FEDERAL SUPREME COURT OF NIGERIA
CITATION:  2 SCNLR 237.
ADEMOLA CHIEF JUSTICE NIGERIA
MBANEFO CHIEF JUSTICE EAST
QUASHIE-IDUN CHIEF JUSTICE - WEST
RISKUWA SHANAWA APELLANT
SOKOTO NATIVE AUTHORITY RESPONDENT
ADEMOLA, C.J.F. (Delivering the Judgment of the Court): The appellant was convicted and sentenced to death in the Court of the Sultan of Sokoto of the offence of culpable homicide contrary to Section 221(a) of the Penal Code. His appeal to the High Court, Northern Region, was dismissed and he has now appealed to this Court.
The facts are shortly as follows: the deceased drove his cattle to the appellants farm on two occasions and the appellant on each occasion drove them out. The deceased on the second occasion threatened to return next day and that he would kill the appellant. He came; went straight to the appellant, abused him and threatened to kill him. The altercation resulted in a fight with sticks after the deceased had struck the appellant twice. During the fight which ensued each dropped his stick and they got hold of each other. The deceased pinned the appellant down on the ground and held the tuft of the hair of his head whilst the appellant held the deceaseds rotaya or necklace. The hold to the tuft of the hair was so hard that all those who came to separate them were unable to get the deceaseds hands off. The appellant in his agony drew out a knife from its sheath and gave the deceased a cut in his hand; the deceased did not leave off; he then stabbed him in the ribs. The deceased held on to the hair. The fight continued with the deceased still holding on to the appellants hair. To separate them, one of the men who came to the scene cut off the appellants hair which the deceased was holding and so released him. The deceased was then seen unable to stand with a wound in his ribs. He was carried to the dispensary where he died that night.
The ground of appeal which was put up for our consideration was one of provocation. It was agreed that the appellant used the knife during an agonizing pain and as a last resort to free himself. The force with which the hair was held, it was argued was evidenced by the fact that the portion of hair in the grip of the deceased had to be sawn off before the appellant was re-leased.
This point was taken on appeal in the Court below, and the learned Judges of Appeal stated they were not in a position to disagree with the findings of the Sultans Court which stated that the court took into consideration that Riskuwa (Appellant) is a man who has attained his majority, mature, and at the time when there was no severe provocation cannot stab the deceased Juli on the ribs if he had not intended to cause Julis death from the beginning. In other words, the provocation was not enough for a mature man to deprive him of self-control.
We are unable to accept that the learned Judges of Appeal were not in a position to disagree with the findings of the Sultans Court. In the first place, the appellant was stated to be about 25 years of age and it appears to us unfair to place such a high degree of self-control in the circumstances of this case to one of that age. The test to be applied is whether the provocation was sufficient to deprive a reasonable man of his self-control, not whether it was sufficient to deprive of his self-control the particular person charged - See R. v. Lesbini 24 Cox, 516;11 C.A.R. 7 and R. v. Alexander, 23 Cox, 604; 9 C.A.R. 139. It appears in the present case it was accepted that there was no severe provocation in the fact that the deceased held on and pulled the appellants long hair so violently. Whilst we are prepared to say that every pulling of an adversarys hair cannot be regarded as an act of provocation, we are of the view that the circumstances of this case deserved more consideration than it has received in the hands of the trial Court. From the evidence before the Court, it would appear that the deceased who pinned the appellant down held on so hard to the tuft of the hair on the appellants head to the extent that it must have excited the appellant and caused him agonizing pain. He had nothing with which he could stave off the grip of the deceased and to disengage the hands of the deceased, he took out his knife from its sheath and gave the deceased a cut in his hand. Still the deceased was relentless in his grip and the appellant then gave him a stab wound in his ribs. Not-withstanding this, the deceased still hung on to the hair of the appellant determined to get them out by the roots and not until two men came along and sawed the tuft of the hair off-that in itself a painful operation-leaving the end cut off in the deceaseds hand. Thus was the appellant freed. The deceased then walked off a distance and fell down. It was not until then it was noticed that the deceased had been wounded in his ribs. He was eventually taken to the dispensary where he died later that night. The evidence of the dispensary attendant, for all it was worth, was that the wound in the ribs of the deceased caused his death. There was no evidence that he received any treatment in the dispensary; this however, does not affect the case one way or the other.
The trial Court it would appear failed to consider the effect of Section 222(4) of the Penal Code, which is as follows:-
Culpable homicide is not punishable with death if it is com-mitted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
In considering this subsection, this is what the Judges of Appeal said:-
It was argued that the trial Court erred in not considering whether the appellant stabbed Juli without premeditation in a sudden fight in the heat of passion upon sudden quarrel and with-out having taken undue advantage: Section 222(4) of the Penal Code. The trial Court in fact does not appear to have considered this defence. On the evidence, the appellant did act in a sudden fight and was in a heat of passion upon a sudden quarrel. And we see nothing in the evidence to show that he acted with premeditation. To that extent, incidentally, we think that the trial courts finding that the appellant intended to cause Julis death from the beginning went further than was justified by the evidence. But we do not think that any failure of justice was occasioned by the omission to consider the defence provided by Section 222(4), because in our judgment the appellant took an undue advantage disentitling him to the protection of the subsection.
With respects, we find we are unable to agree with the conclusions reached by their Lordships on this point. We fail to see the undue advantage taken by the appellant which should deprive him of the protection of the sub-section. The appellant did not begin the attack in circumstances of undue ad-vantage; the deceased provoked the fight; he had threatened to kill the appellant; he started the fight by dealing the appellant two blows; there was no evidence that the appellant premeditated the death of the deceased; they were fighting on equal terms until the deceased attempted to pull the scalp of the head of the appellant off by pulling vigorously the long hairs of his head. Even a small wound inflicted on his hand did not help to disengage his grip on the hair. We are of the view that in the course of the fight in such circumstances, the fact that the appellant in his passion and whilst in agony, as has been described pulled out his knife and stabbed the deceased, he cannot be said to have taken undue advantage and to have acted in a cruel manner. In this connection we are not in a position to say, as did the learned Judges of Appeal, that the cases R. v. Snow, 1 Leach 151; 1 East P.C. 244; R. v. Taylor, 5 Burr. 2793 to which they referred, supported the case against the appellant; the two cases and the case R. v. Anderson, 1 Russell on Crime (9th Edition) 406 rather, in our view, support a verdict of culpable homicide not punishable with death against the appellant.
In our opinion, on a proper consideration of the whole evidence before the Court it is apparent that the appellant was deprived of the power of self- control by grave and sudden provocation as to reduce the offence to one of culpable homicide not punishable with death contrary to Section 222(1) of the Penal Code. We therefore substitute this for the verdict of culpable homicide punishable with death contrary to Section 221(a) of the Penal Code for which the appellant was convicted.
The appellant is sentenced to a term of 7 years imprisonment with hard labour.