Sunday Udofia v. The State (1984)



Sunday Udofia v. The State (1984) – SC

by PaulPipAr

⦿ TAG(S)

– Murder;
– Self-defence;
– Provocation;


Sunday Udofia


The State


(1984) LPELR-3306(SC);


Supreme Court


Oputa, JSC.



– Mr. Akinrinsola.


– Mr. Akande.


⦿ FACT (as relating to the issues)

The appellant and his wife, Clementina Onwuzurike, were arraigned before and tried by Babalakin, J. sitting in the Ibadan Judicial Division of the Oyo State High Court. The charge was murder.

In the trial court, the prosecution’s case was that Clementina Onwuzurike (2nd accused) informed her husband, the 1st accused, now the appellant that the deceased, Raymond Nwachukwu, was making love overtures to her. Apparently displeased, the appellant rushed to the house of the deceased. He was not in but his wife, Francisca Nwachukwu, called as the 2nd P.W. was in. This was in the morning (6..30 a.m.) of 26th April 1979. The appellant complained to the 2nd P.W. that her husband, the deceased was “spoiling his family and he will not forgive him”. Asked what the matter was, appellant replied “you will know when it happens”. Disturbed by this awe-inspiring and foreboding message the 2nd P.W. went to the house of the appellant where she met Clementina Onwuzurike (2nd accused). She told the 2nd P.W. that it was nothing to worry about, that her husband, the deceased came to inquire about the new accommodation they were negotiating. At about 2 p.m. of the same 26th April 1979, the appellant repeated his visit to the house of the deceased, he again met the wife, the 2nd P.W. The appellant then left a message that the deceased, when he returned, should come over to his house so that they will go to see the new room they have secured. The deceased returned from work at about 8.30 p.m. His wife, the 2nd P.W. gave him the message. He went over to the house of the appellant. Not long after there was shouting. The 2nd p.w., Francisca Nwachukwu and Linus Nwagwu, the cousin of the deceased rushed to the scene of the shouting. It was the house of the appellant. There they saw the deceased lying half dead in a pool of blood. The police was sent for but the deceased died before the police arrived.

What was the story of the appellant? On the 27th April 1979, a day after the event, when the matter was quite fresh in his mind, the appellant made a statement to the police tendered as exhibit D. That statement is cogent, direct and consistent with the main props of the prosecution’s case the love overture of the deceased to the wife of the appellant, the visit of appellant to the house of the deceased. In exhibit D, the appellant stated that he reported the matter to the police who advised him “to maintain peace.” But the appellant apparently was not a man of peace. On that fatal day, he returned from work rather early and to quote the statement exhibit D, “On reaching without the knowledge of anybody. I hid myself under the bed waiting if Raymond will repeat his call to my house this night.” He went and hid under his bed, armed with a matchet. At about 8.30 p.m. the deceased came into the house of the appellant. Here I will reproduce the relevant portion of exhibit D:- “Immediately I came from under the bed. Raymond seeing me jumped down from the bed and gripped me and we started struggling … I then lay my hand on my cutlass and started cutting towards the direction which inflicted severe matchet cuts all over his body. He ran out from my room and fell outside.”

Available:  Cosm As Ezukwu v. Peter Ukachukwu Jude Ukachukwu (SC. 160/2000, 2 July 2004)

In court, the appellant admitted signing the statement but insisted that he was beaten, kicked, slapped, his pants removed and he was made to sit naked on the floor. He then continued: “I still refused to sign unless I see my wife. He then told me that after I sign he will allow me to see my wife, this make me to sign.” Since the issue here was whether exhibit D was voluntarily made or induced by threats, fear or promise from a person in authority, the learned trial judge did the right thing by conducting a trial of that issue in a mini trial within the main trial and found that exhibit D was the voluntary statement of the appellant made without any threat, inducement or promise held out to him by P.C. No. 50257 Paul Oseniha to whom the statement was made or by anybody in authority.

The learned trial judge fully considered the prosecution’s story and the story of the defence and found: 1. That exhibit D was the voluntary statement of the appellant and that he could even convict on exhibit D alone (but he did not). 2. The learned trial judge believed the evidence of Francisca Nwachukwu, the wife of the deceased called as 2nd PW. He therefore believed: (i) that appellant went to the house of the deceased twice on 26/4/79 and on the second occasion he invited the deceased to call on him when he returned from work; (ii) that the message was given to the deceased who by 8.30 p.m. left for the house of the appellant; (iii) that 2nd P.W. and Linus Nwagwu 1st P.W. attracted by shouts went over to the house of the appellant (which was nearby) where they saw the deceased lying half dead in a pool of blood with matchet cuts all over his body. 3. The trial judge disbelieved the appellant’s story in court and held that “accused’s denial of important issue testified to by P.Ws. is an afterthought”. 4. The learned trial judge held that the appellant intentionally “invited the deceased to his house on the day of the incident, disregarding police advice to maintain peace” and that “he intentionally inflicted matchet cut on the deceased with intent either to kill or cause grievous bodily harm”. The deceased died of those matchet cut wounds. Having found as above, the trial court on the facts concluded, rightly in my view, that the appellant committed the offence with which he stands charged murder.
He then proceeded to consider the various defences available to the appellant on the evidence viz., 1. Provocation; 2. Self-defence. He rejected both and rightly too. He then convicted the appellant who then appealed to the Court of Appeal, Ibadan Division.

That court dismissed his appeal. He now appeals to this Court against that dismissal.


1. The honourable Court of Appeal erred in law and misdirected itself by accepting that the appellant made a confessional statement, exhibit D.

2. The honourable Court of Appeal erred in law when it concluded at p. 104 of the record that:- “The plea of self-defence was also rightly rejected”.

Available:  Society Bic S.A. & Ors v. Charzin Industries Limited (2014)

3. The Honourable Court of Appeal erred in law and misdirected itself by upholding the judgment of the trial court that the defence of provocation was not available to the appellant.






i. Whether exhibit D was voluntary as the prosecution alleges or obtained by duress, threat and promises as the defence maintains, is an issue of fact. That was why there was a trial of that issue in the trial within the main trial. At the end, the learned trial judge reviewed the evidence on both sides, believed the prosecution witnesses, disbelieved the defence and found:- “Finally, I find as a fact and I hold that the prosecution has proved beyond reasonable doubt that the disputed statement was made voluntarily by the first accused person (the present appellant). My answer to the questions (a) above viz. is there evidence of inducement, promise or threat held out to the accused? and (b) did the accused make the statement as a result of (a) above, is in the negative”. Can there be any clearer finding of fact? Neither the court below nor this court can now re-open the issue of the voluntariness or otherwise of appellant’s statement, exhibit D, at least, not on ground 1 as filed. The findings of the trial judge who saw the witnesses, listened to their evidence, watched their demeanour, believed some and disbelieved others are conclusive and binding on an appellate court. Those findings also satisfy the provisions of section 28 of the Evidence Act and make exhibit D most relevant. This ground of appeal fails. There is no need to refer to the cases cited in support of this ground because they are either irrelevant or miscontrued or misconceived or all three.


i. The court below then considered other findings by the trial judge viz: i. That the appellant formed a definite intention to punish the deceased whom he then invited to his house. ii. That the appellant armed himself with a matchet, hid under the bed and lay in wait. The Court of Appeal then held, and rightly in my view, that in view of the above findings, the defences of provocation and self-defence were rightly rejected by the trial court. I do not see what the complaint of learned counsel for the appellant is all about. Where findings have been made by a trial court and those findings have not been successfully challenged, it is not permissible to close one’s eyes to those findings and argue as though they do not exist. The findings in this case stare one in the face and one has just got to look at them. This ground of appeal is totally devoid of merit and it also fails.


i. The learned trial judge accepted that overtures were made for sex by deceased to appellant’s wife on 25/4/79, but rejected that there was any sex between them on 26/4/79 and that the appellant witnessed the alleged sex act. The facts and findings in this case cannot support the concept of legal provocation. Circumstances which induce a desire for revenge, a desire to punish the deceased for daring to make love overtures to his wife”, are inconsistent with the legal concept of provocation since the conscious formulation of that desire, the two visits to the house of the deceased; the complaint to the police; the return early from work on the 26/4/79, the laying in wait under the bed with a matchet all these show that the appellant had ample time to think, reflect, and plan and all these again would negative a sudden temporary loss of self-control which is an essential ingredient of legal provocation.

Available:  Universal Properties v. Pinnacle Comm. Bank, NJA, Opia, Heritage, Fatogun (SC.332/2008, Friday, April 08, 2022)




The Federal Supreme Court stated quoting Rex v. Holmes 31 CAP. 1391 as regards the defence of provocation, regard must be had to the nature of the act which resulted from provocation, it “depends on the fact that it causes, or may cause a sudden and temporary loss of self control, whereby malice, which is formation of an intention to kill or to inflict grievous bodily harm, is negatived.”




Issues of fact, evaluation of evidence, credibility of witnesses these are peculiarly and comfortably within the exclusive competence and domain of the trial court. An appellate court is bound by the findings of the trial court especially where, as in this case, much depended on which side the trial judge believed before making his findings. Issues of the credibility of witnesses are best left to the judge who saw, heard and believed. – Oputa, JSC. Udofia v. State (1984)

An appellate court would not normally descend into the arena (if it is still open I doubt) of contest to usurp the functions of the trial court except:- (i) where no finding was made on a relevant and material issue; (ii) where there is no evidence to support the particular finding complained of; (iii) where the finding is perverse and not the result of the proper exercise of the judges’ judicial discretion to believe or disbelieve witnesses; (iv)where the issue is not the evaluation of evidence as much as the proper inference, the deduction to be drawn from accepted facts; (v) where there has been a misapprehension by the trial court as to what the antecedent presumptions were and where the onus of proof lay. These may seriously affect the weight of the opinion of the trial judge as to the credibility of witnesses and his views on the evidence. – Oputa, JSC. Udofia v. State (1984)

The fact is that in any particular case, the law and legal decisions will have to be applied to and only to the peculiar facts and circumstances proved and accepted by the trial court. What the law is in the abstract may be of considerable academic interest generally, but what should interest counsel and the court is what the law is in relation to the peculiar facts and circumstances of the case in hand. – Oputa, JSC. Udofia v. State (1984)

A voluntary confession by itself without any other evidence is sufficient to support a conviction. – Karibe-Whyte, JSC. Udofia v. State (1984)


What then is misdirection? The simple answer is that a misdirection is, generally speaking, an error in law, made by a judge in charging a jury…A misdirection occurs where the issues of fact, in the case for the party in pursuit or the party in defence, or the law applicable to these issues raised were not fairly submitted for the consideration of the jury. – Oputa, JSC. Udofia v. State (1984)




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