AN ACCUSED PERSON WHO ADMITS THE COMMISSION OF AN OFFENCE CANNOT CITE INSTIGATION AND INCITEMENT AS A DEFENCE

CASE TITLE: NDUBUISI V. STATE (2018) LPELR-44908(SC)

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

HEADING: AN ACCUSED PERSON WHO ADMITS THE COMMISSION OF AN OFFENCE CANNOT CITE INSTIGATION AND INCITEMENT AS A DEFENCE

LEAD JUDGMENT: AMINA ADAMU AUGIE, J.S.C.

SUMMARY OF JUDGMENT

INTRODUCTION: 
This appeal borders on Criminal Law and Procedure.

FACTS: 
This is an appeal against the decision of the Court of Appeal, upholding the decision of the Abia State High Court.

The Appellant is one of the “Bakassi Boys” leaders and members of the Abia State Vigilante Group known as Bakassi. On 9 July, 1999, the Appellant and three other Bakassi Boys, namely, Ezeji Oguikpe, Emmanuel Eze and Stanley Azogu, were invited from Aba, where the said Group is based, to Government House, Umuahia by Ndukwe Okereke, a State Security Service Official. At the Government House, they met the then Secretary to the State Government. Dr. Elekwachi Nwaogbo, who instructed the S.S.S. official, Ndukwe Okereke, to take the Bakassi Boys to the Safari Restaurant at Umuahia, where they confronted the people they met there with dangerous weapons, including cutlasses, knives and guns. In the process, they killed Chukudozie Nwachukwu and Okechukwu Maduekwe, the former being a degree holder (B.SC) in Zoology and an Operational Manager of Uncle James Sea Food, in Lagos. The second deceased person was a Spy Sergeant, who had gone to the Restaurant with his younger brother, Solomon Maduekwe [PW3] to collect the drinks earlier ordered by their elder brother, for their sister’s traditional wedding. The appellant and other Bakassi Boys killed the deceased persons, after accusing them of being armed robbers. Their mutilated bodies were dragged to the main road, where their remains were set ablaze by the said Bakassi Boys.

The Abia State High Court found the Appellant guilty of the offence of murder, convicted and sentenced him to death accordingly. The Court of Appeal was also convinced, after reviewing the evidence, that he was guilty of the offence of murder and affirmed the trial Court’s decision. Appellant appealed to the Supreme Court.

ISSUES: 
The issue for determination is:

“Whether the Appellant was rightly convicted for murder or not?”

The Supreme Court unanimously held that this Appeal totally lacks merit, the appeal was dismissed.

RATIOS:

• CONSTITUTIONAL LAW – RIGHT TO LIFE – Constitutional provision as regards right to life and exceptions thereof

“Section 33 of the 1999 Constitution, which guarantees right to life, stipulates that – (1). Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria. (2) A person shall not be regarded as having been deprived of his life in contravention of this Section, if he dies as a result of the use, to such extent and in such circumstance as are permitted by law, of such force as is reasonably necessary- (a) For the defence of any person from unlawful violence or for the defence of property; (b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained- or (c) For the purpose of suppressing a riot, insurrection or mutiny.”

Per AMINA ADAMU AUGIE ,J.S.C ( P. 16, paras. B-F )

 

• CRIMINAL LAW AND PROCEDURE – DEFENCE OF PROVOCATION – When the defence of provocation will avail an accused person

“Finally, and more importantly, for the defence of provocation to avail the Appellant, there must be something said or done by the deceased persons in his presence, which caused the Appellant to ‘Suddenly and temporarily’ lose his passion and self-control. See R. v. Duffy (1949) 1 AER 932, where Devlin, J., observed that: Provocation is some act, or series of acts, done by the dead man to the Accused, which would cause in any reasonable person, and actually cause in the Accused, a sudden and temporary loss of self-control, rendering the Accused so subject to passion as to make him or her for the moment not master of his mind. This definition of “provocation” has been adopted by this Court in numerous cases – Akalezi V. State (1993) 2 NWLR (Pt. 273) 1 SC, George V. State (1993) 6 NWLR (Pt. 297) 41 SC, Uluebeka V. State (2000) 7 NWLR (Pt. 665) 404 SC, and it is clear that such killing(s) is triggered by rage or anger, etc., on the part to the Accused to a person that offered the provocation. It is a direct confrontation, there is no third party inciting the Accused to kill the deceased- See Kaza V. State (2008) LPELR-1683(SC), where Tobi. JSC, said Provocation is an action or conduct, which arises suddenly in the heat of anger. Such action or conduct is precipitated by resentment, rage or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage or fury, as there is time for passions to cool. The very act of reportage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage or fury of the Accused.”

Per AMINA ADAMU AUGIE ,J.S.C ( Pp. 19-21, paras. D-B )

 

• CRIMINAL LAW AND PROCEDURE – DEFENCE(S) OF ACCUSED PERSON(S) – Whether an accused person who admits the commission of an offence can cite instigation and incitement as a defence

“The appeal raises one salient jurisprudential question: whether an accused person who admits the constituent facts of a crime can plead, as a defence, the fact that he was instigated or incited to commit the offence by another person? Abetment of an offence is itself an offence. In a charge of abetment of an offence, as stated by Coker, JSC in PATRICK NJOVENS & ORS. v. THE STATE (1973) 5 S.C 12, the initial element is the instigation or the positive act of encouragement to do the act that constitutes the offence. Instigating a crime is no more than to goad or incite another to do an act that is a crime. It is a specie of the offence generally referred to as criminal conspiracy. Even at common law it is an indictable offence for one person to incite or instigate another to commit an offence: R. v. RAMSFORD 13 COX 9. The facts of this case clearly establish pre-meditated murder committed by the Appellant. The fanciful and capricious defence offered by the Appellant in his plea, as argued by his Counsel, that his conviction for murder should “be substituted with a verdict of manslaughter” is that he was admittedly instigated or incited by one Dr. Elekwachi Nwogbo, then Secretary to the Government of Abia State to do what he did; that is: to kill the persons he and his cohorts killed at the locus criminis the Safari Restaurant, Umuahia. He seemed to suggest that because the said Secretary to the Government of Abia State had incited and/or instigated him to extra-judicially kill the alleged suspected armed robbers or these particular victims at the Safari Restaurant he had been duly licensed to kill human beings. It is on this distorted and convoluted reasoning that the Appellant’s Counsel argues that “the extenuating circumstances” exist entitling the Appellant to plead provocation. The factor of criminal responsibility reducing the verdict of murder to one of manslaughter, as the Appellant posits, is the fact that he did what he did on the incitement or instigation of officials of Abia State Government to kill any person identified as armed robber. On the alleged charter given to the “Bakassi Boys”, the killer group the Appellant belongs, the learned Appellant’s Counsel submits inter alia- The Government had incited the group by not only informing them of the whereabouts of suspected criminals, but by also proceeding to identify the suspected criminals and leaving them at the mercy of the group. The horrifying or sordid submission of the Appellant’s Counsel, on the licence to members of the Bakassi Boys to extra-judicially kill alleged suspected armed robbers, defies due process of law offered by Section 36(4), (5) & (6) of the Constitution that inter alia emphasize respectively that – (4) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal. (5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty (by his accusers at a law court or Tribunal), and (6) Every person who is charged with a criminal offence shall be entitled to – (a) to be informed promptly in the language that he understands and in detail of the nature of the offence; (b) to be given adequate time and facilities for the preparation of his defence; (c) to defend himself in person or by his legal practitioner of his own choice. (d) to examine in person or by his legal practitioner witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to the witnesses called by the prosecution (e) …. The Appellant who is advocating that, upon his instigation or incitement to kill other human beings labeled simply as criminals or suspected criminals, he had licence to kill and that such licence entitles him to plead provocation or extenuating circumstances that reduce his conviction for murder to one of manslaughter, had himself enjoyed the due process of law offered by the law or Constitution. He seemed erroneously to operate under the notion the criminal who does not acknowledge the law should be adjudged without it. That notion is negated by our law that emphasizes due process as a fundamental principle of the Rule of Law An instigation or incitement to commit a crime, is itself an offence of abetment of crime. When it is admitted as a fact, it cannot be the basis on which an accused person, who admits that he committed the alleged offence upon his being so instigated or incited, can predicate his defence of provocation. Our jurisprudence or law recognises the truism that illegality, in law, is not capable of creating any right: BELLO & ORS v. A. G. OYO (1986) 1 SC 1 at 76. Thus, as onu, JSC, later puts it in ALAO v. A. C. B LTD (1998) 1-2 SC 177; a party cannot rely on a transaction that is besmirched with illegality. Accordingly, an accused person, as the Appellant herein, who committed murder cannot rely on the fact that he was instigated or incited by another person to commit the alleged murder, that he admits in order to plead provocation. The provocation recognised as extenuating circumstances reduces the verdict of murder to one of manslaughter. It must come not of course, from instigation. The two affirmative facts constituting provocation which the accused person must establish in order to succeed in the defence are – (1) Whether there was evidence of provocation of the accused person, and (2) Whether there was any evidence that the provocation caused him to lose his self-control? These facts are absent in this case. They are negated by the admission that the Appellant, a rational person was instigated albeit illegally or criminally, to kill suspected criminals or armed robbers. In concurrence with my learned brother, I must, and do hereby dismiss this appeal. It lacks substance. Allowing this opprobrious plea of provocation only on the basis that the Appellant was instigated to kill alleged suspected criminals pointed out to him by his instigators, will enthrone a regime of anarchy, self-help and extra-judicial killing in total defiance of due process or rule of law.”

Per EJEMBI EKO ,J.S.C ( Pp. 31-36, paras. A-D )