Shalla v. State (2007): Does Nigeria Legal System Promote Jungle or Vigilante Justice?
By Kehinde Emmanuel Oladele
Per Okoro, Per Fabiyi and Per Augie JJCA stressed on the illegality of jungle justice as follows:
“………No matter how one feels about the acts of another, it is wrong to try to redress an unlawful or seemingly unlawful act with another unlawful act. This will amount to jungle justice. We cannot afford that now. I believe that we had since past that stage. Nobody, and the appellant inclusive, should reverse the hand of the clock in this regard. The 1999 Constitution of the Federal Republic of Nigeria recognizes the sanctity of human life and no one will be allowed to take the life of another without due process no matter how brave the thinks he is. If he does, the full weight of the law will be brought to bear on him. This should serve as a clear message to those who, at the slightest provocation, on hearing that a person is either a witch or has stolen something, decide to set such person ablaze. The law frowns at and will certainly punish such criminal and irresponsible act when proven as in this case.” ‘The appellant suspected that the deceased stole petrol. Instead of handing him over to the law enforcement agents, he decided to pour petrol on him and thereafter set him ablaze. As a result, ‘the man died’. There is no doubt about it that the appellant took the law into his own hands. He acted rashly and wantonly. The appellant who sowed the wind must reap the whirl-wind. The capital sentence pronounced on him will, no doubt, serve as deterrence to rash people like him. Such will reduce the spate of setting suspected rogues ablaze without following the due process of law.’ ‘Section 33 (1) of the 1999 Constitution specifically states that ‘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 is found guilty in Nigeria’. There is no doubt in this case that the appellant intentionally deprived the deceased of his life on a mere suspicion that he had siphoned petrol from one of the vehicles parked in his workshop. He did not report the deceased to the police, not to mention allow the law to take its course in the matter of the stolen petrol, rather he took the law into his own hands and unlawfully deprived the deceased of his life, which is murder in its real sense; and not one that can be reduced to manslaughter. The heat of passion that will reduce a murder to manslaughter must be such as would be aroused naturally in the mind of the ordinary reasonable person under the same or similar circumstances, as shown in the evidence in the case- See Black’s Law Dictionary: 6th edition. In this case, whatever passion engulfed the appellant that made him pour petrol on the deceased and set him ablaze cannot be such as would be aroused naturally in the mind of the ordinary reasonable person; it is unreasonable and is certainly unjustifiable…….”
Introduction
Jungle justice, also referred to as mob justice or vigilante justice, entails individuals taking it upon themselves to enforce the law, often in response to perceived wrongdoing or injustice to religious dictates, doctrines, laws, customs and common sense. While it may appear convenient for dealing with offenders and seeking justice initially, jungle justice demoralizes, demoralizes and grossly weakens the foundations of a fair and equitable society. This practice disregards the rule of law, violates human rights, promotes a culture of violence, and hinders the establishment of a robust legal system. Undoubtedly, in order to safeguard fundamental rights and promote a fairer society, it is crucial to recognize and tackle the issues arising from the phenomenon of “jungle justice as this is the purport of this article, dissected from the decided case of Shalla v. State.
According to a NOI Polls survey from 2014, 43% of Nigerians had seen mob assaults firsthand. SB Morgen’s subsequent investigation found 279 occurrences of rogue justice between 2019 and May 2022, resulting in at least 391 fatalities. 223 of these instances took place in the southern section of the country, and the remaining 168 happened in the northern region of Nigeria. In 2022, Deborah Samuel, a student at Shehu Shagari College of Education in Sokoto, was violently attacked and burned on campus due to religious reasons. This is along with similar incidents that follows. These recurring occurrences are supposed to be anticipated in a society lacking proper and adequate regulations on individual behavior. However, Nigeria has an abundance of laws that discountenanced the violation of the tenet of fundamental rights legally ensured for every individual’s existence, as outlined in the 1999 Constitution (amended in 2011), particularly in Section 33.
Furthermore, the Administration of Criminal and Justice Act (2015), the Criminal Procedure Act (2004), Article 4 of the African Charter on Human and Peoples’ Rights (1986), and Section 36 (4, 5, and 6) of the 1999 Constitution highlight the importance of following proper procedures when convicting a suspect, rather than resorting to unlawful methods such as burning, lynching, or other forms of mob justice. Section 8 (1 and 3) of the Administration of Criminals and Justice Act (2015) explicitly prohibits jungle justice and leaves no room for its practice. Consequently, individuals found participating or engaging in mob justice may face criminal charges as per the law. Moreover, the police force is legally empowered and authorized to apprehend and prosecute suspects, ensuring the prevention of illegality and the maintenance of peaceful coexistence in Nigeria. Regrettably, despite the existence of these regulatory frameworks and agencies, jungle justice remains a persistent problem in Nigeria, with instances occurring every year.
Against this backdrop, the author focuses on the legal stance regarding jungle justice, as judicially affirmed by the Supreme Court in the case under examination: Shalla v. State (2007). It is important to reiterate that the core purpose of this article is to raise awareness among the Nigerian public that nobody has the right to take another person’s life unless it is in accordance with the law.
A Thorough Examination of the supreme Court Judgement: Shalla v. State (2007)
Appeal No: SC./245/2004
Supreme Court Justices: justices that sat on the appeal includes: Sylvester Umaru Onu, J.S.C. (Presided); George Adesola Oguntade, J.S.C. (Read the Leading Judgment); Aloma Mariam Mukhtar, J.S.C.; Walter Samuel Nkanu Onnoghen, J.S.C.; Ibrahim Tanko Muhammad, J.S.C.
Date of Judgment: Friday, 5th October, 2007
Names of Counsel:
Dr. A. Amuda-Kannike – for the Appellant
I.K. Sanusi, Esq.; D.P.P, Kebbi State – for the Respondent
Brief Facts of the Case:
The appellant, who stood as the fifth accused among a group of six individuals, underwent trial at the High Court of Kebbi State, located in Bimin Kebbi. They were indicted with criminal conspiracy, abatement, and culpable homicide, which violated sections 85, 97, and 221(a) of the Penal Code, respectively. As per the prosecution’s argument, the appellant and their companions alleged that the deceased, Abdullar Alhaji Umaru, had uttered disrespectful remarks concerning Prophet Mohammed (S.A.W.). Based on their belief that the Holy Quran prescribed the death penalty for such statements, they actively sought out the deceased, apprehended him, and fatally assaulted him with a knife. On July 14, 1999, the incident was reported to the police, leading to the arrest, charging, and trial of the appellant and the other five individuals for the murder of the deceased. Throughout the trial, the appellant chose not to testify or call any witnesses in their defense. Eventually, the trial court rendered a verdict of guilt for the offense of culpable homicide against the appellant and the other five co-accused, condemning them to death. Disappointed with the outcome, the appellant pursued an appeal to the Court of Appeal, but it was unsuccessful, prompting them to further appeal to the Supreme Court, hoping for a more favorable resolution.
Issues Adopted for Determination in the Case
The appellant has come before this court on a final appeal. The appellant raised three grounds of appeal out of which two issues were formulated for determination.
The said issues are:
1. Whether the learned Justices of the Court of Appeal ought to confirm the conviction and sentence of the appellant by the trial court. This issue is distilled from grounds 1 and 2 of the grounds of appeal.
2. Whether the learned Justices of the Court of Appeal were right in raising the issue of defenses of justification and provocation without affording the parties the right to be heard on the said issue raised Suo motu. (This issue is distilled from ground 3 of the grounds of appeal).”
The respondent in its brief adopted the issues for determination as formulated by the appellant’s counsel in the appellant’s brief.
Held: Unanimously dismissed the Appeal
Significant Holdings in the lead judgement read and delivered by Oguntade, J.S.C.
1. On Scope of Duty on court to consider all defenses opened to accused –
No court is bound to speculate on what possible defenses can be open to a person accused before it but where in a trial for homicide, the evidence suggests a line of defence, it is the duty of the court to consider and deal with that defence whether or not the accused or his counsel expressly raised that defence by the legal terminology ascribed to it by lawyers. However, that approach does not enable the court to consider fanciful or imaginary defenses which could not possibly be available to an accused person on the evidence before the court. In the instant case, since the trial court was not told the words alleged to have been uttered by the deceased or the act, he did which were contrary to the injunctions of Islam as contained in the Holy Quran, and which justified his killing, the trial court could not be criticized for not engaging in a futile speculation. The Court of Appeal was therefore not in any error to have held that the defenses of justification and provocation were not available to the appellant before the trial court. [Takida v. State (1969) 1 All NLR 270; Williams v. State (1992) 8 NWLR (Pt. 261) 515; Udofia v. State (1984) 12 SC 139; Ojo v. State (1972) 12 SC 147; Alytra v. State (1981) 2 NCR 110; Ekpenyong v. State (1993) 5 NWLR (Pt. 295) 513; Asanya v. State (1991) 3 NWLR (Pt. 180) 422 referred to.]
2. On When failure of trial court to consider defenses open to accused person fatal –
Where a trial court fails to consider the defence of an accused person, an appellate court can consider such defence with all available evidence on the record. The failure of the trial court to consider the defenses available or open to an accused person is only fatal where there is evidence in support of such defence(s) in the record of the trial court because a court of law will not presume or speculate on the existence of facts not placed before it. The accused person is usually required or recommended to give his evidence viva voce rather than adopting his previous extra judicial statement for his defence or resting his case on the evidence of the prosecution. [Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Takida v. State (1969) 1 All NLR 270; State v. Ajie (2000) 11 NWLR (Pt.678) 434; Ekpenyong v. State (1993) 5 NWLR (Pt. 295) 513 referred to.]
3. On Duty on appellate court to consider defence of accused person supported by evidence on record –
Where a trial court fails or neglects to consider the defence of an accused person, an appellate court is at liberty or under duty to consider such defence having regard to the evidence on record. It is therefore not every failure of the trial court to consider the defenses opened to an accused person that will be fatal to the case of the persecution. For such a consequence to arise, there must be on record legally admissible evidence in support of the alleged defence(s) as such evidence is what grounds the defence(s). The power of the Court of Appeal to examine the record to see whether the failure of the trial court to consider the alleged defence was fatal to the case of the prosecution is well grounded in Order 19(3) and (4) of the Court of Appeal Rules, 2002. In the instant case, the main issue before the Court of Appeal was the consequence of the failure of the trial court to consider the defenses of justification and provocation, and whether the Court of Appeal could examine such defenses and make findings thereon having regard to the evidence. There was no evidence to ground the defenses of justification and provocation so as to result in the acquittal of the appellant of the charge of culpable homicide punishable with death. [Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Takida v. State (1969) 1 All NLR 270; State v. Ajie (2000) 11 NWLR (Pt.678) 434 referred to.]
4. On Implication and ingredients of defence of justification in criminal trial –
Justification as a defence in a criminal trial arises because the accused is not blameworthy for having acted in a May that would otherwise be criminal. The act carried out by the accused or where he failed to carry out an act is considered just and lawful. This means that an accused standing trial before a criminal court Mill be entitled to the defence of justification if the defence is premised on the following conditions:
(a) that his action is justified by law;
(b)that his action was carried out as a result of mistake of fact not mistake of law; and
(c) that he acted in good faith believing himself to be justified by law in doing it.
The above conditions will extend to situations where:
the accused acted in execution of the law;
the accused acted in obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful;
the action is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence.
In the instant case, from the facts and the evidence placed before the trial court, the appellant could not be covered by any of the above conditions to justify his participation in killing the deceased. [Abara v. State (1981) 2 NRC 110 referred to.] (Pp. 272. paras. A-B; IFF: 281, paras. C-F; 290-291, paras. C-A)
Per ONU. J.S.C. at page 272, paras. B-E:
“As can be gleaned from the record of proceedings of the trial court the only evidence against the deceased is based on the rumor the appellant overheard or hearsay allegation that he (deceased) had insulted the Holy Prophet in a neighboring village Randali of Birnin Kebbi Local Government Area of Kebbi State. I am in agreement with the submission of the respondent that there is no evidence of any kind emanating from the Penal Code or Sharia disclosed in the record of proceedings to show that appellant’s action is justified by law having regard to his background and opinion or non-approval of his village Head and one Ustaz Mamman who were members of the same community, class, standard in life and live with appellant. Moreover, the appellant’s act of killing the deceased cannot be said to amount to a mistake of fact in good faith as he has no authority to execute or slaughter the deceased as he did.”
5. On whom lies burden of establishing defenses of provocation and justification –
By virtue of the provision of section 141 of the Evidence Act, the burden of proving his entitlement to the defence of justification and provocation rests squarely on the shoulders of the accused. In the instant case, the appellant woefully failed to discharge the burden.
6. On Ingredients of defence of provocation –
An accused person will only be entitled to the defence of provocation under section 222(1) of the Penal Code where he establishes the ingredients therein, which are:
(a) that the act of provocation was grave and sudden;
(b) that he lost self -control, actual and reasonable;
(c) that the degree of retaliation by him was proportionate to the provocation offered.
In the instant case, there was no evidence whatsoever in the record of proceedings to establish that the appellant was provoked by the deceased. [Uluebeka v. State (2000) 7 NWLR (Pt.665) 404 referred to.]
7. On Ingredients of defence of provocation –
For the defence of provocation to avail an accused person, the act or utterance of the deceased must be directly offered or directed against the accused person, which was not the case in the instant case where it was based on hearsay or rumor. Clearly, the provocative act done or reported by another person could not be a ground for the appellant to kill the deceased. [Idemudia v. State (1999) 7 NWLR (Pt.610) 202; Lado v. State (1999) 9 NWLR (Pt. 619) 369 referred to.
8. On Whether words alone can constitute provocation –
Words alone can constitute provocation depending on the actual words used and their effect or what they mean to a reasonable person having a similar background with an accused person. In this case, since the exact insulative words were neither known nor disclosed and moreover not even heard from the mouth of the deceased, it was not possible to determine whether the defence of provocation was open or available to the appellant. [Ahmed v. State (1999) 7 NWLR (Pt.612) 641 referred to.]
9. On Test for determining whether act constitutes provocation –
It is not all provocation that will reduce the offence of murder to manslaughter. Provocation, to have that result must be such as temporarily deprived the person provoked of the power of self-control, as a result of which he committed the unlawful act which caused death. The test to be applied is that of the effect the provocation would have on a reasonable man. In applying the test, it is of particular importance to take into account the instrument with which the homicide was effected; for to retort in the heat of passion induced by provocation by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. [Wonaka v. Sokoto N.A. (1956) SCNLR 79; Kumo v. State (1967) 5 NSCC 286 referred to.]
10. On Whether defence of provocation known to Islamic law –
Islamic law, as opposed to common law, makes no provision for the defence of provocation. A sane and adult Muslim stands responsible and answerable to all his deeds or misdeeds.
11. On Who can punish for offence of insult on Holy Prophet Mohammed (S.A.W.) under Islamic criminal law –
Under Sharia Law, any sane and adult Muslim who insults, defames or utters words or acts which are capable of bringing into disrepute, odium, contempt the person of Holy Prophet Mohammed (S.A.W.), commits a serious crime which is punishable by death. However, Islamic Law has not left the killing open in the hands of private individuals. The offence alleged has to be established through evidence before a court of law. The court itself will have to implore its professional dexterity in treating the case by allowing fair bearing and excluding all the inadmissible evidence of those persons who may fall within the general exemption clause such as an infant, imbecile or those who suffer mental delusion. Thus, the killing is controlled and sanctioned by the authorities.
In other words, in Islamic criminal law, if any of the crimes involving “HUDUD” (fixed punishment), “QISAS” (Retaliation) and “TA’ASIR” (Penal/exemplary punishment) is imputed to a person he will be prosecuted against in a court of law. If the charge against him is established, sentence will accordingly be passed keeping in view the prescribed punishment. If the charge cannot be established, the accused will be acquitted. If sentence is passed, the ruler or the competent authority will be responsible for its execution in respect of offences involving “HUDUD” and “TA’ASIR”. Such punishments can only be executed by the ruler or his deputy for “HAD” is Allah’s right which has been made obligatory. Hence, the responsibility for its execution will be vested in the Imam or the ruler of the community. Besides, awarding of “HAD” punishment requires exertion of the mind “(Ijtihad)” and it is likely to exceed the limit or be less than it. Hence, it is to be established by the ruler himself or he can depute his representative to do it on his behalf* The law will, thus, have set a dangerous precedent if private individuals were authorized to take the law into their hands as the appellant and others did in the instant case.
12. On Whether voluntary confession sufficient to warrant conviction –
A voluntary confession can fetch conviction. In the instant case, the free and voluntary confessional statement of the appellant alone was enough to send him to the allow. [Kami v. King (1952) 14 VVACA 30; Ekpenyong v. State (1991) 6 NWLR (Pt. 200) 683 referred to.]
13. On Treatment of free and voluntary confession of a Muslim –
Where a Muslim makes a free and voluntary confession, he is bound by his confession, which is even regarded to be a better form of evidence than calling of witnesses.
14. On Sanctity and dignity of human life under Islamic law –
Sharia guarantees and values the sanctity and dignity of human life. That is why it outlaws unlawful taking of life. The Quran has several verses in various chapters where it outlaws such nefarious acts. The Prophet is reported to have said that the first action to be judged on the day of judgment is the spilling of blood. In another Hadith, he is reported to have said that three things have been made illegal to a Muslim:
to deprive him of his life;
to deprive him of his property; and
to deprive him of his honor or integrity
15. NOTABLE PRONOUNCEMENTS:
(a) On Philosophy of “he who kills by the sword dies by the sword”:
Per MUHAMMAD, J.S.C. at pages 298-299, paras. H-D:
“The appellant in this appeal did not show any of the courts that he had the requisite authority to take away the life of the deceased. He thus unlawfully deprived the deceased the opportunity to defend the allegations levelled against him before any court of law or authority. The village head of Kardi who was contacted by the appellant and others for authority to execute the deceased flatly refused authority as he fully well knew that he was not the right authority to grant such a leave. A learned person known as Ustaz Mammon drew attention of the appellant and his co-accused persons that they had no authority to take away the life of the deceased, yet they kept deaf ears and even described Ustaz as an infidel. I cannot see how these kinds of people shall have any respite by the law. What is good for the goose is good for the gander. Life is precious to all and sundry. He who kills by the sword shall die by the sword. I have no sympathy for the banishment of such busy bodies who respect no human life due to their high degree of misapprehension of the law or, should I say, complete ignorance of the law. The appellant failed to convince me through his explanations. But he is free to make further and better explanations to the hang man, though belatedly it may be.”
(b) On Need to eschew resort to jungle justice-
Per OGUNTADE, J.S.C. at pages 268-269, paras. G- A:
“In any case, even on the assumption (although without any proof) that the deceased had in some way done anything or uttered any word which was considered insulting to the Holy Prophet Mohammed (SAW), was it open to the appellant and others with him to constitute themselves into a court of law and pronounce the death sentence on another citizen? Plainly, this was jungle justice at its most primitive and callous level. The facts of this case are rather chilling and leave one wondering why the appellant and the others with him committed this most barbaric act. It cannot escape notice that the victim of this reckless and irresponsible behavior is another Moslem, an Alhaji. I am greatly pained by the occurrence.”
16. On Whether counsel’s address forms part of the case –
Although not evidence in itself, counsel’s address forms part of the case. In the instant case, the issue of defenses of provocation and justification were, by and large, raised and argued by counsel for the appellant. The Court of Appeal was therefore right in its approach to the issue of the defenses, which were raised in counsel’s address. It was thus not a new issue entirely as would require further address by appellant’s counsel. [Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111 referred to.]
17. On Power of appellate court to correct errors in the proceedings of lower court –
The Court of Appeal, and every appellate court, exists to correct errors in the proceedings, be it procedural or substantive of the lower court, in accordance with its rules of procedure. In the instant case, the Court of Appeal needed not to call on the parties to address it on the defenses allegedly not considered by the trial court when it could, on its own, go through the evidence on record to determine the issue so as to do substantial justice between the parties.
Conclusion
To sum up, jungle justice is an unlawful method of unlawfully taking someone’s life, it is unlawful in Nigeria and across the globe, it is a gross contravention of Section 33 of the 1999 Constitution (as amended 2011). Noteworthy is the fact that despite potential delays in the country’s regulatory systems, they still operate and should be trusted as a substitute of resort to jungle justice. The case examined emphasizes the significance of fair trials as an alternative to jungle justice. It commends the rule of law and the judiciary’s duty to ensure justice. It sets a precedent for similar scenarios and upholds the fundamental principles of Nigerian laws. Additionally, it underscores the importance of respecting the law and thoroughly evaluating evidence before reaching conclusions. Consequently, by meticulously examining evidence, adhering to legal principles, and delivering well-reasoned judgments, the court greatly enhances the legitimacy and effectiveness of the judicial process, discouraging jungle justice, which may falsely be relied upon on religious justifications. On the whole, the case explicitly clarifies instances when the defense of justification and provocation can and cannot be invoked.
About the Author
Kehinde Emmanuel Oladele possesses multiple roles and talents. He is an author, a dynamic undergraduate law student, and a skilled writer with proficient research abilities. He has a notable collection of publications both nationally and internationally, demonstrating his dedication to making substantial contributions to jurisprudence as a whole. Furthermore, he is an active member of the Academic Legal Writers and Authors Association of Nigeria and currently serves as an Author/Editor in the LIFIN Editorial Board, an academic initiative established in Nigeria. His authored book was titled “DEMYSTIFYING NIGERIA LAWS ON CONTEMPORARY SOCIO LEGAL ISSUES,” published by Eliva Press. For those interested, the book can be accessed through the provided link: https://www.elivapress.com/en/book/book-7628589326/.
Furthermore, he has acquired a wealth of experience through his legal internships at I.H Adigun & Co (Oyo state), S.U Lawal & Co (Kaduna State), and his ongoing internship at the office of the vice chairman of the Body of Benchers: Awomolo & Associates in Abuja. He can be reached via email at oladelekehindeemmanuel2405@gmail.com or through the phone number +234 7033702316.
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