The Queen V Reuben Enyi Jinobu (1961)

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BRETT, F.J

The appellant was convicted in the High Court of the Eastern Region of the murder of his 14 year old wife, Ugbalekame Umanukeni. It is not disputed that he killed her, and the questions argued before us are whether he was rightly convicted of murder, or whether he ought to have been acquitted, as having acted in self-defence, or convicted of manslaughter, as having killed her in the heat of passion caused by sudden provocation.

There was a conflict of evidence as to whether the appellant and the deceased had been living together as man and wife, but the fact that the killing took place in his bedroom in the middle of the night (as is confirmed by the blood-stains) sup-ports his story that they had been. There were no eye-witnesses to the killing it-self. The learned Judge was of the opinion that even on the view of the facts most favourable to the appellant, the appellant was guilty of murder and he therefore found it unnecessary to reach or record any findings of fact on the matters on which there was room for doubt. What we have to decide is whether the Judge was right in holding that it was not open to him, on the evidence, to do anything but convict the appellant of murder. On the appellant’s own story he and the deceased were living together and had sexual intercourse together. He had previously been married four times and had lost his wives to other men. He was extremely fond of the deceased and suspected her of having a lover. The events in question took place at night, and on the previous day he had been at a funeral and returned home after 10.00 p.m. The deceased returned after him and there was some argument as to where she had been. He undressed in his bedroom and wished to have sexual intercourse with her, when she caught hold of his private parts, causing him intense pain. He picked up what he thought was a stick from under the bed and had struck her two blows before he realised that it was not a stick but a matchet. He then raised an alarm and ran away.

The deceased died of a four-inch wound in the left upper chest which made an open-ing in the pleural cavity and from loss of blood from other wounds on the scalp, the right wrist and hand, the left hand and the left lower leg. The doctor who conducted the post mortem described the body as savagely cut up, though the wounds were not immediately fatal and the deceased’s life might have been saved by a blood transfusion given in time. This is no defence, but gives some indication of the severity of the wounds. The Judge found that the appellant knew that what he used on the deceased was a matchet and that he had an actual Intent at the time to kill her.

We do not consider that on this evidence it could have been held that the appellant believed on reasonable grounds that he could not otherwise preserve him-self from death or grievous harm than by using such force as he did and the plea of self-defence within s.286 of the Criminal Code must fail.

As regards provocation, we have no doubt that a forcible grasping of a man’s private parts such as was described is, to quote from s.283 of the Criminal Code, a wrongful act 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 per-son by whom the act is done. It is impossible to go beyond that and lay down as a rule of law that an assault of this nature will invariably constitute sufficient provocation to reduce an unlawful and intentional killing from murder to manslaughter, under s.318 of the Criminal Code, or that it can never do so. The answer in each case must depend on the particular facts, including the relationship of the parties, and an assault of this nature committed by a wife with intent to prevent her husband from exercising his marital rights may well be greater provocation than it would be if the parties were not husband and wife or if the motive of the assault were different.

The trial Judge omitted to consider the relationship of the parties, and when dealing with the issue of provocation he made the comment that “the deceased was a girl of fourteen and it was therefore easy for the accused to ward off the deceased without resorting to striking her with a matchet”. There was no evidence of the girl’s physique and if the Judge meant to imply that a girl of four-teen could not cause a very high degree of pain by grasping a man’s private parts we are, with respect, unable to agree. In all the circumstances of this case we are unable to say that on the findings of the trial Judge provocation was sufficiently excluded, and the appellant must be given the benefit of the doubt. We therefore substitute for the verdict found by the court of trial a verdict of guilty of manslaughter, and in substitution for the sentence of death we pass a sentence of ten years’ imprisonment.

Appeal allowed. Verdict of Murder set aside.

Verdict of Manslaughter substituted.

Other Citation: (1961) LCN/0890(SC)