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JOSEPH ADU
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OF FEBRUARY, 1954
2PLR/1954/34 (WACA)
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OTHER CITATION(S)
2PLR/1954/34 (WACA)
(1954) XII WACA PP. 462 – 464
LEX (1954) – XIV WACA 462 – 464
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.,
VERITY, C.J., NIGERIA,
COUSSEY, J.A.
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BETWEEN:
JOSEPH ADU – Appellant
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by person convicted of murder by the Supreme Court, Ibadan Judicial Division: No. 216/1953
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REPRESENTATION
F. R. A. Williams for Appellant
C. O. Madarikan for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Homicide – Unlawful arrest by deceased – Excessive force in resisting – Manslaughter – Criminal Code, section 317.
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CASE SUMMARY
Section 317 of the Code provides that “A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter”.
Appellant, a peaceful pedestrian, did not answer when challenged by self-constituted night-guards and was detained; he broke away from deceased and was pursued by him and another, whom appellant kept at bay with his dagger; he got to his house, the door of which was opened by his wife hearing his cry that “there is danger or war”, but he followed deceased past it and down the lane, and deceased was found stabbed. It would seem that he was stabbed in the course of a struggle in which the deceased was having the better of it. The trial Judge divided the events into stages and regarded the appellant as the aggressor at the final stage and convicted him of murder.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The facts were continuous: from the outset the deceased and the other night-guards bad no authority to arrest the appellant; when he broke away, they pursued him; and when he met the deceased near his house, there was a struggle, which indicated that the deceased had not retired from the pursuit.
2. The appellant had no duty to establish what happened at the struggle, but his cry showed he was in a state of confusion and irritation; he was entitled to use reasonable force in. defending his liberty, but he overstepped the bounds in killing the deceased and was therefore guilty of manslaughter under section 317 of the Criminal Code.
Cases cited, and a text-book:-
(1) Woolmington v. Director of Public Prosecutions, 1935, A.C. 462.
(2) Seneviratne v. The King, 1936, 3 All E.R. 36.
(3) R. v. Hammar Dangar, 10 W.A.C.A. 225.
(4) R. v. Chapman, 12 Cox Cr. Cases 4.
(5) Mayne on the Criminal Law of India (3rd edition), 442, as throwing light on section 317 of the Nigeria Criminal Code.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J.A.
In this case the appellant was convicted in the Supreme Court, Ibadan Judicial Division, of the murder of one Tajani Adenuga Amure.
It was proved that at about 11.30 o’clock at night two of a self-constituted body of night guards who patrolled the area, and one of whom was the deceased, challenged, and because he did not answer, detained the appellant who was lawfully on the road, walking to his home.
There was not the slightest pretence that the appellant had committed, or was about to commit a felony, or that he was in the act of committing a misdemeanour. He was told to sit down until other night-guards arrived to question him as a suspect. After a short wait the appellant broke away from the deceased who was holding him and ran into a lane hotly followed by the deceased and the other night-guard who was the fourth Crown witness. In the lane, the appellant, still harassed, pulled out a dagger and turned upon his pursuers. By menacing them with it, the appellant kept the two men at bay until he reached his house, the door of which had been opened by his wife in response to cries that he was in danger. By this time whistles were being blown, there were shouts of “thief” and two other night-guards had arrived and taken cover in a shed near the appellant’s house.
The trial Judge found as a fact that the appellant had a dagger, that instead of entering his house he ran on past it and followed the deceased as the latter ran past the house down the lane towards the main road. From this point nobody knows what happened as there is no eye witness.
The case for the Crown, which is founded on circumstantial evidence, is, to use the words of the learned trial Judge, “that the accused chased the deceased, got him a few yards away from his house, both struggled there, the accused during the struggle stabbed the deceased with the dagger he was holding and then went away “.
The learned Judge disbelieved the defence, which was that the appellant was not and could not be involved in the killing because he did not stir out from his house that night after he had entered the door already opened by his wife. The suggestion was that one of the many people shown to be in the area that night killed the deceased. The learned Judge found as a fact that the appellant killed the deceased, a finding with which on the evidence we concur. He said it was a matter of inference and he inferred from the number of superficial abrasions on the appellant’s body and the absence of any such marks on the body of the deceased that the latter was probably getting the better of the struggle and that the appellant struck the fatal blow when he found that he was being overpowered.
It cannot be overlooked that the onus was not upon the appellant to establish what actually happened in the course of the struggle although the proof may have rested upon facts peculiarly within his own knowledge.-Woolmington v. Director of Public Prosecutions (1) and Seneviratne v. The King (2). In considering and rejecting whether there was any matter of provocation, or if the killing was justifiable or in self-defence so that the offence might be reduced from one of murder to one of manslaughter, we are of opinion that the learned Judge failed to direct himself that from the outset the deceased and the other night-guards had no authority to detain or arrest the appellant. When they followed and beset him, and when the appellant met the deceased in the lane the persistence in attempting to effect an unlawful arrest was such that it must in our view be regarded as one continuous and unlawful threat to the appellant.
With respect to the trial Judge, we cannot, on the evidence, divide the events into three separate stages, firstly when the appellant held the guards at bay, secondly, when the appellant reached his house at which time the learned Judge held that the deceased had retired from the pursuit, and thirdly, the final stage when the appellant in the view of the learned Judge was the aggressor. That the deceased had not retired from the pursuit is evidenced we think by the fact that the two met a few yards from the house in a wild struggle. What happened in the struggle is a matter of conjecture. As to the appellant’s state of mind, his cry” there is danger or war” as he ran on from his house to meet the deceased in the final act indicates his confusion and irritation and that he still believed he was being attacked. This is a case, we consider, in which to apply the principles set out in Rex v. Hammar Dangar (3), namely:-
“A person who is being unlawfully arrested has an inherent right to defend his liberty by reasonable force; if he oversteps the bounds of reasonable force and thereby causes the death of the person seeking to effect the arrest the offence is manslaughter and not murder.”
Rex v. Chapman (4). Mayne in his Criminal Law of India (3rd edition) at p. 442 puts the English law (which is incorporated as part of the law of Nigeria by section 317 of the Criminal Code) very clearly thus:-
“In applying the English cases upon this subject, most of which arise out of the killing of a constable or other officer, it is necessary to bear in mind the peculiar doctrines of the English law as to homicide. When a minister of justice, as a bailiff, constable or watchman is killed in the execution of his office, in such a case it is murder and it makes no difference that the killing is wholly unintentional, provided it occurred in the act of resistance. But when the officer is doing an act in which he is not protected by his warrant, he is in the same position as if he had none. He may be resisted to such an extent as any other man might be resisted who was doing the same act. If he is killed by violence, in excess of what the case requires, this is manslaughter, the excess rendering the killing unlawful, but the provocation arising from the illegality of the officer’s conduct reducing it below murder. In all such cases, therefore, where the killing is held to be murder, it must be taken that mere resistance was unlawful. When the killing is only manslaughter, the mere resistance was lawful, the excess only constituting the crime.”
We are of opinion therefore that a verdict of manslaughter should be substituted for that of murder. The verdict and sentence of the trial Court are accordingly set aside and in substitution therefor the appellant is found guilty of manslaughter contra section 325 of the Criminal Code and sentenced to three years’ imprisonment with hard labour.
Verdict of manslaughter substituted.