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REX
V.
PETER ANIOGO
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
13TH DAY OF APRIL, 1943
2PLR/1943/31 (WACA)
OTHER CITATION(S)
2PLR/1943/31 (WACA)
(1943) IX WACA PP. 62 – 63
LEX (1943) – WACA PP. 62 – 63
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
REX – Respondent
AND
PETER ANIOGO – Appellant
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REPRESENTATION
S. A. McKinstry — for Crown
T. E. Nelson-Williams — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:— Murder or manslaughter — Innocent fugitive killed in the night under mistaken belief that he was an escaping felon — Initial charge for manslaughter substituted by charge for murder — Accused prosecuted without counsel — Attitude of appellate thereto
CRIMINAL LAW AND PROCEDURE:- Gun ownership — Dane gun — Accused who killed an innocent person mistakenly with his gun while acting in defence of his community against armed robbers — Treatment of
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CASE SUMMARY
During the night the appellant was awakened by the hue and cry of the villagers pursuing a suspected thief. Coming from his house, armed with a gun, he saw running towards him, chased by a crowd, a man whom he suspected of being an armed and escaping thief. He fired at the man and killed him. The deceased it transpired was an innocent man lawfully abroad.
The appellant was convicted of murder.
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Circumstances did not justify conviction for murder. Conviction reduced to one of manslaughter.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
In this case the appellant was committed for trial in the High Court of the Warri Judicial Division on a charge of manslaughter.
On his being brought before the High Court sitting at Kwale to answer the charge, the Sergeant of Police who appeared to prosecute asked the Court to substitute a charge of murder for that of manslaughter, since, as he submitted, that was the offence as disclosed by the depositions. The Court, acting in pursuance to its powers under Order XXXIX of the Protectorate Courts Rules, 1934 (as amended by Rules No. 7 of 1934) acceded to the request and proceeded forthwith to try the appellant, who was not represented by counsel, upon the charge of murder without allotting him counsel and without, so far as the record shows, offering him an adjournment to reconsider his position and possibly engages counsel himself. We deprecate this procedure, which though or may be within the letter of the rule, is certainly not in accordance with the spirit in which a man should be tried upon a capital charge.
Shortly the facts of the case are that the people of the town are Abbi, of whom the appellant was one, were warned on the 2nd December, 1942, that there were thieves in the town and that they should be on the alert. On such occasions, owing to inadequate policing, the safety of person and property in the town falls to be guarded by so-called night guards, who have frequently, as we know from cases in this Court, to deal with armed thieves.
During the night in question the appellant, as a precaution, lighted up his house and then went to bed and slept. He was awakened by an alarm of “thief, thief.” He went with a loaded dane gun in the direction of the alarm. Then a man came running towards him apparently being chased. He thought the man was an escaping thief and possibly armed and so fired his gun either at the man or in the man’s direction. At any rate he hit and killed the man, who turned out to be one Echigbua, an innocent man, lawfully abroad, who was running away through fright at being followed by someone else. On these facts the learned trial Judge found the appellant guilty of murder and sentenced him to death.
On appeal counsel on his behalf has submitted that the conviction should have been for manslaughter only and not murder and counsel for the Crown has intimated that he cannot uphold the conviction for murder, but asks the Court to substitute therefor a conviction for manslaughter and pass an appropriate sentence. We agree that, having regard to all the circumstances of this case, the proper verdict was one of manslaughter and not of murder.
There is accordingly substituted for the verdict of guilty of murder found in the Court below a verdict of guilty of manslaughter, and in substitution for the sentence passed at the trial the appellant is sentenced to three months imprisonment without hard labour to date from the date of the original conviction, viz., the 14th January, 1943. This means that his sentence is completed to-day and he should be immediately discharged.