The Queen V. Ajelofu Edache (1962)

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UNSWORTH, F.J 

This is an appeal from a decision of McCarthy, Acting Judge in Northern Nigeria. The charge against the appellant was that on the 13th April, 1961, he did commit culpable homicide punishable with death in respect of ADA OKEWA and thereby committed an offence under section 221 of the Penal Code of Northern Nigeria.

The deceased woman was the wife of the appellant. It appears that there had been a marital dispute between them, in consequence of which the deceased woman had left the accused and gone to live in her mother’s compound. On the day of the incident the accused had been unsuccessful in proceedings in the Native Court and after the proceedings the deceased woman went back to her mother’s compound. The appellant came to the compound and shortly afterwards the deceased woman was heard to cry out “Ajelofu is killing me” or something to that effect. The accused was seen to come from the room and run away by two witnesses who gave evidence in the High Court. Both these witnesses stated that the accused said he had killed his wife, and the accused made a similar statement to the Police Constable who had arrested him. The appellant in his evidence in the Court below said:–

That day I told deceased’s father that if he did not give me back my wife he should give me my money back. He said when I gave him £6 he would take it to Chief and make way. The father abused me and I was annoyed, Deceased told me to go away. She said I was a slave. I said ‘I married you and I have come to demand you from your father and you abuse me as a slave’. Then I stabbed her. I wanted to kill her because she abused me and her father would not give her back to me.

The learned trial Judge found the appellant guilty of culpable homicide punishable with death and in dealing with the alleged abusive words said:–

The accused alleged in his evidence that deceased provoked him by insulting him. Provocation by words alone has never been held to be sufficient to reduce the gravity of an offence even in the case of an individual of the most primitive cultural background who might have less control over his emotions than another. In this case I find that the provocation which accused alleges was offered to him by the deceased is not such as would reduce culpable homicide punishable with death to culpable homicide not punishable with death.

The trial Judge here misdirected himself, as provocation by words can be sufficient to reduce the offence to one which is not punishable with death. This was the position under the Criminal Code formerly applicable in Northern Nigeria in accordance with the decision in The Queen v. Akpakpan (1 F.S.C., page 1). Insulting words may also amount to provocation under Section 222 of the Penal Code of Northern Nigeria, provided that the provocation otherwise comes within the provisions of that section.

There can be no doubt that the trial Judge erred in law and the only issue that arises is whether we should nevertheless apply the proviso to Section 26(1) of the Federal Supreme Court Act and dismiss the appeal on the ground that there has been no substantial miscarriage of justice.

The Solicitor-General, in a very helpful submission, reviewed the facts with a view to drawing our attention to circumstances which might lead us to the conclusion that the case was one in which the provision might properly be applied. He drew attention to the fact that the alleged provocative words were first mentioned by the appellant in his evidence in the Court below, and that none of the prosecution witnesses had been examined to suggest that these words had been used. He also submitted that the words used could not amount to grave provocation. There was no evidence to show that the appellant came from a primitive community in which the words might be regarded as grave.

We feel that the case is not one in which we should apply the proviso so as to uphold the conviction. At the same time, there is substance in the sub-mission of the Solicitor-General that the alleged provoking words were first mentioned by the appellant in his evidence in the Court below, and that none of the prosecution witnesses have been examined to suggest that these words had been used. It appears probable that both the prosecution and the defence would have called further evidence if the issue of provocation had been properly raised in the High Court. In the circumstances of this case we think the proper order is an order for retrial. We would accordingly allow the appeal, quash the conviction and order the appellant to be retried by another Judge of the High Court of the Northern Region.

Other Citation: (1962) LCN/0957(SC)