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Murder, contra. sec. 319 of Criminal Code.

Held: On the facts found by the trial Judge the appellant acted in self-defence and appeal allowed.

The facts are sufficiently set out in the judgment.

C. N. S. Pollard for Crown.

Appellant in person.

The appeal wall allowed on the 11th August, 1938, and on the 16th August, 1938, the following joint reasons for judgment were delivered: -

KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.

In this case the appellant was convicted before the High Court at Okigwi of the murder of one Onuoha Okorondu. The facts as found by the trial Judge are:-

" Prior to the material time litigation had taken place between-"the accused Igwe and the deceased Onuoha Okorondu, who " were, in consequence, at enmity. one with the other, thereafter " and ,on the date m Issue, that is on the 20th day of January, " 1938 .

. , In the morning of that day (20/1/38) the accused, from his hut, "observed the deceased, at a distance of fifty paces, cutting " palm-nuts from trees growing on land which had, also, been " the I subject of litigation between himself and the deceased " and which was still in dispute, on that date.

"The accused, thereupon, proceeded to the place and invited the " deceased to cease from gathering the produce in question.

" The deceased however refused to comply with this request, abused " the accused and informed him that if he continued to demand " that he should leave that produce, he (the deceased) would " sue him (the accused) ill; the Native Court.

" The accused, however, proceeded to the foot of the tree with the "intention of removing the severed bunches, whereupon the "deceased informed the accused that if he persisted he, the " deceased, would kill the accused.

" In reply, the accused reminded the deceased that he had offered " to redeem the land and informed him (the deceased) that he " (the accused) was ready to die.

" The accused, though unarmed, thereupon attempted to carry off "the produce, whereupon he was pursued by the deceased " machete in hand.

"The accused, however, succeeded in disarming the deceased and "in felling him to the ground, without himself receiving " injury, whereupon the accused possessed himself of the " deceased's weapon, set upon him where he lay, defenceless, "upon the ground and then inflicted (with the deceased's "machete), multiple mortal wounds, upon the head and body " of the deceased.

The accused who was uninjured, as has been stated, took refuge " in the forest, in order to escape the possible vengeance of "the relatives of the deceased and upon the day following " upon the homicide surrendered himself to the police."

They were all rejected, and it is in his rejection of the defence of self-defence that we differ from the learned trial Judge. In considering the defence of " defence of property and person against a trespasser " he says:-

" Assuming that the deceased had, in fact, no right to take produce "from palm trees growing upon the land in question, which "presumption mayor may not be correct, the deceased "committed neither a felony of violence nor a forcible or " atrocious crime in so doing and the accused therefore had no "justification for attacking beyond the bounds of ordinary " resentment as he did, the deceased with a deadly weapon; " nor for striking blows therewith, save in self-defence (which "was not the case in that he (the accused) had previously " disarmed the deceased)."

It is clear that in so saying the Judge overlooked the all important fact that it was deceased who attacked accused, not accused who attacked deceased. Moreover it is clear that the deceased attacked the accused with what the accused had every reason to believe was a very definite intention to kill. It is clear that up to the moment when he disarmed the deceased the accused acted perfectly within his rights, the only question is whether when once he had disarmed the deceased he was justified in seizing the deceased's matchet and killing the deceased with it. Upon this point the accused in the heat of the moment may well have thought, and indeed not without reason, that he was engaged in a life and death fight with deceased, if he could not kill the deceased he would certainly be killed by the deceased. And it must be remembered, it was the deceased who started the deadly fight. This brings the accused's act within the provisions of the second paragraph of section 286 of the Criminal Code, as being lawful in self-defence.