Elements of the Defences of Provocation and Self Defence

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 2nd day of February, 2024

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Adamu Jauro

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/766/2014

Between

TINA OKORODUDU                   APPELLANT

And

THE STATE                                                                   RESPONDENT

(Lead Judgement delivered by Honourable Helen Moronkeji Ogunwumiju, JSC)

Facts

The Appellant was arraigned before the High Court of Delta State on a charge of murder punishable under Section 319(1) of the Criminal Code, Cap. 48, Vol. II, Laws of the defunct Bendel State of Nigeria as applicable to Delta State. The particulars of the Appellant’s offence were that the Appellant murdered one Jerry Adarerhi on 30th April, 2007. It was alleged that the Appellant had a quarrel with the deceased who was her landlord, and his family, which led to a fight, and the Appellant had gone upstairs to her room and had come back with a broken Coca-Cola bottle, with which she stabbed the deceased at the back of his neck. It was further alleged that the deceased was talking to PW2 with his back turned to the Appellant, when she stabbed him. The Appellant pleaded not guilty to the charge. 

During the trial, the Respondent called five witnesses, and also tendered five exhibits during trial, among which were Exhibit “A” – the statement the Appellant made to the Police on 24/4/2007 which was admitted in evidence after a trial-within-trial was conducted, and Exhibit “E” – the second statement the Appellant made to the Police on 15/5/2007. In the Appellant’s statement in Exhibit “A”, she stated that after the fight between her and the deceased had been separated, she went upstairs to break a bottle and brought it down with her to stab the deceased. In Exhibit “E” however, she stated that while the fight was on, she was able to get hold of a bottle and hit the deceased on the head with it. The Appellant was the only witness for the defence, and she raised the defences of provocation and self-defence. At the end of trial, the trial court convicted the the Appellant for the offence of murder and sentenced her to death by hanging. In its evaluation of evidence in convicting the Appellant, the trial court preferred Exhibit “A” to Exhibit “E” as the true narration of events.

Dissatisfied with the judgement of the trial court, the Appellant filed an appeal at the Court of Appeal. However, the appeal was dismissed. Aggrieved, the Appellant filed a further appeal at the Supreme Court.

Issue for Determination

The Supreme Court adopted the sole issue distilled by the Appellant for the determination of the appeal as follows:

Whether the Court of Appeal was right in affirming that there was no evidence before the trial court upon which it could sustain the alternative defences of provocation and self-defence in favour of the Appellant.

Arguments

Counsel for the Appellant argued it was not in dispute that the Appellant raised the defence of provocation and self-defence timeously at the trial court, and thus, the burden was on the prosecution to negate the said defences through some more compelling evidence. Counsel relied on LADO v THE STATE (1999) 9 NWLR 369 at Pg. 384 Para A to further submit that the general burden of proof imposed on the prosecution in criminal cases is even more onerous in murder trials, and where there is some evidence of provocation or self-defence, then the prosecution must prove the absence of such provocation. Counsel argued that the trial court was wrong, after having found initially in its judgement that the Appellant raised the defence of provocation and self-defence timeously, but later went on to hold in the said judgement that the defences were an afterthought. He submitted that, the court cannot be allowed to approbate and reprobate on the same issue before it. He further submitted that the decision of the trial court to convict the Appellant was perverse, and ought to have been set aside by the Court of Appeal, as it runs counter to the evidence adduced before the trial court. Counsel urged the Supreme Court not to find contradiction in the extra-judicial statements of the Appellant’s – Exhibits ‘A’& ‘E’ and to hold that the law is settled that where the circumstances surrounding a particular event in a criminal case are susceptible to two or more interpretations, the court should adopt the interpretation that is favourable to the Defendant. 

Conversely, Counsel for the Respondent argued that the ingredients of the offence of murder were proved against the Appellant beyond reasonable doubt, through the credible evidence of the prosecution witnesses particularly PW1, PW2, PW3 and the Appellant’s extra-judicial confessional statement in Exhibit ‘A’. Counsel argued that there was evidence on record which established that the deceased died of the stab wound inflicted on him by the Appellant, and the Appellant in Exhibits ‘A’ and ‘E’ and her oral testimony before the trial court also admitted that she stabbed the deceased with a broken Coca-Cola bottle, even though she had claimed it was out of provocation and in attempt to defend herself. Counsel argued that there was no evidence in support of the Appellant’s defence of provocation and self-defence, and the intention to cause the deceased grievous harm was duly established against the Appellant.

Counsel insisted that before the trial court convicted the Appellant based on Exhibit ‘A’, it subjected the document to a veracity test. He submitted that the evidence of PW1- PW3 were neither contradicted nor controverted under cross-examination, and the trial court was right to have relied on them to convict the Appellant. He urged the court to affirm the concurrent findings of the two lower courts.

Court’s Judgement and Rationale

The Apex Court held that for a defendant to successfully establish a plea of provocation to rebut the evidence of premeditation by the prosecution in a charge of murder, the defendant must prove that (a) the act of the deceased was obviously provocative; (b) the provocative act had deprived the defendant of self-control i.e. the provocative act was such that it led the defendant to actually and reasonably lose self-control; (c) the provocative act came from the deceased; (d) the sudden fight between the defendant and the deceased was continuous, and the defendant reacted instantaneously to the provocation before there was time for passion to cool; and (e) the retaliatory act of the defendant in repelling the provocation was not disproportionate to the action reacted against. The Court relying on SHANDE v STATE (2005) Q.C.C.R. VOL. 3 PG. 1 @ 10 LINES 17-41; (2004) ALL FWLR (PT. 223) PG. 1955 @ 1972 PARAS. C-G and STATE v DAU (2021) LPELR-56601(SC).

The Supreme Court held that it was evident that the testimony of PW2 that after the Appellant and the deceased had been separated in their initial fight, the Appellant went upstairs and returned with a broken bottle to stab the deceased who was in a discussion with PW2 tallies largely with the Appellant’s first statement in Exhibit ‘A,’ in which she stated that she went upstairs, broke a bottle, came downstairs, the fight resumed and she stabbed the deceased, notwithstanding her claim that she did so to defend herself. The Court held that it was clear as held by the two lower courts, that the Appellant did not act in the heat of passion, and she had enough time to form an intention to cause grievous harm to the deceased when she climbed the staircase to her room, searched for an empty bottle, broke it, went back downstairs by the same staircase, located the deceased and stabbed him on his back.

The Apex Court held further that at no time in the Appellant’s statements did she indicate that the deceased had a weapon before she went to get a weapon, even if there was an ongoing fight which was not borne out by the evidence. The Court held that it was not in doubt that the initial fight between the Appellant and the deceased and his family satisfied the requirement of provocation, however, she would have been able to successfully claim that mitigating factor if she had stabbed the deceased in the course of the fight, or if there was a second fight between the Appellant and the deceased. The Court held that it was satisfied, that the trial court and the Court of Appeal properly considered and rejected the defence of provocation raised by the Appellant

On the defence of self defence raised by the Appellant, the Apex Court held that self-defence being an absolute defence to the charge of murder assumes that, the defendant not being the first to assault the other person, was attacked so ferociously that he feared imminent loss of his life and used every means at his command at the time to defend himself. The defence is open only to a defendant who is able to prove that he was a victim of an unprovoked assault, causing him reasonable apprehension of death or grievous bodily harm and a necessity to save his own life. The Court further held that where self-defence is raised as a defence, there must be proof that the defendant tried extricate himself or withdraw from the attack but was unable to do so, and the means used by the defendant must not be disproportionate to the danger offered. If the act of self-defence is committed after all danger from the assailant is past, that defence will not be available to a defendant. The Court relied on its decision in UWAGBOE v STATE (2008) LPELR-3444 (SC) PP. 18-19, PARA. G.

The Apex Court held there was evidence on record, rightly believed by the trial court, that (a) The Appellant had a quarrel with the deceased and his family which led to a fight before the parties were separated by neighbours, and the deceased had sent for a carpenter while his wife had gone to call the Police; (b) The Appellant went upstairs to her room, and came back with a broken Coca-Cola bottle; and (c) The Appellant stabbed the deceased on the back of his neck, while he was talking to PW2 with his back turned to the Appellant. The Court of Appeal was thus, right, to affirm the decision of the trial court on the findings of fact that (a) The Appellant was the assailant in this case; and (b) She was not a victim of an unprovoked assault, causing her reasonable apprehension of death or grievous harm. 

The Court held in agreement with the lower courts that, Exhibit ‘A’ represents the true nature of events, while Exhibit ‘E’ is an afterthought as it relates to the circumstance of the stabbing, and the trial court was right not to place much weight on it for that purpose. The Court held that it was clear that the Appellant stabbed the deceased while she was still in a rage and purposely to retaliate about the earlier fight, therefore, neither the defence of provocation nor self-defence was available for the Appellant. 

The Apex Court held that, contrary to the argument of the Appellant, there was no contradiction in the reasoning of the trial Judge when it held that the Appellant had raised the defences timeously, but that the same were not available to the Appellant on a closer consideration of the evidence, and in light of the circumstances of the case. 

In conclusion, the Apex Court held that there was no legal basis for it to disturb the findings of fact of the two lower courts, as they are not perverse. 

Appeal Dismissed.

Representation 

Fedude Zimughan with Chiemeziem Nzeagum for the Appellant

D.E. Agbaga for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)