Whether the Defence of Provocation will avail a defendant who killed a third party other than the person who made the provoking act

ASHARE AYABA V THE STATE

APPEAL NO: SC.260/2013

The Appellant and another were arraigned before the High Court of Kebbi State sitting at Yauri for the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code. Sequel to the not-guilty plea of the accused persons, the case went to trial.

It was alleged that on April 28, 2007, at Jajjaye village, Shanga Local Government Area, the Appellant, the co-accused person, the deceased person and other people attended a traditional marriage ceremony. One Gano Jaye, who, allegedly, had stolen the wife of one Koshi Magaji, a brother to the co-accused person, also, was at the ceremony. The said Gano was ordered out of the ceremony.

As he did, the co-accused person, armed with a stick, followed him and cut the deceased person with his cutlass on his shoulder. Meanwhile, the Appellant, who was outside, saw Gano Jaye running out of the place. When the Appellant saw the deceased person on the ground, he cut him on the head and he died.

The trial court convicted and sentenced them to death. Having lost his appeal at the Court of Appeal, Sokoto Division, the Appellant, has further appealed to this court.

Appeal Dismissed

Ø  Whether the Court of Appeal was right in holding that there was no evidence of provocation to be considered in favour of the appellant as it was not raised by the appellant, nor was it raised or alluded to, at all in the evidence before the court?

“As this court held in Uluebeka v The State (2000) LPELR – 3354 (SC) 48; B – D:

It is trite law that in a criminal trial, a court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See, Uwani v. The State [1988] I NWLR (pt. 70) 274. It is also common ground that a defence of provocation properly raised will result in reducing the offence of murder to that of manslaughter. See, Ajunwa v. The State [1988] 4 NWLR (pt. 89) 380.

However, in Annabi v State (2008) LPELR – 495 (SC) 26; A – C, this court was emphatic that:

…the defences open to an accused person’ which a court whether trial or appellate, has a duty to consider, in my respectful view, must be, the defences or such defence or defences that appear or are contained in the evidence before the court or that appear or are contained in the Record of Proceedings. In other words, the duty  to consider all defences raised in evidence in the record of proceedings even if the accused person did not specifically raise them and this is regardless of whether such defence or defences is or are hopeless, weak or stupid. See, the cases of Njoku v. The State[1993] J SCNJ (pt. l) 36, 41, where it was held that it would be a different thing, if a trial court, merely conjectures such defences and citing the cases of Apishe and Ors. v. The State (197]) ANLR 53 and Okpere v The State {197) (sic) ANLR 1; Grace Akpabio and Ors. v. The State [1994] 7- 8 SCN1 (pt. Ill) 429; Ofoke Nwambe v. The State [1995] 3 SCNJ 77, just to mention but a few. Thus, it is not a matter of speculation by the court to consider every and all imaginable defences open to an accused person not raised in evidence before the court or contained in the record of proceedings. It cannot be by any stretch of imagination in my humble and respectful view. It is not, I repeat, it is not the duty to any court including this Court, to look for all possible exculpatory evidence that is not borne out in the Records, in favour of an accused person. It is not the law. [Italics supplied for emphasis]

–         PER C.C.NWEZE,J.S.C.

“It is obvious that the sole issue canvassed in this appeal was just a hypothetical academic exercise: an exercise does not engage the attention of courts since they are not the proper fora for its ventilation, Imegwu v Okolocha [2013] 9 NWLR (pt 1359) 347. As it is well known, such issues have no utilitarian value, Abe v UNILORIN [2013] 16 NWLR (pt 1379) 183. PER C.C.NWEZE,J.S.C

“Now, the law is settled that in a trial for murder, the court has a duty to consider all the defences raised by the evidence before it, whether the person charged specifically put up such defences or not. The defences so thrown up by the evidence must be properly and adequately considered, no matter how weak or stupid they may appear. See; Uwaekweahinya Vs The State (20051 9 NWLR (Pt. 930) 227; Laoye Vs The State (1985) 2 NWLR (Pt. 10) 832: Olayinka Vs The State (2007) 9 NWLR (Pt 1040) 561: Kaza Vs The State (2008) 7 NWLR (Pt. 1085) 125.” PER K. M. O. KEKERE-EKUN, J.S.C.

“It must be stressed however that it is not the duty of the court to speculate or undertake its own investigation and scrounge around for defences outside the evidence before it. See: Ojo Vs The State (1972) 12 SC (Reprint) 100: Edoho Vs The State (2010) 14 NWLR (Pt. 1214) 651: Ada Vs The State (2008) 13 NWLR (Pt. 1103) 149.” PER K. M. O. KEKERE-EKUN, J.S.C.

“The law does not acknowledge osmotic provocation. Accordingly, the defence does not avail an accused person who alleges that he acted, as he did, because the deceased had provoked another person.   The provocation that reduces the charge of murder or culpable homicide punishable with death to manslaughter, that is culpable homicide not punishable with death, must emanate directly from the deceased to the accused person. If, however, the person provoked by one person mistakenly or accidentally, whilst deprived of the power of self-control and acting in the heat of passion, killed a third party other than that who gave or made the provoking act or words, the defence avails the person provoked who killed the third party in the circumstances of accident or mistake: Section 222(1) of the Penal Code; The State V. Onokoko – SC. 72/1969 of 27th June 1969.” PER E. EKO, J.S.C.

Penal Code