Chukwu Obaji V The State (1965)
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PER ADEMOLA JSC
The appellant was convicted in the High Court of Eastern Nigeria on a charge of murder and sentenced to death. From that conviction he has appealed to this Court. The defence which was raised on behalf of the appellant In the High Court was one of provocation, and as it has been urged that it is wrong to assume that the law in Nigeria governing the effect of provocation on a charge of murder is the same as the Law in England, and as there are a number of decided cases in our Law Reports which have given rise to considerable doubt as to the positive effect of provocation in a capital charge, we think the matter of considerable importance and we took the opportunity of inviting the Director of Public Prosecutions of each territory in the Republic to give us the benefit of hearing his views on the subject. The facts proved before the learned trial judge which led to the conviction of the appellant are simple, and may be summarised thus:
“On the day the deceased met his death, he and the appellant it would appear met in the house of one Ikpe Ozu. The appellant said he came to demand a debt from Ikpe Ozu, who was said to be out at the time. The deceased then came near the appellant, held him and asked him to come and give him something: it was not stated what this thing was. He (the deceased) then dragged the appellant a few yards away, still making his demand, whereupon the appellant stabbed the deceased and took to his heels. There was a total of three stab wounds inflicted on the deceased in the abdomen and death resulted. What has led to the present controversy is the direction of the learned trial judge in his judgment of what the law is on provocation in a murder charge. He directed himself as follows:
“On this point I think the law is quite settled. Before the accused can avail himself of the provisions of Section 318 of the Criminal Code Act, there must be a provocative act which must be of such nature as to be likely, when done to an ordinary person to deprive him of the power of self-control and to induce him to assault the person who did the act. (S.283 of the Criminal Code Act). In the consideration of the nature of the act, the courts in this country have decided that status in life of the accused must not be overlooked for what would amount to a provocative act to a primitive peasant may not may not be considered enough in the case of an educated man. The second matter is that assault by the accused must be in the heat of passion and before there is time for his passion to cool. The third is that the mode of retaliation must be proportionate to the provocation.”
Finally the learned trial Judge found in favour of the appellant on the first two issues and, in regard to the third, held that the mode of resentment employed by the appellant was disproportionate to the provocation given him by the deceased and that the provisions of Sec.318 of the Criminal Code could not apply. He said:
‘There can be no doubt as I have already observed that the said act was of the nature to merit an assault on the deceased, but it seems to me most disproportionate to resent this simple assault by resort to a deadly weapon like a dagger. It is my opinion that the provocation was not of that great nature sufficient to merit the use of a dagger.”
Our attention has been called to three sections of the Criminal Code, namely, sections 283, 284 and 318, which are relevant in the consideration of this subject. they are, for convenience, reproduced here. In section 283 of the Criminal Code, provocation is defined and that section reads:
‘The term ‘provocation’, used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in under presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to Induce him to assault the person by whom the act or insult is done or offered:’
Section 284 of the Criminal Code deals with the defence of provocation generally and reads:
“A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, If he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous harm.’
Section 318 of the Criminal Code reads:
‘When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter.”
Section 316 of the Criminal Code deals with murder and by its various subsections provides for various acts which make an accused person guilty of the offence of murder. We are in agreement with the learned Directors of Public Prosecutions who argued before us that the duty of the courts in Nigeria is to interpret the Criminal Code free from interpolation and refrain from propounding the common law of England, and in this particular case, here it has been held as a matter of law by the courts in England that the mode of retaliation of resentment by an accused person must not be out of proportion to the provocation given by the other side – see Mancini v. D.P.P. (1942) A.C. 1 and Holmes v. D.P.P. (1946) A.C. 588 – the Nigerian courts have followed English decisions rather than interpret their own Criminal Code. Reference may be made in this connection to the Nigerian case, R. v. Nwanjoku (1937) 3 W.A.C.A. 208, where the West African Court of Appeal refused to give attention to the words in the heat of passion caused by sudden provocation” in Section 318 of the Criminal Code, but said, inter alia.
“ We cannot subscribe to this proposition, and we think that the broad and well established principles of English law must be applied in considering whether a crime Is murder, or should be reduced to manslaughter on account of provocation.”
Other cases follow R. v. Nwanjoku (supra), and the courts have not really indicated that the relevant sections of our Criminal Code are being interpreted to mean that they produce the same effect as the English common law.
The view has been expressed that the “doctrine of relationship” or “doctrine of proportionality” should not be read into S.318 of the Criminal Code; it was argued that the doctrine has no application to the law in Nigeria in considering the effect of provocation; the reasons put forward is in effect that expressions like “grave provocation” or “extreme provocation” are not to be found in our Criminal Code as they are to be found in the Ceylon Penal Code – see Attorney-General of Ceylon v. Perera (1953) A.C. 200.
We feel that reading sections 283 and 318 of the Criminal Code together, and in our view they should be read together, produces a different result, and we find it difficult to accept the view that proportionality must be exc
Other Citation: (1965) LCN/1208(SC)