AYABA v. THE STATE

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CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The appellant, and his co-accused persons/ were arraigned at the Yauri Judicial Division of the Kebbi State High Court 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 appellant, the case went to trial. The Prosecution’s case was presented by five witnesses. The following exhibits were tendered, namely, exhibits A and A1, the first accused person’s statements; exhibit B, medical report; exhibits E and E1 and F and F1, statements of the second accused person; exhibits, G, H and H1, two cutlasses and their shields, respectively.
The appellant, who testified as DW2, denied knowledge of the Prosecution’s witnesses. He equally, disclaimed any knowledge of the incident that prompted his trial. The Prosecution’s case was that on April 28, 2007, at Jajjaye village, Shanga Local Government Area, the appellant, and a 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. The co-accused person 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 he [the appellant], saw the deceased person on the ground, he cut him [the deceased person] on the head whereupon he [the deceased person] died.
The High Court (hereinafter, simply, referred to as the trial Court) convicted and sentenced them to death. Having lost his appeal at the Court of Appeal, Sokoto Division, the appellant, further appealed to this Court entreating it to determine a sole question his counsel framed thus:
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?
The respondent adopted the sole issue. The appeal would, therefore, be determined based on this sole issue.
ISSUE FOR DETERMINATION
APPELLANT’S SUBMISSIONS
At the hearing of this appeal on February 22, 2018, Adedapo Tunde-Olowu, learned counsel for the appellant, adopted the brief filed on June 13, 2016, although, deemed properly filed and served on February 22, 2018.
It was conceded that the appellant did not adduce evidence of provocation in his defence. It was nonetheless, contended that the trial Court should have considered all defences available to him whether he raised them or not, Uche Williams v State (1992) 8 NWLR (pt 261) 515,522; R v Fadina [1958] SCNLR 250; Udofia v State[1984] 12 SC 139; Laoye v State [1985] 2 NWLR (pt 10) 832, 833; Lado v State [1999] 9 NWLR (pt 619) 369,382; Eyop v State (2012) LPELR – 20210; Edoho v The State (2010) LPELR – 1015 (sic).
He cited an excerpt from the judgment of the lower Court and opined that the appellant’s grouse was that it [the lower Court] erred. Counsel submitted that, from exhibits D; A; A1; E; E1; F and F1, being appellant’s statements to the Police, the elements of provocation were evident and should have been considered. He submitted that by the combined reading of exhibits D, the statement of PW2, exhibits A and A1, the accused person’s statements, it was obvious that there were elements of provocation.
It was submitted that the provocation here was a combination or series of acts. In his submission, as a defence, provocation consists of three elements, the act of provocation, otherwise referred to as the provocative incident; the loss of self-control which must be both actual and reasonable and the retaliation or mode of resentment which must be proportionate to the provocation, Uwagboe v The State [2008] All FWLR (pt 419) 425 – 448; Jideonwo v The State [1997] 1 NWLR (pt 209) (sic); Biruwa v The State [1985] 3 NWLR (pt 11) 167. These three fundamental elements must co-exist for the defence to succeed, Agunbiade v The State {1999} 4 NWLR (pt 599) 391; Akang v The State (I971) ANLR 48, 51.
Learned counsel canvassed the view that the three elements of provocation co-exist in the circumstances of this case. In his submission, the exhaustive acts or words that are likely to cause provocation have not been judicially laid down. Thus, the question whether a particular act, abuse or insult

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constitutes provocation is a question of fact, Lado v The State [1999] 9 NWLR (pt 619) 369, 380.
He thus contended that the Court is required to take into consideration the accused person’s background and his status in life and to determine whether an ordinary person in the accused person’s social standing would have been provoked by such act, abuse or insult, R v Akpankpan [1956] SCNLR 3; Kumo v The State (1967) ANLR 309.
He contended that it was clear from the evidence that the appellant was not only abused but was also attacked during the fracas. He referred to the PW2’s statements to the Police dated April 29, 2007, exhibit D1 and exhibits A and A1, first accused person’s statement to the Police, citing Ladds case at page 371; William v The State (1992) 8 NWLR (pt 261) 515, 516-517.

He contended that the Prosecution failed to prove the absence of provocation..The lower Courts, in his submission, failed to consider all the defences which were manifest in the evidence, Lado (supra) at page 373. Accordingly, he invited the Court to consider the said defence and set aside the appellant’s conviction, Anekam and Ors v The State (1971) ANLR 53, 57; Kechi v The Queen (1963) 1 All NLR 333; Shande v The State [2005] All FWLR (pt 279) 1342. He urged the Court to allow the appeal.
RESPONDENT’S ARGUMENTS
On his part, S. M. Kibo, Assistant Director, Public Prosecutions, Ministry of Justice, Kebbi State, for the respondent, adopted the brief filed. on December 18, 2014. It was contended that the duty of the Court is to consider all defences raised by evidence in the record no matter how weak or stupid, Abdullahi Ada v State(2008) 3 NCC 549, 551 – 553.
Learned counsel cited Section 222 (1) of the Penal Code and Abdullahi Ada v State (supra) 182, 189 – 190. He contended that the lower Court’s opinion was right, citing page 112 of the record. He pointed out that the lower Court evaluated the convicted person’s statement, exhibit E1 and the appellant’s statement, exhibit F1, pages 110, 111, 113 and 114 of the record. He reproduced exhibit A1, page 13 of the record and the statement of PW2 to Gano Jaye, pages 11 and 29 of the record.
He explained that, from that page, it was obvious that the exact words which the deceased person used in abusing the appellant were not set out. This, in his submission, would have assisted the Court in determining whether such words were capable of inducing provocation, Frank Uwagboe v The State (2008) 3 NCC 636, 638; Uwaekweghinya v The State [2005] 1 NCC 369, 372.
It was pointed out that, in exhibit D1, neither the deceased person nor Gano Jaye stated that they hit anybody. On the contrary, it was the appellant and his group that started biting Gano Jaye. The deceased person only came and stood in between them to stop them from biting the said PW2, Gano Jaye.
Counsel pointed out that, in exhibit A and A1, it was not stated that the deceased person cut anybody. On their part, neither the first accused person nor the appellant, in their statements in Court and before the Police, exhibits A and A1; D, E, E1, F and F1, indicated that either the PW2, Gano Jaye or the deceased person inflicted any injury on any of them. He submitted that the Prosecution’s evidence removed any iota of the defence of provocation from the case.
He invited the Court to find that, from the concurrent findings of the lower Courts, neither the defence of provocation nor any other defence availed the appellant. What is more, the appellant failed to show that the findings were perverse. He, then, urged the Court to affirm the conviction and sentence which the lower Courts awarded the appellant.
RESOLUTION OF THE ISSUE
As indicated earlier in this judgment, learned counsel for the appellant inveighed against the judgment of the lower Court on the ground that it failed to consider all the defences which were manifest in the evidence,” citing Lado (supra) at page 373. Is there any justification for this allegation?
My Lords, due to counsel’s imputation against the lower Court, I would revert to the judgment of that Court to determine the veracity vel non of learned counsel’s submission. First, I invite attention to page 109 of the record. The Court proceeded thus:
Counsel for the appellant argued that the trial Court did not consider the angle of provocation regarding the fight that occurred during the traditional marriage ceremony on the fateful day…
…the appellant did not raise the issue of fighting or being provoked by the deceased [person] and his retaliation, in his viva voce evidence before the trial Court…
[Italics supplied for emphasis]

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The Court set out excerpts form exhibit F1, and found that:
From the above, the appellant was not at all provoked in any fight and that in fact, the deceased [person] did not provoke him. According to the appellant in exhibit F1, it was the first accused (person) (now the first convicted person), Wakil Magaaji, that was provoked and was the one that inflicted a cut on the deceased (person) with a cutlass. The appellant who was not provoked and especially who was not provoked by the deceased (person) at all, inflicted a cut on the head of the deceased (person), with his sword, and he fell to the ground.
Clearly, therefore, exhibit F1 did not raise any issue of provocation of the appellant by the deceased [person]. Further, therefore, no evidence was led in Court by the appellant in his oral testimony, by the prosecution witnesses in their oral testimonies and by the appellant in his confessional statement in exhibit F1 raising the defence of provocation of the appellant by the deceased [person] in a fight. So the trial Court would not have been said to have failed to consider the defence of provocation in respect 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.
(Pages 111 – l12 of the record; italics supplied for emphasis)
My Lords, I entertain no doubts that, from the above excerpts, the lower Court, actually, considered the possibility of the inurement of the defence of provocation in favour of the appellant. The truth, however, is that the said Court did. It was after that exercise that it came to the conclusion that “…the trial Court would not have been said to have failed to consider the defence of provocation in respect 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.”
[Page 112 of the record; italics supplied for emphasis] Against this background,I take the view that learned counsel for the appellant, unfairly, pilloried the lower Court’s findings and conclusion. I find no justification for that indefensible approach. 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, Umani v. The State (1988) 1 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 of the/a Court, is 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) 7 SCNJ (pt. 1) 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 (1971) ANLR 53 and Okpere v. The State (197) (sic) ANLR 1; Grace Akpabio and Ors. v. The State (1994) 7-8 SCNJ. (Pt. III) 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] In the earlier case of Ogbodu v State (1987) 3 SC. 497, 304, Obaseki, JSC, had expressed similar views thus:
There is no duty on the Court to unearth any defences in order to make a finding on it. lt is, however, the duty of the Court to consider all defences implicit in the evidence though not specifically raised.
(Italics supplied for emphasis)

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From all I have said above, 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.
In all, therefore, I hereby enter an order dismissing this appeal as it is bereft of any redeeming feature. Appeal dismissed. I affirm the concurrent findings and conclusion of the lower Courts. In consequence, I, further, affirm the lower Courts’ conviction of, and sentence on the appellant. Appeal dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The appellant herein and another were arraigned before the High Court of Kebbi State sitting at Yauri on a single count of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code. It was alleged that on or about the 28th day of April 2007 they inflicted injuries on the deceased, one Marwani Magaji, (m), which led to his death.
They both pleaded not guilty to the charge. The prosecution called 5 witnesses and tendered four exhibits, including the confessional statement of the appellant in English and Hausa Language marked Exhibits F and F1. The appellant and his co-accused testified in their own defence.
In a considered judgment delivered on 29/7/2009 they were found guilty as charged, convicted and sentenced to death. The appellant appealed to the lower Court. His appeal was dismissed on 7/12/2011. The sole issue for determination before the Court of Appeal was whether the defence of provocation availed him. It was the appellant’s contention that the trial Court failed to consider the defences open to him.
In resolving the issue, the Court of Appeal referred to an excerpt of the appellant’s statement, Exhibit F1 and made findings thereon. The Court held at pages 110-112 of the records:
“Exhibit F1 reads in parts –
…I could remember on 28/4/2007 at about 22hrs we went to Azongono garba house for a traditional dance and I was together with the following people Wakili Magaji, Kwashe Magaji, Boka Magaji, and my father named Ayaba Yari. When he reached there we sat down outside together with Koshi Magaji and Boka Magaji when we were sitting outside we then saw Wakili Magaji has come and pick a stick I then ask him whether everything is alright but he did not say anything. We then followed him inside the house and saw people gathered. I then went there I saw people fighting with stick but cannot identify the person that started the fight. I then saw Gano Magaji took to his heel. And one Marwani Magaji who is now late was annoyed and was very aggressive which made Wakili Magaji to be provoked and remove his cutlass and cut him on the shoulder where he fell down on ground, then when I came, I removed my sword and cut him on his head and he fell on ground too…….”
From the above, the appellant was not at all provoked in any fight and that in fact, the deceased did not provoke him. According to the appellant in Exhibit F1, it was the 1st accused (now the 1st convicted person) Wakili Magaji, that was provoked and who was the one that inflicted a cut on the deceased with a cutlass. The appellant who was not provoked and especially who was not provoked by the deceased at all, inflicted a cut on the head of the deceased, with his sword, and he fell to the ground.
Clearly, therefore, Exhibit F1 did not raise any issue of provocation of the appellant, by the deceased. Further, therefore, no evidence was led in Court by the appellant in his oral testimony, by the prosecution witnesses in their oral testimonies and by the defence of provocation of the appellant by the deceased in a fight. So the trial Court would not have been said to have failed to consider the defence of provocation in respect 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.”
(Underlining mine).
The Court held further at page 114 of the record:
“…the nature of the provocation by the deceased was on the 1st convicted person Wakili Magaji and was only an attempt to slap Wakili Magaji, not the appellant. Again it was the 1st convicted person Wakili Magaji that was “provoked” and not the appellant.
As stated earlier, the confessional statement of the appellant and all the other evidence before the Court did not raise or allude to any provocation by the deceased on to the appellant.

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It is therefore difficult to see, appreciate or accept the submission of learned counsel to the appellant at paragraph 4.9 of the appellant’s brief, that:
“….. the learned trial Judge was in grave error when he considered the aspect of provocation on the issue of elopement of PW2 with the wife of the Appellant’s younger brother Koshi Magaji about 4 years ago without considering the aspect of provocation that occurred at the traditional marriage ceremony, which is relevant in the circumstances and which indeed, caused the appellant to draw his sword in retaliation as self defence.”
No. The trial judge was right when he limited himself to the issue of elopement as that was the only defence of provocation that was alluded to and even that failed because it was too remote to provide provocation and it was not the person who stole the wife that provoked anybody. The defence of provocation that occurred at the traditional marriage ceremony was not connected to the appellant at all but to the 1st convicted person. That point was only raised in appeal and it has no supporting evidence.
The Court below found that there was no evidence of provocation and that the appellant and his co-accused were in fact the aggressors.
He has raised the same issue before this Court, to wit:
“Whether the Court of Appeal was right in holding that there was no evidence of provocation to be considered in favour of the appellant nor was it raised or alluded to at all in the evidence before the Court.
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: Uwaekweghinya Vs The State (2005) 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.
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.
The Court below, in my considered view, carefully examined the evidence on record and rightly found that the defence of provocation did not avail the appellant.
From his own showing in Exhibit F1, he was not the person allegedly provoked. He stated that the deceased was aggressive,
“which made Wakali Magaii to be provoked and remove his cutlass and cut him on the shoulder where he fell down on the ground.”
(Underling mine).
According to him, it was at this stage, after the deceased had fallen to the ground, that he removed his sword and struck him on the head.
There are concurrent findings of the two lower Courts on this issue, which have not been shown to be perverse. I am not persuaded to interfere. I find no merit in this appeal. It is hereby dismissed. The judgment of the lower Court is affirmed.
EJEMBI EKO, J.S.C.: I stand on the summary of facts of adroitly made in the lead judgment just delivered by my learned brother, CHIMA CENTUS NWEZE, JSC.
The complaint of the Appellant, condensed into the sole issue formulated for the determination, is –
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.
In paragraph 4.22 of the Appellant’s Brief the learned Appellant’s counsel submits inter alia.
Unfortunately, both the trial Court and Court below failed to consider all the defences of provocation which was manifest in the evidence before the Court.
This appears to be a rehash of the same posture at the lower Court.
A. D. Yahaya, JCA, prepared the lead judgment of the lower Court that was unanimously adopted by Amiru Sanusi JCA (as he then was) and A. Alkali, Abba, JCA. The lead judgment is a twenty (20) page document. Ten (10) pages out of the 20 page document were devoted exclusively to the issue of provocation raised in the Appellant’s Brief of Argument at the lower Court. It is accordingly not fair to the lower Court to suggest in this Court that “the Court below failed to consider all the defences of provocation” available in

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the printed record of appeal before it.
The lower Court, at page 109 of the record, found from the defence testimony of the appellant at the trial Court a plea of alibi wherein he “had denied in toto ever being at the scene or even knowing the prosecution witnesses”. It is on this basis that the lower Court found, correctly in my view, thus –
So the appellant did not raise the issue of fighting or being provoked by the deceased and his retaliation, in his vivo voce evidence before the trial Court.
The defences of alibi and the provocation are inconsistent and mutually exclusive. The accused person who pleads alibi can only be understood to say that he, being elsewhere and not at the scene of crime, knows nothing of the facts constituting the alleged offence. In effect he denies both the actus reus and the mens rea, particularly the actus reus. On the other hand, the defence of provocation clearly admits the actus reus, but not the mens rea. Provocation merely denies criminal responsibility. I think the passage in Lord Simon’s opinion inHOLMES V. DPP (1946) 2 ALL E. R. 124 best illustrates this point and I here below reproduce it –
The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden temporary loss of self-control whereby malice, which is the foundation of an intention to kill or to inflict grievous bodily harm is negative.
It is logical therefore to suggest or propound that the man who pleads alibi and denies stoutly “ever being at the scene” of crime cannot, at the same time, be heard to plead provocation as his defence to the same offence. With the plea of alibi there is no evidence on which the defences of provocation and self-defence can be pegged.
Exhibit F1, the appellant’s extra-judicial statement was retracted. The lower Court, nonetheless, considered it vis-a-vis whatever prospects it may hold in the defence of provocation. The appellant had averred, in Exhibit F1, that before he came to the scene of crime people were fighting with sticks, and added –
I then went there. I saw people fighting with sticks but I cannot identify the person that started the fight. I then saw Gano Magaji took to his heel. One Marwani Magaji who is now late was annoyed and was very aggressive which made Wakili Magaji to be provoked and remove his cutlass and cut him on the shoulder where he fell down on ground, then when I came, I removed my sword and cut him on his head and he fell on ground too –
The lower Court found in its judgment, particularly at page 111 of the record, that the appellant, from the above,
Was not at all provoked in any fight and that in fact, the deceased did not provoke him.
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. lf, 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.
The lower Court found from Exhibit F1, and I agree, that even if the 1st Accused was provoked by the act of the deceased, the appellant cannot stand on that fact to plead that the deceased did infact provoke him. We would be over stretching the statutory defence to agree with the appellant in the circumstance. The lower Court was, at page 112 of the record, emphatic in its finding that “clearly, Exhibit F1 did not raise any issue of provocation of the appellant by the deceased”. The finding of fact cannot be faulted.
The only issue formulated for the determination of this appeal is: 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? From my foregoing stance, and in view of the elaborate consideration given to this issue by my learned brother, CHIMA CENTUS NWEZE, JSC, in the lead judgment, this issue is resolved against the appellant.

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There is no substance in this appeal. It is accordingly dismissed in its entirety. The decision appealed is hereby affirmed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Nweze JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The sole issue submitted for determination of this appeal has been sufficiently resolved by my learned brother in such a way that anything I add would amount to a repetition. For the same reasoning as articulated by my learned brother, which I adopt as mine, this appeal shall be and it is hereby dismissed by me as well.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Chima Centus Nweze, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed by me. I abide by all the orders contained in the lead judgment.