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JELR 81717 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]



Verity C.J. This is an appeal from a conviction for murder, the facts that following upon a dispute between the appellant and his younger as to the burning of certain trees in the former’s farm, further words exchanged, the latter alleging that he had supplied money for the appellant's marriage. According to the appellant, whose evidence the learned trial Judge , he became “ highly annoyed” at this and taking up an axe turned the “iron” and struck his brother on the head with the wooden elbow of .This in1iicted a wound 2 inches long by 1inches wide and the younger died almost immediately.

On these facts the learned Judge held that the appellant was guilty of murder, is submitted by counsel on behalf of the appellant firstly that there was no intent to cause death or to do some grievous harm and secondly that there such provocation as to warrant a conviction for manslaughter rather than murder. to the first of these submissions counsel contended that the fact that appellant turned away the iron or cutting edge of the axe negative the presumption that he intended to kill or cause grievous harm. It is true that the presumption that the appellant intended the natural and probable consequences may be rebutted or negative by direct evidence. As was said by this in Rex v. Amponsah and Others (1) “the presumption of intention was

rebuttable if the appellants believed that the assaults would probably not cause or contribute to the death of the deceased” . It may be arguable from the turning away of the cutting edge of the axe that the appellant had no intention of killing the deceased and did not believe that to strike him with the wooden haft would cause his death but we do not think it would be reasonable to conclude therefrom that the appellant did not believe that to strike the deceased on the head with the haft of the axe, heavily weighted as it was with the iron head, and with such force as to inflict the wound described would not cause grievous harm. He must in our view have intended the natural and probable consequence of that act and by reason of sub-section (2) of section 316 of the Criminal Code a person is guilty of murder if he intends to do the person killed some grievous harm.

It was further submitted that for a younger brother to tell an elder that the latter had to seek the former’s aid in providing money for his marriage is such an insult as to provoke a man of the appellant's primitive nature of self- control so that the blow was struck in the heat of passion on such sudden provocation. We are not of the opinion that the use of words only of such a nature and in such circumstances has ever been held either by the Courts of England or Nigeria to amount to such provocation as would reduce the crime from murder to manslaughter, and although it has been suggested in certain English cases that there may be circumstances in which words only would provide such provocation we do not think that they can be said to exist in the present case. To do so would be to go much further than has ever been held to be the law of this country.

The last submission made by counsel is that the killing was in the course of a fight and in circumstances which amount to no more than manslaughter. Counsel cited the judgment of this Court in Rex v. A 10, 8 W.A.C.A. 13. There is, however, no evidence in the present case to indicate that a fight ever occurred, for while in his testimony before the Court the appellant said ,. we had a small fight” the word used by the appellant may, it would appear, equally well have been translated “quarrel” and in his statement to the police the appellant made no such allegation.

These submissions which were put forward with tenacity and skill by Mr. Gaji, who was assigned by the Court to argue the appeal, all fail and the appeal must therefore be dismissed.

Coussey, J.A. I concur. de Comarmond, S.P.J. I concur.

Appeal dismissed.

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