Murder contra section.'319 -
Fight- Misdirection as to
duel Verdict of
manslaughter substituted.
There was a challenge to fight
which was accepted
by the appellant who struck the
first blow and Killed the
deceased.
Held: That the essence of a duel
is premeditated and
pre-arrangement and that as
there was none here the Judge
should have asked himself the
question" was the deceased
killed in the heat of passion
caused
by sudden provocation. With II
proper direction the verdict
might well have been
manslaughter. Verdict of
manslaughter was accordingly
substituted for that of murder.
Mckinstry
for Respondent.
A. Okon
for Appellant.
The following joint judgment was
delivered:
KINGDON; C.J., NIGERIA, BUTLER
LLOYD AND BAKER, JJ.
In this case the Appellant was
charged before Pearson,
Assistant Judge, in the High
Court of the Enugu
I
Ouitsha .Judicial Division with
the murder of ,one Egwe Enyo. He
was convicted and sentenced to
death.
The facts of the case are that
the deceased and the
Appellant had quarreled.
Following upon the quarrel the
deceased came to Appellant's
compound in the night when
Appel1ant was sleeping; called
him out and challenged him to
fight. He was armed with a
matched. A ppel1ant accepted the
challenge, got his matched and
the fight was joined. Appellant
got in the first blow and killed
the deceased. On these facts the
learned trial Judge held " This,
then, was a duel, in which the
slaying is prima facie murder."
We are of opinion that in so
holding he misdirected himself.
The essence of a duel is
premeditation and
pre-arrangement; there was none
here The English law is set out
at page 889 of the 30th Edition
of Archbold as follows:-
"Killing by fighting may be
either murder or manslaughter,
or homicide
·se defenendo,
according to "circumstances. 1.
QUARRELS-If two persons quarrel
and "afterwards fight. and one
of them kills the other-in such
pg 14
a case, if there
intervened, between the quarrel
and the "fight, a sufficient
cooling time for passion to
subside and reason to interpose,
the killing will be murder
............... .
" but if such time had not
intervened-if the parties, in
their " passion, fought
immediately, or even if,
immediately upon " the quarrel,
they went out and fought in a
field (for this is " deemed a
'continued act of passion), the
killing in such a case
would be manslaughter only, '
..........whether the party
killing struck the first blow or
not. Therefore, if " two persons
deliberately fight a duel, and
one of them is killed, the other
is guilty of murder .....no
matter, how grievous the
provocation, or by which party
it was given.
We think that the Nigerian law
comes to the same thing,
resting, as it does, upon the
question whether the act was
done" in " the heat of passion
caused by sudden provocation,
and before " there was time for
passion to cool" (Criminal Code
section 318). We are of opinion
that in this case the proper
question for the Judge to have
asked himself was "was the
deceased killed in "the heat of
passion caused by sudden
provocation?" The challenge to
fight undoubtedly provides the
necessary provocation. We think
that if the learned trial. Judge
had answered that question in
the light of the first part of
the passage from Archbold
above-quoted instead of
erroneously holding the fight to
be a duel, he might well have
held the killing in this case to
be manslaughter only and not
murder; and we are accordingly
of opinion that a verdict of
manslaughter should be
substituted for that of murder.
The verdict and sentence of the
trial Court are set aside, and
in substitution therefore the
Appellant is found guilty of.
manslaughter contra. section
325 of Criminal Code and
sentenced to ten years
imprisonment hard labour.
