SHEHU DUMMEMI V. THE QUEEN

de Comarmond, Ag. C. J. The appellant was found guilty of murder and was sentenced to death by Bairamian J. on the 26th October, 1955, in the Jos Judicial Division of the Supreme Court. He was granted leave to appeal against his conviction and the appeal was allowed to the extent of setting aside the conviction and sentence and substituting therefor a verdict of manslaughter and a sentence of 15 years imprisonment with hard labour.

The reasons for this decision are set out hereunder.

After carefully examining the evidence and the learned trial Judge's summing up, the Court was satisfied that the only matter for consideration was whether the trial Judge had reached the correct conclusion on the question of provocation.

The facts which gave rise to the charge of murder need not, for the purposes of this appeal, be set out at length.

There was a fight between two groups of young men from the villages of Dummemi and Barkeji respectively. Each group was about ten strong. Curses were exchanged and blows with sticks followed. It was night but there was some moonlight. The victim, Yagana Bakeji, is said to have fallen down after receiving a blow on the head. One Wandaws alias Mohammadu of Dummemi also fell down after receiving a blow and there is some evidence that somebody on the Dummemi side shouted that Wandawa had been killed.

The appellant, who was one of the Dummemi group, then struck Yagana in the abdomen with an axe. Yagana died from peritonitis the following day in hospital. The doctor who attended him stated that the only injury was the punctured wound in the abdomen. One of Yagana's friends, however, said that when he saw the victim at the hospital he noticed a wound on his head.

The appellant’s story is that when he heard that one of his friends had been killed he said: “One of us has been killed and we have got nothing. I hurled the axe, which struck Yagana in his stomach and pierced him.”

The learned trial Judge made the finding of that the appellant did not fling his axe but that he brought it down on the victim’s abdomen. We accept this finding.

We would mention that there is not slightest reason to think that the appellant was carrying an axe with the object of using it as a lethal weapon. The fighting was one of those happenings which flare up suddenly and which arouse the clannish spirit of the rival factions. The learned trial Judge put it as follows: “I appreciate that there may be a feeling of corporate unity, and if one of hamlet A is killed, then one of hamlet B is killed to make things even; but that is vengeance or retribution, not provocation.”

We are not prepared to agree that provocation must be ruled out in cases where the person acting under provocation gave a free rein to feeling of revenge or retribution. The importance of provocation, when it exists, is that it gives rise to such a brain-storm (to use a trite but expressive word) that the normal powers of control are momentarily paralysed.

Acting under provocation within the meaning of section 318 of the Criminal Code is doing the act which cause death in the heat of passion caused by sudden provocation, and before there is time for passion to cool. In such cases, the crime if murder is reduced to manslaughter.

Another point deserving consideration is that the learned trial Judge attached great importance to the fact (so found by him) that the victim had not given provocation. In other words, the learned Judge ruled out the plea of provocation because the victim was not the very person who gave provocation. We are opinion that this is too wide a proposition and that there may be instances where provocation emanating from a body of persons acting in concert can be successfully pleaded where the person provoked kills one member of such a body of persons. In the present instance, we are of opinion that the learned trial Judge should have directed his mind to the question whether the exchange of curses and blows between the group of Barkejis and the group of Dummemis culminating with the shout that a Dummemi had been killed by the Barkejis did constitute such provocation as would reduce the crime to manslaughter irrespective of the fact that the deceased may no personally have offered provocation. We are not prepared to say, and we do not say, that the answer to the question put thus would have had to be that provocation within the meaning of section 318 had been established. But we consider that it is not beyond the bounds of possibility we decided that the safer course was to give the benefit of the doubt to the appellant and substitute a verdict of manslaughter.

We would add that the foregoing remarks on the question of provocation must be understood to be subject to the principle that an act done under provocation must not be excessive and out of proportion to the provocation offered.

Appeal allowed. Conviction for manslaughter substituted.