Stephen Oji V the Queen (1961)

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BRETT, F.J

This is an appeal against a conviction by Hurley, C.J., in the High Court of the Northern Region on a charge of culpable homicide punishable with death, contrary to section 221 of the Penal Code of Northern Nigeria. It is noteworthy as the first appeal in which this Court has had to decide on the interpretation of any section of the new Penal Code of Northern Nigeria, which was brought into operation on the 30th September, 1960, and applies to offences committed on or after that date.

In addition to involving a charge under the new Penal Code, the trial was conducted in accordance with the new Criminal Procedure Code, also introduced on the 30th September, 1960, and some of the grounds of appeal argued were, as Mr Cole finally agreed, based on a misunderstanding of the new Procedure Code. The position under the Code is that the written statement of the offence alleged against the accused person is, even in a trial in the High Court after committal by a magistrate, known as a charge, and that the charge takes the place of the document known in England as an Indict-ment and in other parts of Nigeria as an Information. The grounds of appeal which referred to the framing of a charge by Hurley, C.J., were admittedly misconceived and we need say no more about them.

The points of substance were whether the appellant was entitled to be acquitted as having acted in private defence, as to which the law is set out in ss. 59 to 67 of the Penal Code, or to be convicted only of culpable homicide not punishable by death under any of the subsections of s. 222 of the Penal Code. The answers to these questions depend on the facts of the case as found by the Chief Justice, which we now proceed to examine. The deceased, whose name was Clement Bamenda, and the appellant lived in the same compound as each other and as one Ngom, and some money of Ngom’s had been stolen. After the evening meal on the day in question, Ngom had gone to a neighbour’s house, leaving Clement and the appellant alone in the compound.

The appellant took his knife and was about to go to the bush to relieve himself when Clement asked him where he was going. He told him, and Clement accused him of intending to run away because he had stolen Ngom’s money. The appellant thought this was intended as a joke, and replied that he would say nothing until Ngom got back, whereupon Clement went into his house, came out holding a matchet, stood in front of the appellant and said he should not pass. A struggle ensued, in the course of which the appellant threw Clement to the ground, stabbed him with the knife, and seized the matchet. Clement got up and the appellant struck him a number of blows with the knife and the matchet. Clement died about an hour later from the combined effect of the wounds he received. The appellant as the Chief Justice found, received no physical injuries in the fight.

On the strength of this evidence the Chief Justice was undoubtedly correct in holding that there could be no question of an acquittal on the grounds of having acted in private defence. The violence used by the appellant went far beyond anything that was required in the defence of his person or liberty, and we need say no more on the point.

The Chief Justice then went on to consider whether the gravity of the homicide was reduced under subsection (1) or (4) of section 222 of the Penal Code. The finding as to self-defence made it unnecessary to consider subsection (2). Subsection (1) reads –

Culpable homicide is not punishable with death if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provo-cation or causes the death of any other person by mistake or accident.

What the Chief Justice said on this was –

What Clement said and did was provocation, and it provoked the accused. But it amounted only to this, that Clement said that the accused was a thief, and was about to abscond, and that he Clement, would use the matchet to prevent the accused from absconding. I find that that was not provocation grave enough to prevent the accused’s offence from amounting to culpable homicide punishable with death.

On this issue we agree with, and adopt, the words of the Chief Justice.

Section 222 (4) of the Penal Code reads –

Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of pas-sion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation. – It is immaterial in such cases which party first provokes the other or commits the first assault.

On this issue the Chief Justice found that what occurred between Clement and the appellant was a sudden fight upon a sudden quarrel that there was no premeditation upon the appellant’s part, and that he acted in a heat of passion upon the quarrel. So far we entirely agree. He went on to say

However, having stabbed and disarmed Clement and obtained possession of both weapons, the accused had gained advantages; and when Clement stood up the accused acted upon his advantage to inflict a number of severe injuries on Clement, using both weapons. The question is whether the accused took undue advantage or acted in a cruel or unusual manner, or whether, having regard to the passion and the heat of the fight, and the cultural background and station in life of the contestants the accused did not go beyond the bounds marked out by section 222 (4)? It is my finding that the accused did take undue advantage, and that he acted cruelly and with a more than usual ferocity.

We accept the Chief Justice’s summary of the essential facts, and we respectfully agree that he formulated the question which he had to decide in a way to which no exception can be taken. So far as his decision is one of fact we should be reluctant to disturb it, but as this is the first occasion on which this Court has been called on to determine a question arising under s. 222 (4) of the Penal Code we think it desirable that we should consider what interpretation should, as a matter of law, be given to the subsection. The first and constant duty of the Court in interpreting a statute is to have regard to the words of the statute, but when the statute contains expressions which have already received judicial interpretation, or been used in an authoritative statement of the rules of common law, the Court may legitimately take into consideration the interpretation they have received, or the sense in which they have been used. Archbold’s Criminal Pleading, 34th edition, sets out the relevant rules of the common law in paragraphs 2492 and 2493, and it is significant that the authorities cited date from a time when the carrying of potentially deadly weapons was more common in England than it is to-day. What Archbold says is –

Killing by fighting may be either murder, or manslaughter, or homicide in self defence, according to circumstances. If two per-sons 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 time for passion to subside and reason to interpose, the killing will be murder: Fost. 296, etc.; but if such time has 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 continual act of passion) the killing in such a case would be manslaughter only, 3 Co. Inst. 51 etc.; whether the party killing struck the first blow or not: Fost. 295. Therefore, if two persons deliberately fight a duel, and one of them is killed, the other is guilty of murder, 1 Hale 443,; etc… Even in the case of a sudden quarrel, where the parties immediately fight, the case may be attended with such circumstances as will indicate malice on the part of the party killing; and the killing would then be murder, not merely manslaughter. If, for instance, the party killing began the attack in circumstances of undue advantage as if A and B quarrel, and A draws his sword and makes a pass at B, and B therefore draws his sword and they fight and B is killed, A would be guilty of murder, for his making the pass before B had drawn his sword shows that he sought his blood: Fost. 295. So, where A and B quarreled, and A threw a bottle at B and then drew his sword, and B then threw the bottle back at A and wounded him, upon which A im-mediately stabbed him, this was held to be murder: R. V  Maw-gridge, 17 St. Tr. 57. But if the parties at the commencement attack each other upon equal terms and afterwards, in the course of the fight, one of them in his passion snatches up a deadly weapon and kills the other with it, this would be manslaughter only: R. V  Snow, 1 Leach 151; R. V  Taylor 5 Burr. 2993. If, however, the use of a deadly weapon was intended from the first, the killing is murder: R. V  Kessal 1 C. and P. 437.

The instance of “undue advantage” given in the quotation from Foster’s Crown Cases, 295, is that of a person who begins the attack in circumstances of undue advantage, whereas the wording of s.222 (4) of the Penal Code does not refer only to an undue advantage which exists at the beginning of the fight, but we do not consider that a party who in the course of the fight possesses himself of the weapon with which the other was armed at the beginning of the fight, and immediately uses it, can be said to have taken undue advantage within the meaning of the subsection. It is true that in this case the Chief Justice rejected the story that Clement had actually wounded the appellant with the matchet, but he did not find that Clement had made

Other Citation: (1961) LCN/0917(SC)