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F.S.C. 308/1961

20TH OCTOBER, 1961

3PLR/1961/58 (FSC)



SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)





COLE – for the Appellant.

NWOSU – for the Respondent



CRIMINAL LAW AND PROCEDURE:- Criminal Code, Cap. 42 section 316(1) & (2)-Application of.

CRIMINAL LAW AND PROCEDURE:– Murder – Death following assault on stomach – Where requisite intention to commit grievous bodily harm is lacking – Evidence that deceased suffered from enlarged spleen – Spleen rup­tured by blows – Whether evidence sufficient to show Intention to kill or to inflict grievous bodily harm – Whether case qualifies for substitution of murder with manslaughter

ETHICS – PROSECUTION: failure to elicit relevant evidence as to key ingredients of sustaining the charge of murder

CHILDREN AND WOMEN’S LAW:–  Women in Business – Dispute resolution – Woman killed with a push and stick blows to the stomach while haggling over the purchase of a basket of palm fruits and the retrieval of her basket when deal could not be struck – How treated

HEALTHCARE LAW: Access to basic healthcare – Woman with enlarged spleen due to chronic malaria killed almost immediately due to two blows landed on stomach





ADEMOLA, C.J.F. (Delivering the Judgment of the Court):

The appel­lant in this case was convicted on a charge of murder in the High Court of the Eastern Region and sentenced to death.


The evidence before the Court which was accepted by the Judge, as given particularly by the 5th and 7th witnesses for the Crown, was that the accused was seen struggling with the deceased over the possession of a bas­ket of palm fruits. The basket belonged to the deceased; it would appear the appellant had collected some fruits in the basket which the deceased wanted him to sell to her but he refused. She therefore asked for her basket for which they both struggled. After some time the appellant left the basket and pushed the deceased who fell down. He then picked up a stick and struck her twice in the stomach. She died almost at once.


The appellant’s story that he did not hit the deceased with a stick but that when she fell the palm fruits fell on her stomach was rejected by the learned trial Judge.


The material evidence as to the cause of death was given by the Medical Officer of Annang Joint Hospital, Ikot Okoro, Dr. Samuel Murray Ross, who performed a post mortem examination on the body of the deceased. In the opinion of the doctor, death was caused by rupture of the deceased’s sp­leen. Continuing his evidence, Dr. Ross said that the deceased had a large spleen, which was diseased owing to chronic malaria. He opined that but for the rupture of the spleen caused by the blow, the deceased might have con­tinued to live in spite of the enlarged spleen. He added that an enlarged sp­leen is common in the area with about 90 per cent of the population. Finally, he was of the opinion that in spite of the diseased spleen the deceased was quite healthy prior to her death.


The first submission made by Counsel for the appellant for our consideration was that death in this case occurred in a chance medley. We have no hesitation in rejecting this. We hardly think this is one of such cases.


We have also considered the question of provocation which was submit­ted for our consideration, and we have arrived at the conclusion that there was not enough evidence of provocation. We cannot in the circumstances of this case consider that struggling for the possession of a basket is enough pro­vocation.


The point which has given us the most anxious consideration in this mat­ter is the insufficiency of medical evidence not on the cause of death of the deceased, but on the probability of the effect of such blows on a person who had not an enlarged spleen. In other words, would the deceased’s spleen have been ruptured and would she have died in any case if she had not an en­larged spleen in consequence of such blows? It appears this question was never put to the doctor so as to elicit a definite answer. Nor was it put to the doctor whether such blows as were delivered to the deceased were likely, in normal circumstances, to cause grievous harm.


On this matter we have considered from the whole evidence on record whether there was any intention on the part of the appellant to kill the de­ceased or to do her grievous bodily harm in order to bring the case within the definition of section 316 (1) and (2) of the Criminal Code defining murder. It reads:­

  1. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:

(1)     if the offender intends to cause the death of the person kil­led, or that of some other person;

(2)     if the offender intends to do to the person killed or to some other person some grievous harm;…………


We are satisfied from the evidence on record that there was not the in­tention specified in subsection (1). In fact, the evidence before the Court negatived this. With regard to subsection (2), namely, whether the appellant intended to do grievous bodily harm to the deceased, we are of the view that there was not enough evidence led in the Court below that the appellant in­tended to do grievous harm to the deceased nor from the whole evidence can we arrive at the conclusion that a reasonable man, in the circumstances, could have foreseen that the blows inflicted on the deceased could have caused grievous bodily harm.


For the above reasons we are of the view that the killing, though unlaw­ful, does not amount to murder, and that a verdict of manslaughter should have been returned.


We therefore set aside the verdict of murder and substitute a verdict of manslaughter.


The appellant is sentenced to a term of imprisonment for 10 years with hard labour and this will be the judgment of the Court.


Appeal allowed


Verdict of Manslaughter substituted.


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