JELR 80649 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1955 15 WACA 26-28
Core Terms Beta
mr lambo
learned trial judge
present case
trial judge
whole of the evidence
additional grounds
house of the deceased
judgment of the court
wounding of mr davies
5th september
accused person
act of the appellants
additional grounds of appeal amount
akpan unwa udo ekpo
ample evidence
case of kwaku mensah
conclusion of the brief summary
effect of provocation
facts of the case
following sentence
ground of provocation
hearing of this appeal
hostile action
large number of members
leading member of the national council of nigeria
learned judge
learned president
lesser verdict
member of his household
mere fact
mr davies
mr h. o. davies
number of injuries
original grounds of appeal
political meeting
political parties
possibility of the witnesses
protection of the legal doctrine of provocation
question of an accused person
real test
reasonable person
record evidence
temporary loss of self-control
town of oyo
western region of nigeria

HUBBARD, J: These are applications for leave to appeal against conviction made by six men who were sentenced to death by Ademola, J., on a charge of murdering one Oyeladun Adeyemo. We have treated the applications as the appeals themselves.

Mr Lambo, who appeared for all six applicants, abandoned the five original grounds of appeal, and was granted leave to argue three additional grounds. Mr Lambo agreed that the first two additional grounds were in fact one ground only. They read as follows:

“1. The learned trial Judge erred in law by not directing himself on the question of whether the offence disclosed by the evidence is manslaughter.

2. The learned trial Judge erred in law in not considering the effect of provocation on the act of the appellants”.

The facts of the case, briefly, are that in the town of Oyo in the Western Region of Nigeria two political parties, “Oyo Parapo” and “Egbe Afenifere”, were at loggerheads. On 5th September, 1954, disturbances broke out, and Mr H. O. Davies, a leading member of the National Council of Nigeria and the Cameroons, of which “Oyo Parapo” is a branch, was wounded. Some time later on the same day a large number of members of “Oyo Parapo” attacked the house of the deceased, who was a member of “Egbe Afenifere” and tried to set it on fire. In order to escape being burnt to death the deceased and the other inmates of his house made a dash for it. The deceased was attacked while trying to escape. He received a number of injuries both from sharp and blunt weapons, the present six applicants being among his attackers, and he died from these injuries two days later. The interval which elapsed between the wounding of Mr Davies and the attack on the house of the deceased does not clearly appear from the evidence. Mr Davies was wounded while a political meeting was in progress which had begun at 10 a.m. The house of the deceased was attacked sometime after the deceased had returned from church at noon. The Police arrived on the spot at 4.30 p.m. and found the house on fire, a crowd of armed people fighting, and the deceased lying wounded on the ground.

Mr Lambo's first and second additional grounds of appeal amount to this: that from the judgment of the court below it does not appear that the learned. Judge addressed his mind to the question whether or not there was provocation which might reduce the offence to manslaughter. The duty or directing a jury, or of a judge to direct himself, on the issue of manslaughter arises only when there is on the record evidence fit to be left to a jury, or fit to be considered by a judge, of acts committed by the deceased which might legally constitute provocation. In the case of Kwaku Mensah (P.C.A. No.7 of 1945, XI W.A.C.A. 2, at p. 5). Their Lordships said: “But if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the judge must put that question to the jury. . . . If on the whole of the evidence there is nothing which could entitle a jury to return a lesser verdict, the judge is not bound to leave it to them to find murder or manslaughter”.

In the present case we are of opinion that on the whole of the evidence there is nothing which could have entitled the learned Judge to find a verdict of manslaughter, and therefore there was no need for him to direct his mind to that issue. Mr Lambo referred several times to the following sentence in the judgment of the Court below: “From the whole evidence, it appears clear to me that his followers, enraged at the fate which befell their leader, did commit some serious acts of violence”. This, as the learned President commented at the hearing of this appeal, is merely the conclusion of the brief summary which the trial Judge gave of the political background of the case. It also, no doubt, shows motive. But it is not every killing due to the motive of revenge which has the protection of the legal doctrine of provocation. It is not sufficient for an accused person to show that he killed someone because he was angered, he must bring his conduct within the ambit of this doctrine. “Provocation”, said Devlin, J., in R. v. Duffy (1949) 1 A.E.R. 932 “is some act or series of acts done by the deceased to the accused which would cause in any reasonable person, and actually does cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind”. In the light of this definition the ground of appeal we are considering obviously cannot be sustained, for it is clear on the evidence beyond any shadow of doubt that the deceased did not commit any provocative act against the applicants.

Mr Lambo did not refer to R. v. Akpan Unwa Udo Ekpo (1938) 4- W.A.C.A. 110, but it is a case to which we think we ought to refer in order to distinguish it. The facts there were that there was a fight between the Ediene clan, of which the deceased was a member, and the Minya clan, of which the appellant was a member. The Edienes, the deceased's clan, began the fight. Both the appellant and the deceased were wounded in the fight, but not by each other. The deceased fell on the ground and the appellant hit him with a matchet and killed him. The trial Judge had held that as the deceased had offered no provocation to the accused personally, the killing was murder. This Court (Kingdon, C.J., Carey and Graham Paul JJ.) said: “Upon this point we feel bound to disagree with the trial Judge. The provocation consisted not merely of the wounding of” the accused “but of the whole attack by the Edienes, of whom the deceased was one. To apply the real test, it is clear that upon the facts disclosed the deceased, if he had lived, could have been properly prosecuted in respect of the harm caused to the appellant. He was, therefore, one of those offering the provocation, and there is no doubt that the appellant committed the act whilst in the heat of passion caused by this provocation”. The distinction between that case and this is clear. In that case the deceased was a member of the attacking group and took part in the attack. In the present case the deceased spent the morning at church, nor is there the slightest evidence that any member of his household had anything to do with the wounding of Mr Davies or with any hostile action against “Oyo Parapo”. The mere fact that the deceased and his household belonged to “Egbe Menifere” is irrelevant. The doctrine of provocation was never intended to furnish a justification for an indiscriminate vendetta.

Mr Lambo, on the issue of provocation, emphasized also the primitive state of the people of Oyo. The Supreme Court of Nigeria has laid down that the question of an accused person's cultural status should be considered (R. v. James Adekanmi, 1944, XVII N.L.R. 99 at p. 101). But the purpose for which it is to be considered is in order to determine whether, when the evidence does in fact show a provocative act committed against the accused by the deceased, using “provocation” in its non-technical sense, that act, although it might not be such as to amount legally to provocation if committed against “an educated and civilized person”, should be considered to be legally provocation if committed against “an illiterate and primitive peasant”, whose passions “are far more readily aroused than those of a civilized and enlightened class”. This decision has no application to the present case since the deceased committed no provocative act at all.

Mr Lambo's third ground of appeal was that the verdict was unreasonable and unwarranted and cannot be supported having regard to the evidence. This ground can be dealt with much more briefly. In our view, there was ample evidence against each of the six applicants. The learned trial Judge dealt with the evidence very carefully; he visited the “locus” so as to satisfy himself as to the possibility of the witnesses seeing what they say they saw; he brought into consideration the fact that all the material witnesses for the Crown were members of the family of the deceased. Having carefully considered all these matters he had no doubt at all that the six applicants were guilty of murder. We see no reason to interfere with his finding.

These six appeals are accordingly dismissed. Appeals dismissed.