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3PLR/1956/74 (SC)



WACA 221/1955


SIR STAFFORD FOSTER-SUTTON, F.C.J. (Presided and Read the Judgment of the Court)




H.O. DAVIES – for Appellant

G.K.J. AMACHREE – for Respondent.


CRIMINAL LAW AND PROCEDURE: – Murder- Ingredients – How proved – Defence of provocation – Degree and method of violence used – Effect of – How treated

CRIMINAL LAW AND PROCEDURE: – Murder – Wife killing using dagger – Defence of provocation – Section 318 Criminal Code – Confession of adultery without more – Words spoken – Whether sufficient provocation – Reasonable man’s test


FOSTER SUTTON, F.C.J. (Presiding and Delivering the Judgment of the Court):

This was an appeal from a decision of Evelyn-Brown, Ag. J. by which he convicted the appellant of the murder of his wife.

The appellant admitted striking the deceased with a knife and causing her death, but pleaded that she had offered such provocation as to reduce the offence to one of manslaughter.

The circumstances which led up to, and culminated in, the killing can only be culled from statements alleged to have been made by the appellant to witnesses called by the prosecution, a voluntary statement made by the appellant shortly after his arrest, and his evidence on oath given at the trial.

According to these statements the deceased woman confessed to having sexual intercourse with another man, and he conceived the idea that her mis­conduct had caused the death of his daughter which had occurred shortly be­fore the confession was made.

The body of the dead child had been left for burial at the house of a brother of the appellant. His case was that the deceased wrongly brought the child’s body to his house and that when he remonstrated her, she started to use filthy and offensive language to him causing him to lose his self-control, and it was at that juncture that he picked up a knife and inflicted the injuries which caused her death.

The weapon used was a heavy dagger 12 inches long with a hilt each side of the handle, and double edged blade about 7 inches long. One of the blows delivered severed three quarters of the neck, and there were four other in­cised wounds on and under the right arm.

The learned trial judge took the view that “mere words however griev­ous are not by themselves enough to reduce a killing to manslaughter.” Before us, Mr. H. O. Davies, for the appellant, submitted, firstly, that in this case the offensive words were accompanied by conduct of a most pro­vocative character, that is to say the removal of the dead child and the at­tempt to deposit the body in the appellant’s room, and secondly, that the of­fensive and filthy words used by the deceased woman were of such a pro­vocative and aggravated nature as to cause a reasonable man of the appel­lant’s status in life in Nigeria to lose his self-control. He also pointed out that the weapon employed was close to hand when the incident occurred.

In England it has repeatedly been held that a confession of adultery without more is never sufficient to reduce an offence which would otherwise be murder to manslaughter, and we are of the opinion that the same rule must be held to be applicable here. We do not, however agree with the learned trial judge that words alone can never constitute such provocation as to reduce an offence from murder to manslaughter.

In our view, in the circumstances prevailing in Nigeria at the present stage of development, if the case is one in which the view might fairly be taken (i) that a reasonable person in Nigeria, in consequence of the provoca­tive words used, might be so rendered subject to passion or loss of control as to be led to use violence with fatal results, and (u) that the accused was in fact under the stress of such provocation, then it is the duty of the trial Judge, or Jury, as the case may be, to determine whether on his or their view of the facts manslaughter or murder is the appropriate verdict. In other words, whether the kind of provocation actually given was the kind of provocation which he or they as reasonable men would regard as sufficiently grave to mitigate the killing. We are also of the opinion that in determining the ques­tion regard must also be had to the nature of the act which resulted from the provocation. As was said in Rex v Holmes 31 CAR 139. “The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill, or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.”

After reviewing the evidence the learned trial judge finally came to the conclusion that the appellant made up his mind to kill the deceased woman and deliberately did so.

The weapon employed was, as I have already said, a heavy dagger. In his statement to the Police the appellant said, inter alia, “There I got an­noyed and took my dagger and stabbed her first under the armpit and she fell on the bed where the corpse of her child was laid. I then cut her again on her throat and she died on the bed.”

After most anxious consideration we have reached the conclusion that even on a view of the evidence of provocation most favourable to the appel­lant the degree and method of the violence used in this case were such as to preclude a Court from bringing in a verdict for the lesser offence. That being so this appeal must be dismissed.

JIBOWU, F.J.: I concur.

ABBOTT, AG. F.J.: I concur.

Appeal dismissed


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