HOME           4  WEST AFRICA COURT OF APPEAL

                          Lagos, 9th August, 1938.

                              Cor. Kingdon, C.J., Carey and Graham Paul, JJ.

                                                                     REX                                                     Respondent.

                       v

                                                         AKPAN UNWA UDO EKPO                           Appellant.

                                                              .

Appeal Court, 9th Aug. 1938. Appeal from conviction by High Court.

Murder, 'Contra. sec. 310 Criminal Code-Offence committed in heat of clan affray, after appellant was wounded and in which deceased's clan was the aggressor.

Held: Facts warranted reduction of offence to manslaughter and

verdict substituted accordingly.

There is no need to set out the facts. C. N. S. Pollard for Crown. Appellant in person.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUl .• , JJ.

In this case the appellant was convicted in the High Court at Ikot Ekpene of the murder of one Sambo. Shortly the facts are that there was a fight between the Ediene clan, of which the deceased was a member, and the Minya clan, of which the appellant is a member . The Edienes were the actual aggressors in the fight. In the fight the appellant was wounded above the eye by an arrow, the deceased was also wounded by a matchet and fell. After the deceased had fallen the appellant ran up to him and inflicted upon him a fatal wound with a matchet. The learned trial Judge found as a fact that the appellant did the act " in his anger" in revenge for his injury. The question which arises is whether the homicide is murder or should be reduced to manslaughter on account of provocation under section 318 of the Criminal Code. The trial Judge held it to be murder on the ground that" the deceased, himself, offered no provocation to the accused personally." Upon this point we feel bound to disagree with the trial Judge. The provocation consisted not merely of the arrow wound, but of the whole attack by the Edienes, of whom the deceased was one. To apply the real test, it is clear that upon the facts disclosed the deceased, if he had lived, could have been properly prosecuted in respect of the harm caused to the appellant. He was therefore one of those offering the provocation, and there is no doubt that the appellant committed the act whilst still in the heat of passion caused by this provocation.

For these reasons we think that the offence amounts to man­slaughter only. A verdict of guilty of manslaughter is accordingly substituted for the verdict of guilty of murder and in substitution for the sentence of death passed at the trial the appellant is sentenced to two years imprisonment with hard labour.