Rex V. Egbe Iboko Alo (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder contra seption 319—FightL—Misdirection as to duel— Appeal ftrenVerdict pf manslaughter substituted.

There was a challenge to fight which was accepted by the appellant who Court. struck the first blow and killed the deceased.

Held: That the essence of a duel is •premeditation and pre-nrrangement and that as there was none here the Judge should have Raked himself the question ” was the deceased killed in the heat of passion caused by sudden provocation.” With a proper direction the verdict might well have been manslaughter. Verdict of manslaughter was accordingly substituted for that of murder. –

Mckinstry for Respondent.

A. Okon for Appellant.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND
BAKER, JJ.

In this case the Appellant was charged before Pearson, Assistant Judge, in the High Court of the EnuguiOnitsha Judicial Division with the murder of one Egwe Enyo. He was convicted and sentenced to death.

The facts of the case are that the deceased and the Appellant had quarrelled. Following upon the quarrel the deceased came to Appellant’s compound in the night when Appellant was sleeping; called him out and challenged him to fight. lie was armed with a matchet. Appellant accepted the challenge_; got his matchet and the fight was joined. Appellant got in the first blow and killed the deceased. On these facts the learned trial Judge held ” This, then, was a duel, in which the slaying is prima facie murder.” We are of opinion that in so holding he misdirected himself. The essence of a duel is premeditation and pre-arrangement; there was none here, The English law is set out at page 889 of the Nth Edition of Archbold as follows : —

” Killing by fighting may be either murder, or man” slaughter, or homicide °se defentlendo, according to ” circumstances. 1. QUARRELS—If two persons quarrel and “afterwards fight. and one of them kills the other—in such

” a case, if there intervened, between the quarrel and the ” fight, a sufficient cooling time for passion to subside and ” reason to interpose, the killing will be murder   ” but if such time had not intervened—if the parties, in their

passion, fought immediately, or even if, immediately upon ” the quarrel, they went out and fought in a field (for this is ” deemed a -continued act of passion), the killing in such a ” case would be manslaughter only,   whether the ” party killing struck the first blow or not. Therefore, if ” two persons deliberately fight a duel, and one of them is ” killed, the other is guilty of murder   no matter ” how grievous the provocation, or by which party it was ” given.”

We think that the Nigerian law comes to the same thing, resting, as it does, upon the question whether the act was done ” in ” the heat of passion caused by sudden provocation, and before ” there was time for passion to cool ” (Criminal Code section 318). We are of opinion that in this case the proper question for the Judge to have asked himself was ” was the deceased killed in ” the heat of passion caused by sudden provocation? ” The challenge to fight undoubtedly provides the necessary provocation. We think that if the learned trial Judge had answered that question in the light of the first part of the passage from Archbold above-quoted instead of erroneously holding the fight to be a duel, he might well have held the killing in this case to be manslaughter only and not murder ; and we are accordingly of opinion that a verdict of manslaughter should be substituted for that of murder. The verdict and sentence of the trial Court are set aside, and in substitution therefor the Appellant is found guilty of manslaughter contra. section 325 of Criminal Code and sentenced to ten years imprisonment hard labour.