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JELR 81042 (WACA)

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



KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND BUTLER LLOYD, J. In this case the appellant was tried by Callow, Acting Assistant Judge of the High Court, sitting at Aba, for the murder of one Arungwa Nwokoma. He was found guilty of that offence and sentenced to death. The appellant has never denied killing the deceased. But the question which arose at the trial and was duly considered by the Judge and which we have had to consider on appeal is whether the killing amounted to murder or whether (to quote the words of section 318 of the Criminal Code) the appellant did the act which caused the death in the heat of passion caused by sudden provocation, and before there was time for his passion to cool, and so is guilty of manslaughter only. The case is near the border line, and it is only after allotting Counsel to the appellant and hearing very helpful argument from Counsel on both sides that we have come to the conclusion that the trial Judge’s finding is correct. The facts found by the Judge are that the deceased was the head of the compound in which appellant dwelt. The appellant had a quarrel with one Adiele over a woman, and on the day in question the two were fighting when deceased arrived and stopped the fight, using a switch to part them. Deceased then walked away towards his house, but appellant immediately ran into his own house, seized his matchet, ran out again and killed the deceased with his matchet. The appellant himself was severely wounded some time after attacking deceased. There is ample evidence to support these findings, and to entitle the trial Judge to reject, as he did, the story of far greater provocation by the deceased, which the appellant gave as his version. , One of the most material questions of fact in the case is, “what was it that deceased used to part the appellant and Adiele?” prosecution witnesses all speak of it as a “stick,” but it must be remembered that this term is merely the interpretation of a native word, and it was most essential to inquire as to the nature of the of “stick” evidence as to such nature is given by two of the prosecution witnesses. The second witness, Akpagu, described it as “a small “stick,” and the third witness, Nweke, said, “He hit them with a sort of switch.” On this evidence the trial Judge found “that the deceased parted the combatants by using a switch.” We see no reason to doubt the correctness of this finding and we accept it.

Turning now to the law to be applied, the first point to be observed is that according to English law the provocation suffered must be provocation on the part of the deceased before a crime can on that account be reduced from murder to manslaughter (Rex v. Simpson, 11 Cr. App. Rep. 218). We think that the same principle holds good in considering the wording of section 318 of the Nigerian Criminal Code, i.e. it is implicit in the word “provocation” that it must be given by the deceased.

A second point to be noted is that in English law the degree of provocation is one of the deciding factors, and it is to be judged by the effect it would be expected to have on a reasonable man and not by the effect it did actually have on the particular person charged (Reg. v. Welsh, 11 Cox’s Criminal Cases 336, R. v. Alexander, 9 Criminal Appeal Reports 139, R. v. Losbini, 11 Criminal Appeal Reports 7). Moreover, the mode of resentment, as instanced by the weapon used, must bear a reasonable proportion to the provocation (R. v. Stedman, Fost 292).

It was submitted to us on behalf of the appellant that none of these considerations are material in interpreting the words of section 318 of the Criminal Code “in the heat of passion caused by sudden provocation,” but that all that is necessary, under that wording, to reduce the crime to manslaughter is (a) that the provocation no matter how slight, should be sudden, and (b) that, in fact, it produced in the killer a “ heat of passion.”

We cannot subscribe to this proposition, and we think that the broad and well-established principles of English law must be applied in considering whether a crime is murder or should be reduced to manslaughter on account of provocation. Applying these principles, Counsel made a strong point on appellant's behalf in drawing our attention to the case of R. v. Bourne (5 C. and P. 120, 172 English Reports, p. 903). In that case Parke, J., in summing up to the jury said, "The prosecutor states that he was merely restraining the prisoner from beating his brother, which was quite proper on his part; and says, that he did not strike any blow. If you are of opinion that the prosecutor did nothing more than was necessary to prevent 'the prisoner from beating his brother, the crime of the prisoner, if death had ensued, would not have been reduced to manslaughter; but if you think that the prosecutor did more than was necessary to prevent the prisoner from beating his brother, or that he struck any blows, then I think that it would. You will, therefore, consider whether anything was done by the prosecutor more than was necessary, or whether he gave any blows before he was cut.”

Counsel emphasises the use of the word “or” and asks us to say that this establishes the proposition that in all cases where any blow is struck-no matter how slight-the crime becomes manslaughter, and consequently that in the present case, taking the prosecution evidence that deceased struck appellant with a switch, the reduction must be made. But on examination of other cases it is quite clear that this proposition is not good law. In the case, for instance, of Reg. v. Sherwood (1 C. and K. 556; 174 English Reports, 936), Pollock, C.B., said to the jury: “ It is true that no provocation by words only will reduce the crime of murder to that of manslaughter, but it is equally true that every provocation by blows will not have this effect, particularly when, as in this case, the prisoner appears to have resented the blow by using a weapon calculated to cause death.” And again in R. v. Lynch (5 C. and P. 324; 172 English Reports 995), Lord Tenterden in summing up said, “ It is not every slight provocation, even by a blow, which will, where the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter.”

The general principle is laid down in the case of Rex v. George Hayward (6 C. and P. 157; 172 English Reports 1188), in which Tindal, C.J., told the jury that “ if they were satisfied that the death of the deceased had been occasioned by the prisoner having stabbed him with a knife, or some other sharp instrument, of which there could be little doubt, the remaining and principal question for their consideration would be, whether the mortal wound was given by the prisoner while smarting under a provocation so recent and so strong that the prisoner might not be considered at the moment the master of his own understanding; in which case, the law, in compassion to human infirmity, would hold the offence to amount to manslaughter only." This rule was accepted by the Court of Criminal Appeal in the case of Rex v. William Richard Hall (21 Cr. Appl. Rep. 48) in which the Lord Chief Justice said, “So here, it seems to us that it was for the jury to consider. ..whether it was true to say in this case that the prisoner, when he committed the act with which he was charged, was smarting under a provocation so recent and so strong that he was not, at the critical moment, the master of his own understanding.”

The point then to consider in this present case is whether the appellant could be said to have been smarting under a provocation so recent or so strong as to justify the reduction of the crime to manslaughter. Now there is no doubt that the appellant was at the time in a great rage, but this was occasioned primarily by his fight with and secondarily by the fact that the fight was stopped; his real annoyance with deceased was for stopping the fight and not for striking him with a switch. The question then arises was the deceased justified in his action and this must clearly be answered in the of affirmative. The deceased was the head of the compound and as such responsible for keeping law and order in it. The appellant and Adiele were engaged in an unlawful act, which might lead to serious consequences, the deceased was perfectly justified in using lawful and reasonable means to stop the fight, and the means he used cannot be held to be unlawful or unreasonable. An action against him for assault, for instance, would be bound to fail. This being so it must be apparent that even if it could properly be said that there was any provocation at all given by deceased, it was of a very slight degree, and was not so “strong “ as to reduce the offence to manslaughter.

Since that is our view the further question as to whether there was time for passion to cool does not arise. That would have to be considered only if we were of opinion that the provocation was so strong that the offence would be manslaughter only, unless there had been time for passion to cool.

For the reasons given we are of opinion that the learned trial Judge was right in convicting the appellant of murder and in not reducing the offence to manslaughter.

The appeal is dismissed.

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