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.