YALWA & ORS. V. THE STATE

• Pages: 253-254

YALWA & ORS. V. THE STATE

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253

YALWA & OFFS.

V. THE STATE

5

AUDU YALWA AND ORS

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APPELLANT

V.

10 THE STATE

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RESPONDENT

SUIT NO. SC 139/70

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.

SOWEMIMO,

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J.S.C.

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COKER,

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J.S.C.

25th September, 1970

Criminal Law - Culpable homicide punishable with death - Evidence of provocation

not considered by trial court - Effect - Penal Code S.S.22I, 222.

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ISSUE:

1. What is the duty of an appellate court where a trial Judge fails to consider

defence of provocation available to an accused.

FACTS:

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The deceased, a thief had attacked a man from whose house he stole, wounded

him markedly and was about killing him when the appellants came to the scene.

The deceased threatened the appellants with a knife whereupon they beat him with

sticks. At this stage, the deceased fell, down and was almost motionless when

one Mr. 'G' arrived and urged them to beat him to death. They beat him more and

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he died. The trial Judge found that at the instigation of Mr. 'G' the three appellants

formed a common intention to kill the deceased and sentenced them to death.

The Appellants appealed to the Supreme Court.

HELD:

1.

From the judgment of the trial Judge it could be seen that the question of

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provocation was not considered by him. The scene the Appellants saw was

enough to provoke them. He had wounded the person from whose house he

stole and had tried to attack the Appellants with a knife. If up till the time the

Appellants struck the deceased down they were provoked, as indeed they were,

it was not possible that the provocation had ceased and they had had no time

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to cool down and it was a continuous act.

2.

In the circumstances of the case a verdict of culpable homicide not punishable

with death contrary to S.222 of the Penal Code was appropriate and not

culpable homicide punishable with death.

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[As to defence of Provocation. see 11 HALSBURY'S LAWS 4th Edition 619 -

620 Paras. 1163 - 164].

Cole

for the Appellants.

Rowland (State Council, Kano State)

for the Respondent.

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ADEMOLA, C.J.N.

(Delivering the Judgment of the Court): The three appellants

were on the 8th day of May, 1970 in the High Court of Kano State convicted of

culpable homicide punishable with death contra section 221 of the Penal Code,

and sentenced to death. The. have appealed to this Court against their