HELD:

It is not the law in Nigeria that refusal to be intimidated or panicked by threat of violence or force amounts to provocation, nor does defiance of any show of force or threat of death.

Obaji v. The State (1965) 1 ALL N.L.R. 269, 274

Akang v. The State (1971) 1 ALL N.L.R. 47, 49

APPEAL dismissed.

Chief Ofodile for the appellant.

L.O. Anyaduba, Senior State Counsel, East Central State, for the respondent.

Obaseki, Ag. J.S.C. (giving the reasons for the judgment of the Court):-We dismissed this appeal on the 6th day of May, 1976 after hearing counsel on the only ground of appeal he argued before this Court, without calling on respondent's counsel and now give our reasons.

The appellant was at Abakaliki in the High Court of the former East Central State tried on information for the offence of murder of Ovuta Oraku, contrary to section 319(1) of the Criminal Code Vol. II Laws of Eastern Nigeria 1963 by Amadi-Obi J., and convicted and sentenced to death.

The facts established before the learned trial Judge in a summary are as follows:-

The deceased was a junior sister of the appellant who stood in loco parentis to her. The evidence shows that he gave her away in marriage and when the marriage broke down, he accommodated her in his house until her style of living and sexual behaviour assumed such proportion of immorality that he ordered her out of his house at Amagu Umafia, Oshiri, Ohaozara-Afikpo in Abakaliki Judicial Division. However on the 27th day of April, 1974, the deceased turned up at the appellant's house and met appellant and his wife Obaji Nwafor P.W.2. She demanded from the appellant the repayment of a loan of N8.00. But he vigorously denied the existence of any debt to the deceased and retorted that he had refunded dowries paid on her on three occasions. The appellant was so infuriated by the demand that he ordered the deceased out of his house and warned that any refusal would compel him to set the house on fire with her inside. To emphasize his seriousness, he brought out a box of matches but PW2 snatched the box of matches from him. He then picked up a matchet. Again PW2 snatched it from him. Seeing that PW2 was thwarting his hostile and wicked intentions, he ordered PW2 to leave his house and took her basin outside. When his wife refused to leave the house, he went inside the house and grabbed another matchet and with matchet in hand, warned PW2 that if she did not leave the house he would punish her along with the deceased. Frightened by the stout resolved of the appellant, she ran out raising alarm to call in some people. She ran to accused/appellant's brother and narrated what was happening in their house. More vividly she said under cross-examination:

"The deceased said that she would not leave the house until the accused paid her the debt he owed her. The deceased did not run away. When the accused took up the 2nd matchet, I ran away when he was entering the house where the deceased was. I ran away because the accused threatened to punish me together with the deceased if I continued to stay in the house. I then ran away when he took the matchet and went to the room in which the deceased was. I was not present when the accused actually inflicted the injuries on the deceased, but I saw him armed with a matchet and meeting the deceased in the room."

After narrating what happened to the brother of the appellant, he decided to accompany her back. On their way back, they met their Councillors including Osim Obasi (PW3) and James Okoroafor (PW4) who had received information about the quarrel between appellant and the deceased from PW3. They arrived to meet the two houses of appellant burning with no signs of the appellant, or the deceased. A search of the vicinity revealed a blood trail and following the trail they discovered a fresh grave which on being opened later, was found to contain the body of the deceased. When the grave was discovered, PW4 sent PW3 to make a report to the police. The appellant was found 4 days later by PW4 and others and sent into police custody. PW1 came along with the policemen later and when the grave was re-opened, the body of the deceased was exhumed and a post-mortem examination of it was performed. On examination, PW1 discovered that the body had:-

"A big matchet cut on the parietal region of the head. The cut extended to the right part of the forehead and the skull was involved. There was haematoma on the left part of this parietal temporal region of the head. The head was slightly swollen. Both arms were just hanging from the shoulders where the deceased had fractures and haematoma."

PW1 gave the cause of death as shock and concussion of the brain due to injuries she received on the head and both shoulders. PW1 was also of the opinion that the deceased must have received blows with a big stick. The appellant admitted inflicting injuries on the deceased for reasons quite different from that testified to by PW2. He said on oath that the deceased set his house on fire and so he gave her matchet cuts. He admitted making exhibit C (confessional statement) to PW5 which was verified before PW7. He admitted that besides his wife, no one else saw him when he was talking to the deceased. On the injuries inflicted, exhibit C in part reads:-

"I quickly came out with my matchet and gave her a matchet cut on the right side of her fore-head. As she was running upon the matchet cut I gave her, I started to pursue her with one long Indian Bamboo. I hit her with it on the head and some other parts of her body, mostly her shoulders. Then she fell down and died on the spot."

(Italics are ours).

The learned trial Judge in his judgment, after reviewing the evidence of the witnesses said of PW2:-"I must say without any doubts that I believe the testimony of the wife of the accused, PW2"

and went on to find, quite rightly in our view, that it was not the deceased who set the houses on fire but that it was the appellant who set the houses on fire with the deceased in it, and when the deceased ran out of the house he chased her and inflicted on her the mortal wounds from which she died.

Dealing with the defence of provocation which was raised in counsel's address, the learned trial Judge, after rejecting the allegation of arson made against the deceased, said in his judgment, quite rightly in our view:-

"From the evidence before me, the deceased never offered any provocation to the accused. She was within her rights to demand a debt owing to her. The alleged previous acts of provocation on the part of the deceased were only the deceased's private way of life which did not meet the approval of the accused. They cannot be considered as provocation."

Aggrieved by the conviction, the accused appealed and the only ground canvassed before us (the additional ground which was filed with the leave of this Court) reads:-

"Error in law-The learned trial Judge erred in law in failing to consider the defence of provocation put up by the appellant."

The learned Counsel for the appellant was at pains to advance arguments in support of this ground when his attention was drawn to the portion of the judgment of the learned trial Judge which dealt with the defence of provocation which we have set out fully above. He was, however, of the view that the refusal of the deceased to leave the house of the appellant, and her defiant attitude in the face of the threat that death by fire and matchetting would be the consequence of a refusal, amounted to acts of provocation having regard to the peculiar tendency of being easily provoked of the ethnic group to which they belong. He ended his argument by pointing out that the threat to set his own house on fire and the actual execution of this threat highlighted the extent of the provocation that unbalanced the appellant mentally.

Provocation in law consists mainly of three elements:-

(1)     The act of provocation;

(2)     The loss of self control both actual and reasonable; and

(3)     Retaliation proportionate to the provocation.

These three elements are enshrined in our law-section 283 of the Criminal Code Cap.30 Laws of Eastern Nigeria 1963 which reads:-

"The term provocation used with reference to an offence of which an assault is an element, includes except as hereinafter stated, any wrongful act or insult of such a nature as to be likely when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, fillal or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered."

This defence of provocation (to reduce a charge of murder to manslaughter) is made available by section 318 of the Criminal Code which reads:-

"When a person who unlawfully kills another in circumstances which but for 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 to cool, he is guilty of manslaughter only."

It has received detailed analysis in the case of Chuku Obaji v. The State (1965) 1 ALL N.L.R. 269, where at p. 274 Ademola C.J.N., delivering the judgment of the Supreme Court, said:-

"We also agree with the Director of Public Prosecutions of the Federation, that in the interpretation of the statute which is in the main declaratory of the common law, the court must bear in mind what was said by Lord Merschell in the Bank of England v. Vagliano Brothers (1891) A.C. 107 that the correct course is-

'in the first instance to examine the language of the statute and to apply its natural meaning uninfluenced by any consideration derived from the previous state of the law and not to start with inquiring how the law previously stood and then assuming that it was probably intended to leave it unaltered.'

This court must apply this in the interpretation of the Criminal Code, and it is not to import elements of the law of England or any other country which are not envisaged by our own legislation."

(Italics are ours).

It is not the law in Nigeria that refusal to be intimidated or panicked by threat of violence or force amounts to provocation; nor in our view does defiance of any show of force or threat of death amount to provocation on which any person charged with murder may rely to reduce the offence to manslaughter. At this stage, we refer to the observation of this Court in the case of Chuku Obaji v. The State (supra) at p. 275 where Ademola C.J.N, said:-

"To avail himself of the defence in a charge of murder under section 318 of the Criminal Code the accused must have done the act for which he is charged (i) in the heat of passion (ii) this must have been caused by sudden provocation and (iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian courts has been to interpret sections 283 and 318 of the Criminal Code as impliedly including the mode of resentment or in other words, that the retaliation must be proportionate to the provocation offered. In this connection and in consonance with this interpretation by the Nigerian courts, the doctrine has developed of 'the behaviour of the average man in the community to which he belongs'. See R v. John Okoro (1942) 16 N.L.R. 63 at pp.65 and 66 and R v. James Adekanmi (1943) 17 N.L.R. 99 at pp. 101 and 102."