3PLR – OKON BASSEY V THE QUEEN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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OKON BASSEY
V
THE QUEEN
FEDERAL SUPREME COURT OF NIGERIA
F.S.C. 109/1963
23RD AUGUST, 1963.
3PLR/1963/100 (FSC)
BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, AG. C.J.F. (Presided)
SIR CLEMENT NAGEON DE LESTANG, C.J. (Lagos) Read the Judgment of the Court)
SIR SAMUEL OKAI QUASHIE-IDUN, C.J. (W.N.)
REPRESENTATION
- A. A. NTUK – for the Appellant
- O. OFFIAH – for the Respondent
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE – Murder –Proof thereof – Self-defence and provocation – When sustainable – Blows inflicted in quick succession – Effect on defence of provocation-Self-defence – When assault on accused will justify self-defence – Effect on a charge of murder
“The appellant was attacked by two women, one of them elderly, and a man. None of them was armed with any weapon. The appellant had a knife which he used on the man, who let go of him, opened the door and ran out. The appellant struck the elderly woman, the deceased, once with a knife and she let go of him and he then struck her again three times when she was at the door of the house…All four blows were delivered within a matter of seconds of each other and if the first blow was, as the learned judge found, given in the heat of passion caused by sudden provocation we cannot see how the other blows can be treated differently. We consider therefore that the learned trial judge ought to have found provocation proved. We accordingly set aside the conviction for murder and substitute a conviction for manslaughter contrary to section 317 C.C. and we impose a sentence of eight years imprisonment with hard labour..” – Per De Lestang
CHILDREN AND WOMEN LAW:- Women and murder – Women and customary law – Killing of mother-in-law – Customary law practices giving mother a right to give married daughter in marriage to another man because her husband went on a sojourn
CHILDREN AND WOMEN LAW:– Women and dispute resolution – Conflict over custody of child of first marriage under customary law – Conflict over failure to return bride price to 1st husband even after marrying another under customary law – Failure to resolve dispute over household property jointly owned and shared between ex-husband and ex-bride’s family – Failure of customary law dispute resolution processes – Assault of accused by (ex-)wife, mother-in-law and brother-in-law plus demand to give up ownership of house in their favour – Whether amounts to provocation at law – How treated
MAIN JUDGMENT
DE LESTANG, C.J. (Lagos) (Delivering the Judgment of the Court):
The appellant was convicted in the High Court of the Eastern Region of Nigeria sitting at Calabar of the murder of a woman called Arit Ante Udeye.
The facts leading up to the incident in which the deceased was killed may be briefly stated.
In 1959 the appellant married by Native Law and Custom a daughter of the deceased called Nkoyo. After the marriage he, jointly with the deceased, built a house on a parcel of land belonging to the appellant, after which the appellant and his wife, Nkoyo, the deceased and a son of hers called Edet, lived in the house. Some time later Nkoyo gave birth to a child for the appellant. Subsequently the appellant had occasion to go to the Cameroons and during his absence the deceased gave his wife in marriage to another man, who was also given his child. When he returned a portion of the bride price which he had paid was refunded to him. The deceased and her son refused however to return the child to the appellant.
The appellant went to the Cameroons a second time and on his return found that the deceased was storing cocoa and firewood in his room in the house. Moreover the deceased wanted him to leave the house altogether; so he went to the Village Chief and requested him to call a meeting of the deceased and himself with a view to settling their differences. The meeting took place on the following day before the Chief and some Elders at which were present the appellant, the deceased, her son Eder and daughter Nkoyo. After hearing both sides the Chief asked the appellant and the deceased to contribute 1s each as “Judge’s Kola” before judgment could be pronounced. Neither party objected to this and both left apparently to fetch the money. The appellant left first and went to his house. He was joined there by the deceased and her two children. A fight ensured in the sitting room in the course of which the appellant inflicted on the deceased injuries with a knife from which she died almost immediately.
At the trial the appellant pleaded self-defence and provocation and although the learned trial judge accepted his version of what took place in the sitting room, he rejected both defences and, as I have said before, convicted the appellant of murder.
It is against the rejection of these two defences that the appellant appeals. In order to decide whether self-defence and provocation or either of these defences were made out or not, it is necessary to consider the version of the appellant which the learned judge accepted. It is stated in the judgment as follows:
“The accused said that he then left the meeting at the chief’s house in order to go home and bring the shilling contribution, and was followed by the deceased, the seventh and the eight prosecution witnesses. When he got to the house, he went into his room, took his pair of shorts in which he kept his money, and went to the sitting room. Here he was when the deceased, the seventh and the eighth prosecution witnesses entered. Suddenly, the seventh prosecution witness closed the door of the sitting room, saying that was going to be the last day he (the accused) would insult their mother, the deceased. All three of them fell upon him as he was still sitting, and began to beat him. They pushed him down and held him to the ground. The seventh prosecution witness held his throat, the deceased held his penis, and the eight prosecution witness was holding him by the waist. It was in these circumstances that he brought out the pen-knife in his pocket, and, acting under extreme provocation and in self-defence, stabbed first the seventh prosecution witness, and then, the deceased. Then the seventh prosecution witness ran and opened the door and fell down there, and the deceased released her grip of his penis. As the eight prosecution witness was still holding his waist, he stabbed her on the head. She then released him. He ran out of the house and went to the police station to make a report.”
As the deceased had four distinct injuries, the appellant explained in cross-examination that after stabbing the deceased once she released his penis, but when she tried to catch hold of it again he struck again three times.
On the question of self-defence, it is remarkable that while the case of Rex V Hussey 18 C.A.R. 160, which is not applicable to this case, was considered, no reference whatever was made to section 288 C.C. which contains the law on self-defence applicable to the facts of this case. Section 286 reads:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault: Provided that the force used is not intended, and is not such its is likely, to cause death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
The appellant was attacked by two women, one of them elderly, and a man. None of them was armed with any weapon. The appellant had a knife which he used on the man, who let go of him, opened the door and ran out. The appellant struck the elderly woman, the deceased, once with a knife and she let go of him and he then struck her again three times when she was at the door of the house.
The appellant received no injuries and was unable to show any on his person. In these circumstances we think that the assault on the appellant was not such as to cause reasonable apprehension of death or grievous harm and that the force used by the appellant was excessive in all these circumstances. The defence of self-defence was consequently rightly rejected.
As regards provocation, the learned trial judge after expressing the opinion that the sudden attack on the appellant in the circumstances described by him would, without doubt, cause a reasonable person of the appellant’s standing in life considerable anger and cause him to strike the deceased once, went on to hold in effect that it did not excuse his continuing “to deal death blows on the deceased now incapacitated for the second, third and fourth times in quick succession.” This is an implied finding that there was time for the appellant’s passion to cool between the infliction of the first injury on the deceased and the other injuries. We are unable to agree . All four blows were delivered within a matter of seconds of each other and if the first blow was, as the learned judge found, given in the heat of passion caused by sudden provocation we cannot see how the other blows can be treated differently. We consider therefore that the learned trial judge ought to have found provocation proved. We accordingly set aside the conviction for murder and substitute a conviction for manslaughter contrary to section 317 C.C. and we impose a sentence of eight years imprisonment with hard labour.
BRETT, AG. C.J.F.: I concur.
QUASHIE-IDUN, C.J. (Western Nigeria)’: I concur.
Appeal Allowed.
Conviction for Manslaughter substituted.
