EMEKA OKO v THE STATE (SC.242/2013) [2017] NGSC 20 (11 May 2017)

In the Supreme Court

JUDGMENT
(Delivered By KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN)
The appellant herein was arraigned before the High Court of Enugu State holden at Enugu on 6th October 2005 on a one-count charge of murder contrary to Section 274 (1) of the Criminal Code Cap. 36 Vol. 1 Laws of Anambra State of Nigeria, 1986 applicable to Enugu State. He was alleged to have murdered one Ikenna Friday Mbah on the 3rd day of June 2001 at the Estate Shopping Centre, Federal Housing Estate, Trans Ekulu, Enugu in Enugu East Local Government Area of Enugu State (hereinafter referred, to as the Shopping Centre). The case was first investigated at Trans Ekulu Police station and later transferred to State C.I.D. for further investigation.
The appellant pleaded not guilty to the charge. The prosecution called six witnesses and tendered documents, which included the appellant's extra judicial statement (Exhibit A) and a medical report (Exhibit D). The appellant testified in his own defence and tendered Exhibit F, the extra judicial statement which he made at Trans kulu Police station on 3/6/2001, the day of the incident. He did not call any other witness. In Exhibits A and F and in his testimony before the court, the appellant admitted inflicting the matchet cut that led to the death of the deceased.
The facts of the case, as presented by the prosecution are as follows: On 2/6/2001, the appellant and his friend went to the Shopping Centre to buy pure water. While there, the deceased, a friend of the appellant's elder brother, challenged him and slapped him for failing to greet him and for not showing respect. The appellant, according to the prosecution, apparently still smarting from the previous day's encounter returned to the shopping centre the next day and inflicted a blow to the neck of the deceased with a matchet, which led to his death.
The appellant's version of events, on the other hand, was that on 2/3/2001, he escorted a friend to the Shopping Centre to buy pure water. That while waiting for the water, the deceased, whom he had not noticed before, called him and challenged him for not acknowledging or greeting him. That in spite of his apology the deceased began slapping and beating him. That people around chastised him for his actions, as he (the appellant) had not done anything wrong. Eventually he left and went back home accompanied by his friend, one Friday Ogbu.
On 3/6/2001 he went back to the shopping centre, as it is also a recreation centre, to relax with friends. The deceased accosted him and challenged him again, this time for not showing remorse for his disrespectful behaviour the previous day. A quarrel ensued. He testified that the deceased grabbed a bottle, which he broke and tried to stab him with it. That in an attempt to defend himself he picked up something which he found on the floor, which felt like iron and hit him with it. He (the deceased) immediately fell to the floor. That he did not know that the object he picked up was a matchet until he got to the police station and was so informed by the police. He also could not recall which part of the deceased's body he hit. However, in his extra judicial statement, Exhibit A, he stated that two of his friends who were with him on 2/6/2001 when the deceased slapped him advised him to retaliate otherwise he would be considered a fool. Exhibit A was admitted in evidence after the conduct of a trial within trial, as it was objected to on grounds of duress. During his evidence in the substantive trial, he maintained that Exhibit A was obtained under duress.
At the conclusion of the trial, the learned trial. Judge considered whether the defences of self-defence or provocation availed him. The court ruled out self-defence but held that the defence of provocation was established. He was found not guilty of murder but convicted for the lesser offence of manslaughter and sentenced to 15 years imprisonment with hard labour.
The prosecution was dissatisfied with the judgment and appealed to the Court of Appeal, Enugu Division. The sole issue for determination before that court was "whether from the facts and evidence before the learned trial Judge, the defence of provocation was available to the respondent'. On 22/4/2013 the court answered in the negative. It held inter alia, that the trial court was wrong to have relied on evidence found insufficient to support a defence of self defence in holding that the defence of provocation was made out. It allowed the appeal and set aside the judgment of the trial court. The appellant was convicted of murder and sentenced to death. He is understandably dissatisfied with his conviction and sentence, hence the instant appeal.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court and adopted and relied on same in urging their respective positions on the court.
In the appellant's brief filed on 3/6/3013, settled by Chief (Mrs.) Offia, SAN, the following 3 issues were formulated for determination:
1. Whether the learned Justices of the Court of Appeal were right when they held that since the defence of self defence could not avail the appellant on the facts and evidence, the same facts and evidence could not ground a defence of provocation.
2. Whether the learned Justices of the Court of Appeal were right when in the face of the evidence before the court, they held that the defence of provocation was not proved and did not avail the appellant.
3. Whether the learned Justices of the Court of Appeal were right when they recorded and pronounced a sentence of death by hanging on the appellant.

The respondent adopted the issues as formulated by the appellant in its brief settled by P.C. UGWUEZE ESQ., Assistant Chief Legal Officer, Ministry of Justice, Enugu, which was deemed filed on 22/10/14. It is noted that the appellant also filed an amended reply brief, which was deemed filed on 23/2/2017. Issues 1 and 2 shall be determined together.

Issues 1 & 2
Learned senior counsel for the appellant argues that the defences of self-defence and provocation are different and distinct legal defences under the Criminal Code and are neither synonymous nor coterminous in nature, as each depends on different and specific facts and circumstances, which must be proved before an accused person can rely on them. She submitted that while the self-defence requires the use of reason to protect oneself from attack, the defence of provocation implies the opposite i.e. a momentary loss of reason. She relied on the definition of self defence, as contained in Black's Law Dictionary, 9th edition and the authorities of: Braide Vs The State (1997) 5 NWLR (Pt.5041 141 @ 149; Amala Vs The State (2004) ALL FWLR (Pt.219) 1102: (2004) LPELR-453 SC @ 50 A. She submitted that the doctrine of self-defence posits that a person can act in ways that would otherwise be unlawful to prevent injury to himself or others or to prevent the commission of a crime. That the defence is a justification rather than an excuse. See: Maigari Vs The State (2011) ALL FWLR (Pt.546) 405. She submitted that for a successful plea of self defence it must be proved that the accused person had an honest belief that his life was in so much danger from the act of the deceased that the only means of escape from imminent death or injury was to do the act for which he is charged; that he used reasonable force in retaliation and that he acted consciously, being aware of the impending danger and took steps to avoid it. She likened it to the survival instinct where a man whose life is threatened would intentionally find a way to preserve it. She submitted that a person relying on a plea of self-defence need not establish that he was provoked but rather must show that he feared the incoming danger to his life and was compelled to take steps to avoid it. Relying on several authorities, including Adeyeve Vs The State f2011) ALL FWLR fPt.562) 1766: Chukwu Vs The State (2007) ALL FWLR (Pt.389) 1224 and Akoan Vs The State (1994) 9 NWLR f Pt.368) 347 @ 363 - 364 D - A, she referred to other facts the court would take into consideration in determining whether the defence is made out or not.
With regard to provocation, she referred to the meaning ascribed to it in Black's Law Dictionary, 9th edition and by the courts in cases such as: Akalezi Vs The State (1993) 2 NWLR (Pt.273) 1 @ 10 F - G: Akpan Vs The State (supra) at 364 F- G, to wit: "an act or series of acts done by the deceased to the accused to make the latter for the moment not master of his mind." She submitted that in order to raise the plea of provocation successfully, the following factors must be established:
a. The act of provocation must be sudden.
b. The accused person must have lost actual and reasonable self control.
c. The degree of retaliation by the accused person must be proportionate to the provocation offered.
d. That the accused acted in the heat of passion and before there was time for his passion to cool.
She referred to: Yaro Vs The State (2007) 7- 10 SC 77: Obaji Vs The State (1965) 1 ALL NLR 269: Oladiran Vs The State (1986) 1 NWLR (Pt.14) 75: Sheidu Vs The State (2010) LPELR-23018 SC @ 35 C - F. Reiving on Edache Vs The Queen (1962) NNLR 56. She submitted that words alone and or actions can constitute provocation in a case of murder.
In further contending that the defence of provocation was available to the appellant upon the same facts and evidence, which did not support self-defence, learned senior counsel submitted that a significant difference between the two defences is their legal effect where a charge of homicide is established. She submitted that a plea of self-defence, if successful is a complete defence and would absolve the offender of criminal liability while provocation only goes to mitigation of what would otherwise have been murder to manslaughter. See: Ajunwa Vs The State (1988) 4 NWLR (Pt.89) 380: Abeounrin Vs The State (2009) LPELR-8282 CA @ 20 C - F. She submitted that the lower court's finding at page 197 of the record that the facts that were unable to sustain a plea of self defence could not be used to establish a defence of provocation is what led it to erroneously dismiss the defence of provocation. She maintained that a holistic examination of all the facts established at the trial showed that the provocation was grave and sudden and that the appellant lost self-control and acted in the heat of passion before there was time for his passion to cool.
Learned senior counsel submitted that in a murder trial the court has a duty to consider all legal defences available to the accused before arriving at a conviction and sentence. She cited several authorities in support of this submission. She submitted that the learned trial Judge ruled out retaliation and premeditation. With regard to premeditation, she noted that the learned trial Judge rightly resolved the doubt created by the appellant's extra judicial statements, Exhibits A and F, as to whether the appellant brought the matchet to the shopping centre or picked it up from the floor, in his favour. She referred to: Kalu Vs The State (1988) 4 NWLR (Pt.90) 503: Okonii Vs The State (1987) 1 NWLR (Pt.52) 659. She submitted that the finding of the court below that there was no evidence that the appellant tried to retreat from the deceased and that the evidence showed that he met the challenge of the deceased without a second thought, supports the contention that there was indeed a challenge or provocation by the deceased to which the appellant reacted immediately and without a second thought. She noted that the lower court also found that there was evidence of an argument between the appellant and the deceased. She submitted that these findings were sufficient for the lower court to have held that the defence of provocation was made out. She submitted that by accosting the appellant on 3/6/2001, the day after he had slapped him for being disrespectful, the deceased resurrected and rekindled the appellant's humiliation of the previous day. That by the verbal exchange, the breaking of the bottle and the attempt to stab the appellant with it, the appellant's reaction was on the spur of the moment before the aggravated provocation had time to abate. She argued further, that the tender age of the appellant is a significant factor in the circumstances of this case. In further support of the contention that the appellant acted on the spur of the moment, she referred to his testimony that in an attempt to defend himself he picked up something from the floor and hit the deceased with it, and argued that the use of the word "something" suggests that the appellant had temporarily lost control of his reason and did not even know the real nature of the object he picked up. She submitted that the lower court erred in law in holding that provocation did not avail the appellant. She urged the court to resolve the two issues in the appellant's favour.
In response to the submissions of the learned senior counsel for the appellant, learned counsel for the respondent referred to Section 273 of the Criminal Code Cap.36 Laws of Anambra State, 1986 applicable to Enugu State, which provides thus:
"273. 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."
He referred to the factors that must be established for a successful plea of provocation along with the findings of both the trial court and the court below and submitted that both courts found that there was no evidence suggesting that the appellant felt threatened by the act of the deceased or was apprehensive of death or grievous bodily harm; that there was no evidence to show that the appellant tried to avoid or retreat from the deceased, especially as people around were said to have challenged the deceased for treating the appellant in that manner; and that there was no evidence of a physical attack on him. He submitted that not having appealed against the finding of the court below that there was no evidence that he was fearful for his life or of any physical attack on him, the defence of provocation could not avail him. He submitted further that having regard to his evidence that there were people around who berated the actions of the deceased, there was an opportunity to reflect on his intended action. He relied on: Inyanq Etim Akoan Vs The State (1994) 12 SCN3 140 @ 157. He submitted that there was no evidence of any words uttered by the deceased to justify the defence of provocation since provocation includes not only wrongful acts but also insults. He submitted that mere anger is no provocation. He relied on: Isaac Stephen Vs The State f!986) 12 SC 450 @ 499: Ofoke Nwambe Vs The State T1995) 3 SCNJ 77 & 93: Ekoenvonq Vs The State T1993) 6 SCNJ 191 @ 195.
He submitted that the arguments of learned senior counsel in respect of the facts upon which the defence of provocation could stand are not premised on the accepted facts as established on the printed record. He referred to the findings of fact of the two lower courts at pages 196 - 197 and 199 - 200 of the record. He argued that the submissions of the learned senior counsel cannot be a substitute for the unchallenged findings of the lower court, which rejected the plea of provocation. He submitted that the submissions of learned senior counsel were based on sentiment, which have no place in judicial proceedings. He is of the view that the court below correctly applied the principles of law to the facts of the case.
He disagreed with the contention that the lower court demonstrated a lack of understanding of the distinction between the defence of self-defence and provocation. He argued that the lower court was not invited to distinguish between the two defences and noted further that there was no appeal against the decision of the court below rejecting the defence of self-defence. He submitted that in the absence of any evidence as to the actual words exchanged in the argument between the appellant and the deceased, the lower court was right when it held that the defence of provocation did not avail him. While maintaining that the lower court reached the correct conclusion in the circumstances of this case, he argued that even if the court had confused the distinction between the two defences (not conceded), such error has not affected the justice of the case, as there has been no miscarriage of justice. He referred to: Kim Vs The State (1992) 4 NWLR (Pt.233) 17 @ 45 C - D and urged the court to resolve the issues against the appellant and affirm the judgment of the court below.
In the appellant's amended reply brief on points of law, Chief (Mrs.) Offia, SAN argued that the submissions of learned counsel for the respondent at paragraphs 4.10 - 4.26 of his brief of argument to the effect that the lower court weighed the elements of the defence of provocation against the facts before the trial court, is not supported by the record. She submitted that the lower court did not consider the defence of provocation, having determined that it could not be founded upon the same facts as those relied upon for the defence of self-defence. She therefore urged the court to discountenance the submissions.
In the event that this court holds otherwise, she submitted that learned counsel's arguments that the appellant had time to reflect on the action he was about to take, that there was no evidence of the words uttered in provocation and that anger does not constitute provocation are mere conjectures of learned counsel, which have no basis in criminal law where the prosecution is bound to prove its case beyond reasonable doubt. She contended further that the suggestion that the appellant ought to have applied reason is the antithesis of the defence of provocation, which causes the accused person momentary loss of self-control. She submitted that any gaps in the case of the prosecution, such as the absence of evidence of the word uttered, must be resolved in favour of the accused i.e. that the words uttered, if any, must have been provocative. She referred to: Gale & Anor. Vs Serious Organised Crime Agency (2011) LPELR-17843 UKSC: Oteki Vs A.G. Bendel State (1986) 2 NWLR (24) 64: Okoro Vs The State (1988) 12 SC (Pt.II) 8. In response to the contention that even if the court below confused the defences of self-defence and provocation, there was no miscarriage of justice, learned senior counsel argued that the court has a duty to consider all defences available to an accused person arising from the evidence on record and that in this case there was certainly a miscarriage of justice, as the court below did not consider the defence of provocation at all. She submitted that the act of misconstruing or confusing the defences in a criminal trial constitutes a miscarriage of justice in itself. She relied on: Ada Vs The State (2008) 13 NWLR (Pt.1103) 14.
As rightly submitted by learned counsel on both sides, in a trial for murder, the court has a duty to consider all possible defences available to the accused person on the evidence before it whether raised by him or not and no matter how stupid they might seem. See: Laove Vs The State (1985) 2 NWLR (Pt.10) 832: Ada Vs The State (2008) 13 NWLR (Pt.1103) 149: Uwaekweahinva Vs The State (2005) 9 NWLR (Pt.930) 227.
Section 286 of the Criminal Code provides:
"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault:
Provided that the force used is not intended, and is not such as to cause reasonable apprehension of death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm."
An essential feature of the defence of self-defence is that it involves a process of reasoning, the guiding principles being necessity and proportion. The person relying on it must be able to satisfy the court that he had reasonable grounds for believing that his life was in danger and that the action he took was the only available option to save his life. The test is objective. Some of the factors the court would consider are whether the force used by the accused person was proportionate to that used by the deceased, the circumstances in which the force was used, the part of the body hit in self-preservation by the accused, among others. See: Chukwu Vs The State (2012) LPELR-9829 SC @ 9 - 10 D -F: Kwaashir Vs The State (1995) 3 NWLR (Pt.386) 651: Omoreaie Vs The State (2008) 18 NWLR (Pt.1119) 464. It is also trite that where it is successfully made out, the defence is a complete defence to a charge of murder. See: Omoreaie Vs The State (supra): Apuao Vs The State (2006) 16 NWLR (Pt.1002) 227 @ 255 - 256 H - A: Baridam Vs The State (1994) 1 NWLR (Pt.320) 250 @ 262.
A defence of provocation on the other hand involves the opposite of reasoning. The elements of the defence of provocation are:
(a) The act of provocation was done in the heat of passion.
(b) The loss of self control, both actual and reasonable, That is to say, the act was done before there was time for passion to cool.
(c) The retaliation was proportionate to the provocation.
Provocation arises from an act or series of acts done by the deceased to the accused person, which would cause in a reasonable man, and did in fact cause in the accused person at the material time, a sudden and temporary loss of self control, rendering him so subject to passion as to make him or her for the moment not the master of his mind. See: Akalezi Vs The State (1993) 2 NWLR (Pt.273) 1: Stephen Vs The State f!986) 5 NWLR (Pt.46) 978: R V. Duffy (1949) 1 ALL ER 932: Oladiran Vs The State f!986) 1 NWLR fPt.14) 75. Provocation may be verbal or physical or both. What constitutes provocation is a question of fact to be determined based the circumstances of each case. See: Lado Vs The State (1999) 9 NWLR (Pt.619) 369 & 380 F. The effect of a successful defence of provocation is to reduce a conviction for murder to one of manslaughter.
Learned senior counsel for the appellant in her amended reply brief argued that the court below did not consider the defence of provocation at all. With due respect to learned senior counsel, this is not quite accurate. At pages 197 - 200 of the record, the court did consider it. It however came to the conclusion that since the trial court made the following findings: that the appellant was not apprehensive for his life or of grievous bodily harm; that there was no evidence of an attempt to avoid or retreat from the deceased; that there was no sign of physical attack on the appellant from the encounter of 3/6/2001 and based thereon held that the defence of self-defence did not avail him, the same evidence could not support the defence of provocation. On whether the appellant's temper (or passion) had time to cool, the court held that his temper had time to cool between 2/6/2001 and 3/6/2001 when they had the second encounter. I however agree with learned senior counsel for the appellant that the lower court erred in applying the same principles to the separate defences. As stated earlier, provocation involves the sudden loss of self-control. Therefore the lack of evidence of physical attack on the appellant, whether or not he was apprehensive of death or grievous bodily harm or the absence of the actual words uttered by the deceased would not be proper considerations in determining whether the appellant was provoked or not. The important consideration is whether from the facts of the case a reasonable man, and indeed the accused person, could have been provoked by the scenario that played out on the fateful day.
In the instant case, it is pertinent to bear in mind the fact that the evidence of the appellant was the only eye-witness account before the court. PW1, PW2 and PW4 were police officers involved in the investigation of the crime. PW3 was the father of the deceased who identified his corpse. PW5 was the medical doctor who carried out the post mortem examination on the deceased and the author of the medical report, Exhibit D. PW6 was the photographer who was invited by the police to take photographs of the corpse. He tendered the photographs and negatives, which were admitted as Exhibits E3 and E4 respectively. The appellant's encounter with the deceased the previous day on 2/6/2001 at the shopping centre and the fact that the deceased challenged him for not greeting him and slapped him for being disrespectful was not in dispute. As regards what transpired the following day, 3/6/2001, the appellant testified in his evidence in chief as follows:
"On 3/6/2001 1 went to the Shopping Centre again because it is a recreation centre. I went there to relax with friends. I was doing so when Ikenna suddenly re-appeared again and told me that I was not showing any sign of remorse for the insult I gave him yesterday. I asked him why I should be sorry when he was the one that attacked me for no just cause. At that point people around started challenging him. He was holding a bottle in his hand and at this point he had (sic) the bottle on one of the chairs and tried to stab me with the broken bottle. In an attempt to defend myself I saw something on the floor which I picked up and hit him with it. He fell on the ground. I cannot remember the actual place I hit him. People around came and started attending to him. I went home and explained to my mum what happened. After some time a team of policemen came to my house and arrested me."
Exhibit F is the appellant's first statement to the police made on 3/6/2001. It is in all material respects the same as the appellant's oral evidence before the court. Exhibit A was made on 5/6/2001, after the case had been transferred to State CID. It was in Exhibit A that the appellant allegedly stated that he was counselled by his friends, Friday Ogbu and Ejike Eze to retaliate

against the deceased for what happened on 2/6/2001 and advised him to go to the to the Shopping Centre on 3/6/2001 armed with a bottle or knife. The trial court considered the contents of Exhibit A along with the evidence led by the prosecution, particularly the fact that PW4, one of the investigating police officers, testifed that although he arrested Friday Ogbu and Ejike Eze, who allegedly advised the appellant to retaliate and who were with him at the time of the incident, they were subsequently released. The learned trial Judge was of the view that the release of the two suspects after investigation must have been because PW4 found the aspect of the statement regarding the advice to retaliate and to go the Shopping Centre armed with a knife or bottle to be false. The court therefore attached no probative value to that aspect of Exhibit A. There was no appeal against the finding of the court in this regard. The lower court was therefore left with the version of events as narrated by the appellant in his oral evidence and as contained in Exhibit F.
At pages 138 - 140 of the record, the learned trial Judge held as follows:
On the fact before the court it is not in dispute that the deceased on 2/6/2001 beat up the accused for not recognizing and greeting him promptly. It is also in evidence that on 3/6/2001 the deceased reappeared again to question the accused on his failure to show remorse over what happened on 2/6/2001. Exchange of words ensued and in the process the deceased tried to stab him with the broken or unbroken bottle in his hand.

Could the above be held to be sufficient provocation to what happened thereafter? I am inclined to think so. The court was not given any reason why the deceased expected immediate and prompt recognition or greeting from the accused. Which the accused failed to give and for which he was beaten up on 2/6/2001 and had to be rescued by his friends and other people around.

And the deceased coming back again the next evening raising the same issue is enough to provoke a reasonable person. Now add this to the deceased use of broken bottle to threatening (sic) the accused and it will be sufficient to provoke the accused or a reasonable person to seek a weapon with which to defend oneself.

After all, the deceased beat him up the previous day, 2/6/2001 for the same reason, he accosted him again on 3/6/2001 and there is no reason to doubt that the deceased will not use the bottle on him. The court also takes into consideration the age of the accused whether I6V2 or 18 years, still in secondary school.

Bearing in mind the evidence of what happened between the two youth, I must find that the accused certainly received grave and sudden provocation on 3/6/2001 when the deceased threatened him with a broken bottle for no reason at all. I agree that the assault and anger over the incident of 2/6/2001 must have been rekindled in the face of another threat of immediate assault and threat to life.

According to the evidence he just picked something from the floor and used it on the deceased. This shows that the accused was not thinking at all at that moment and had lost his self-control when he reacted.
There is no evidence before the court that the accused had sufficient time to cool down in the face of provocation by the deceased by his continues (sic) attack on him.
I must therefore find that the defence of provocation can avail the appellant and I uphold same."

I am of the considered view that the learned trial Judge properly appraised the evidence before him and rightly found that the -appellant established the defence of provocation. I agree that the incident of the previous day, coupled with the aggressive encounter on 3/6/2001 where the deceased not only repeated the challenge of the previous day but in addition attempted to stab the appellant with a broken bottle, was sufficient provocation that made him experience temporary loss of self-control and react on the spur of the moment, before his temper had time to cool. Indeed, at page 197 of the record the lower court itself stated thus:
"Rather, evidence shows that he met the challenge of the deceased without a second thought' (Underlining mine for emphasis)

This finding confirms the fact that the appellant reacted instantaneously by picking up something from the ground, which turned out to be a matchet, and striking the deceased with it. I also agree with the learned trial Judge that the young age of the appellant, which was stated in Exhibit F to be 18 years, is a relevant factor in considering the pre