Iyade Nwango V The Queen (1962)

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BAIRAMIAN, J.S.C. 

The appellant was convicted on 3rd August, 1963 in the High Court of Eastern Nigeria at Abakaliki, of murdering one Nwefi Oka on the 11th January, 1963 at Amachara Agbaja Izi in the Province of Abakaliki.
That day the deceased and five others went to the appellant’s house to ask him about a gourd of palm-wine which one of them, namely Nwodom Agom, had missed from a tree he was tapping. The deceased went to where the appellant was tapping and fetched him. Nwodom Agom asked him why he had stolen his gourd; the appellant told him not to ask that question again, and drew his tapping-knife, but he was disarmed by one of the party, who went off with it to report to the Police. While the others were waiting, the appellant suddenly drew the dagger Nwodom had at his waist, and rushing on the deceased stabbed him in the face. He and his companions began to run away; the appellant ran into his house and brought a matchet; he chased the deceased and cut him with it in several places on the left arm, on the right arm, on the lower left side of the chest cuffing the 12th rib, and on the lower right side of the chest slightly cutting the 9th rib.
On the 12th January, 1963, the day after the killing, the appellant made a statement to the Police, in which he said that five men beat him in his house and dragged him outside; the deceased asked Nwodom Agom for his knife, and he, the appellant, took it and stabbed the deceased with it on the chest, and give him several cuts; then the deceased ran away; and when others wanted to kill him, he ran away. He ended his statement saying that Nwodom Agom accused him of stealing his palm-wine and brought people to kill him because he used to tap more wine. He embroidered that story in his evidence at the trial. The learned Judge did not believe his story, rightly in ouropinion; he accepted the version of events given by the witnesses for the prosecution.
There were three submissions before Phil-Ebosie, J.:-

(1) That the appellant killed in self-defence;
(2) That he was provoked by the accusation of stealing;
(3) That he was provoked by being imprisoned in his house.
The 1st was rejected on the findings of fact; we think there was no substance in the ground of appeal which relates to self-defence.
On the second the trial Judge states briefly:-
“I do not also think that what was said to the accused can be regarded to be provocation either.”
One ground of appeal is that the trial Judge
“Failed to direct himself that the circumstances of a false accusation of stealing against the appellant were such insult envisaged by section 283 of the Criminal Code as would reduce a charge of murder to manslaughter. ”
Section 283 states (so far as is relevant here) that:-
“The term ‘provocation’ . . .includes . . . any wrongful act or insult of such a nature as to be likely, when done to an ordinary person. . . to deprive him of the power of self-control, and to induce him to assault     the person by whom the act or insult is done or offered.”
The first question is, did the deceased offer any insult to the appellant In his statement to the Police the appellant says it was Igboke Agom who accused him of stealing his palm-wine. As to the deceased, the appellant stated:-
“Nwefi Ife Oka (the deceased) asked Nwodom Agom to give him his knife to cut me. Nwodom Agom wanted to give him the knife when I took it from him. I used the dagger and stabbed Nwefi Ife Oka on the chest.”
That was not believed by the trial Judge. But Nwodom Agom said in cross examination this:-
“What I really said to him was that the deceased told me that he stole my palm-wine.”
The deceased was there; he did not deny having said so to Nwodom, and the appellant took it that he was the source of the accusation; which explains why he killed the deceased. The appellant carefully avoided saying that the deceased had wrongfully accused him of stealing, but that should not be taken against him as he was pleading self-defence.
The next question arises under section 318 of the Criminal Code, which provides that:-
318. “When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocadon, and before there is time for his passion to cool, he is guilty of manslaughter only.”

When Nwodom Agom asked the appellant why he had stolen his wine as the deceased had told him, the appellant drew his tapping knife and was disarmed; and the man who disarmed him was told by Nwodom to go to the police and left. Some more people came into the compound. Nwodom’s evidence is as follows:-

“We all stood in front of the accused’s house waiting for Igboke to return with a police. While we were waiting, the accused, who was standing close to me and the deceased, suddenly drew the dagger I tied on my waist, rushed on the deceased and stabbed him on the face twice. He then ran into his house and rushed out again with a long matchet. As we saw him, all of us took to our heels. The accused pursued us. He chased the deceased who was running behind me. He caught up with the deceased, gave him cuts on both arms. The accused chased the deceased into the deceased’s compound, which was close by. In the compound, accused gave him another cut on the left wrist and this caused the deceased to fall down. The accused then left him and went away.”

Or take the evidence of Arugwu Ugo, P.W.5, from the point when the appellant was disarmed: it reads:-

“The accused and the rest of us then stood outside. We were standing close to one another. After a while (about 20 minutes indicated by witness) the accused suddenly snatched the dagger which the P.W. 2 was wearing on his waist and stabbed the deceased, Nwefi on the head. When this happened, the rest of us scattered inside the accused’ s compound. The accused entered his house and rushed out with a matchet.” etc.
The trial Judge accepted their version of the events. It does not show that the appellant acted, to quote the words of section 318:-
“In the heat of passion caused by sudden provocation, and before there is time to cool.”

We cannot do better than quote from the judgement of the Privy Council in Lee Chun-Chuen v. Regina, of November 14th, 1962, reported in [1963] 1 All E.R. 73: Lord Devlin said at p. 79:-

“Provocation in law consists mainly of three elements – the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements. They are not detached. Their relationship to each other particularly in point of time, whether there was time for passion to cool – is of the first importance. The point that their Lordships wish to emphasize is that provocation in law means something more than a provocative incident. That is only one of the constituent elements. The appellant’s submission that if there is evidence of an act of provocation, that of itself raises a jury question, is not correct.”

That fits the present case precisely: it is not enough to complain that the trial Judge

“Failed to direct himself that the circumstances of a false accusation of stealing against the appellant were such insult envisaged by section 283 of the Criminal Code as would reduce a charge of murder to manslaughter. ”

That was the provocative incident. Alone, it cannot sustain the plea of provocation: it was also necessary to show “loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation.” Split up there are these ingredients of the second constituent of the plea (a) loss of self control, both actual and reasonable, and (b) before there is time for passion to cool. The narrative accepted as credible must show that the person who kills does so in the heat of passion. Upon a favourable view it can be said that the appellant’s temper was up when he was accused of stealing: he drew his tapping knife from his waist as a spontaneous act of resentment. But he was disarmed and was later standing around so quietly with those who had come that they were not on their guard; and he took them off their guard: he suddenly snatched Nwodom’s knife from his waist and attacked the deceased. His conduct was that of a man acting with cool calculation, and that took his case out of section 318; which makes it unnecessary to consider any other aspect of the events.

The other ground of appeal argued was that the appellant was wrongfully arrested and killed to escape; or that the wrongful arrest was an act of provocation. The latter plea must fail for the reasons already given. The former must also fail, for it is not true in fact on the narrative of events accepted as true. It raises a number of legal questions, but it would be academic to discuss them in this case.

Before dismissing this appeal, we should like to draw attention to the one Nigerian case that comes to mind on killing to prevent unlawful arrest, namely Joseph Adu v. The Queen, 14 W.A.C.A. 462. Had it been necessary in the present case, we would also have had to invite argument on the last sentence in section 283 on unlawful arrest as provocation, and also on whether the arrest in this case was unlawful if considered at the point of time when the appellant drew his tapping-knife, in the light of section 356 (1) on assault to commit felony. These points were not argued; they may be important in some other case hereafter: here they are not, and they are merely mentioned in passing.

This appeal is dismissed.