Kavuwa Takida V. The State (1969)

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Coker, Ag. C.J.N.

This is an appeal from the judgment of Bate, J., (High Court Mubi, North Eastern State). The appellant was convicted of culpable homicide punishable with death under section 221 of the Penal Code. He was charged with killing one Hahida Maskata by stabbing him with a knife on the chest. One Tukuya Mbede who claimed to be an eye-witness of the assault on the deceased testified at the trial of the appellant, inter alia as follows:- “I know Wasa Tarkida and Idama. They were also present.

Brahim and Hahida Maskata began to fight; struck each other with hand. I saw Hahida knock Brahim down; then others joined in. Wasa joined in. Then accused stabbed Hahida with knife in chest. Accused ran away and threw knife behind lavatory. Hahida fell down. He did not get up again. I looked at him but was afraid and ran away. Hahida had been fighting with Brahim, and Wasa. During the fight accused was sitting drinking. Brahim is accused’s brother.

Hahida does not live in same house as they.” PAGE| 2 Later in the course of his testimony and under cross-examination, he stated as follows:- “Fighting started between Ibrahim and Hahida, latter knocked down former. Wasa Maskata and Idama and Sawada came up. Then accused joined in fight. All sat on Ibrahim except accused who came to help Ibrahim. Ibrahim was on ground. Accused came and said “Do you want to kill my brother.”

Other witnesses also testified for the prosecution and it is evident that there was a fight at the time and place, that the appellant later joined in the fighting and subsequently stabbed the deceased with a knife.

There was some conflict of evidence as to whether the appellant always had the knife with him before he joined in the fighting or he went home, got himself armed with it and returned to use it on the deceased, as was suggested by one of the prosecution witnesses.

In his own statement to the police the appellant stated, concerning the knife, that when he saw people beating his brother Ibrahim-“I ran and took a knife from Wasa Maskwata-it was on his waist.” The learned trial judge did not attempt in his judgment to resolve this conflict although it is apparent that the consequences in law according to his finding was one way or the other are widely different.

There is an addi-tional reason why the learned trial judge should have resolved the conflict and this is the fact that one of the defences put forward by the appellant was one of being provoked into joining in the fight. On the issue of provocation the learned trial judge observed as follows:- “Upon the evidence of Kavuwa himself it is impossible to say that he acted under provocation. He has denied that he killed Hahida in the alternative, asserts that, if he killed him, it was an accident. He also said he was not concerned with Ibrahim. This leaves no room for provocation; Kavuwa has himself excluded it.”

Thus, the learned trial judge refused to deal with provocation as such because the appellant did not himself say in his statement to the police that he was provoked to act in the way that he did. On appeal before us it was submitted that the judge was in error of law because he failed to take into consideration circumstances which clearly postulated the application of section 222(4) of the Penal Code.

At his trial the appellant gave evidence of a general fight in which he joined and during which he had used a knife which he had only picked up from the ground during the scuffle, and said that he did not specifically direct a blow to the deceased, but merely used it in the course of the fighting.

The learned trial judge also did not make any specific finding on this issue of a general fight, but in his summing up of the prosecution evidence he observed as follows:-  “The gist of their evidence is that a number of persons were drinking in Wandala’s house in Kirwa Village when Hahida Maskata and Ibrahim Takida started fighting and members of their respective fami-lies joined. In the course of the fight Kavuwa Takida stabbed Hahida Maskata with a knife.” If the learned trial judge accepted the evidence of the prosecution wit-nesses, as he said he did, it is clear that as learned Senior State Counsel con-ceded, he must have accepted that there was a general fight.

We note that in his defence the appellant stated that he was provoked into fighting by the action of a party of men who had brutally attacked his brother. The learned trial judge however, for the reasons we have already pointed out did not deal with the issue of provocation.

In R. v. Mensah (1945) 11 W.A.C.A. 2, at page 5 dealing with a similar situation the Privy Council observed as follows:- “It does not appear that any attempt was made in either of the courts below to argue that there was sufficient provocation to reduce the crime to manslaughter, and indeed as the defence relied on was one of accidental killing it is not surprising that counsel for the prisoner did not attempt to set up what would appear to be inconsistent with that defence.

But if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the judge must put that question to the jury. This was distinctly laid down in R. v. Hopper (1915) 2 K.B. 431 a case in some respects resembling the present, more especially in that the line of defence adopted was that the killing was accidental and no attempt had been made at the trial to rely on provocations.