(1961) All N.L.R. 136


Division: High Court (North)


Date of Judgment: 19th January, 1961


Case Number:


Before: Reed, AG. S.P.J. 

              McCarthy, AG. J. 

              Abubakar Gummi, D.G.K.


The appellant, without premeditation in a sudden fight in the heat of passion upon a sudden quarrel between him and Ali aimed a blow at Ali with a knife and struck Inuwa by mistake. Ali and Inuwa were unarmed. Inuwa died as a result of the blow. When the quarrel began, the appellant had the knife in his hand and was using it to clean a rabbit. Appellant convicted of culpable homicide punishable with death.


The appellant was not guilty of culpable homicide punishable with death; but was guilty of the lesser offence of culpable homicide not punishable with death.

Appeal allowed: Culpable homicide not punishable with death, substituted.

Statutes referred to:-

N.R. Penal Code, 1959, sections 222, 223.

Jos-Criminal Appeal No. JD. 100 CA/1961.

Quinn for Appellant.

Buba Ardo, Crown Counsel, for Respondent.

Reed, AG. S.P.J.:-(delivering the Judgment of the court):

This is an appeal against the decision of the Emir of Bauchi's Court. The appellant was convicted under the Penal Code of culpable homicide punishable with death and was sentenced to death.

The appellant does not dispute that he stabbed the deceased, Inuwa, with a knife and that Inuwa died as the result of that stab wound. There were before the Emir's Court two accounts of the circumstances in which the stabbing took place and these accounts varied greatly. One account was given by the witness Kusa; the other was given by the appellant himself.

Kusa's account of what happened may be summarised as follows. There had been a dispute in which one Ali and the appellant had been involved: this dispute had not been serious-it had been settled and Ali had gone away. Some time elapsed and the parties had been drinking. They had a rabbit and they were roasting it to eat. The appellant took up a knife and Inuwa who, apparently, was frightened that the appellant might attack Ali with it, asked him why he had taken the knife as Ali had gone away. Thereupon the appellant said he would do to Inuwa what he was going to do to Ali and gave Inuwa the fatal stab.

Appellant's account may be summarised as follows. He agreed that there had been, earlier in the evening, a dispute between himself and Ali. He agreed that later they prepared a rabbit to cook. But he said that Ali came back and after saying "that we both had to die with him" attacked him by pulling him off the bed. They struggled. The appellant had in his hand a knife with which he had been cleaning the rabbit and he tried to stab Ali with it. Inuwa intervened to protect Ali and the knife, aimed at Ali, struck Inuwa by mistake.

Now unfortunately the Emir's Court does not state specifically which of these two accounts it accepted. The Judgment does, however, suggest that it accepted the appellant's account because it found an offence proved under section 223 of the Penal Code "since you killed Inuwa with wilful intention of killing Ali." Section 223 states, in effect, that if a person causes the death of a person other than the person whose death was intended it is still culpable homicide. We think, therefore, that it is clear that the Emir's Court accepted the appellant's account of what happened and rejected that of Kusa. We must, therefore, for the purposes of this appeal, treat what the appellant told the court as the facts proved in the Emir's Court.

Counsel for the appellant has argued, inter alia, that although the appellant was guilty, on his own evidence, of culpable homicide it was not punishable by death in view of section 222(4) of the Penal Code which reads as follows:-

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

We think it is clear upon the facts that the stabbing was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. The requirements of the subsection:-

Without the offender's having taken undue advantage or acted in a cruel or unusual manner are, however, more difficult to interpret. The appellant admits that Ali was unarmed and he, the appellant, used a lethal weapon, a knife. A matter, however, of the greatest importance to the appellant's case is that he had a perfectly valid reason for having the knife in his hand at the time he was attacked by Ali; he was cleaning the rabbit with it.

Now the Indian Penal Code has a provision exactly the same as section 222(4) of our own Penal Code. The matter is dealt with in Ratanlal on the Law of Crimes, 19th Ed., at741 under the heading "Death caused without premeditation in a sudden fight in the heat of passion without taking undue advantage or acting in a cruel manner." It would appear that, in normal circumstances, if a person used a knife or dagger in a fight while the other party was unarmed, that would amount to taking undue advantage. In other words, if he managed to get hold of a knife, or drew it from his pocket, the offence would be murder (or culpable homicide punishable with death in the Northern Region of Nigeria). But we quote the last paragraph of 742:-

If a person receives a blow, and immediately avenges it with any instrument that he may happen to have in his hand, then the offence will be only manslaughter, provided the blow is to be attributed to the passion of anger arising from that previous provocation, for anger is a passion to which good and bad men are both subject. But the law required two things, first, that there should be that provocation, and secondly, that the fatal blow should be clearly traced to the influence of passion arising from that provocation.

Manslaughter is, in this region, the same thing as culpable homicide not punishable by death.

We accepted that statement of the law and follow it. In our view it covers the facts of the appeal before us. We accordingly allow the appeal to the extent that we set aside the finding of culpable homicide punishable by death and the sentence of death; we substitute a finding of culpable homicide under section 220 of the Penal Code and find that the culpable homicide is not punishable by death by virtue of section 222(4) of the Penal Code.

Appeal allowed and conviction of culpable homicide not punishable with death substituted.

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