Gabriel Kechi v. The Queen (1963)

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BAIRAMIAN, J.S.C.

This appeal was heard on the 31st October. The appellant was convicted on 9th July, 1963 at Abakaliki in the High Court of Eastern Nigeria before Phil:- Ebosie, J., on the charge of murdering one Achong Ndim at Boki in Ogoja Province on 31st August, 1962.

That day some persons went out hunting in the bush; among them were the appellant, his father, and Achong Ndim (the deceased in the present case). Achong shot the appellant’s father; he said so to the appellant when they met at the hunting hut. The appellant asked Achong more than once to take him to where his father was, but Achong refused, suggesting that they should first go to tell their townspeople. Achong set off, and the appellant shot him. (He was admitted in the Ikom hospital on the 3rd, and died on the 17th September, 1962 of sepsis and gangrene due to gunshot).

The above statement of fact is taken from the judgement under appeal. It goes on to consider the defence of (a) provocation, and (b) shooting to apprehend an armed and escaping felon. The trial Judge rejected (b) as an afterthought. On (a) he said that the provocation alleged was the refusal on Achong’ s part to take the appellant to where his father was shot.

Dealing with provocation, the judgement states that as the appellant was not present when Achong shot his father that in law could not be provocation to the appellant. Achong, according to the appellant, refused to take him to where his father was because the place was far and because he, Achong, wanted to report the incident to their townspeople first; and (the judgement observes) Achong did take them to the spot later. In these circumstances the trial Judge thought Achong’s action could not amount to provocation and appellant’s shooting him was more an indication of revenge rather than something done under stress of provocation.

The complaint is that the trial Judge did not appraise the facts of provocation adequately, and our attention was drawn to the evidence of the appellant at the trial. He said that Achong had threatened to do grave harm to his father (there was evidence of it from witnesses called by the prosecution) and shot his father in the bush; his evidence goes on:-

“I asked him to show me where he shot my father so that I could carry him to the hospital for treatment. He asked me to get out and said he was not the only one who killed somebody before. Achong refused to take me.

It was difficult to get hold of him as he had a long knife in his possession. As he was going away, I thought that if he was allowed to go he would go and kill other relations of mine. So to stop him from going away, I decided to shoot at him only to wound him to stop him from going away. He was far away when I shot him. When I was asking him to take me to where my father was, I believed that my father would still be alive and I could carry him to the hospital. I was angry when he said that he was not the first person to kill a man.”

and in cross-examination:-

“I shot the deceased because I was angry that the deceased refused to show me where he shot my father and also to stop him from running away. I was angry because the deceased killed my father.”

Discarding the appellant’s evidence that he shot Achong to stop him from running away, or to prevent his going and killing other relatives the former reason was rejected by the Judge, the latter is speculative on the evidence we have these causes of anger:
(That Achong killed his father;
(2) That Achong said he was not the first person to kill a man;
(3) That Achong refused to take the appellant to where his father was.
As already stated, the learned Judge did not think that cause No. (1) was a lawful cause of provocation. Cause No. (2) was not dealt with in the judgement; that in our view is a serious omission, and we are left without the benefit of knowing how that heartless statement might have weighed in the Judge’s mind as an insult. In addition, the manner of considering cause No.(3) was not satisfactory: the fact that the deceased wanted first to report to the townspeople, and did later take them to where the appellant’s father was shot, does not eliminate the appellant’s anger with Achong for not taking him straight to where his father was; here again we cannot tell what view the learned Judge would have taken if he had considered cause No. (3) in the proper light.

There is in our opinion substance in the complaint that the trial Judge did not appraise the facts of provocation adequately; consequently there was a substantial miscarriage of justice, and that makes it a proper case for allowing the appeal.
The conviction of murder and sentence of death are quashed and replaced by a conviction for manslaughter and a sentence of seven years.

F.S.C.301/1963