OBAJI OGODO v THE QUEEN (FSC 409/1961) [1961] NGSC 41 (15 December 1961)


                                                 OBAJI OGODO (APPELLANT)

                                                                       v.

                                                  THE QUEEN (RESPONDENT)

                                                           (1961) All N.L.R. 730

 

 

Division: Federal Supreme Court

 

Date of Judgment: 15th December, 1961

 

Case Number: FSC 409/1961

 

Before: Ademola, C.J.F.,

             Unsworth, F.J.J.

             Taylor, F.J.J.

 

 

 

The appellant was charged with the murder of one Nwali Uguru, convicted and sentenced to death.

The deceased and some others were drinking palm wine. The appellant joined them. Later, a dispute arose and one of the men, called Idenyi, attacked the appellant with a hatchet and cut his head. The appellant struggled with Idenyi and tried to disarm him. The deceased intervened and struck the appellant during the struggle, giving him two hatchet cuts. The appellant succeeded in getting the hatchet from Idenyi and then pursued the deceased, who was running away. He overtook him in a house, the deceased still holding his own hatchet. He fought with the deceased inflicting three hatchet cuts on him, as a result of which the deceased died.

The appellant pleaded provocation. The trial Judge convicted him of murder, holding that while there was provocation it was not sufficient to reduce the offence from murder to manslaughter since the appellant did not act on the spur of the moment, but deliberately went to find the deceased after he had run away. The trial Judge was, also, not satisfied that there was evidence that the appellant was deprived of his self control.

The appellant appealed to the Federal Supreme Court.

On appeal:

HELD:

(1) The act of intervening in a fight and wounding an already wounded unarmed man who is struggling to disarm his original assailant is an act of provocation. The finding of the trial Judge that it did not constitute provocation was contrary to the evidence.

(2) The evidence showed that the fight was a continuous one and the provocation was also continuous. The finding of the trial Judge to the contrary was not in accord with the facts.

(3) There was ample evidence to show that the appellant was deprived of his self control. The finding of the trial Judge to the contrary was not in accord with the facts disclosed.

(4) An Appellate court will disregard findings of fact which are not supported by the evidence.

Appeal allowed. Conviction of Manslaughter substituted. Sentence of imprisonment imposed.

Ordinance referred to:-

Criminal Code, Cap.42, sections 284, 321.

APPEAL from the High Court (East).

Cole for the Appellant.

Emembolu, Senior Crown Counsel, for the Respondent.

Ademola, C.J.F. (delivering the Judgment of the court:-The appellant was on the 17th October, 1961 in the High Court of the Eastern Region held at Abakaliki convicted of the murder of one Nwali Uguru, and sentenced to death.

The facts which led up to the death of the deceased are briefly as follows: the deceased and a few others were drinking palm wine. The appellant joined them. Later a dispute arose. One of the men called Idenyi attacked the appellant, who was unarmed, with a hatchet and gave him a cut on the head. The appellant struggled with him on the ground and tried to take the hatchet from him. The deceased, during the process, gave the appellant two hatchet cuts. The appellant succeeded in getting the hatchet from Idenyi. He then pursued the deceased who then was running away. He overtook him in a house, the deceased still holding his own hatchet. He fought with the deceased inflicting three hatchet cuts on him as a result of which the deceased died.

The learned trial Judge disposed of the whole case in a Judgment containing exactly 18 lines. The facts were set out in ten lines and the eight lines following are as follows:-

The only defence is provocation under section 284 of the Criminal Code. It is true that there was provocation but I am unable to hold that section 284 applies because the accused did not act on the spur of the moment but deliberately went to find Nwali after Nwali had run away. I am also not satisfied that there is evidence that accused was deprived of his self control.

I find the accused guilty of murder.

With very great respect to the learned trial Judge we failed to see what further evidence he would require to come to the conclusion that the appellant was deprived of his self control. Here was an unarmed man wounded and whilst struggling with his assailant the deceased inflicted two hatchet cuts on him. We cannot conceive of a more definite act of provocation than this. Having disarmed the first assailant still in the heat of passion, it was to the appellant's credit that he did not use the weapon he has now secured on that assailant. He now turned to his second assailant (the deceased) who was still armed. The findings of the learned trial Judge that the appellant "deliberately went to find Nwali after Nwali had run away" is not in accord with facts. The evidence on record was that the deceased and others ran and the appellant chased the deceased to the house of Nweke Ugada (second witness for the Crown) where he caught up with him and dealt him blows with the hatchet. From the facts, it was apparent to us that the fight was a continuous one, carried from the scene where palm wine was drunk to the compound where the deceased was eventually killed.

We are unable to agree with the learned trial Judge that section 284 of the Criminal Code is not applicable in this case. We think it is a glaring case of provocation to attack a man with a hatchet inflicting injuries on him whilst he was trying to unarm a dangerous assailant.

We cannot support the conviction for murder. The proper verdict, in our view, should be one of manslaughter under section 321 of the Criminal Code which we now substitute.

We impose a sentence of five years' imprisonment with hard labour.

Appeal allowed: Conviction of Manslaughter

substituted: Sentence of imprisonment imposed.

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