IN THE SUPREME COURT OF NIGERIA

CITATION:[2000] 13 WRN 150 (2000)4 S.C.(PART I) 203

CORAM
SALIHU M. ALFA BELGORE                                                 JUSTICE, SUPREME COURT
EMMANUEL O. OGWUEGBU                                              JUSTICE, SUPREME COURT
SYLVESTER U. ONU                                                             JUSTICE, SUPREME COURT
OKAY ACHIKE                                                                       JUSTICE, SUPREME COURT
UMARU. ATU. KALGO                                                         JUSTICE, SUPREME COURT

BETWEEN
SUNDAY IHUEBEKA                                                             APPELLANT

AND

THE STATE                                                                          RESPONDENT

E.O.OGWUEGBU JSC.: (delivering the leading judgement)

JUDGMENT

From the facts disclosed in Exhibit "1", the evidence of the accused on oath at the trial and the evidence of the prosecution witnesses, l have no doubt in my mind that the victim died as a direct result of the voluntary act of the accused and the learned trial judge and the court below came to right conclusion. It is therefore immaterial to me in the determination of the appeal whether Exhibit "1" is a confessional statement of the offence murder or not.

The medical officer who performed the autopsy was away In Saudi Arabia and It was impossible to reach him. It is an accepted principle of law in homicide that where the cause of death is obvious as in the instant case, medical evidence ceases to be of practical legal necessity. See Enewoh v. The State (1989) 4 NWLR. (Pt.119) 98. The deceased died almost immediately from the voluntary act of the accused.

I am left with the question whether the defence of provocation which is argued on behalf of the accused was established in order to reduce the offence of murder to that of manslaughter. The accused in Exhibit "I" alleged that he was provoked that morning "because of home trouble" and that he "took the decision of killing his father and his wife Mrs. Grace Uluebeka." In the said Exhibit "I" he alleged that his parents were worrying him because of his ill-health and the fact that he had no money. He repeated the alleged acts of provocation in his evidence.

The courts below rejected the defence of provocation. They did not believe the accused that he inflicted the matches cuts on his wife and father (deceased) in the house. The trial judge held as follows: "I hold on the evidence before me that even if it was true that the deceased‘s wife, 1st PW. and accused person‘s wife ridiculed him because he had lost his job and that accused person should leave the father‘s house with his wife, the statements do not amount to provocation. Even if the words amounted to provocation, it is my view that the accused person had enough time between the time he matcheted his wife at home and the time he walked to the farm where the deceased was, for his passion to cool."

The courts below agreed with the trial court that the words do not amount to provocation in law and even if it did, the accused had enough time between the time he inflicted the injuries on his wife at home and the time he went to the farm where the deceased was, for his passion to cool.

Even though the accused set up the defence of provocation, no amount of provocation can excuse homicide or render it execusable except by virtue of section 318 of the Criminal Code which provides:

"When a person 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 only.”

In R. v. Duppy (1949) 1 All ER. 932 Devlin, J. defined provocation as:-

"some act or series of acts done by the deceased to the accused which would cause in a reasonable person, and actually does cause in the accused, a sudden and temporary loss of self-control, rendering him so subject to passion as to make him for the moment not master of his mind."

I am not persuaded by the argument of the learned counsel for the accused that the provocation alleged in this case was sufficient to reduce the offence of murder to that of manslaughter by virtue of Section 318 of the Criminal Code. I have considered all the circumstances which led to and resulted in the killing of the deceased from the point of view of what would amount to provocation in the case of a reasonable person in Nigeria of the standing in the life as the accused in consequence of the alleged provocation as contained in Exhibit "1" and I am satisfied that no reasonable Nigerian of the same standing in life as the accused will be so rendered subject to passion or loss of self-control as to be led to use such violence leading to fatal result. The circumstances were not such as to make the accused lose his self-control as to inflict those matchet cuts on his father. He could also not be said to have acted in the heat of passion when after inflicting those matchet cuts on his wife at home, he proceeded to the farm to inflict the deadly cuts on his father. See John v. Zaria N.A. (supra) Nomad v. Bornu Native Authority (1954) 21 NLR 31. The Queen v. Akpakpan (1956) 1 FS. 1 at 2 and Ruman v. Daura N.A. (1960) 5 FSC. at 93. Certainly there was enough time for his passion to cool and reason to gain control of his mind.

Furthermore, the infliction of fatal matchet cuts on the deceased by the accused as a mode of resentment bore no relationship to the provocation offered. I agree that words alone can constitute provocation as to reduce the offence of murder to manslaughter but from all I have  said in this judgment, such word, if any, did not satisfy the requirements set out in Section 318 of the Criminal Code. The words themselves must be of such a provocative nature as to incense a reasonable man of the accused‘s standing in life and education to lose his self control. See Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at 114 and The Queen v. Akpakpan (supra). I have seen nothing in the evidence of the prosecution witnesses and that of accused person himself that would have led the trial judge to any verdict other than that of guilty of murder. The court below were right in their conclusions.

I find no merit in the appeal and I dismiss it for the reasons given above. The conviction and the sentence of death imposed on the accused are hereby affirmed.

S. M.A. BELGORE, JSC.:The appellant no doubt killed his father after inflicting grievous hurt on his wife. I find no reason to interfere with the well reasoned judgment of Court of Appeal which affirmed the decision of trial High Court. For the fuller reasons in the judgment of my learned brother, Kalgo JSC, I also dismiss the appeal as totally lacking in merit.

S. U. ONU, JSC.:I was privilege before now to read in draft the judgment of my learned brother Ogwuegbu, JSC. I am in entire agreement with him that the appeal lacks merit and it is accordingly dismissed by me. I wish to comment on the case briefly as follows:-

My learned brother has ably reviewed the facts which in, my view, are so clearly indisputable that I do not intend to repeat them here. Suffice it to say, that the learned Appellant‘s Counsel having withdrawn additional grounds 1, 2 and 3 of the grounds of appeal upon which issue 1 is founded, they were accordingly struck out. Left with only Issues 2, 3 and 4, learned Counsel made a succinct general comment on them by urging us to allow the appeal, failing which we were urged to return a verdict of manslaughter, I will now consider Issues (II) and (III) together and then Issue No. IV separately thus:

ISSUES NO. II & III. These issues first taken together ask:

(ii) Whether the trial of the Appellant on 24th day of October, 1990 with the learned trial Judge acting as the prosecutor, and the Judge was contrary to Section 33 of the Constitution of the Federal Republic of Nigeria 1979, which occasioned miscarriage of justice,

(iii) Whether Exhibit ‘1’ can be classified a confessional statement of the Appellant for murder.

The learned Counsel for the Appellant on Issue (II) above submitted inter alia that the failure of the learned trial Judge to resolve the allegation of lack of confidence in him undermined or compromised the Appellant‘s right to fair hearing as guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) (hereinafter referred to as the (Constitution). This grave allegation, was also not disclosed by the Court to the Appellant for inexplicable reasons but that this unresolved allegation left the integrity of the Court hanging, thereby eroding the confidence in the entire proceedings and judgment.

Appellant further expatiated in his written Brief that the failure of the learned trial Judge to resolve the allegation of lack of faith hereinbefore referred to, coupled with the failure to inform him throughout the trial of the allegation by his former counsel against the Court, constituted a breach of the rule of natural justice or fair hearing The net result, it was further argued, was to have declared the decision null and void. Reliance was placed on the case of Adigun v. A.G. of Oyo State (1987) I NWLR (Part 53) 678 and Section 33(6) (c) of the Constitution (as amended) the latter which states that.

(6)   "every person who is charged with a criminal offence shall be entitled:

(c)     to defend himself in person or by legal practitioner of his own choice." And

Section 352 of the Criminal Procedure Law Laws of Bendel State 1976, Cap, 49 (applicable to Edo State) which provides that:

"Where a person is accused of a capital offence the State shall if practicable be represented by a Law Officer or Legal Practitioner and if the accused is not defended by a Legal Practitioner the court shall, if practicable assign a Legal Practitioner for his defence."

After our attention had been drawn to consistent previous decisions of this Court deprecating unfair trial and particularly failure to make available comprehensive facts of a case to an accused person, concealment of suppression of facts from him, we were referred to the cases of Denloye v. Medical Dental Practitioners Disciplinary Committee (1968) ANLR. 298 (Reprints), Odofin Bello v. The State (1968) ANLR. 298 at 302 and 303 (per Ademola, CJN.) and Modern Bar Advocacy Honourable Justice C.A. Oputa, Appellant in addition cited the case of Mohammed v. The State (1991) 5 NWLR (Part 192)438 at 456 as per Olatawura, JSC. and Hameed Apampa v. Balogun – Suit No. 1/211/65 of October 20, 1970 per Aguda, J. (as he then was) to buttress his argument in illustrating that the Appellant was deprived of his right to fair hearing which occasioned a miscarriage of justice, it was further submitted that the learned trial Judge did not make the necessary disclosure, had concealed or suppressed from the Appellant as well as the substitute Counsel the allegation of lack of faith made against him. Learned Counsel after classifying what may amount to a confessional statement of the Appellant for murder, contended that the extra-judicial statement of the Appellant was erroneously classified as a confessional statement by the learned trial Judge and affirmed by the learned justices of the Court of Appeal whose findings thereon were perverse in that the Appellant never confessed to killing the deceased as charged. It was contended that for Exhibit 1 to qualify as confessional statement the Appellant who was alleged to have made it must admit or agree clearly, precisely and unequivocally in the statement that he committed the offence with which he is charged, to wit: that a confession must be direct and positive. The cases of Gbadamosi v. The State (1992) 9 NWLR (Part 266) 465 at 478 and 479 and Raimi Adebisi Afolabi v. Commissioner of Police (1961) ANLR 682 (Reprint) were cited in support of the proposition.

In Exhibit "1", it is stated that the Appellant killed the deceased under provocation. It is further argued that the learned Justices of the Court of Appeal relied heavily on that confessional statement to murder and incorporated same in the judgment convicting the Appellant and that this serious misdirection in misconstruing Exhibit ‘I‘ as a confessional statement, has occasioned a miscarriage of justice which furnishes a ground of quashing the conviction. It was further submitted that the Appellant made no confession to murder as wrongly held by the learned justices of the Court below, addition; that in tne absence of any direct evidence to sustain the charge of murder, the circumstantial evidence not being cogent, complete and unequivocal, supported the offence of manslaughter, adding that as the circumstantial evidence is equivocal, the Court should be wary to convict on it. The case of Michael Peter v. The State (1997) 12 NWLR (Part 531) 1 at 19 was called in aid. It was therefore maintained that where a reasonable doubt was created by the evidence given by either the prosecution or the defence as to the guilt of the accused for the offence charged, the benefit of doubt should enure in his favour The case of Akpabio v. The State (1994) 7 NWLR (Part 359) 635 at 670 was cited in support thereof, stressing that for the doubts highlight, a verdict of discharge and acquit all or in the alternative, a conviction for the offence of manslaughter in view of the unrebutted evidence of provocation, was the appropriate verdict to arrive at.

In respect of Issue II, it is pertinent to point out firstly, that when on 24th October 1990, this case was called (see page 13 of the Record), the learned State Counsel prosecuting the case was absent while Mr. J.O. Udaxe, Counsel for the Appellant was present in Court. Inspite of the absence of the State Counsel, the trial Judge proceeded with the trial whereby the Appellant gave evidence and was not cross-examined. (See page 14 of the Record), Mr. Udaze further addressed Court and the case was adjourned for judgment. It is therefore not trite that a reading of the proceedings of 24/10/90 reveals clearly that the Appellant had no fair trial. Should anyone complain, it is the State that was not represented that ought to do so but surely not the Appellant. Clearly, the Appellant‘s grouse is groundless more so, that defence evidence, I agree with the Respondent for submitting that the learned trial Judge was right when he carried on with the case in the absence of the prosecution. This clearly did not occasion any miscarriage of Justice.

Moreover, the decisions of the two courts below constitute concurrent findings of fact warranting no interference whatsoever. See Mora & Ors. v. Nwalusi & Ors. (1962) 1 ALL NLR Part 4 681.

If the Appellant was not represented by Counsel, how then could the learned trial Judge have been shown to be in error? It is not correct to suggest that the record of proceedings depicts that the learned trial Judge either conducted the case of the prosecution for it or even put a question to betray the semblance of descending into the arena to assist any of the contending parties. Rather, the Appellant and his Counsel partook in a free and unfettered trial wherein I cannot see any breach of Section 33(1 ) of the 1979 Constitution (now Section 36(1) of the 1999 Constitution).

In this wise, all authorities cited by the Appellant in his quest to show that he received no fair trial in the two courts below are not only in-apposite, they are in my respectful view, of no avail. Besides, not only were the proceedings of 24/10/9O an impartial trial of the Appellant, there was nothing that could be a fairer one that was conducted. In the circumstances, the case of Akinfe v. The State (1988) 3 NWLR. (Part 85) 729 does not apply to the instant case.

On issue (iii) as to whether Exhibit “1” can be classified as a confessional statement of the Appellant for murder, I am of the firm view that that statement constitutes a positive one made by the Appellant. For instance, in it, the Appellant stated as follows:-

"I did kill him because he has been telling me to leave his house with his wife." He further stated "I did not kill them but gave them matchet cut.

In this evidence-in-chief at his trial, the Appellant further admitted that he inflicted the injuries which caused the death of the deceased. This has established the fact that the Appellant knew what he did and he admitted it. Even though there was no eye-witness to the crime therefore, the appellant made a voluntary statement (Exhibit "1") which the trial court rightly regarded as a confessional statement and the court below upheld it. The fact that the trial judge could convict on the confessional statement (Exhibit "1") of the appellant which is direct, positive and unequivocable and which properly established the truth of the guilt of the appellant, was made clear in the case of Silas Ikpo v. The State (1995) 33 LRCN 587 at page 589 (ratio 3) where this court held as follows:-

"a free and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the court is satisfied with the truth of such a confession."

See R. v. Sykes (1913) 8 CAR. 233 at 236 …." See also R. v. Onabanjo (1936) 3 WACA 3 R. v. Igwe (1960) 5 FSC 55 and Isiyaku Mohammed v. Kano N.A. (1968) 1 All NLR 424 at 426. I am in agreement with the respondent‘s submission that the test in R. v. Sykes (supra) in respect of the confessional statement, to wit: Exhibit "1", is corroborated by the evidence given by the prosecution witnesses, the totality of which confirms the truth of the confessional statement. For instance, PW. 1, PW.2 and PW.4 testified that the deceased had matchet cuts on the head and body and although they were not eye-witnesses, the appellant‘s conviction, as it was based upon the circumstantial evidence received which is cogent, compelling and upon which there are no co-existing circumstances, that could create a doubt as to the guilt of the appellant. See Udo Udedibia v. The State (1976) 11 SC 133. In other words, where, as in the instant case, the Appellant‘s confession is direct and positive, there is no need to seek for corroborative evidence. See R. v. Omokaro 7 WACA 146; Edet Obosi v. The State (1965) NMLR 119 and Jimoh Yesufu v. The State (1976) 6 SC 167.

Where the statement of an accused is voluntary as in the instant case vide Exhibit 1 and it was properly admitted, for which See R. v. Obiasa (1962) 1 All NLR, 651, Achabua v. The State (1976) 12 SC 63, the fact that the statement was later retracted, (which was also not the case here) is immaterial. See R. v. Kanu 14 WACA 70 and R. v. Egbobhonome (1993) 7 NWLR (Part 306) 383 at 428 and 434.

In the Udedibia case (supra), this court held that where direct testimony of an eye-witness is not available, the Court is permitted to infer from the facts proved, the existence of other facts that may be logically inferred. In the instant case, the trial judge rightly in my view, inferred that the circumstances point to the guilt of the appellant and the court below was justified in affirming same.

Issue No.IV asks whether the defence of provocation is available to the appellant. The learned trial judge found the defence of provocation not to avail the appellant and held that if in fact he (Appellant) was ridiculed by words of mouth by the deceased and his wife, that he lost his job, such statements do not amount to provocation. The Court below unhesitantingly affirmed the decision, more so that is now settled law that the provocation must be grace and sudden and must be such as to take away freely from the accused the power of self control making him for the moment not a master of his mind. See R. v. Afonja (1955) 15 WACA 26, following the observation in R. v. Duffy (1949) 1 All ER. 932 (per Devlin J. (as he then was). See also the decision of this court in Ogboonna Nwede v. The State (1985) 3 NWLR (Part 13) 444. The act of killing must have been done in the heat of passion before there was time for passion to cool and then there must be a retaliation not disproportionate to the provocation offered.

Thus, "for the defence of provocation to be available, the accused must have a reasonable belief that his life is in danger and the quality of force used by him must be the same as that from which he defends himself. See Okonji v. The State (1987) 3 SCNJ 33 at 39. If indeed, the Appellant was actually provoked the Appellant by taunting sequel to the loss of his job in Benin, he would have attacked the deceased and his wife in the heat of passion and before he had time for passion to cool down. Rather, the Appellant attacked his wife at home and allowed the deceased to go to the farm where he was rendering a humanitarian job of reaping yams therefrom for him (Appellant) to take away back to Benin, when he went there (farm) to attack and killed him (deceased). It is from the overwhelming evidence adduced against the Appellant herein that I hold the view that the Appellant was not provoked at all. Rather, the murder was cold, dastardly and premeditated. Assuming that there was provocation, the injuries inflicted on the deceased would not appear to bear any reasonable proportion to the provocation if any, given. There are no mitigating circumstances, in my view, to make the defence of provocation available to the Appellant so as to reduce the offence of murder charged to that of manslaughter. Appellant‘s case bears no redeeming features in my opinion.

For the reasons given and the more elaborate ones contained in the leading judgment of my learned brother Ogwuegbu, JSC. I dismiss this appeal as lacking in merit. I accordingly affirm the decision of the Court below.

O. ACHIKE, JSC.:I have had a preview of the leading judgment of my learned brother, Ogwuegbu, JSC. I am in total agreement with the reasoning and conclusions that this appeal is lacking in merit and the same should be dismissed.

The appellant was charged with the offence of murder of his father on the fateful day, After due trial, he was convicted and sentenced to death by the learned trial judge, Okungbowa, J. of the High Court of Ekpoma in the defunct Bendel State (within present Edo State). The facts of this case are hardly in dispute and have been lucidly set out in the leading judgment of my learned brother which I respectfully wish to adopt as mine in my brief consideration of one aspect of this appeal, namely, the defence of provocation based on mere words – abusive or vituperative

The salient words uttered by the deceased that could be relied upon possibly as defence of provocation in the instant case and as may be gleaned from the appellant‘s statement to the police or his testimony in court are as follows:

Statement of accused person. Exhibit 1:

"My father has been living with us since all the time until this morning 19/9/85 when I killed him because he has been telling me to leave his house with his wife .... I was provoked this morning 19/9/85 because of home trouble and I took a decision of killing my father and wife Mrs. Grace Uluebeka. I now say that I did not kill them but I gave them matches cuts .... And it is because of ill-health that my parents are worrying me …..I became annoyed because I have no money and everybody in my family continue (sic) to worry me more especial (sic) my father and his wife. I cut my wife because she was bulling (sic) me since I have no money. Since I have no money my family became annoyed of me without minding my ill-health. This is why I decided to end my life with any person available".

Appellant's testimony

"……. Because my wife and my father ridicule me I was angry and so I went into the room and picked up a cutlass and cut my wife and my father".

It is against this background that learned Counsel for the appellant inter alia, urged the defence of provocation on behalf of the appellant, relying on Section 318 of the Criminal Code Cap 48, Laws of Bendel State 1976 applicable to Edo State. Learned counsel submitted that when the act of the accused caused him to lose "momentary control of his mind, the defence of provocation will avail him."

On the defence of provocation, learned Appellant‘s counsel submitted that provocation must be grave and sudden and must be such as to take away the accused‘s self-control and that the act of killing must have been done in the heat of passion before there was time for passion to cool and that the retaliation must be proportionate to the provocation offered.

The question due for consideration is, whether the defence of provocation, as postulated under issue No.4 can avail the appellant to reduce the offence from murder to manslaughter. The defence of provocation is set out under Section 318 of the Criminal Code, Cap. 48 Laws of Bendel State 1976, applicable to Edo State Section 318 states:

"When a person 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 only."

For the killing of another to be excused in the sense that it is reduced to manslaughter, the person seeking to evoke the defence of provocation must satisfy the court on the following elements, namely,

(a) that he killed the deceased in the heat of the passion caused by sudden provocation, and

(b) that at the time of killing the heat of passion had not cooled.

These conjunctive elements are demanding in that the appellant would have acted on the spur of the moment of the act of sudden provocation which left him no time for cooling of his passion. Put differently, the sudden provocation which generates the heat of passion would be quite contemporaneous with the killing of the victim of the murder, the heat of temper not having   time to cool.

The evidence from which the act of provocation can be elicited is very and circumscribed. It is contained in Exhibit 1 and appellant‘s testimony in court as set out above there being no real eye-witnesses to the killing. Exhibit 1 shows that appellant‘s father (probably, and his mother) had been telling the appellant to vacate his house. This did not go well with the appellant. When the same request was made on the fateful day of l9/9/85, the appellant, by his ipsi dixit, said he was provoked. I will interpret this, to mean that he was angry and also according to him, he took the decision to kill his parents. Furthermore, from his testimony at the trial he explained that the request by his parents that he should vacate their house amounted to being ridiculed by them which made him angry and caused him to go for his matchet with which he killed his father. It is, as I had earlier observed, within the confines of this narrow piece of evidence that appellant‘s learned counsel had urged the defence of provocation. Except for the apparent verbal ridicule by appellant‘s parents that the appellant should leave their house and, establish his own home, nothing else has been shown to have generated such sudden provocation meted out to the appellant and which, while the passion so generated still lingered, to warrant -the appellant to kill his father. In another jurisdiction, it has been more lucidly put that the heat of passion was such as would make the person, like the appellant herein, lose his self-control as to make him at that critical point in time, no longer magister animi in killing or inflicting the devastating matches cuts on his father. See R v. Duppy (1949) 1 All E.R. 932 at P.932 per Delvin. J. R v. Nwanjoku 3 WACA 208, R v. Afonja (1955) 15 WACA 26 and Nwede v. The State (1985) 3 NWLR (Pt.13) 444. In my view, neither the appellant from the evidence placed before the court nor his learned counsel‘s submission has explicitly demonstrated the temporary loss of self-control by the appellant as to afford him a defence under Section 318 of the Criminal Code.

The appellant from his oral testimony gives the impression that the inflicting of matches cuts on his wife and the devastating matches cuts on his father were executed contemporaneously at their home, but, on the contrary, there is evidence of three prosecution witnesses, i.e. PWI. PW3 and PW4, to the effect that the brutal matcheting of the deceased occurred at his farm. Assuming but not conceding, that mere words, comprising ridicule to the effect that appellant should found his own home and to that reason should vacate the deceased‘s house, would such words alone be sufficient to ground the defence of provocation? Unfortunately, the exact words of ridicule were not explicitly stated in order to enable one enquire whether they can justifiably be such as would make a person lose his self-control. Be that as it may, will mere words, without more, afford a person the defence of provocations. The English courts turned in a negative answer. Thus in Reg v. Sherwood 174 English Report 936 it was held that no provocation by words alone will reduce the offence of murder to that of manslaughter. In contrast, see Bedder v. D.P.P. (1954) 2 All E.R. 801, The accused who was sexually impotent tried unsuccessfully to have sexual intercourse with a prostitute. She thereafter jeered at him and also kicked him causing him to lose self-control whereupon he stabbed her twice and killed her. On a charge of murder, the accused pleaded provocation and the House of Lords upheld the direction that the proper test was the effect which the conduct of the prostitute would have on an ordinary person, not on a sexually impotent person. Again, in the split decision of 3:2 of the Supreme Court in Mallam Zakari Ahmed v. The State (1999) KLR Vol.5 Part 84 P.1391, while the majority decision (Belgore, Mohammed & Kalgo, JJSC) held in effect, that mere verbal abuse would ground the defence of provocation, the majority decision (Ogundare & Achike, JJSC) strongly held otherwise. Here, it is quite clear that the appellant failed to establish that he was at great rage at the critical moment, and ceased to be the master of his own understanding when he landed matchet cuts on his father consequent to the fatherly insistence that the appellant should establish his own home. Even if verbal provocation is congnizable, It must however be borne in mind that it is not ever, slight provocation, even by "striking or blow, will justify the appellant to retaliate with a weapon, such as a matchet or gun, that is lethal and likely to cause death. The question here is whether the appellant can be said to be justified to have resented the verbal words of alleged ridicule of the deceased by using-a deadly weapon calculated to cause death.

The answer to be turned in must clearly be in the negative and to that extent there will be no justification for the reduction of the crime of murder to manslaughter. See Yusuf v. The State (1988) 4 NWLR (Pt. 86) 96 and R. v. Adekanmi (1944) 17 NLR 99.

Finally, I am clearly of opinion that there was ample or sufficient interval between the time the deceased uttered the words of alleged ridicule to the appellant while at home and the moment the deceased was brutally inflicted with several matches cuts on the body by the appellant at the farm for cooling of appellant‘s passion and thereby enable him to regain the master of his understanding. Consequently, I am clearly of opinion that the murder was brutal, premeditated and completely out of proportion with the seeming provocation meted to the appellant.

For the fuller reasons given in the leading judgment of my learned brother and what I have said herein, I am satisfied that the two lower courts were respectively right in convicting, and affirming the conviction of, the appellant of murder and not reducing the offence to manslaughter.

U. A. KALGO, JSC.:I have read in draft the judgment of my learned brother Ogwuegbu JSC just delivered and I entirely agree with him that the appeal has no merit and ought to be dismissed. I however wish to add the following by way of emphasis.

In the Ekpoma High Court of former Bendel State (now Edo State) the appellant was charged and tried of one count of murder which reads as follows:-

STATEMENT OF OFFENCE

Murder contrary to Section 319 (1) of the Criminal Code cap. 48 Vol. II laws of Bendel State of Nigeria, 1976.

PARTICULARS OF OFFENCE

Sunday Ihuebeka (M) on or about the 19th day of September, 1985 at Illeh-Ekpoma in the Ekpoma Judicial Division murdered one Iregho-ULUEBEKA male).

On the 16th of October, 1989 when the charge was read and explained to the appellant, he pleaded not guilty. The trial proceeded whereby the prosecution called 4 witnesses and tendered the caution statement of the appellant which was admitted as exhibit 1. The appellant gave evidence in his defense but called no witnesses. At the end of the trial, only the defence counsel who was present in court addressed the court. The case was then adjourned for judgment. On the 14th of January, 1991, the learned trial judge, Okungbowa J. in a well-considered judgment found the appellant guilty of murder, convicted him of the offence and sentenced him to death.

The appellant appealed to the Court of Appeal Benin, as he was entitled to do, but the Court of Appeal dismissed his appeal. He now appealed to this court on seven grounds.

In accordance with the rules of this court, both parties filed their respective written briefs and exchanged them between themselves.

The appellant in his brief formulated the following issues for the determination of this court:-

(i) Whether the failure of the learned trial Judge to resolve the allegation of lack of faith against the court by the former Counsel and not informing the substitute Counsel or Appellant of this serious allegation breached the Appellant‘s right to fair hearing as guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria 1979, (as Amended).

(ii) Whether the trial of the Appellant on 24th day of October, 1990 with the learned trial Judge acting as the prosecutor and the Judge was contrary to Section 33 of the Constitution of the Federal Republic of Nigeria 1979, which occasioned miscarriage of justice.

(iii) Whether Exhibit "1" can be classified as a confessional statement of the Appellant for murder.

(iv) Whether the defence of provocation can avail the Appellant to reduce the offence from murder to manslaughter.

For the respondent, 4 issues were also raised thus:-

(i) Whether the manner in which the learned trial judge conducted the trial of the Appellant after his counsel withdrew from the case breached the Appellant‘s right to fair hearing or occasioned any miscarriage of justice.

(ii) Whether the learned trial judge acted as the prosecutor and judge on the 24th day of October, 1990.

(iii) Whether Exhibit ‘1‘ was a confessional statement positively made by the Appellant.

(iv) Whether the defence of provocation is available to the Appellant.

After going through the issues set out by both parties in their separate briefs, I find that the issues are virtually the same. I will therefore adopt, for the purpose of this appeal, the issues raised by the appellant.

At the hearing of this appeal, both counsel essentially adopted their briefs on behalf of their respective clients and urged the court to deal accordingly. It is however pertinent to note here that the learned counsel for the appellant in course of argument, applied to abandon or withdraw his issue I for determination which related to grounds of appeal 1 and 2. There was no objection from the learned counsel for the respondent and so issue I was accordingly struck out. I will say nothing about it in this judgment.

In issue II, the appellant‘s complaint was that on the 24th October 1996, during the trial of the appellant, when the state counsel prosecuting the case was absent, the learned trial judge proceeded with the trial whereby he took the defence of the appellant and the address of the defence counsel. This, learned counsel for the appellant submitted in the brief, went contrary to the provisions of Section 33 of the 1979 Constitution and occasioned a miscarriage of Justice. He further submitted that this conduct of the judge established his likelihood of bias and lack of impartiality which vitiated the entire trial. He cited these cases in support: Okoduwa v. State (1988) 2 NWLR (pt. 77) 333 at 347; Akinfe v. The State (1988) 3 NWLR (pt. 85) 729 at 725-3; David Uso v. C.O.P.(1972) 11 SC37at46; Kim v.The State (1992) 4 NWLR (pt. 233)17 at 40.

Mrs. Uwuigbe, learned Assistant Chief Legal Officer for the respondent submitted in. the brief that the proceedings of the 24th October, 1990 was more than a fair trial in that the appellant gave his evidence in defence without being cross-examined and the learned trial judge did not ask him any question at all before adjourning the case for judgment. She farther submitted that the appellant had nothing to complain about on that day‘s proceedings; if any body was to complain, it would be the respondent who was not represented. Learned counsel therefore submitted that the learned trial judge conducted the proceedings of 24th October, 1990, fairly without any inclination of bias or partiality towards the appellant and that there was no miscarriage of justice or any contravention of the provisions of Section 33 of the 1979 Constitution in relation to the appellant.

For a clear understanding of what happened on 24th October, 1990, in the trial of the appellant, it is pertinent to examine the proceedings immediately before the 24th of October, 1990. On the 10th of October, 1990, when the case was called in the presence of the parties, the following proceedings was recorded on page 13 of the record:-

"Case called. Accused person is present. M. Tedeye State Counsel (Miss) appears for the State. J.

O. Udaze Esq; appears for the accused person. J. O. Udaze Esq; asks for a short adjournment. M. Tedoye State Counsel (Miss) has no objection.

Court:- This case is adjourned to 24/10/90 for defence.

sgd. G.U.O. Okungbowa

Judge 10-10-90”

(italics mine)

On the 24th October, 1990, the following proceedings took place:-

"Case called. Accused is present. J. O. Udaze Esq appears for the accused person. State Counsel is absent.

Defence Opens his case"

This was immediately followed by the evidence of the appellant in his defence, which went over to page 14 of the record. At the end of the appellant‘s evidence, this was recorded:-

"J.O. Udaze Esq; informs the court that this is the case for the defence"

This was immediately followed by the address of Udaze, the learned counsel for the defence, after which the case was adjourned for judgment.

From the above, it was clear that on the 10th October, 1990, the case was adjourned for defence with the consent of the learned State Counsel for the respondent to the 24th of October, 1990. On the 24th of October, 1990 when the state counsel failed to appear, the defence of the appellant proceeded unhindered and at the end of it, there was no cross-examination by the learned trial judge or any body at all. The appellant got away with all what he said in his defence except when considered in relation to other evidence produced earlier by the state counsel. The learned trial judge, according to the proceedings of 24th October, 1990, did not and could not by any stretching of imagination be taken to assume the double role of judge and prosecutor at the same time in this case nor could be taken to be biased or impartial in the performance of his normal functions. Therefore the appellant cannot be justified at all in his complaint in issue II against the judge as he was more than fairly treated and there cannot by any miscarriage of justice in the conduct of his trial by the learned trial judge. The state counsel did not complain against the learned trial judge for proceeding with the case in their absence thereby depriving them of the opportunity to cross-examine the appellant on defence evidence.

The appellant was granted every opportunity of presenting his defence during his trial and there is no question of any unfair trial or miscarriage of justice arising thereby. See Kano v. N.A. Obiora ( 1960) NRNLR. 42. The appellant was present throughout the trial and his counsel also represented him throughout the trial. And although there was a change of counsel when Dr.Okoloise decided to withdraw his representation for the appellant, the trial court immediately assigned another Mr. Udaze to represent the appellant and the appellant did not object to appearance of the new counsel for him. On the 24th of October, I 990, when the learned trial judge decided to continue the trial in the absence of the state counsel the appellant‘s counsel was present; he led the appellant in his defence and addressed court at the end of the trial. There is no doubt therefore that trial of the appellant was fair and not in contravention of the provisions of Section 33 of the said Constitution.

I have gone through all the cases cited by the learned counsel for the appellant on this issue, and I found them to be irrelevant and inapplicable to the facts and circumstances of this case. I resolve issue II in favour of the respondent.

Issue III and IV were argued together by the learned counsel for the appellant in his brief. They dealt with the confessional statement of the appellant Exhibit 1 and the defence of provocation.

In order to appreciate the relevance of issue III and IV in relation to the circumstances of this case, it appears to me useful at this stage, to set out, albeit briefly the facts of the case as presented to the court by the prosecution.

In the evening of the 18th September 1985 the appellant arrived in Benin to visit his father Irogho Ulbebeka (the deceased). At about 7pm that evening, Mr. Irogho Uluebeka invited his junior brother Abu Uluebeka, PW. 1, to the family house where the latter met the appellant. In the presence of the appellant, Irogho Uluebeka told PW. 1 that the appellant had refused to assist him (the deceased) in the payment of the school fees of his (the appellant‘s) brother who had gained admission into a Technical College Afuze. On hearing this, PW. 1 immediately invited the appellant to his own house where he pleaded with the appellant to assist his father in the payment of the school fees of his brother. The appellant still refused and PW.1 I reported this back to his senior brother the deceased. PW. 1 then returned to his house and the matter left to rest.

It is pertinent to observe that at this time, the appellant was a sales representative of Green Sands Publishers Company No. 165 upper Sokponba Road, Benin city and had a vehicle assigned to him for the promotion of the company‘s goods.

The following 19/9/85, the deceased went to his farm to harvest some tubers of yams to give to his son the appellant who was going away later in the day. PW.1 also went to his own farm that morning and whilst he was there, one Victor Arebu came to him on a motor cycle and told him something, as a result of which he followed Victor Arebu to the deceased farm where he found the deceased in a pool of blood nearing death. The deceased told him that it was the appellant who matcheted him. The deceased told him that it was the appellant who matcheted. The deceased was taken to the Police Station Ekpoma and then to the General Hospital where he died before any treatment was given to him. The appellant was then arrested. On the 29/9/85 a medical officer conducted post-mortem examination on the corpse of the deceased after PW.1 identified it as that of his brother Orogho Uluebeka. PW. 2 Vincent Oseghale testified that the appellant took him and some other people to the deceased farm and showed them where he (appellant) matcheted the deceased and left him lying in a pool of blood. On the same day, the appellant also inflicted some matchet cuts on his wife Grace and this was seen by PW. 3 Sunday Okosun, who took Grace to the Police Station Ekpoma and then to the General Hospital where she was admitted for treatment.

PW. 4, who was the investigator of the case, also took the statement of the appellant under caution on the day of the incident – 19/9/85. It was signed by the appellant and admitted in evidence at the trial as Exhibit 1.

That briefly is the evidence of the prosecution in this case. I shall now consider issues III and IV in the light of the evidence.

The question raised in issue III, is whether Exhibit 1, can be classified as a confessional statement. What then is a confessional statement in law? It is simply a statement of an accused person charged with a criminal offence, which is a confession. What amounts to a proper confession in this contest? In Osborne‘s concise Law Dictionary, sixth Edition page 87 confession is defined thus:-

"An admission of guilt made to another by a person charged with a crime. It is admissible only if free and voluntary; i.e. if it not forthcoming because of inducement, or threat, held out by a person in authority. It must not be made under hope of reward (other than spiritual) or fear of punishment in relation to the proceedings. The onus of proof that a confession was voluntary is on the crown (D.P.P.V Pin Lin (1915) 3 WLR 419). Admission may be obtained from a person by questions fairly and properly put to him by a police officer. (Italics mine)

PW.4 Sgt. Koliko Umaru was the Police Office who investigated the case of the appellant. In the course of his investigation he collected as statement made by the appellant before another Policemen in his presence on the 19th of September, 1985, the day the incident happened. In his evidence-in-chief at the trial, he tendered it in evidence and it was admitted in evidence as Exhibit 1 without any objection by the appellant or his counsel. In his evidence-in-chief at the trial, he tendered it in evidence and it was admitted in evidence as Exhibit 1 without any objection by the appellant or his counsel. In his evidence in his defence, the appellant did not deny making Exhibit 1 nor retract anything from it. In fact he made no mention of the statement he made to the police and as the prosecution counsel was absent on that day nothing was said about Exhibit 1.

Before making Exhibit 1 it was very clear that the appellant was cautioned in the language he understands; that he was not obliged to say anything and that anything he wished to say would be recorded and might be given in evidence. Exhibit 1 showed that the appellant signed the statement after he made it on the 19th September 1985, the date of the incident, when the facts were fresh in his mind.

In Exhibit 1, the appellant inter alia had stated that:-

"My father has been living with us since all the time until this morning 19/9/85 when I killed him because he has been telling me to leave his house"

In his evidence in chief, the appellant also said:-

"The deceased was my father. The deceased died from injuries I inflicted in his head"

The above statements sufficiently constitute an admission of guilt by a person charged with the murder of his father. There was also nothing on the face of Exhibit 1 itself or from the evidence in the trial court to indicate that the appellant was induced, threatened of forced into making Exhibit 1 held out by a person in authority. See for example the cases of R. v. Marshall-Graham (1967) 2 WLR 1094; Madu Fatumani v. The King (1950) 13 WACA 39. I am therefore satisfied that Exhibit 1 was made voluntarily by the appellant as found by the learned trial judge. The appellant clearly admitted killing his father in Exhibit 1 after he was accused or charged with the murder of the father. Exhibit 1 therefore becomes a relevant fact against the appellant within the provisions of section 27 of the Evidence Act. Also from the evidence of the prosecution witnesses especially PWs 1,2 and 3, and the circumstantial evidence accepted and believed by the learned trial judge, I have no doubt in my mind, that the appellant intended by his act to kill his father, the deceased, or to inflict such grievious bodily harm that was likely to cause his death. See Uyo v. A.G. Bendel State (1986) 1 NWLR (Pt. 17) 418. In the final analysis I will answer issue III in the affirmative.

Issue IV is straight forward. It is whether the defence of provocation can in this case, avail the appellant. It is trite law that in a criminal defences from the evidence in favour of an accused person. See Uwani 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.

In the instant appeal, the appellant in Exhibit 1, said:-

"My father has been living with us since all the time until this morning 19/9/85 when I killed him because he has been telling me to leave his house with his wife. He also told me to go away from his house with my wife Grace. His wife‘s name is Rose Uluebeka. This morning 19/9/85 members of my family gathered together and started quarrelling with me and at the same time asked me and my wife Grace Uluebeka to leave my father?s house. My father was also present at the gathering, I was provoked this morning 19/9/85 because of home trouble and I took a decision of killing my father and his wife Mrs. Grace Uluebeka". (Italics mine)

In his evidence in chief in his defence, the appellant while talking about the family meeting also said:-

"Shortly afterwards my wife joined the 1st PW and other members of my family to ridicule (sic) me. Because my wife and my father ridicule (sic) me I was angry and so I went into the room and picked up a cutlass and cut my wife and my father".

The impression given here by this quotation is that when his father ridiculed him, he (appellant) got angry, went into the room, picked up a cutlass and cut the father with it. This was not the case at all. According to the prosecution evidence, which was unchallenged and which was accepted and believed by the learned trial judge, the appellant met the deceased on his farm where he went to harvest some yam tubers for the appellant to take away, and he matcheted the old man there leaving him ground in a pool of blood. So that even though, the learned trial judge believed the appellant that he was ridiculed and asked to leave his father‘s house at the family meeting which the deceased attended, the appellant did not act at the spur of the moment according to the facts and circumstances of the case when he could not control his anger. In the case of R. v. Duffy (1949) 1 A.E.R. 932, Devlin J. defined "provocation" as "same act or series of acts done by the deceased to the accused which would cause in any reasonable person, and actually does cause 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 no master of his mind. According to this simple definition, for the appellant to rely on provocation, he must have suddenly lost his self-control at the time he matcheted His father as a result of provocation. In this case even if the deceased took part in asking the appellant to leave the house at the family meeting, the act of matcheting did not suddenly happen in the house. The appellant waited until the deceased went to the farm where he met him and inflicted the fatal matchet cuts on him. Also it is trite law, that provocation given to the offence committed. See Yusuf v. The State (1988) 4 NWLR (pt. 86) 96. I do not think that for merely asking the appellant to leave his father‘s house, he would reasonably be provoked to kill the father especially as the appellant is an "educated and civilised person" as opposed to an "illiterate and primitive peasant" whose passions are far more readily aroused than of a civilised and enlightened person. See the case R. v. James Adekanmi (1944) 17 NLR 99 at page 101.

From all what I have said in my consideration of this issue, I find that provocation as a defence cannot avail the appellant on the facts and circumstances of this case. I therefore answer issue IV in the negative.

For the reasons stated above, and the more detailed reasons given in the leading judgment of my learned brother Ogwuegbu JSC, I find that there is no merit in this appeal. It is accordingly dismissed. I affirm the decision of the Court of Appeal confirming that of the trial court.

Counsel:

I.E. Imadegbelo – for the Appellant

O.S. Uwuigbe (Mrs.) A.C.L.O. Edo State for the respondent.