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MAYE NUNGU
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
28TH DAY OF NOVEMBER, 1953
2PLR/1953/54 (WACA)
OTHER CITATION(S)
2PLR/1953/54 (WACA)
(1953) XIV WACA PP. 379-380
LEX (1953) – XIV WACA 379-380
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BEFORE THEIR LORDSHIPS
VERITY, C.J., NIGERIA
COUSSEY, J.A.
DE COMARMOND, S.P.J., NIGERIA
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BETWEEN:
MAYE NUNGU – Appellant
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by convicted person: W.A.C.A. No. 204/1953.
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REPRESENTATION
Gaji — for the Appellant
C. O. Madarikan — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder — Intent to cause grievous harm — Weapon and nature of blow— Relevance of — Defence of provocation by words — How properly treated
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CASE SUMMARY
The appellant and his younger brother had had a dispute about the burning of some trees in the appellant’s farm; and later further words were exchanged in the course of which the younger brother said he had supplied money for the appellant to marry. The appellant was highly annoyed at this and taking up an axe struck his brother on the head with the wooden elbow of the haft; the blow caused a wound 2 inches long and 1½ inches wide; the brother died almost immediately. The appellant was convicted of murder.
On appeal it was argued (a) that there was no intent to kill or do grievous harm, and (b) that there was provocation.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) Although the appellant turned away the cutting edge, he must have intended to cause grievous harm, which was the natural and probable consequence of striking on the head with the haft of the axe weighted with an iron head with such force as to inflict the wound described.
(2) The younger brother’s saying to his elder brother that he had provided money for the latter’s marriage did not amount to such provocation as would reduce the offence to manslaughter.
Case cited:-
(1) R. v. Amponsah and Others, 4 W.A.C.A. 120.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C. J.
This is an appeal from a conviction for murder, the facts being that following upon a dispute between the appellant and his younger brother as to the burning of certain trees in the farmer’s farm, further words were exchanged, the latter alleging that he had supplied money for the appellant’s marriage. According to the appellant, whose evidence the learned trial Judge accepted, he became “highly annoyed” at this and taking up an axe turned away the “iron” and struck his brother on the head with the wooden elbow of the haft. This indicted a wound 2 inches long by 1½ inches wide and the younger man died almost immediately.
On these facts the learned Judge held that the appellant was guilty of murder, but it is submitted by counsel on behalf of the appellant firstly that there was no intent to cause death or to do some grievous harm and secondly that there was such provocation as to warrant a conviction for manslaughter rather than murder.
In regard to the first of these submissions counsel contended that the fact that the appellant turned away the iron or cutting edge of the axe negatived the presumption that he intended to kill or cause grievous harm. It is true that the presumption that the appellant intended the natural and probable consequences of his act may be rebutted or negatived by direct evidence. As was said by this Court in Rex v. Amponsah and Others (1) “the presumption of intention was rebuttable if the appellants believed that the assaults would probably not cause or contribute to the death of the deceased “. It may be arguable from the turning away of the cutting edge of the axe that the appellant had no intention of killing the deceased and did not believe that to strike him with the wooden haft – would cause his death but we do not think it would be reasonable to conclude therefrom that the appellant did not believe that to strike the deceased on the head with the haft of the axe, heavily weighted as it was with the iron head, and with such force as to inflict the wound described would not cause grievous harm. He must in our view have intended the natural and probable consequence of that act and by reason of sub-section (2) of section 316 of the Criminal Code, a person is guilty of murder if he intends to do the person killed some grievous harm.
It was further submitted that for a younger brother to tell an elder that the latter had to seek the former’s aid in providing money for his marriage is such an insult as to provoke a man of the appellant’s primitive nature to loss of self-control so that the blow was struck in the heat of passion on such sudden provocation. We are not of the opinion that the use of words only of such a nature and in such circumstances has ever been held either by the Courts of England or Nigeria to amount to such provocation as would reduce the crime from murder to manslaughter, and although it has been suggested in certain English cases that there may be circumstances in which words only would provide such provocation we do not think that they can be said to exist in the present case. To do so would be to go much further than has ever been held to be the law of this country.
The last submission made by counsel is that the killing was in the course of a fight and in circumstances which amount to no more than manslaughter. Counsel cited the judgment of this Court in Rex v. Alo, 8 W.A.C.A. 13. There is, however, no evidence in the present case to indicate that a fight ever occurred, for while in his testimony before the Court the appellant said “we had a small fight” the word used by the appellant may, it would appear, equally well have been translated “quarrel” and in his statement to the police the appellant made no such allegation.
These submissions which were put forward with tenacity and skill by Mr. Gaji, who was assigned by the Court to argue the appeal, all fail and the appeal must therefore be dismissed.
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COUSSEY, J. A.
I concur.
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DE COMARMOND, S. P. J.
I concur.
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Appeal dismissed.
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