3PLR – ABDU KADIRI V. THE QUEEN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ABDU KADIRI
V.
THE QUEEN
FEDERAL SUPREME COURT OF NIGERIA
20TH JANUARY, 1958
F.S.C.270/1957
3PLR/1958/2 (FSC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
SIR STAFFORD FOSTER-SUTTON, F.C.J. (Presided and Read the Judgment of the Court)
M.C. NAGEON DE LESTANG, F.J.
MYLES JOHN ABBOTT, F.J.
REPRESENTATION:
Applicant absent not represented.
I.M. LEWIS, Ag. Solicitor-General – for the Respondent.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:- Murder motivated by third party adultery with wife – Whether circumstances leading to aggravated assault from deceased died amounts to acts done “in the heat of passion caused by sudden provocation,” circumstances which have to exist before the offence can, in law, be reduced to manslaughter – Relevant considerations
CHILDREN AND WOMEN LAW: – Women and Murder – Adultery – Adulteress/wife and the killing of her lover by husband – Whether circumstances involved amount to legal provocation – How treated
PRACTICE AND PROCEDURE: – Trial Court and findings of fact – When an accused person makes an allegation of facts for the first time under oath which he had neglected to make in extra-judicial statements or other preliminary judicial inquiries – Attitude of court thereto
MAIN JUDGMENT
FOSTER-SUTTON, F.C.J. (Delivering the Judgment of the Court):
This was an application for leave to appeal, on questions of fact, from a conviction for the murder of a man named Isa.
It was not in dispute that the applicant and a friend of his beat the deceased on the day of his death, but the applicant alleged that the blows were not severe and the stick he used was not a heavy one. However, it was proved that the deceased man had wounds on his body consistent with his having been very severely beaten and with a heavy stick or sticks, one blow on his right temple having been heavy enough to force the eye outwards.
The learned trial Judge found as a fact that the deceased died as a result of the beating administered by the applicant and his friend, and there can be no doubt that there was evidence before him upon which he could properly reach that conclusion.
The applicant alleged that the deceased had been having sexual intercourse with his, the applicant’s wife, that on the morning of the beating he saw the deceased come out of his wife’s room, and he and his friend then followed the deceased and gave him a beating, but not, according to the applicant, before the deceased had first attacked him with a knife and stabbed him. The trial Judge did not accept the applicant’s story regarding the stabbing, with some reason we think, since the first time he mentioned such an important incident was when he gave evidence on oath at the trial. He did not mention it in the statement he gave to the Police after his arrest, Exhibit “B,” nor did he say anything about it at the preliminary enquiry before the Magistrate.
The applicant admitted that before the morning of the beating he had suspected the deceased of having intercourse with his wife, and he considered his suspicion confirmed when he saw the deceased leaving his wife’s room on the morning in question.
The learned trial Judge believed the applicant’s statement that deceased had been committing adultery with his wife, and that he felt outraged by this, but took the view, with which we agree, that on the evidence here it cannot be said that the act was done “in the heat of passion caused by sudden provocation,” circumstances which have to exist before the offence can, in law, be reduced to manslaughter.
For these reasons we refused the application for leave to appeal, but we also desire to say that, in our view, there are strong extenuating circumstances in this case, the more so if regard be had to the applicant’s youth and condition in life. This will, no doubt, be taken into account by the Executive Authority at the appropriate time. It is our duty to administer the law as we find it. If the prerogative was vested in us it would be possible for the Court to take a very different view in a case such as this.
DE LESTANG, F.J.: I concur.
ABBOTT, F.J.: I concur.
Leave to appeal Refused
