Provocation based on witchcraft cannot stand SC
On his part, learned Counsel for the respondent submitted that the defence of provocation does not avail appellant as he did not commit the act/offence on the heat of passion caused by sudden provocation before there was time for his passion to cool, relying on Chukwu Obaji vs State (1965) NMLR 417 at 442; that […]
On his part, learned Counsel for the respondent submitted that the defence of provocation does not avail appellant as he did not commit the act/offence on the heat of passion caused by sudden provocation before there was time for his passion to cool, relying on Chukwu Obaji vs State (1965) NMLR 417 at 442; that appellant did not machete the deceased soon after the deceased threw a charm on him saying that appellant’s son would die one after the other; that the death of one of the sons later which resulted in the matcheting of the deceased by appellant cannot be said to have been done under provocation but an act of revenge.
I had earlier stated in this judgment that the submission of learned Counsel for appellant on the issue of provocation is not made in the alternative having regards to the submissions of appellant’s Counsel in issue (1) which is a complete denial that it was the act of appellant that caused the death of the deceased or that death of the deceased has not been established satisfactorily neither has the cause of that death been traceable to the acts of the appellant.
When a defence of provocation is raised by an accused person, he must, of necessity admit the commission of the offence charged in the first place before going on to explain the circumstances in which it was committed and contending that due to the circumstances surrounding the commission of the offence of murder, the offence be reduced from murder to manslaughter.
The above notwithstanding, is there evidence on record to support the defence of provocation as contended by Counsel for appellant? The answer is completely in the negative. In the case of Akang vs State (1971) 1ALL NLR 46 at 49, COKER, JSC restated the basis of the defence of provocation as follows:
“Provocation which reduces what would otherwise amount to murder to manslaughter is a legal concept made up of a number of elements which must co-exist. It is of paramount importance in the consideration of this concept that the act held out as a natural and justifiable action of the provoked person be done not in self revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by circumstances of the occasion.”
In deciding the issue as to whether or not there is provocation in any particular case, regard must be had to the nature of the act by which the offender caused death; to the time which elapsed between the provocation and the act which caused death; to the offender’s conduct during that interval; and to all other circumstances tending to show the state of his mind.
Provocation therefore consists of three elements, to wit:
(a) The provocative incident,
(b) The loss of self-control both actual and reasonable; and.
(c) The retaliation, which must be proportionate to the provocation. See State vs Ibe (1965) NMLR 463; Akang vs State supra.
In the instant case, what is the provocative incident which appellant puts forward as constituting the basis of his provocation? From the appellant brief, learned Counsel for appellant has listed them as: fact that the deceased had on a previous day gone to appellant’s house and dropped a substance said to be a charm and told appellant that “since he refused to agree, he would now agree by force as his two sons would begin to die one after the other”, that the same night appellant’s two year old son began to shout “No, No, No” and died the following day; that the deceased attended the burial of the dead son and allegedly taunted appellant thus “. I think I told you that you will see” as a result of which appellant reacted by rushing into his room and came out with cutlass with which he macheted the deceased.
From the stand point of the law, the incident of dropping a charm or juju at the residence of the appellant which is allegedly linked with the death of the two year old son of the appellant does not qualify as an incident of provocation. It does not matter that appellant may honestly believe that there was a connection between the two events, which belief is obviously founded on witchcraft simpliciter as learned Counsel for appellant has offered no other explanation. It is however, settled law that a plea of provocation founded upon witchcraft cannot stand – see Konkomba vs R (1952) 14 WACA 236; Gadam vs R (1954) 14 WACA 442.
Another thing said to constitute an incident of provocation is the statement by the deceased on the date of the incident to wit: “I think I told you that you will see.”
The above are mere words which do not constitute provocation on – see Akpakpan vs Queen (1956) 1 NSCC 1 at 2; (1956) 1 FSC The fate the plea of provocation in the circumstance of the of this case is sealed by the reaction of appellant in terms of the rationality of the provocation with the force or action deployed by appellant which were the use of mere words by the deceased and cutlass/machete by the appellant in reaction to the alleged verbal provocation. The macheting of the deceased in the circumstances of case is clearly an act of revenge, not provocation.
In conclusion, I find no merit in the issue under consideration and I consequently resolve same against appellant.
In the circumstance, I find no merit whatsoever in the appeal which is accordingly dismissed by me.
Appeal dismissed.