For Plea of Provocation to Succeed, It Must be Grave and Sudden – Augie JSC

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 ABBAS MUHAMMAD V. THE STATE (2017) LPELR-42098(SC)

INTRODUCTION

It is often the practice that in proving the death of a deceased person in homicide cases, prosecution adduce evidence as to the cause of death of the deceased by presenting medical evidence as to the cause of death and also call on expert witness (usually the pathologist who carried out the autopsy) to testify as to the cause of death of the deceased person. This practice, it now appears, may not be necessary in certain cases where the cause of death is obvious. This was part of the decision of the Supreme Court on the 13th day of April 2013 in the judgment under consideration.

Amina Adamu Augie. JSC, while delivering the leading judgment said “The lower Court is right; the Appellant cannot argue that the weapon he used on the deceased is not clear. He used a weapon, and whether it was a shovel or a knife, the weapon proved lethal; the deceased died the next day as a result of the injuries received. In such circumstances, the position of the law is that the cause of death can properly be inferred that the injuries caused the death.

In other words, where cause of death is obvious, it is not a vital component of proof to have medical evidence to establish it.”-

This was also emphasized by Chima Centus Nweze, JSC while giving his own contribution when he added that “Just as the leading judgment has shown, a clearly evident cause of death, as in the instant case, obviates the need for any medical evidence to establish the first ingredient of the offence of culpable homicide punishable with death, that is, that the deceased person died.”

In giving strength to this position, he went further to say “Thus, in situations, as exemplified in the instant case, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so.

FACTS OF THE CASE

In this case, the Appellant, a football coach, was on the field with some other people, including PW2. The deceased stood afar and called PW2 to come. PW2 in turn asked the deceased to come to where he was sitting with the Appellant but he refused. The accused asked PW2 not to go and meet the deceased. He opined that since the deceased was the one calling, he should come to where PW2 was seated. The deceased, who was said to be drunk, took a shovel that one Mallam Nura was working with and came to where the Appellant was sitting and he stood in front of the accused and started abusing him. This led to a fight and the Appellant grabbed a weapon (Barandami metal). During the fight, the shovel fell from the deceased’s hands, and it was when the deceased was trying to pick up the shovel that the Appellant got hold of the shovel and hit the deceased on his left leg then on his back, twice.

Appellant asked his boys to take the deceased to the Chemist and from the Chemist, he was taken home. The following day, he was taken to Murtala Muhammad Hospital and he died later that day. The accused, now appellant, was arrested and charged with the offence of culpable homicide punishable with death.

During trial, six witnesses testified for the Prosecution while the Appellant testified in his own defence, and called one other witness. He did not deny that there was a fight between him and the deceased, he even stated that he hit the deceased on the left leg then twice at the back. He however attempted to hinge his act on provocation and self defence. This defence was rejected by the court and consequently, the Kano State High Court found him guilty as charged, convicted and sentenced him to death.

Dissatisfied with the judgment of the trial court, the Appellant lodged an appeal in the Court of Appeal. The appeal was heard and on 1/3/2013, the Appeal Court delivered its Judgment against the Appellant and affirmed the decision of the trial Court.

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Yet disgruntled, he has now approached the Supreme Court.

ISSUE(S) FOR DETERMINATION

The Supreme Court adopted 2 issues for the just determination of the case:

(i) Whether the learned Justices of the Court of Appeal were right, in the circumstances of this case, to affirm the conviction and sentence of the Accused Person (sic)?

  1. Whether the learned Justices of the Court of Appeal were right in holding that the defence of provocation and self- defence will not avail the Appellant?

HELD

The Supreme Court affirmed the concurrent judgments of the lower courts and the appeal was dismissed.

RATIOS

  • EVIDENCE – CAUSE OF DEATH: Circumstances where cause of death can be inferred

“The issue here is whether the death of the deceased was caused by the Appellant, and his contention is that there was no evidence to establish the actual weapon that he used in causing the death. Let me quickly say that this issue is easily resolved because his argument cannot stand against the decision of this Court in Ali V. State (2015) LPELR-24711 (SC), wherein, Ogunbiyi, JSC, observed-

The Appellant is very particular about the actual instrument used in striking the deceased i.e. to say, the exact specification as to whether it was an axe or cutlass/matchet that was used. What is of relevant significance is the fact that the deceased was struck with a heavy weapon (axe) in the middle of the head, which got broken and caused his instant death. It is well taken that the Prosecution has proved beyond reasonable doubt that the Accused used the weapon on the deceased and caused his death. The Medical Doctor, PW4, in his Report did confirm and corroborate the use of weapon on the deceased’s head – – The question whether the instrument used was an axe or matchet did not in the least matter.

What is relevant is that the instrument was heavy and lethal. It was also applied very forcefully and caused instant death. PW1’s evidence on the use of heavy object on the head was corroborated, therefore, by PW4, the Medical Doctor. In the course of the examination of the corpse; he found a big cut wound on the deceased’s skull and also a culminated fracture of the skull. The Appellant expects PW4 to state the specific instrument used and inflicted the big cut wound on deceased’s skull, which caused the eventual death. As rightly submitted on behalf of the Respondent, the said witness is not under any obligation to state the kind of instrument used on the deceased. This is more so – when PW4 was not at the scene of incident. It was sufficient that his testimony and findings are corroborative of PW1 the star witness. As Ogunbiyi, JSC, pointed out in Ali V. State (supra), this Court held in Ben V. State (supra), (2006) 16 NWLR (Pt. 1006) 582 that medical evidence is not essential in establishing this issue where the deceased was attacked with lethal weapon and died instantly.

In that case, Ben V. State (supra), Akintan, JSC, stated as follows – In cases, where a man was attacked with lethal weapon, and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death is instantaneous or nearly so.

Katsina-Alu, JSC [as he then was], further observed as follows – The Appellant struck the deceased on the head – – He fell down unconscious, never regained consciousness until he died a few hours later in hospital. Medical evidence was not necessary to determine the cause of death in the circumstances of this case. It could properly be inferred that the wound inflicted caused the death of the deceased.” Per AUGIE, J.S.C. (Pp. 23-26, Paras. D-B)

  • EVIDENCE – CAUSE OF DEATH: Circumstances where medical evidence would be dispensed with as to the cause of death
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“…But far weightier than all the above oral testimonies is Exhibit C, Medical Report, prepared by PW5 which tallies with the injuries, the Appellant admitted that he inflicted on the deceased that day. The Appellant stated in Exhibit A that he hit the deceased “on the back and again on his back two times”. PW5 explained that it was the injury at his lower back, which caused bleeding to his spinal cord that eventually caused the death of the deceased. The lower Court is right; the Appellant cannot argue that the weapon he used on the deceased is not clear. He used a weapon, and whether it was a shovel or a knife, the weapon proved lethal; the deceased died the next day as a result of the injuries received. In such circumstances, the position of the law is that the cause of death can properly be inferred that the injuries caused the death.

In other words, where cause of death is obvious, it is not a vital component of proof to have medical evidence to establish it. See Ali v. State [supra], Ben V. State {supra}. More importantly, the medical doctor is not obliged to specify the instrument used.

In this case, the Appellant admitted he used a lethal weapon to wound the deceased, which caused his death, and that is that.”Per AUGIE, J.S.C. (Pp. 29-30, Paras. B-B)

  • APPEAL – FRESH POINT(S) ON APPEAL: Whether leave of court is required to raise fresh issue on appeal

“A fresh point is a matter that was not canvassed at the trial nor in the Court of Appeal, and it is settled law that it is too late to raise such matter here unless new evidence emerged that was not available at trial and no human ingenuity could have foreseen it – See Mohammed V. State (1991) 5 NWLR (Pt. 192) 438 at 453 SC. See also Akpabio v. State (1994) 7 NWLR (Pt.359) 635 SC, where this Court, per Iguh, JSC, explained the position, as follows – The question as to exclusion of the statement in issue was neither raised before nor pronounced by the Court below. It was, in fact, neither made a ground of appeal in that Court nor before us. It is well to bear in mind – -that an appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised and pronounced upon by the Court below unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter and such a course of action is necessary to prevent an obvious miscarriage of justice. It is also settled that a point raised for the first time in this Court can only be argued with the leave of the Court because this Court as an appellate Court only has jurisdiction to correct the errors of the Court below and to know in what respect it can exercise its supervisory jurisdiction to correct any errors of the Court below – see Director, SSS v. Agbakoba {1999) 3 NWLR (Pt 595) 314 SC.” Per AUGIE, J.S.C. (Pp. 6-8, Paras. F-A)

  • APPEAL – ALLOWING APPEAL: Basis for allowing an appeal

“It is settled that in appeals in criminal cases, an Appeal Court will not allow an appeal merely because the verdict reached by the trial Court is challenged on the grounds of its being contrary to the weight of evidence, and will only do so if it can be shown that the said verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence – see Adi v. R 15 WACA 6 where the West African Court of Appeal (WACA) clearly stated- The last point- – was that the decision was contrary to the weight of evidence. This is not a proper ground of appeal in criminal cases in which the point is not the preponderance of evidence on one side, which outweighs the evidence on the other side. The proper ground should have been that the “verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence.” Per AUGIE, J.S.C. (Pp. 9-10, Paras. F-C)

  • CRIMINAL LAW AND PROCEDURE – DEFENCE OF PROVOCATION: Whether the defence of provocation can excuse the offence of homicide
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“When does a defence of provocation succeed in a charge of culpable homicide punishable with death? Section 222(1) of the Penal Code that is applicable in Kano State provides as follows – Culpable homicide is not punishable with the 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. Evidently, a plea of provocation does not exculpate the accused, but is only a mitigating factor when it comes to the sentencing. For the defence to avail the accused, the burden is on him to establish that the act of provocation was “grave and sudden”; that he must have been deprived of the power of self-control; and the extent of retaliation is proportionate to the provocation offered- See Galadima V. The State (2012) LPELR-15530(SC).” Per AUGIE, J.S.C. (Pp. 46-47, Paras. E-C)

  • CRIMINAL LAW AND PROCEDURE – DEFENCE OF SELF-DEFENCE: When the defence of self defence will not avail an accused person

“In Owhoruke V. COP [supra], the deceased snatched a bottle of drink from the Appellant and broke it. He then threatened the Appellant with the broken bottle. The Appellant confessed that he later overpowered the deceased; seized the broken bottle from the deceased, and then used it to stab the deceased in the neck. The issue was whether the Appellant was in apprehension of death or grievous bodily harm at the time. This Court held that – The Appellant was no longer in apprehension of death or grievous bodily harm since he stabbed the deceased after he had overpowered him and retrieved the broken bottle from him.

At the time of stabbing, the Appellant was no longer in apprehension of death but rather an unjustified aggressor that retaliated in a disproportionate manner. The killing was intentional. It is lawful If the nature of the assault on the Appellant is such as to cause reasonable apprehension of death or grievous harm for him to use such force on the deceased as is necessary to defend himself, but this does not arise since the danger had passed after the Appellant overpowered the deceased, retrieved the broken bottle from him and stabbed him on the neck with it. The stabbing was clearly unnecessary. The killing was intentional. The defence of self-defence fails.”Per AUGIE, J.S.C. (Pp. 56-58, Paras. F-A)

  • JUDGMENT AND ORDER – ERROR/MISTAKE IN JUDGMENT: Whether every error/mistake in a judgment will result in a judgment being set aside

“A Court deals with cold hard facts, and nothing but the facts. In this case, the Appellant and deceased had gotten into a fight. During the fight or struggle, as the Appellant called it, the shovel fell from the deceased’s hands, and it was when the deceased was trying to pick up the shovel that the Appellant hit him at the back. There is absolutely nothing on record to suggest or imply that the deceased knelt down in “surrender” as the lower Court inferred. This is an embellishment that is unbecoming in a Judgment. But it is not every error or wrong inference made by a Court that will lead to the reversal of its Judgment. An Appellant must show that the error or wrong inference, as in this case, has occasioned a miscarriage of justice and/or substantially affected its decision – see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt. 316) 182 SC. In other words, an error that has not occasioned miscarriage of justice is immaterial and may not affect the result of a decision. This is because an appellate Court only has to decide whether the decision of a lower Court was right; not whether its reasons were – A.G., Ekiti State V. Adewumi (2002) 2 NWLR (Pt.751) 474 SC.” Per AUGIE, J.S.C. (Pp. 32-33, Paras. F-E)

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