to reduce the offence of murder to one of manslaughter, the degree of retaliation used by the appellant by stabbing the deceased must be proportionate to the provocation offered by his deceased wife. It was found by the trial court as well as the Court of Appeal that the retaliation of the appellant by stabbing the deceased was not proportionate to the provocation offered.

I was not convinced by the persuasive arguments of learned counsel for the appellant in this Court that the findings of those Courts were wrong. Hence it was for those reasons that I dismissed the appeal on 21st October, 1985 and affirmed the conviction and sentence of death passed on the appellant.

SC.13/1985