IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 27TH DAY OF FEBRUARY 1976
MUSA SOKOTO .......................................................... APPELLANT
THE STATE .......................................................... RESPONDENT
BEFORE: Fatayi-Williams, Idigbe and Nasir, JJ.S.C.
The defendant was tried by jury and convicted of the offence of murder. The evidence was that in the presence of witnesses he had a quarrel with the deceased during which he stabbed the deceased, who died the following day.
The statements made by the defendant were admitted in evidence. In each of the statements he explained that he attacked the deceased and his friends in his effort to save himself. His defence at the trial was a complete denial and he rejected the two statements as his. The trial Judge summed up the whole evidence to the jury and directed them on the law of self-defence and also on their responsibility as to the facts. On appeal against conviction-
Although it was the duty of the trial Judge to direct the jury on any defence which could reasonably be inferred from the two statements even though the defendant had retracted them on oath, the defence of provocation was not part of the defence at the trial nor did it arise on the face of the two statements; and the summing up, when read as a whole, was not prejudicial to the defendant.
Akinrele for the appellant
Ejiwunmi (AG. D.P.P.) for the respondent.
Cases referred to.
Mancini v. D.P.P.  A.C.1.
Shittu v. The State (1970) 1 ALL N.L.R. 228.
Nasir. J.S.C. (delivering the judgment of the Court)-The appellant was tried by Bakare J. with a jury for the offence of murder of one Audu Kano. He was duly convicted and sentenced to death. He appealed to this Court. On the 5th February, 1976 we heard and dismissed the appeal. We now give our reasons.
The facts are as follows-On the 6th of November, 1971, at about 11.00 p.m., the appellant came to Daddy Alaja Street, Lagos, where he met the deceased (Audu Kano) together with some other persons including Audu Gogobiri Sokoto (P.W. 2) and Momoh Sokoto (P.W.4). The appellant and the deceased had some arguments concerning the deceased's wrist watch. This argument developed into a fight and Gogobiri (P.W.2) went to separate the combatants and the appellant stabbed him. Gogobiri left them to inspect his wound. A short time later the appellant stabbed the deceased and tried to run away. He was chased and caught. Two knives (exhibit A-a dagger and exhibit B-a pen knife) were found on the appellant. Exhibit B was blood-stained. The deceased was taken to the General Hospital and he died the following day. The accused made two statements to the police (exhibits "E" AND "F") in which he explained what happened and why he stabbed the deceased. At the trial, the defence of the appellant was a complete denial. He denied seeing Audu Kano (the deceased) on the day of the alleged quarrel and denied stabbing him. He denied owning both exhibits A and B.
The learned Counsel for the appellant argued two new grounds and abandoned the original grounds of appeal. The two grounds of appeal read:-
(i) The learned trial Judge failed to direct the jury on the issue of provocation which was implicit in the defence of the appellant.
(ii) The learned trial Judge misdirected the jury when he said "As men of wordly experience, you will realise that it is impossible for two eye-witnesses of an incident to relate in the same manner and in precisely the same details what actually took place", which misdirection affected the vital issue of the truthfulness of the evidence of the prosecution and the defence."
Mr Akinrele, in support of the first ground of appeal, referred to the two statements of the appellant (English translations exhibits E1 and F1) and argued that the two statements raised a defence of provocation. He stressed that this defence was not put to the jury. The passage relied upon in exhibit "E1" reads:-
"As we were talking about my handwatch, the deceased Audu started to beat me, then his friends started to beat me. The names of his friends were Bagobiri Fari, Bubba, Garba and Dan Katsina, all of them continued beating me. I then took a knife which was near me. When the other people saw that I took the knife some of his friends ran away, but the deceased Audu and Bagobiri continued beating me. Then I used the knife to stab the deceased Audu but I did not know the time I stabbed the deceased. I stabbed him on his right and left hands."
The relevant portion of exhibit "F" reads:
"On 6/11/71 I went to my place of work. This Audu came in company of his friends numbering about seven in number. They held me some on my leg and hands and some beating me. All my nose and mouth full of blood. They brought out this big knife in order to kill me but I managed to get hold of my pen knife and had to dagger his hands. I narrowly escaped from them into a house and if I had come out, they would have killed me."
The argument of learned Counsel was that the above passages raised a defence of provocation in addition to the defence of self-defence and that the learned trial Judge in his summing up should have directed the jury on this defence of provocation. He relied on the case of Mancini v. D.P.P. (1942) A.C.1 in which it was held that it was the duty of the judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter. We agree that the summing up should direct the jury on any defence which could reasonably be inferred from the two statements notwithstanding the fact that the appellant has retracted the two statements in his evidence on oath. This would have to be in the alternative to the main defence which was a complete denial and also alternative to the defence of self-defence. In his summing up, the learned trial Judge dealt with the possible verdicts which were open to the jury in the light of evidence as follows:-
"The following verdicts are open to you in this case. If you are satisfied that the accused person inflicted the injuries which led to the death of Audu Kano with the intent to kill or do grievous harm to the deceased, then you must return a verdict of guilty of murder. If you are satisfied that the accused person inflicted the injuries on the deceased which led to his death but that at the time he inflicted the injuries, he did not intend to kill or do grievous harm to the deceased, then your verdict must be guilty of manslaughter. If you are satisfied that the injuries on the deceased were inflicted by the accused in necessary self-defence, then your verdict must be not guilty of murder or manslaughter."
It was argued that this summing up was not explicit enough to cover the defence of provocation as raised in the two statements. We appreciate the well reasoned and forceful argument of counsel on this issue but we regret that we cannot agree with him. We are of the view that the only sensible and logical defence raised in the two statements was that of self-defence. In his defence on oath at the trial, the appellant rejected the two statements. It would be difficult in our view for the learned trial Judge in this case to deal in detail with the defence of provocation which was not part of the defence at the trial and which was not on the face of the two statements explicit. The learned trial Judge dealt adequately with the defence of self-defence which was clearly evident in the two statements. This ground of appeal fails.
In arguing the second ground of appeal, learned Counsel for the appellant argued that it was a misdirection for the learned trial Judge to say "it is impossible" for eye witnesses to relate what actually happened in the same manner and in precisely the same detail. Learned Counsel argued that the learned trial Judge had put it too high to the prejudice of the appellant. Mr Ejiwunmi, Ag. Director of Public Prosecutions replied that the appellant has had a fair trial and a fair summing up. He was not in the least prejudiced. He contended that the summing up on this complaint must be read as a whole. We agree with this submission of Mr Ejiwunmi. The summing up on any issue must be read as a whole. This we have to do as was done in Alabi Shittu v. The State (1970) 1 ALL N.L.R. 228. It is pertinent to note that in this summing up the learned trial Judge did warn the jury as to their responsibility when he said:
"Whenever I express any opinion or make any comments on any facts in this case, you are at liberty to regard me as trespassing on your province and you are entitled to reject such comments or opinion."
We are satisfied that the summing up on this issue or any other issue was not prejudicial to the appellant and therefore this ground of appeal also must fail.
In the event we dismissed the appeal and affirmed the conviction and sentence of the appellant.