JELR 81159 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1943 9 WACA 62-63
Core Terms Beta
innocent man
2nd december
appropriate sentence
armed thieves
charge of manslaughter
criminal procedure ordinance
facts of the case
gold coast
hard labour
high court
high court of the warri judicial division
inadequate policing
learned trial judge
letter of the rule
months imprisonment
night guards
order xxxix of the protectorate courts rules
people of the town of abbi
proper verdict
pursuance of its powers
record shows
rules no.7
safety of person
sergeant of police
such occasions

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J. SIERRA LEONE. In this case the appellant was committed for trial in the High Court of the Warri Judicial Division on a charge of manslaughter. On his being brought before the High Court sitting at Kwale to answer the charge, the Sergeant of Police who appeared to prosecute asked the Court to substitute a charge of murder for that of manslaughter, since, as he submitted, that was the offence as disclosed by the depositions. The Court, acting in pursuance of its powers under Order XXXIX of the Protectorate Courts Rules, 1934 (as amended by Rules No.7 of 1934), acceded to the request and proceeded forthwith to try the appellant, who was not represented by counsel, upon the charge of murder without allotting him counsel and without, so far as the record shows, offering him an adjournment to reconsider his position and possibly engage counsel himself. We deprecate this procedure, which though it may be within the letter of the rule, is certainly not in accordance with the spirit in which a man should be tried upon a capital charge.

Shortly the facts of the case are that the people of the town of Abbi, of whom the appellant was one, were warned on the 2nd December, 1942, that there were thieves in the town and that they

(footnote) See new see. 364 of the Criminal Procedure Ordinance, 1945,

should be on the alert. On such occasions, owing to inadequate policing, the safety of person and property in the town falls to be guarded by so-called night guards, who have frequently, as we know from cases in this Court, to deal with armed thieves.

During the night in question the appellant, as a precaution, lighted up his house and then went to bed and slept. He was awakened by an alarm of “ thief, thief.” He went with a loaded dane gun in the direction of the alarm. Then a man came running towards him apparently being chased. He thought the man was an escaping thief and possibly armed and so fired his gun either at the man or in the man’s direction. At any rate he hit and killed the man, who turned out to be one Echigbua, an innocent man, lawfully abroad, who was running away through fright at being followed by someone else. On these facts the learned trial Judge found the appellant guilty of murder and sentenced him to death.

On appeal counsel on his behalf has submitted that the conviction should have been for manslaughter only and not murder and counsel for the Crown has intimated that he cannot uphold the conviction for murder, but asks the Court to substitute therefore a conviction for manslaughter and pass an appropriate sentence. We agree that, having regard to all the circumstances of this case, the proper verdict was one of manslaughter and not of murder.

There is accordingly substituted for the verdict of guilty of murder found in the Court below a verdict of guilty of man- slaughter, and in substitution for the sentence passed at the trial the appellant is sentenced to three months imprisonment without hard labour to date from the date of the original conviction, viz., the 14th January, 1943. This means that his sentence is completed to-day and he should be immediately discharged.