State V. Da’u (2021)
LAWGLOBAL HUB Lead Judgment Report
OLUKAYODE ARIWOOLA, J.S.C.
This is an appeal by the State against the judgment of the Court of Appeal, Kaduna division, Coram: Abba Aji) JCA (as he then was) Aboki, JCA (as he then was) and Abiru, JCA, delivered on 22/5/2015.
The respondent had been tried before the Katsina State High Court, sitting at Dutsin-ma on a sole charge dated 28/12/2005. The charge reads thus:
“That you, Murtala Da’u of Kasai village, Wagini District, Batsari Local Government Area of Katsina State, on or about the 6th day of October 2004 at the same address, committed culpable homicide punishable with death, in that you caused the death of one Lawal Musa by hitting him on the head with an axe with the knowledge that his death would be the probable consequence of your act and thereby committed an offence punishable under Section 221 of the Penal Code.”
At the trial Court, the respondent pleaded not guilty to the charge and the case proceeded to hearing. The gist of the case is that sometimes on 6/10/2004, the respondent was said to have killed the deceased – Lawal Musa in a forest by hitting him on the head twice with an axe. The respondent was arrested by the police. Thereafter, he made two statements to the police. The first statement was made at Batsari Police Divisional Headquarters wherein the respondent denied killing the deceased. The second statement was an alleged confessional statement where he admitted he committed the alleged offence.
At the proceedings, the prosecution called six witnesses and tendered four exhibits. In his defence the respondent testified as DWI but he called no other witness, In his oral testimony, the respondent denied that he committed the alleged offence.
At the conclusion of the trial and addresses of both counsel, the learned trial Judge found the respondent guilty as charged. He was also convicted. In pronouncing on the sentence, the Trial Court stated, inter alia, as follows:
“I have heard the plea for mitigation made on the convict’s behalf by his counsel and have noted that the convict by his testimony before the Court that he is now 21 years old in an offence committed in 2004, he was indeed 14 years of age at the material time which age by our laws he was not criminally responsible. I have similarly taken into account that the convict by Exhibit 3 was provoked by the victim into such act as an immediate reaction to the hit with a stick by the victim on him. However, the offence of culpable homicide punishable with death is the highest known to law and should not go unpunished. The accused person through his counsel did not plead any of those mitigating circumstances in his final address before the Court …
In the light of the above, and considering that human life was lost which is irreplaceable whose punishment is death, I now sentence you Murtala Da’u to a prison term of 50 (fifty) years with effect from the date of this judgment.”
Being dissatisfied with the judgment led the respondent to appeal to the Court below on six (6) grounds of appeal from which the Court below distilled the following sole issue to determine the appeal.
“Whether the prosecution has proved its case against the appellant beyond reasonable doubt as required by law, and whether the sentence of 50 years imprisonment is justifiable in the circumstance.”
Upon consideration of the above-identified issue for determination of the appeal, the Court below, inter alia, found as follows:
“The appellant, (that is respondent herein) in his confessional statement raised a defence of provocation as it was the deceased that first hit the appellant with his stick which suddenly provoked the appellant. This piece of evidence was not debunked by the respondent in any way…
The law is that by Section 222 of the Penal Code, culpable homicide is not punishable with death if the offender while deprived of the power of self-control by grave and sudden provocation causes the death of any other person by mistake or accident…
The appellant in the circumstance of this case ought to have benefitted from such defence which could have mitigated the offence from culpable homicide punishable with death to that not punishable with death under Section 222 of the Penal Code.” (Bracket supplied)
Ordinarily, the Penal Code in Section 222 provides for life sentence. However, the Court below also found as follows:
“The appellant (that is the respondent herein) was, at the time of the commission of the offence a minor, 14 years of age. In passing sentence on the accused, the age of the accused person at the time of the commission is to be taken into consideration.” (Bracket supplied).
Upon consideration of the above, the Court below finally found merit in the appeal of the convict and therefore set aside the conviction and sentence of 50 years imprisonment passed on the respondent by the trial Court. He was accordingly acquitted and discharged in the unanimous decision of the Court below.
The State was aggrieved by the judgment of the Court of Appeal, hence, it appealed to this Court.
The said appeal was heard by this Court on 30/9/2021 upon the Amended Notice of Appeal filed on 10/2/2020 but deemed filed on 8/3/2020 on two (2) Grounds of Appeal. Pursuant to the Rules of this Court, parties filed their respective brief of arguments. The appellant’s brief of argument settled by Kelechi Obi Esq. was filed on 01/9/2016 but was deemed properly filed and served on 19/3/2020. The respondent’s brief of argument filed on 30/9/2016 was equally deemed properly filed and served on 19/3/2020.
In the said appellant’s brief of argument, the following two issues were distilled for the determination of the appeal.
Issue No. 1-
Whether the Justices of the Court of Appeal was right to have entered a judgment of culpable homicide not punishable with death? (Ground 1).
Issue No.2 –
Whether the learned Justices of the Court of Appeal had the jurisdiction to release the respondent, despite finding him guilty of culpable homicide not punishable with death? (Ground 2).
In the respondent’s brief of argument filed on 30/9/2016 but deemed properly filed and served on 19/3/2020, which was settled by Obinna Ajoku Esq., the two Issues identified by the appellant in its brief of argument were adopted for the determination of this appeal.
In arguing Issue No. 1, learned counsel referred to the judgment of the trial Court as the genesis of the appeal. He also referred to the findings of the Court below at page 144 of the record. He contended that the appellant proved all the particulars of the offence charged and that there was no basis for the substitution of the lesser offence by the Court below. Therefore, he contended further that the judgment of the Court below was based on wrong principles and the Court acted in error to have mitigated the offence from culpable homicide punishable with death to that not punishable with death.
Learned counsel referred to Sections 135 (3) and 137 of the Evidence Act, 2011 for the provisions as to the standard of proof and the burden of proof in criminal proceedings. He further referred to the elements of the offence of culpable homicide not punishable with death under Section 222 (1) of the Penal Code.
Learned counsel conceded that it is trite law that 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. He contended that the evidence upon which the Court below found that the defence of provocation availed the respondent was the confessional statement of the respondent. He alluded to the respondent’s said statement but contended that the act of the deceased in hitting the respondent with a stick at his back was not grave or sudden to have provoked the respondent. He submitted that the Court below erred in coming to the conclusion they did that the respondent was provoked by the act of the deceased.
Learned counsel referred to the element of provocation on the loss of self-control, both actual and reasonable, and submitted that the act of the deceased in hitting the respondent with a stick was not one capable of depriving a reasonable man and did not deprive the respondent of his power of self-control to make him for the moment, not the master of his mind. Learned counsel contended that the facts on record did not disclose any grave or sudden provocation that would amount to the triggering of a unilateral act of aggression on the part of the respondent.
Learned counsel contended that the respondent, for all intent and purposes, was acting for a reason other than complete loss of self-control caused by sudden provocation. He submitted that the respondent was clearly in his right senses when he grabbed the deceased’s axe and used it on the deceased twice. He submitted further that the respondent who retaliated with an axe by hitting the deceased twice on the head must have intended the natural and probable consequences of his act. He relied on Harrison Owhoruke vs. C.O.P. (2015) LPELR – 24820 (SC).
Learned counsel submitted that the respondent was in control of his mind when he inflicted the injury on the victim and thus the defence of provocation does not avail him.
On the element of retaliation not disproportionate to the provocation, learned counsel submitted that the Court below erred in its finding as it relates to the defence of provocation as the respondent’s retaliation was disproportionate to the provocation. He submitted that the defence of provocation could not avail the respondent.
Learned counsel contended that the nature of the weapon used by the respondent on the victim which was an axe, as opposed to the stick used by the deceased, cannot be said to be proportionate, but was excessive. He submitted that there was no sufficient provocation from the record to justify the use of an axe twice on the head of the deceased who hit him with a stick at his own back. He relied on Usman Kaza vs. The State (2008) LPELR 1683 SC.
Learned counsel contended further that the ingredients of the offence of culpable homicide punishable without death were not proved, hence there was no justification for the finding of the Court below to mitigate the offence. He urged the Court to resolve issue No. 1 in favour of the appellant against the respondent and set aside the judgment of the Court below which acquitted the respondent.
In arguing issue No. 1 as formulated by the appellant, learned counsel for the respondent referred to the judgment of the trial Court in particular on page 72 of the Record of Appeal. He contended that the trial Judge fell into grave error when he held that the respondent did not avail himself with any of the mitigating circumstances contained in Section 222 of the Penal Code.
He contended that the respondent raised provocation as a defence in his alleged confessional statement which was admitted as Exhibit 3. He submitted that the learned trial Judge was duty-bound to consider the defence. He relied on Shalla Vs. The State (2007) 18 NWLR (Pt. 1066) 240; Ojo vs. State (1973) NSCC 590 at 594.
Learned Counsel submitted that the Court below was right to have considered the defence of provocation raised in the respondent’s confessional statement which the trial Court failed to consider.
Learned counsel contended that there is no hard and fast rule for determining acts to constitute sufficient provocation but each case depends on its peculiar facts. He referred to the evidence on records where both the deceased and the respondent were below 17 years at the time of the incident and that they were both herders who were virtually living inside the forest. He submitted that the act of the deceased in hitting the respondent with the stick being used for herding cattle and goats when the respondent was separating his goats from that of the deceased could cause and indeed caused the respondent temporary loss of self-control. He relied on Queen Reuben Enyi Jinobil (1961) All NLR 654 at 656; Lado vs. State (1999) 13 NWLR (Pt.619) 369. At 436.
Learned counsel referred to the findings of the Court below at page 144 of the Record of Appeal to the effect that the respondent had raised the defence of provocation in his confessional statement to the Police that it was the deceased that first hit him with a stick at his back which suddenly provoked him. He urged the Court to resolve the issue in favour of the respondent against the appellant.
As earlier stated, the respondent was charged on one count of committing culpable homicide punishable with death pursuant to Section 221 of the Penal Code by causing the death of one Lawal Musa. Before I proceed to consider the first issue for determination of the appeal – Whether the Justices of the Court of Appeal were right to have entered a judgment of culpable homicide not punishable with death, I wish to state the following facts that are not in dispute or controversy.
– The respondent as the accused was 14 years old at the time of the incident in question.
– The deceased was also of the same age, below 17 years at the time of his death.
– Both the deceased and the respondent were herders respectively of their cattle and goats in the forest.
– It was not disputed or controverted that the deceased was the first to hit the respondent with his herding stick at his back.
– That the axe used to hit the deceased on the head by the respondent was spontaneously taken from the deceased in retaliation for hitting him with his stick at the back.
– That after being hit on the head with the axe by the respondent and he fell down, the deceased started begging the respondent and asking for forgiveness from the respondent.
Generally, the particular Section of the Penal Code pursuant to which the respondent was tried – Section 221 of the Penal Code reads as follows:
S.221 “Except in the circumstances mentioned in Section 222 of this Penal Code, culpable homicide shall be punishable with death:-
(a) If the act by which the death is caused is done with the intention of causing death or;
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause”.
However, Section 222 of the Penal Code referred to in the law pursuant to which the respondent was charged, tried, found guilty as charged and sentenced to 50 years imprisonment, states as follows:-
S.222 “(i) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self-control by grave and sudden provocation or causes the death of any other person by mistake or accident.”
From the records of Appeal and in the judgment of the trial Court at page 69, the trial Judge found as follows:-
“In Exhibit 3, the accused person gave a graphic account of how in the course of rearing their animals on 6/10/2014 the victim’s goats got mixed with that of the accused person which, according to the accused person’s account annoyed the victim (Lawal Musa), and the latter challenged the accused as to why he allowed his goats to mix with his (Lawal’s) own goats. That accused person began to separate the goats and it was in the process the victim’s goats got frightened then he (Lawal) instantly used his stick and hit the accused with it on his back. That the accused person then grasped his (Lawal’s) axe and hit him twice with it on the head which resulted in his (Lawal) falling down shouting “forgive me, forgive me”. That the accused then left him there and went ahead …”
There is no doubt, from the findings of the trial Court as stated above in the graphic account claimed to have been given in the statement of the respondent made to the Police as admitted and marked Exhibit 3, the exceptional circumstance envisaged in Section 222 of the Penal Code is clearly evident. It was the deceased who instantly used his stick to hit the respondent on his back. In other words, the hitting with a stick at the back came on the respondent suddenly and unaware. And as reflected in the quoted findings of the Trial Court, the respondent, with passion grasped the axe of the deceased and used it on the deceased to hit him on his head in retaliation.
Generally, provocation has been described to be some acts or series of acts done by the deceased to an accused which would cause any reasonable person and actually does cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him, for the moment, not the master of his mind. See; Ahmadu Lado Vs. The State (1999) 13 NWLR (Pt. 619) 369.
From the above, what will amount to provocation in a particular situation must be considered with the peculiar facts in mind. For instance, the station in life of the person and the society in which he lives. In the instant case, the respondent was then 14 years old and a Cattle and goats herder in the bush.
In other words, if the trial Court had been diligent enough and had put into consideration the peculiar facts and circumstances of this case, it would have been realized that the respondent was actually provoked by the deceased which deprived him of the power of self-control which made him to suddenly grasp the axe of the deceased and used it on him.
I am therefore at one with the Court below that the instant case is covered by the provision of Section 222 of the Penal Code, being the exception envisaged in Section 221 of the Penal Code. The respondent was entitled to the defence of provocation, raised and not controverted, in his statement and as rightly found and noted by the trial Court. The Court below was therefore right to have entered the judgment of culpable homicide punishable without death. The defence of provocation in Section 222 of the Penal Code availed the respondent to mitigate the effect of his act that led to the death of the deceased. In this circumstance, Issue No. 1 is resolved against the appellant but in favour of the respondent.
Issue No.2 –
“Whether the learned Justices of the Court of Appeal had the jurisdiction to release the respondent despite finding him guilty of culpable homicide not punishable with death.”
Learned appellant’s counsel referred to the findings of the Court below on page 145 of the record of appeal. He also referred to Sections 222 (2) and 224 of the Penal Code. He contended that the law admits of life imprisonment or any less term or with fine or with both and nothing more. Learned counsel contended further that the Court has no discretion in the sentence to be passed where the law had specifically and mandatorily prescribed one. He relied on Joseph Amoshima Vs. The State (2011) LPELR 471 SC.
Learned counsel contended that the fact that the respondent was a minor at the time of the commission of the offence was the reason taken into consideration by the Court below in the exercise of its discretion to discharge and acquit the respondent.
Learned counsel submitted that the discharge and acquittal of the respondent by the Court below who was said to be 14 years of age at the time of the commission of the offence and therefore less than 18 years was not in consonance with Section 12 of the Children and Young Persons Act and Sections 272 (1) and 303 (1) of the Criminal Procedure Code. Learned counsel contended that by virtue of the provisions of the above laws the respondent should have been dealt with as a young person instead of the acquittal and discharge order. He contended further that where the respondent had been found to be less than 17 years at the time of the commission of the offence, and he was found guilty, a sentence of death shall not be passed or recorded but that in lieu thereof, the Court shall order such a person to be detained during the pleasure of the Governor. He relied on Orisakwe Vs. State (2004) 12 WLR (Pt.887) 258 and Guobadia vs. State (2004) 6 NWLR (Pt.869) 360.
Learned counsel submitted that the acquittal and discharge Order by the Court below was wrong in principle and against the provisions of the law, which has occasioned a miscarriage of justice. He submitted further that the acquittal and discharge order by the Court below of the respondent was ultra vires the sentencing power of the Court. He urged the Court to set it aside and resolve the issue in favour of the appellant and finally allow the appeal.
In arguing the 2nd issue for determination, learned counsel for the respondent contended that it is settled case-law that an accused person is entitled to all the defences that are in evidence and if the trial Court failed to consider the defence, the appellate Court is in a good position to consider same and make appropriate findings. He relied on Section 15 of the Court of Appeal Act, 2004. He referred to the findings of the Court below upon consideration of the said confessional statement of the respondent which was admitted as Exhibit 3 by the trial Court, that the defence of provocation availed the respondent. He contended that by virtue of the provisions of Section 224 of the Penal Code, the Court below has the discretion to either sentence the respondent to life imprisonment or any less term or with fine or with both.
Learned counsel contended further that in reckoning the length of sentence, the Justices of the lower Court were right to have considered the number of years the respondent had served in prison in compliance with the judgment of the Trial Court.
Learned counsel submitted that it would not be said that the release of the respondent for the offence of culpable homicide not punishable with death after serving 14 years incarceration occasioned a miscarriage of justice.
Learned counsel further submitted that the Children and Young Persons Act, in particular, Sections 272(1) and 303 (1) of the Criminal Procedure Code do not apply to the facts of this case as the lower Court did not convict the respondent for culpable homicide punishable with death. He referred to Sections 272 (1) and 303 (1), (2) and (4) of Criminal Procedure Code and Section 12 of Children and Young Persons Act Cap 485. He submitted that they are not applicable to the instant case, hence he urged the Court to discountenance with the submissions of the appellant on the said laws. He urged the Court to resolve the 2nd issue against the appellant and dismiss the appeal.
It is clear from the record of appeal and in the judgment of the Trial Court, that the trial Judge had, in his findings on page 69 noted that on the day the incident in question happened, both the deceased and the respondent were together rearing their respective animals in the bush. The trial Court also found that the deceased – Lawal Musa was the first to instantly used his stick and hit the accused with it on his back. It was also found that the respondent then grasped the deceased’s axe and hit him twice with it on the head which resulted in Lawal’s falling down.
It is interesting that the trial Judge did not consider the instant use of the stick by the deceased to hit the respondent on his back as provocative which led the respondent to grasp the deceased’s axe from him and in retaliation used it to hit him on the head twice.
Ordinarily, not having availed the respondent with the provisions of Section 222 of the Penal Code, the trial Court went ahead to convict the respondent as charged with culpable homicide punishable with death.
However, the Court below, in my firm view, rightly in the peculiar circumstances of this case, availed the respondent with the provisions of Section 222 of the Penal Code on the effect of provocation arising from the act of the deceased leading to the assault inflicted on him by the respondent. There is no doubt that the deceased provoked the attack on him by the respondent. In other words, the deceased can be said to be the first aggressor. It is clear from the record that the trial Court did not consider the defence of provocation for the respondent even though he had raised it at the earliest opportunity in his statement made to the police – Exhibit 3.
It is noteworthy that the Court below in computing the sentence to give the respondent having availed him the defence in Section 222 of the Penal Code, the Court held, inter alia, as follows on page 145 of the record of appeal:
“The appellant (respondent herein) was at the time of the commission of the offence a minor, 14 years of age. In passing sentence on the accused, the age of the accused at the time of the commission of the offence and not at the time of conviction is to be taken into consideration …
The appellant having spent close to 16 years incarceration, since his arrest, detention and conviction, I have a duty, in the interest of justice and the fact that the appellant was a minor at the time of the commission of the offence to allow this appeal and order the immediate release of the appellant from custody”
The Court below was right to have converted the term already served by the respondent in custody as a sufficient term of imprisonment as punishment for the offence of culpable homicide not punishable with death. Indeed, the sentence of 50 years imprisonment passed on the respondent by the trial Court was ridiculous and unwarranted in the circumstance of the instant case. This issue No.2 is resolved against the appellant.
In this circumstance, this appeal is adjudged lacking in merit and deserves to be dismissed. Accordingly, the appeal is dismissed. The Order of acquittal and discharge of the respondent is equally affirmed.
Appeal is dismissed.
SC.1018/2015