FactIn the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 20th day of December, 2021
Before Their Lordships
Olukayode Ariwoola
John Inyang Okoro
Amina Adamu Augie
Helen Moronkeji Ogunwumiju
Tijjani Abubakar
Justices, Supreme Court
SC.1018/2015
Between
The State Appellant
And
Murtala Da’u Respondent
(Lead Judgement delivered by Hon. Justice Olukayode Ariwoola, JSC)
O n 6th October, 2004, the Respondent, who was 14 years old at the time, unlawfully killed one Lawal Musa (the deceased) in a forest by hitting him twice on the head with an axe during a quarrel. Thereafter, the Respondent was arrested by the Police and taken to the Police station, whereat he made two confessional statements. The first statement was made at the Batsari Police Divisional Headquarters wherein he denied killing the deceased, while the second statement was an alleged confessional statement wherein, he admitted to committing the offence. The Respondent stated in this statement, that he was suddenly provoked to commit the offence when the deceased first hit him (the Respondent) on the back with his (deceased’s) herding stick. This statement was marked Exhibit 3.
The Respondent was thereafter charged before the High Court of Katsina State on a sole count of culpable homicide punishable with death of one the said Lawal Musa, contrary to Section 221 of the Penal Code. He pleaded not guilty, and the case proceeded to trial. At the end of the trial, the court found the Respondent guilty as charged and convicted him for culpable homicide punishable with death. He was sentenced to 50 years imprisonment. In its judgement, the trial court noted that the Respondent was 14 years old when he committed the offence and was, as such, not criminally liable. The trial court also noted that by Exhibit 3, the Respondent was provoked by the deceased into such act as an immediate reaction.
Dissatisfied with the judgement of the trial court, the Respondent appealed to the Court of Appeal, which court set aside the conviction of culpable homicide punishable with death and the sentence of 50 years imprisonment. Rather, the court convicted the Respondent for culpable homicide not punishable with death, as it held that the defence of provocation as contained in Exhibit 3 (the Respondent’s confessional statement), availed him. The lower court also noted that the Respondent had been in incarceration since the offence was committed (in 2004) and ordered that the Respondent be discharged and acquitted, having converted the term already served by the Respondent in custody as sufficient term of imprisonment for the offence.
Aggrieved by the discharge and acquittal order, the Appellant appealed to the Supreme Court.
Issues for Determination
The following issues were considered by the Supreme Court in its resolution of the appeal:
1. Whether the Justices of the Court of Appeal were right to have entered a judgement of culpable homicide not punishable with death.
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.
Arguments
On the first issue, in urging the court to set aside the judgement of the lower court, counsel for the Appellant argued that the judgement of the Court of Appeal was based on wrong principles, as the Appellant had proved all the elements of the offence charged, and as such, there was no basis for the lower court to have mitigated the offence from culpable homicide punishable with death to that not punishable with death. He further argued that the ingredients of the offence of culpable homicide not punishable with death was not proved; hence, there was no justification of the lower court mitigating the offence.
He relied on Section 222(1) of the Penal Code as regards the elements/ingredients of the offence of culpable homicide not punishable with death. and 135(3) and 137 of the Evidence Act as regards to the standard of proof in criminal matters. He also argued that inasmuch as 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, the evidence of the said provocation of the Respondent was merely his confessional statement. He also contended that as an element of provocation is loss of self-control, both actual and reasonable, the deceased’s act of hitting the Respondent’s back with a stick was not one capable of depriving a reasonable man and did not deprive the Respondent of his power of self-control, and neither was the deceased’s act sudden or grave to have provoked the Respondent. He stated that the Respondent, by hitting the deceased with an axe, twice, intended the natural and probable cause of his act. He relied on HARRISON OWHORUKE v C.O.P (2015) LPELR-24820 (SC). He contended further that the Respondent’s retaliation was disproportionate and excessive to the provocation as the Respondent used an axe (on the head of the deceased), whilst the deceased merely used a stick (on the back of the Respondent).
In reaction, counsel for the Respondent argued that the trial court fell into a grave error when it held that the Respondent had not presented any of the mitigating circumstances contained in Section 222 of the Penal Code, as the Respondent had raised the defence at the earliest opportunity which was his confessional statement admitted as Exhibit 3, and the trial court was duty bound to consider the defence. He relied on SHALLA v THE STATE (2007) 18 NWLR (Pt. 1066) 240. Counsel contended further that in determining the acts that constitute sufficient provocation, each case depends on its peculiar facts. Flowing from this, he argued that both the deceased and the Respondent were below the legal age (below 17 years), and at the time of the incident, they were both herders who practically lived in the forest. He submitted that the act of the deceased hitting the Respondent with the stick being used for herding/separating cattle and goats from that of the deceased, indeed, caused the Respondent temporary loss of self-control. He relied on QUEEN v REUBEN ENYI JONOBIL (1961) AII NLR 654 at 656; LADO v STATE (1999) 13 NWLR (Pt. 619) 369 at 436.
On the second issue, counsel for the Appellant argued that law as contained in Section 222(2) and 224 of the Penal Code, is that there should be life imprisonment or any less term, or with fine or with both, and nothing more. Relying on this, he posited that the court is duty bound to apply the sentences prescribed by law, and 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 v THE STATE (2011) LPELR 471 SC. Relying on Sections 272 (1) and 303 (1) of the Criminal Procedure Code and Section 12 of the Children and Young Persons Act, counsel for the Appellant argued that the Respondent should have been dealt with as a minor and a young person, instead of the acquittal and discharge order granted by the lower court. He argued further that as the Respondent was less than 17 years at the time of commission of the offence and was found guilty of the said offence, he ought to have been detained at the pleasure of the Governor. He argued that the acquittal and discharge order by the court below was wrong in principle; ultra vires the sentencing power of the court, and this occasioned a miscarriage of justice.
In response, counsel for the Respondent argued 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 argued further that by virtue of the provisions of Section 224 of the Penal Code, the lower court has the discretion to either sentence the Respondent to life imprisonment or any less term, or with fine or with both. He contended further that the lower court was right to have taken into cognisance the number of years (14 years) already served in prison by the Respondent, and that Sections 272(1) and 303(1) of the Criminal Procedure Code did not apply to the facts of this case because the lower court did not convict the Respondent for culpable homicide punishable with death.
Court’s Judgement and Rationale
In its determination of the first issue, the Supreme Court noted the provisions of Section 221 of the Penal Code pursuant to which the Respondent was tried, referenced the provisions of Section 222 of the Penal Code as having an overriding effect. In the same vein, Section 222 of the Penal Code under which the Respondent was charged, tried, found guilty as charged and sentenced to 50 years imprisonment, states that 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. Consequently, the court held that by virtue of the Respondent’s uncontroverted confessional statement marked Exhibit 3, the exceptional circumstance envisaged in Section 222 of the Penal Code was evident, as it was shown that it was the deceased (the first aggressor) who used his herding stick to hit the Respondent on his back. This came on the Respondent suddenly and in retaliation, the Respondent with passion grasped the axe of the deceased and used it on the deceased.
The court further noted that generally, provocation is an act or series of acts done by the deceased to an accused person, which would cause any reasonable person and actually causes 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 a master of his mind – AHMADU LADO v THE STATE (1999) 13 NWLR (Pt. 619) 369. The court also noted that what will amount to provocation in a particular situation, must be considered with the peculiar facts. For instance, the station in life of the person, and the society in which he lives amongst others. … So, the test is whether a reasonable man in the street or status of the accused person, would have been provoked to commit the offence – KASA v STATE (2008) LPELR-1683(SC). Relying on its earlier decision in OWHORUKE v COP (2015) LPELR-24820(SC), their Lordships quoted the holding that there is no set standard of retaliation expected from a reasonable man; it all depends on the Appellant’s station in life.
A reasonable man is a reasonable man of the accused person’s standing in life, and to a large extent, his cultural background. Applying this principle to the facts, the court opined that the Respondent was then 14 years old, and a cattle and goats herder in the bush. Taking the above facts into consideration, the Apex Court held that the Respondent was entitled to the defence of provocation, to mitigate the effect of his act which led to the death of the deceased. This defence was raised in his confessional statement, and this was not controverted; it follows that the lower court was right to have entered judgement of culpable homicide not punishable with death.
In deciding the second issue, the court held that the lower court was right to have converted the term already served by the Respondent in custody as sufficient term of imprisonment, as the punishment of the offence of culpable homicide not punishable with death. The court reasoned that the sentence of 50 years imprisonment passed on the Respondent by the trial court, was ridiculous and unwarranted in the circumstance.
Appeal Dismissed.
Representation
Kelechi Obi, Esq. for the Appellant.
Obinna K. Aroku, Esq. with R.A. Aguariavwodo, Esq. for the Respondent.
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