John Mgboko Vs The State (1972)
LawGlobal-Hub Lead Judgment Report
SIR I. LEWIS, J.S.C.
On the 13th of August, 1971 Wai-Ogosu, Ag. J., in the Port Harcourt High Court in Charge No. PHC/18C/1971 convicted John Mgboko of the murder of Eunice Mgboko and sentenced him to death, and against that decision he has appealed to this court.
The accused never denied killing the deceased, who was his wife, but it was his case that the killing took place in circumstances that enabled him to raise in the alternative the defences of self-defence or provocation such as would reduce the killing from murder to manslaughter. The learned trial Judge rejected both his defences.
There was no eye witness to the killing, though the 3rd P.W. had been present when the accused had asked the deceased to come home with him from their farm and she had refused though the 3rd P.W. advised her to go with her husband and shortly thereafter he heard a shout from the deceased and going to where he had left them, he saw the accused running away and found the body of the deceased a little distance away. The accused’s story in his evidence at the trial of what happened at the farm was:-
“At the farm I saw Akoneme, i.e., prosecution witness 3 working in my farm. I did not before then know that prosecution witness 3 was working in the farm; so when I saw him I asked my wife why she did not tell me that she was bringing food to this man – Prosecution Witness 3. I therefore sat down with Prosecution witness 3 admiring the crops in the farm – yams, cassava, etc.She went to the stream nearby to fetch water for Prosecution Witness 3.
In the meantime I got prosecution witness’s matchet for use in cutting sugar cane which I ate. She returned after a short time with water which she served on Prosecution witness 3. Prosecution witness 3 also pleaded with the deceased to go home with me. She kept mute. So I asked her what was the cause of her anger. Could this be due to my mention of the name of someone who had had connexion with her sometime ago, I asked her. The man is called NGENEGO NYIENEDAM. She grew annoyed at this, got up, took away the remaining piece of sugar cane from me and threw it away. In addition she used her matchet and gave me a cut on my forehead; as I raised my hand to discover what had happened on my forehead she gave me a second cut on my left arm.
It was at this juncture that I picked up the matchet I got from Prosecution Witness 3 and defended myself and cut her back. I did not intend to kill her. ……. I started cutting her after she had given me two cuts. The two cuts were the only cuts the woman gave me. She had already given me the cuts at the time I was cutting her. When she started cutting me I had not any matchet on me. The matchet I used was about three yards away from me. I ran and got the matchet from the distance and used it. I want the court to believe that after she had given me the two cuts I ran to collect the matchet I used and she did not cut me again.”
As to self-defence the learned trial Judge set out the prosecution case when he said:-
“If the court was minded to believe the story of the accused that he killed the deceased in self-defence and out of provocation Prosecution submitted that there was no self-defence or provocation to justify this killing. The deceased, a fully pregnant woman, in this advanced stage of pregnancy would be unable to run at all, or if she could she would not be able to do so properly. If the deceased attacked the accused the latter was able to run away from this. The defence of self-defence could not avail the accused here because he could not at anytime feel that he had reasonable grounds for believing that the only way to protect himself from death or grievous harm was to kill the deceased.”
and he later accepted this submission of the prosecution, rightly in our view as there was no evidence that the accused sought in any way to disengage and the law has been helpfully put recently in the Court of Appeal (Criminal Division) in England by Edmund Davies, LJ., in McInnes v. R. (1971) 55 – Cr. App R. 551 when at page 560 he said:-
“The first criticism of the learned Judge’s treatment of self-defence is that he misdirected the jury in relation to the question of whether an attacked person must do all he reasonably can to retreat before he turns upon his attacker. The direction given was in these terms: ‘In our law if two men fight and one of them after a while endeavours to avoid any further struggle and retreats as far as he can, and then when he can go no further turns and kills his assailant to avoid being killed himself, that homicide is excusable, but notice that to show that homicide arising from a fight was committed in self-defence it must be shown that the party killing had retreated as far as he could, or as far as the fierceness of the assault would permit him.”
One does not have to seek far for the source of this direction. It was clearly quoted from paragraph 2496 of Archbold’s Criminal Pleading etc. (37th (1969) edition), which is in turn based upon a passage in 1 Hale’s Pleas of the Crown. 479. In our judgment, the direction was expressed in too inflexible terms and might, in certain circumstances, be regarded as significantly misleading. We prefer the view expressed by the Full Court of Australia that a failure to retreat is only an element in the considerations upon which the reasonableness of an accused’s conduct is to be judged (see Palmer v. R. (1971) 55 Cr. App. R. 233; (1971) 2 WLR 840), or as it is put in Smith and Hogan, Criminal Law (2nd (1969) edition, p. 231), ‘…simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable.’
The modern law on the topic was, in our respectful view, accurately set out in Julien (1969) 53 Cr. App. R. 407; (1969) 1 WLR 839, by Widgery, LJ., as he then was, in the following terms at p. 411 and 843 of the respective reports; ‘it is not, as we understand it, the law that a person threatened must take to his heels and run in the dramatic way suggested by Mr. Michael; but what is necessary is that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps to make some physical withdrawal; and that that is necessary as a feature of the justification of self-defence is true, in our opinion, whether the charge is a homicide charge or something less serious.’ ”
Mr. Akinola for the appellant, though he originally filed a ground of appeal relying on self-defence, did not in fact press it, but he did argue extensively that the learned trial Judge was in error in rejecting the defence of provocation.
The learned trial Judge appears to have been in considerable doubt whether the accused in fact inflicted on himself the wounds he undoubtedly received. The 1st P.W., a Doctor, said at first in his evidence categorically that the wounds could not have been self inflicted, apparently because of the pain a fracture of the left forearm would have caused which is what he found the accused had suffered, but later in answering a question from the court he admitted that in exceptional circumstances such a fracture could be self-inflicted.
In other words, as we understand it, the Doctor was saying that it was physically possible for the accused to have inflicted the wounds on himself but unlikely in his view because of the pain. We do not think that the case of Reg. v. Bailey reported in 1962, Volume 26 of the Journal of Criminal Law at page 78 upon which Mr. Akinola relied, is on all fours with the Present case when it states:-
“On a charge of murder there was strong medical evidence from three doctors that the prisoner was suffering from abnormality of mind and that his mental responsibility was impaired when he murdered a young girl from no known motive. The Crown did not call any medical evidence in rebuttal but the jury, contrary to what was expected, returned a verdict of murder, refusing to find diminished responsibility proved. The Court of Criminal Appeal held that the verdict was unreasonable and substituted a verdict of manslaughter on the ground of diminished responsibility. A sentence of life imprisonment was imposed. The court said that a jury was not bound by what medical witnesses said, but they had to act on evidence and if there was nothing before them to throw doubt on the medical evidence then that was all that was left and they must accept it. (23rd October, 1961.)”
The learned trial Judge here was, in our view, not bound, as Mr. Akinola submitted, to find that the wounds could not have been self-inflicted when there was evidence from the doctor that they could have been.
Be that as it may, the important thing is that the learned trial Judge dealt with the case on the basis that the accused’s story, that it was the deceased who in fact wounded him, was what actually happened, but nonetheless he rejected the submission on behalf of the accused that provocation was established when he said:-
“But, even accepting the view conceded to the defence by the prosecution that the wound on the arm of the accused could have been inflicted by the deceased, for reasons already advanced by the prosecution and with which I agree accused has no defence whether in self-defence or provocation.”
and earlier he had said:-
“Thus if there had been any evidence of an old grudge between the parties, as it was between the accused here and his wife, a fact which was admitted by the accused himself and used by him at that material time to taunt the wife with, not every slight provocation will reduce murder into manslaughter. The facts in the instant case, if the version of the accused is accepted, disclose that accused had to walk some distance (three yards) for the deadly weapon which he used.
The facts further show that the accused was well aware that the deceased no longer attacked him while he went for the matchet; he knew that it was only two cuts that were allegedly given to him; he knew that a woman in such an advanced stage of pregnancy ‘is not as strong as she should be under normal circumstances.’ I agree with counsel for the prosecution that all points considered in this regard there was sufficient time for his passion to cool and it cannot be said that at the time he inflicted the deadly matchet cuts – not once, not twice – he was not master of his understanding. He inflicted those deadly cuts as an act of revenge and not out of provocation or even in self-defence as he pleaded.”
Mr. Akinola further relied on Martindale v. Reg. (1966) 50 Cr. App. R. 273 as showing that even though the accused intended to cause grievous harm to the deceased when he struck her with the matchet, nonetheless, if he was provoked, then the killing was reduced from murder to manslaughter.
In our view the learned trial Judge was in error in holding here that the accused had time to cool when after being attacked by the deceased and having his left fore-arm fractured he went but three yards to a matchet, seized it and at once hit the deceased with it. We think that in the circumstances, he certainly received grave and sudden provocation and that what he did was in the heat of passion before that passion had time to cool. Indeed, Mr. Iyagba, Principal State Counsel, indicated to us that he did not support the conviction of murder, rightly in our view, as the provocation received by the accused reduced the killing to one of manslaughter.
We accordingly set aside the judgment of Wai-Ogosu, Ag. J., convicting the accused of murder and sentencing him to death thereon, and do substitute therefor, a finding that the accused be guilty of manslaughter contrary to Section 325 of the Criminal Code and we do convict him accordingly and sentence him thereon to 10 years imprisonment with hard labour, the sentence to run from the 13th of August, 1971, the date of his original conviction.
Other Citation: (1972) LCN/1558(SC)