EJIWUNMI, J.S.C.: (Delivering the Leading
Judgment): This appeal may be rightly described as the fury or rage into which
a jealous wife could be driven. Before the appellant in this appeal was
arraigned before the High Court of Benue State in the Benue State Judicial
Division, holden at Makurdi upon the application of the prosecution to prefer a
charge brought pursuant to section 185(b) of the Criminal Procedure Code. The
said application was supported by proofs of evidence, the statement of the appellant
and the medical report of the deceased. As the learned trial Judge, having read
the said application with the documents attached thereto, granted leave for the
preferment of the charge against the appellant. The court also ordered that the
appellant be served with the proofs of evidence and the charge.
After the orders of the court
were duly effected on the appellant, the plea of the appellant was taken.
Before the plea was taken, the charge was read out to the appellant by the
court clerk in the English language and was read out in the Tiv language to the
accused who admitted that she understood the charge. The appellant, who was
then asked for her plea, said "the allegation is not true" and the
learned trial Judge then entered a plea of not guilty for the appellant.
The charge to which appellant
pleaded read thus:-
"That you Mbanengen
Shande, on or about the 9th day of May 1997, at Achia Village, Kwande Local
Government Area within the Benue State Judicial Division did commit culpable
homicide punishable with death in that you caused the death of Mrumun Dera by
pouring kerosene on her body while she was asleep and setting her ablaze with
the knowledge that her death would be the probable consequence of your act and
thereby committed an offence punishable under section 221 of the Penal
Code."
At the trial of the
appellant, four witnesses gave evidence for the State and only the appellant
gave evidence in defence of the charge. The evidence led by the respondent may
be summarized briefly as follows: PW1, whose names are Benjamin Iorumun Shande
is a civil servant and the husband of the appellant. They apparently lived
together at Achia, where they have their matrimonial home.
The witness said that on
account of his work, he stays more regularly at Adagi but he does go home
regularly. On the 8th May 1997 while at Adikpo, he learnt that Mrumum Dera the
deceased, had enquired after him. He therefore went over to see her at Jato-Aka
where she lived. The next day which was the 9th of May, he agreed with the
deceased that she should come to his home at Achia. There, according to the
witness she would join his own wife, the appellant to plant groundnuts. PW1
said that he arrived at Achia on that day before the deceased. He also did not
meet his wife who had gone to the school where she was a teacher. He then went
to the farm. By the time he came back, the appellant had returned home and
prepared dinner for the family. It was soon after that the deceased arrived.
When she arrived, she joined
the witness where he was sitting with his father and junior brother. Though she
was offered food, the deceased declined the offer as she had also brought some
food along with her and which she served to the people she met at the table
under the 'Ate'. The appellant also joined them there, as she was invited so to
do by PW1. Some two hours after they had eaten, PW1 stated that as the deceased
told him that she was feeling cold and would like to sleep, he instructed the
appellant to prepare the room for her.[CundySmit1] The
room, a thatched round hut, belonged to the witness within the compound of
PW1's father. And it is the room according to the witness, where the deceased
and the appellant slept when the deceased visit them.
He claimed that sometime
after the appellant had gone into the room, he heard a cry from the room. He
and his brother then ran to the room/hut. As they could not easily gain
entrance into the room, his brother, PW2 had to kick the door open. Inside it
they found the deceased with fire on her body. She was then quickly rushed out
of the room to a clinic. In the room, the two children of PW 1 were found
sleeping. The appellant was also in the room when they entered. The deceased
was later rushed to the hospital where she died. PW1 admitted that the deceased
had been his friend between 1995-1997, and that the deceased and the appellant
had been friends and did exchange visits in the period. He was not aware of any
trouble between them.
The appellant as I have
stated above gave evidence on his own behalf. Also tendered and admitted is the
extra-judicial statement ex. 5 made to the police by the appellant after she
was arrested.
Also admitted in evidence are
exhibits 1- 4 which are (1)4L gallon ex. 1; (2) kerosene inside the 4L gallon
ex. 1A; (3) some burnt pieces of cloths ex. 2; some grass ex. 3; medical report
on the post mortem on the deceased, ex. 4, and ex. 5. The appellant in her oral
evidence admitted that she made ex. 5. But she went on to give oral evidence of
what happened in the room before and after the fire incident that led to the
death of the deceased. She also gave evidence about the relationship between
PW1 and the deceased. It is manifest from her oral statement and the
extra-judicial statement exhibit 5, that the appellant had not clearly accepted
the 'lovers' relationship between the deceased and her husband PW1. Indeed from
what she gave in evidence, it is I think, manifest that she greatly resented
the relationship as she was convinced that it was because of it that her
husband had on many occasions abandoned her and the responsibilities of the
appellant for the upkeep of the family. I will later in this judgment have
cause to dwell further on this aspect of the case.
In the mean time, let me say
that the trial court rejected her oral testimony with regard to how the
deceased met her death. Exhibit 5 her extra-judicial statement then formed the
pivot of the judgment of the trial court for reaching its conclusion, about the
guilt of the appellant. Before arriving at this conclusion, the trial court
duly considered whether the defences of provocation and of accident was open to
the appellant but the trial court held that those defences were not available
to her. She was accordingly found guilty of the offence of culpable homicide punishable
with death contrary to section 221 of the Penal Code. As the appellant was very
dissatisfied with the judgment and orders of the trial court, she appealed to
the court below. As that court affirmed her conviction by the trial court, she
has filed a further appeal to this court.
Pursuant thereto, four
grounds of appeal were filed against the judgment of the court below. And in
consonance with the rules of this court, briefs of argument were filed and
exchanged by the parties.
After a perusal of the two
briefs filed by counsel on behalf of the parties, it is clear that they are
agreed that there are only two issues for the determination of this appeal.
They read thus:-
"(a) Whether the learned
Justices of the Court of Appeal were light in law in holding that the appellant
committed culpable homicide punishable with death even though the prosecution
has failed to discharge the onus placed upon it to prove the guilt of the
appellant beyond reasonable doubt.
(b) Whether the defence of
provocation can avail the appellant to reduce the offence from murder to
manslaughter considering the circumstances of this case."
On the first issue, which is,
whether the court below was right to have upheld the conviction of the
appellant, learned counsel submits that apart from the extra-judicial statement
made by the appellant, there is no other evidence before the court to prove
that it was the appellant who killed the deceased. It is his further submission
that the court cannot convict the appellant on exhibit 5, the extra-judicial
confession of the appellant. And he further submitted that as the court failed
to consider whether there was any other evidence that corroborated the facts
disclosed in the said confessional statement. Where, submits counsel, as in
this case no such evidence was disclosed nor considered by the trial court,
then the court should have refused to convict the appellant on exhibit 5.
For the respondent, its
learned counsel is contending that it must be noted that there is no dispute
that exhibit 5 was the voluntary confessional statement of the appellant. It is
his further submission that the free and voluntary confession of an accused may
be the basis for his conviction for the offence for which he was being
prosecuted. In support of this submission he referred to Osakwe v. The State
(1992) 2 SCNJ 57 at 66 and also Nwaebonyi v. The State (1994) 5 SCNJ 88; (1994)
5 NWLR (Pt. 343) 138. The argument of the appellant and the respondent thereto
on this issue, were canvassed before the court below. In respect of that
submission, the court below held thus: -
"From the evidence
adduced in the case, it is clear that the appellant had admitted making the
confession. A written confession of an accused person is relevant and should
not be discarded or ignored simply because the accused had later retracted it
or resiled from that voluntary statement. Once a confessional statement is
proved to have been made voluntarily, as in this instant case and it is direct,
positive, unequivocal and clearly amounts to an admission of guilt, it can
still ground a conviction regardless of the fact that the maker resiled
therefrom or retracted the same completely at the trial, as such retraction
does not make it inadmissible or that the trial court should not act on
it"
Having regard to the
provisions of section 27(1) & (2) of the Evidence Act, I think that the
courts below cannot be faulted with their approach with regard to the
extra-judicial statement made by the appellant.
Section 27(1) and (2) of the
Evidence Act provides:
"27(1) Confession is an
admission made at any time by a person charged with a crime stating or
suggesting the inference that he committed that crime.
(2) Confessions, if voluntary
are deemed to be relevant facts as against the persons who make them
only."
In this respect, permit me to refer to the
decision of this court in Queen v. Itule (1961) 2 SCNLR 183, All NLR 462 at 484
where Brett Ag. C.J.F. said
"The Judge referred to
exhibit E in his judgment, and to the fact that it had been
"retracted", by which he presumably meant that the appellant had
denied ever making it, but by an unfortunate omission, he failed to record any
finding on the question whether the appellant had in fact made it. A confession
does not become inadmissible merely because the accused person denies having
made it and in this respect a confession contained in a statement made to the
police by a person under arrest is not to be treated differently from any other
confession. R v. Philip Kanu & Anor. 14 W.A.C.A. 30. (Italics mine)
In this appeal, it is not the
case of the appellant that exhibit 5 was not made voluntarily. Indeed at the
trial, the appellant readily admitted it as her statement, which she made to
the police. It is also not the case for
the appellant that courts below failed to take cognisance of it. Rather the
court below accepted it and apparently convicted the appellant on the facts
disclosed in the statement, exhibit 5. It is manifest that without the evidence
that emanated from exhibit 5, the prosecution would not have had any evidence
to establish the guilt of the appellant. Having regard to the evidence
disclosed in the said exhibit 5, the courts below were right to have held that
the appellant clearly knew or ought to have known that the pouring of kerosene
on the body of the deceased and setting it alight would result in the death of
the deceased. Issue 1 will therefore be resolved against the appellant.
I now turn to consider the
second issue. This is whether the defence of provocation can avail the
appellant to reduce the offence from murder to manslaughter considering the
circumstances of this case. The question raised by this issue (sic) fails to be
considered in the light of the provisions of S. 222(1) of the Penal Code, which
provides that:
"Culpable homicide is
not punishable with death if the offender whilst deprived of the power of
self-control by grave and sudden provocation causes the death of the person who
gave the provocation or causes the death of any other person by mistake or
accident."
This question as to whether
the defence of provocation was available to the appellant was resolved against
her after referring to -the provisions of section 222(1) quoted above and to
her evidence in exhibit 5. Learned trial Judge then referred quite properly to
the case of Oladipupo v. The State (1993) 6 SCNJ 233, (1993) 6 NWLR (Pt. 298)
131 where at p. 139 this court held that:-
"It is settled law that
to avail himself of the defence of provocation, the appellant must have done
the act for which he is charged
(i) in the heat of passion;
(ii) the act must have been
caused by sudden provocation;
(iii) the act must have been
committed before there was time for passion to cool;
(iv) the mode of resentment
must be proportionate to the provocation offered.
These four requirements must
co-exist before the defence can succeed."
The trial court then went on
to hold as follows: -
"I think the provocation
which will avail the accused is that offered immediately before the act
complained of while the acts of the deceased may have annoyed the accused
person, they certainly do not amount to provocation as defined above. There is
no evidence from the accused or in exhibit 5 that when they got to the room,
the deceased attempted to assault her or even said anything to her that
provoked her."
As the learned trial Judge
was of the view that the past incidents concerning the relationship between the
deceased and the appellant's husband had occurred before the deceased and the
appellant do not amount to provocative acts of the deceased, the conclusion was
reached that the defence of provocation was not available to the appellant.
Before the court below, the
question of whether the defence of provocation was available to the appellant
was also considered by that court and it was rejected on the basis of the
portion of the statement of the appellant in exhibit 5. But in my humble view,
it is necessary in order to appreciate the events of the 9th of May, 1997 that
led to the incident of that day, that a fuller portion of exhibit 5 should have
been considered by both the court below and the trial court. For that reason,
the portion of exhibit 5, which I consider germane in the circumstances, are as
follows: -
"On the 9th May, 1997,
my husband arrived from Turan in the morning and the deceased lady arrived
around 8 p.m. She went straight and joined my husband's father at his
"Ate" (round hut in the centre of the compound).
By this time I was eating in
the room with my husband and when her bag was brought to our room by the
children, my husband after eating went out and joined her at "Ate"
and I later followed my husband to "Ate" where I met the deceased and
we greeted each other and thereafter I left. I tried to get some food for her
from the wife of my husband brother but the deceased declined to eat. I went
and bath (sic) and later joined them at "Ate". While we were there at
about 10 p.m., my husband noticed the deceased was feeling sleepy and he
touched her and asked her whether she wants to go and sleep and she replied
yes. It was then that my husband asked me to go and arranged a place for her to
sleep. I complied and took her to my room and arranged bed for her and she
slept on the bed covering her face and body with cloth. My two children were
sleeping on the other bed in the same room. I tried to sleep with my children
on the other bed but my mind could not rest because of the deceased who have
caused my husband not to do my part time N.C.E. course, not to farm for me,
clothes (sic) me and to take me and our children for treatment when need arise.
Also my husband (sic) failure to pay the debt outstanding against me in our
local bank. I had in mind to cause her some bodily injuries in order to make
her keep away from my husband and so I took kerosene in a container poured it
on her and light matches and dropped it on her and her body catches (sic) fire
and she waked (sic) up and started shouting and in her attempt to rushed (sic)
out of the hut, fire catches (sic) on the roof of the thatched house and I
started using the drinking water in the pot to put it off."
Now, before deciding whether
the courts below were right in their resolution of this question as to whether
the defence of provocation was available to the appellant, it is necessary to
advert to the provisions of section 222(1) of the Penal Code quoted above.
It is I think, patent that a
careful reading of its provisions reveal that what is paramount in the
consideration of this section is, whether the act of the offender was done
whilst the offender was deprived of the power of self control by grave and
sudden provocation.
It is clear from the evidence
adduced and accepted by the court that the deceased had been the lady friend of
PW1, the husband of the appellant. It is also clear that PW1 wished to have as
established that the appellant accepted that relationship. But it is manifest
from exhibit 5 that the appellant totally rejected that relationship of the
deceased with her husband. A careful reading of her statement shows very
clearly her resentment of this relationship, more so when she felt that it was
that relationship that deprived her of the love and care of herself and family:
the failure ofPW1 to repay to her account in her bank the sum of N10,000 she
had lent to the husband PW1. It may be said that these are matters, which a
reasonable person should accept and carryon with life. Be that as it may,
matters came to a head on the 9th of May, 1997 when at about 8 p.m., the
deceased arrived in the compound of the father of PW1. It is in the same
compound where the house (hut) of PW1 is situated and where the appellant lived
with him. When she came that night, appellant and PW1 were having their dinner.
PW1 immediately abandoned the appellant and her dinner to join the deceased who
had taken a seat with the father of PW1. Later, the appellant joined them at
the invitation of PW 1. After some time after the deceased had intimated to PW1
that she wanted to sleep, PW1 then directed that the appellant should prepare a
place for her to sleep. The appellant dutifully took the deceased to the room,
which she shares with her two sons. There the deceased slept on the bed of the
appellant.
It is clear from this
narrative that the appellant cannot be described as happy in all the
circumstances. The question then is, whether a woman who had been the subject
of such neglect by PW1, would not feel provoked towards the deceased, the lover
of her husband sleeping as if nothing was wrong on her own bed in her 9wn
house. Or the question put in another way is, whether a reasonable woman would
not be provoked seeing an acknowledged lover of her husband, and who had been
the object of pampering before her, not be deprived of the power of self
control by the conduct of PW1 and the deceased.[CundySmit2] But
before this question is answered, it must be noted that neither the court below
nor the trial court considered whether having regard to the peculiar
circumstances, the appellant was in full control of herself and/or was not
deprived of
the power of self-control. I
do not think that it was right not to have considered the entire statement of
the appellant as per exhibit 5, before determining the guilt of the appellant.
Indeed in so far as the trial court had decided that exhibit 5 is what would be
accepted as the defence of the appellant, then the court has a duty to examine
fully the statement in the context of her defence. I have before now set out
the relevant portion of the statement of the appellant, exhibit 5. This
statement clearly set out what happened before the 9th of May, 1997 and which
culminated with the outward conduct of the deceased and the PW1, who directed
the appellant to prepare where the deceased would sleep when he knew that the
only place available is the hut where the appellant sleeps with her children.
In my view, it is the duty of
the trial court to have considered whether a reasonable person in such
circumstances in consequence of such conduct, and the history of the existing
relationship between the appellant and the deceased might be so rendered
subject to passion or loss of control as to be led to use violence with fatal
results and secondly, that the appellant was in fact under the stress of such
provocation. It is after a careful evaluation of such facts that the view can
be formed as to whether manslaughter or murder is the appropriate verdict. [CundySmit3]
Now, though the courts below
did not approach the question raised, as they should have done, the question
then is, whether the case be sent back for retrial. But having regard to the
principles laid down in the case of Abodundu v. Queen (1959) SCNLR 162, I do
not think that the justice of the case demands that a re-trial be ordered.
In the result, the appellant
is discharged and acquitted. The judgments of the courts below are hereby set
aside.
KUTIGI, J.S.C.: I have had
the privilege of reading in advance the judgment just delivered by my learned
brother Ejiwunmi, J.S.C. I agree with his reasoning and conclusions. I have no
doubt that the appellant must have been provoked by the continued presence and
activities of the deceased inside appellant's matrimonial home which the
deceased as the lover of appellant's husband, appeared to have taken over
including appellant's bedroom. I also allow the appeal.
Conviction and sentence set aside.
The appellant is discharged and acquitted.
wow
ReplyDelete