BIRUWA V. THE STATE

• Pages: 93-102

BIRUWA V. THE STATE

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93

BIRUWA V. THE STATE

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JAMES BIRUWA

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APPELLANT

V.

10 THE STATE

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RESPONDENT

APPEAL No. SC. 259/1990.

SUPREME COURT OF NIGERIA

UWAIS,

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J.S.C.

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WALT,

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J.S.C.

AKPATA,

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J.S.C.

OMO,

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J.S.C.

BABALAKIN,

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J.S.C.

20 31st January, 1992.

Appeals - Issue not raised in Court of Appeal - Whether .same can be raised in Supreme

Court without leave - Grounds of Appeal - Leave to file and argue additional grounds

- Whether amounts to leave to raise fresh issue not raised in Court of Appeal.

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Criminal Law and Procedure - Murder - Defence of provocation - When may it avail an

accused - Elements of - Seduction of another person's wife - When may it amount to

provocation - Whether can be regarded as a crime punishable by the state.

Professional Ethics - Legal Practitioners - Duty of counsel before pressing the issue of

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irregularity in record of appeal

Words and Phrases - "Provocation" - Meaning of

ISSUES:

1.

What are the essential elements of the defence of provocation and will the

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defence avail an accused?

2.

What is the duty of counsel, who is coming into a case at the appeal stage,

before pressing the issue of irregularity in record of appeal?

FACTS:

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The accused was charged at the Yola High Court with the offence of culpable

homicide punishable with death contrary to section 221 (a) of the Penal Code. The

case for the prosecution was that the accused shot one kiliyobas Jabo, the

deceased, with an arrow on the neck, and he died five days later in the hospital as

a result of the damage to the vital organs of parts of the brain arising from the

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penetration of the arrow to the base of the skull.

When the accused was arrested at the police station when he gave himself up,

he made a confessional statement wherein he admitted shooting the deceased

with an arrow. His reason was that his wife deserted him and went to live with the

deceased whom she got "married" to without returning the dowry paid by the

accused.

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