3PLR – FAMU BALI V THE QUEEN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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FAMU BALI
V
THE QUEEN
FEDERAL SUPREME COURT OF NIGERIA
F.S.C. 143/1961
2ND JUNE, 1961.
3PLR/1961/26 (FSC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
LIONEL BRETT, F.1. (Presided)
JOHN IDOWU CONRAD TAYLOR, F.J.
SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)
REPRESENTATION:
J.A. Cole – for the Appellant.
O.F. Corcoran – for the Respondent.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:- Murder – Defence of Provocation – Premeditated murder of spouse’s lover
CRIMINAL LAW AND PROCEDURE – Northern Nigeria – Offences committed before operation of Penal Code – Old Criminal Code applied.
CRIMINAL LAW AND PROCEDURE – Northern Nigeria – Trial begun before operation of Criminal Procedure Code – Application of Old Criminal Procedure Ordinance
CHILDREN AND WOMEN LAW:- Marriage and Crimes of Jealousy – Remarriage – Former husband of woman killed by current husband on suspicion of having sexual designs on wife – Whether jealous rage based on suspicion of deceased’s intention to have carnal relation with wife amounts to provocation to nullify a conviction for premeditated murder
MAIN JUDGMENT
BAIRAMIAN, F.J. (Delivering the judgment of the Court):
Famu Bali, the appellant, was convicted by Hurley, C.J., Northern Region, on the 24th February, 1961, at Yola, on an information accusing him that he “on or about the 29th day of July, 1960, in the Province of Adamawa murdered Phanuel Zobi”, contrary to section 319 of the Criminal Code.
We have explained in our judgment in the appeal of Alayau Ashayu Take, also a case from that Region (F.S.C. 71/1961) that, where an offence was committed before the new Penal Code of the Region came into force (which it did on the 30th September, 1960), the charge should be laid under the Criminal Code. We have also explained that, where a case is begun before a Magistrate prior to the 30th September, 1960 (when the new Procedure Code of the Region came into force), the case should be conducted in accordance with the old Criminal Procedure Ordinance. The present appellant was taken before the Magistrate in July, 1960; the new Criminal Procedure Code did not apply to his trial; so, no complaint can be made about some provision of the new Procedure Code not being observed. That much relates to the additional grounds of appeal, and disposes of them.
The major point is whether the learned Chief Justice was right in sentencing the appellant for murder: it has been argued that he was provoked, and that his crime was manslaughter under section 318 of the Criminal Code. This section 318 provides that:
“When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”
It must be a killing upon sudden provocation; but the finding of the learned Chief Justice is that this was not a case of sudden provocation; and that is borne out by the evidence of the appellant at his trial, which is to the following effect: –
Zobi came to the appellant’s house for some cassava sticks, and the appellant told him to go to the cassava farm for them, but Zobi said he would not. The appellant went to his groundnut farm, but he recalled that his wife had on some earlier day told him that Zobi wished to pay back the bride-price he had paid for her, so he suspected that Zobi came to make love to his wife, and he returned and took his bow and two arrows, and hid in the guinea-corn, until he saw his wife pass and go and meet Zobi; she had a bath, and they sat among the leaves under a tree; and the appellant, who had been stalking them, shot Zobi with a poisoned arrow in the back.
It is not a case of a husband suddenly finding his wife behaving unfaithfully with a man and shooting that man on the spur of the moment: it is a case of a husband who suspects his wife may meet a lover and who premeditates murdering the lover if he finds the two together. Incidentally, in this case, the appellant was truthful enough to admit that Zobi and his wife were not having sexual intercourse as yet; but they would be, he says, and that was why they were together under the tree; so he punished Zobi for his intention.
We think that the appellant was probably justified in thinking that, when they sat down, such was Zobi’s intention, and doubtless his wife’s; but, even if the shooting had been done when the two were in sexual intercourse, it would still have been murder, because it was not a case of sudden provocation but of premeditated murder.
The conviction for murder and sentence of death were right in law, but whether the law should take its course is a question for the appropriate authority.
The appeal is dismissed.
Appeal Dismissed.
