LAMIDI SADIKU (APPELLANT)

v.

THE STATE (RESPONDENT)

(1971) All N.L.R. 519

Division: Court of Appeal, West

Date of Judgment: 17th August, 1971

Case Number: SUIT NO. CAW/43/1971

Before: Kester, P., Eso, Akinkugbe, J.J.A.

Appeal from the High Court, West.

HELD:

(1)     On the question of provocation the law is that even if it is not raised by the defence it is incumbent on the court to consider it in the interest of an accused where there is evidence indicating such a defence.

(2)     Where there is no evidence for consideration by the court of either the defence of provocation or self defence it is not the law that the court must of necessity invent one so as to raise such a defence for an accused person.

(3)     In this case there was nothing in the record to justify the evidence of provocation so as to warrant any consideration of such a defence by the trial Judge.

(4)     An unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did.

(5)     In this case if anybody was provoked it was the deceased.

From the record it was the appellant who undoubtedly was an excitable and very hot tempered person.

Appeal dismissed.

Cases referred to:

Mensah v. The King, 11 W.A.C.A. 2.

R. v. Hopper, (1915) K.B. 431.

Mancini v. The Director of Public Prosecutions, (1942) A.C. 1.

Elijah Uko v. The State, CAW/132/70.

Queen v. Afonja and ors., 15 W.A.C.A. 26.

APPEAL from the High Court (West).

SUIT NO. CAW/43/1971.

Chukurah for the Appellant.

Delano, Senior State Counsel, for the Respondent.

Akinkugbe, J.A.:-The appellant at an Ibadan High Court (Johnson J) was convicted of murder and sentenced to death. After listening to arguments of Counsel for the appellant and the state on 22nd July, 1971 we dismissed the appeal and indicated then that we would later give our reasons. We now give the reasons for the dismissal of the appeal.

The facts of the case are that on 6th February, 1970 at Oredein Street Ibadan at about 9.30 p.m. one lady by name Abebi Onashile lodged a complaint against the appellant to the deceased for failure to carry out a job he undertook to do for the complainant and neither did he return the sum of 11s. she deposited with the appellant in consideration of the performance of the job. The deceased who apparently was an elderly relation of the appellant but whom he described as a brother was seriously warned by the appellant not to intervene as otherwise he would kill him the deceased and kill himself the appellant that night.

It was given in evidence that he insulted the deceased and that all that the deceased said was that if he could not contain himself the appellant should leave his house. The appellant then left the house with a plastic pail and later returned with it and poured a liquid that smelt like petrol from the pail on the deceased. The deceased then exclaimed "Petrol". He got up and took to his heels. As he endeavoured to pull off his garment the appellant struck a cigarette lighter and threw it on the deceased he having earlier pursued him. The deceased was set ablaze and fell on saw dust. He was badly burnt and thereafter taken to Adeoye Hospital where he later died.

The appellant in his evidence denied responsibility for the death of the deceased. He said however that somebody unknown poured a liquid on him and the deceased.

The appellant's Counsel Mr Olisa Chukwurah who argued the appeal on behalf of the appellant relied on two main grounds of appeal the first of which is to the effect that there were material discrepancies in the evidence before the court to the extent that it could not be proved beyond reasonable doubt that it was the appellant that set fire on the deceased. Secondly that the learned trial Judge failed to consider the defence of provocation.

On the question of discrepancies in the evidence we agree with the learned trial Judge that if there are any they are minor. We are of the view that there is abundant and overwhelming evidence to justify the conclusion reached by him in that the appellant was the person that set the deceased ablaze.

On the question of provocation the law is that even if it is not raised by the defence it is incumbent on the court to consider it in the interest of an accused where there is evidence indicating such a defence. See Mensah v. The King 11 W.A.C.A. 2, R. v. Hopper (1915) K.B. 431, Mancini v. The Director of Public Prosecutions (1942) A.C. 1.

But certainly it is not the law that the court must consider the question of provocation where there is no evidence to support it. In Elijah Uko v. The State CAW/132/70 delivered in this Court on 20th April, 1971, we then said inter alia:-

"Where there is no evidence for consideration by the court of either the defence of provocation or self defence it is not the law that the court must of necessity invent one so as to raise such a defence for an accused person."

In the Queen v. Afonja and others 15 W.A.C.A. 26, the West African Court of Appeal at p. 27 of the report said:-

"The duty of directing a jury, or of a judge to direct himself, on the issue of manslaughter arrives only when there is on the record evidence fit to be left to a jury, or fit to be considered by a judge of acts committed by the deceased which might legally constitute provocation... In the present case we are of the opinion that on the whole of the evidence there is nothing which could have entitled the learned judge to find a verdict of manslaughter and therefore there was no need for him to direct his mind on that issue."

The evidence on the record points to the fact that it was one Abebi Onashile that lodged a complaint about the appellant to the deceased with whom the appellant lived in the deceased's house. This is not uncommon amongst the Yorubas to lodge a complaint about a person to an elderly member of his family in the extended sense.