ALO CHUKWU
v.
THE STATE
1992-LD-SC-422
Supreme Court
10th January, 1992.
Justices:
Adolphus Godwin Karibi-Whyte, J.S.C.
Abubakar Bashir Wali, J.S.C.
Ephraim Omorose Ibukun Akpata, J.S.C.
Uche Omo, J.S.C.
Salihu Modibbo Alfa Belgore, J.S.C. (Read The Leading Judgment)
Subject Matter(s):
Criminal Law and Procedure
Final Order:
Appeal Dismissed.
RATIO DECIDENDI
DUTY OF PROSECUTION – Whether the prosecution is bound to call all material witnesses to prove its case
“In all criminal cases it is the duty of the prosecution to call all material witnesses to prove its case. But the prosecution shall call only those necessary to discharge this burden. Those witnesses whose evidence may not be material need not be called and if an accused strongly is of the view that a witness is material to his defence it is his duty to call him, not that of the prosecution.”
INVESTIGATING POLICE OFFICER – Function of an investigating officer
“The function of an investigating police officer does not involve interviewing person whose evidence will be of no benefit to the prosecution or the accused. Neither does it entail searching for an unknown corporal.”
DEFENCE OF PROVOCATION – Whether it is sufficient to raise a defence of provocation as a defence without evidence on record to ascertain the provocation
“It is not sufficient merely to raise provocation as a defence. There must be evidence on record in respect of which the court can find that accused was provoked within the meaning of Section 283 of the Criminal Code. There was no evidence in the instant case by the Appellant of the act or insult from the deceased which constitutes provocation. -See Alonge v. R. (1964) 1 All NLR 115. He did not even give evidence of the person from who the provocation flowed. -See R v. Ebok (1950) 19 NLR 84. Even if there was provocation, there must be evidence that deceased was among the group which offered the provocation.”
DEFENCE OF SELF-DEFENCE – Conditions that must be established for a successful plea of self defence
“Self defence, to succeed, must be proved to be a response to an attack and it was the attacker or assailant that was the one to be hit back.”
DEFENCE OF PROVOCATION – Essential elements/ingredients required to estabish the defence of provocation
“There are three essential elements of provocation. There is the act of provocation and in homicide, it must be grave and sudden: then the loss of self control both actual and reasonable. Then finally, the retaliation, which must not be disproportionate to the provocation. – See Sections 284 and 318 of the Criminal Code – See Lee Chun Chuen v. The Queen (1962) 3 WLR 1461. These are all questions of fact to be established by the person relying on the defence – See S. 138 Evidence Act.”
DUTY OF PROSECUTION – Duty of the prosecution in a criminal trial
“…once convincing proof is made by the prosecution to a level beyond reasonable doubt its onus is discharged. The number of witnesses is not of importance; what is important is the degree of proof.”
INTERFERENCE WITH FINDING(S) OF FACT(S) – Attitude of appellate courts to findings of fact made by a lower court
“The court of trial whose duty it is to appraise evidence given at the trial, having seen and heard the witnesses came to the right conclusion. The Court of Appeal will not normally disturb such findings and have accepted those findings. The learned trial Judge who did not believe the appellant described the defence of the Appellant as a tissue of lies, and his evidence as fabricated. It is well settled that the decision of a court of trial on the facts is correct – See Williams v. Johnson (1937) 2 WACA 253.”
CRIMINAL LIABILITY/RESPONSIBILITY – When an accused person would be absolved of criminal liability
“I now turn to the defences of self-defence, provocation and accident raised by the Appellant. Section 24 of the Criminal Code relied upon by the Appellant will exclude criminal responsibility where established. This is because it provides that “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.” Where the voluntary act results in an event which was neither intended nor forseen, the consequence is an accident. Hence in Iromantu v. State (1964) 1 All N.L.R. 311, it was held that a person who discharges a firearm unintentionally and without the attendant criminal malice or negligence will be exempt from criminal responsibility both for the firing and for its consequences.”
DEFENCE OF PROVOCATION – Meaning and nature of the defence of provocation
“The term “Provocation” as defined in Section 283 of the Criminal Code is in relation to an offence of which an assault is an element. It includes “any wrongful act or insult of such a nature as to be likely to 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, filial, or fraternal relation, or in 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. “It is clear from this definition that a person who relies on a defence of provocation admits the commission of the assault or the doing of the intentional act, but seeks an excuse on the grounds of the wrongful act or insult done to him or some other person.”
DEFENCE OF PROVOCATION – What degree of provocation will reduce the offence of murder to one of manslaughter
“Hence when the act based on provocation as a defence results in the killing of another, the defence is only available to reduce the offence from murder to manslaughter, if the act which causes death was done in the heat of passion caused by sudden provocation, and before there is time for his passion to cool – See S. 318 Criminal Code – See John v. Zaria N. A. (1959) NRNL 43.”
