IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 25TH DAY OF SEPTEMBER 1970
ADUDU YALWA AND ORS ................................................ APPELLANTS
THE STATE ...................................................... RESPONDENT
BEFORE: Ademola, C.J.N., Coker, Sowemimo, JJ.S.C.
Criminal Law-Culpable homicide punishable with death
Evidence-Evidence of Provocation not considered by trial Court-Effect-Penal Code Sections 221;222.
Appeal from the High Court (Kano).
(1) From the judgment of the trial Judge, it could be seen that the question of Provocation was not considered by him. The deceased, a thief, had attacked a man from whose house he stole, wounded him mortally and was about killing him when the appellants came to the scene. The scene they saw was enough to provoke them. He then tried to attack them as well with the knife. If up till the time the appellants struck him down they were provoked, as indeed they were, it was not possible that the provocation had ceased and they had no time to cool down and it was a continuous act.
(2) In the circumstances of the case a verdict of culpable homicide not punishable with death contra section 222 of the Penal Code was appropriate and not culpable homicide punishable with death.
Appeal allowed: verdict of Culpable homicide not punishable with death substituted.
Law referred to:
Penal Code Sections 221;222.
Appeal from the High Court (Kano).
Cole for the appellants.
Rowland (State Counsel, Kano State) for the respondent.
Ademola, C.J.N. (delivering the judgment of the court)-The three appellants were on the 8th day of May, 1970 in the High Court of Kano State convicted of culpable homicide punishable with death contra section 221 of the Penal Code, and sentenced to death. They have appealed to this Court against their convictions. The man who was killed by the appellants was a thief who stole from a house and was chased by one Idirisu Kato (1st witness for the prosecution) whose mother's goods had been stolen. The thief (the deceased) turned upon Idirisu, attacked him with a knife and gave him three cuts. Idirisu shouted for help and fell down. The deceased continued to attack him with the knife when the three appellants ran to the spot. The deceased took to his heels but 1st and 3rd appellants chased and caught him. The 2nd appellant stayed behind to attend to Idirisu who was mortally wounded. He managed to carry the wounded man to his house and later went to join the other two who were at that time beating the deceased, who had threatened them with the knife. They beat him with sticks. At this stage, the deceased fell down and was almost motionless when one Gambo arrived on the scene. Gambo urged the appellants to beat the thief to death. They said they beat him more and he died.
The learned trial Judge found the above facts. He then found that at the instigation of Gambo the three appellants formed a common intention to kill the deceased. He then said:-
"I do not consider it matters whether he (the thief) would have died anyhow, or which particular blows killed him, or who struck them. Common intention to kill is clearly established, and they must all bear responsibility for his death."
Now, from the evidence before the learned trial Judge, and from his judgment, the deceased was dangerous. He had inflicted mortal wounds on the first man who chased him and threatened to do the same with the 1st and 3rd appellants. By hitting him with sticks they had overpowered him and he fell down. He was exhausted. The learned judge said that at that point had the appellants left him, they would have had a defence. But on the instigation of the man Gambo, the three men formed a common intention to kill the deceased, and from their own statements they continued to beat him until he died.
An aspect of the matter which has engaged our attention is one of provocation which, from the judgment of the learned trial Judge, was not a point considered by him. The deceased, a thief, had attacked a man from whose house he stole, wounded him mortally and was about killing him when the appellants came to the scene. The scene they saw was enough to provoke them. He then tried to attack them as well with the knife. If up till the time the appellants struck him down they were provoked, as indeed they were, was it possible the provocation had ceased and they had time to cool down before Gambo suggested to them to kill him (the thief)? We do not think they had had time to cool down and we hold it was all a continuous act.
We have considered this point and have come to the conclusion that in the circumstances of the case a verdict of culpable homicide not punishable with death contra section 222 of the Penal Code was appropriate and not culpable homicide punishable with death.
We therefore allow this appeal by substituting a verdict of homicide not punishable with death and this will be the verdict of the court.
The appellants are each sentenced to a term of three years imprisonment with hard labour.
Appeal allowed: Verdict of Culpable homicide not punishable with death substituted.