(1961) All N.L.R. 36


Division: Federal Supreme Court

                          Date of Judgment: 2nd February, 1961

                         Case Number: FSC 296/1960

                         Before: Brett, F.J.J.

             Taylor, F.J.J.

              Bairamian F.J.J.

In a count laid under paragraph (2) of section 320 of the Criminal Code, the court may, having regard to the nature of the wound inflicted, infer that the intention was to kill.                                 

Appeal dismissed.

APPEAL from High Court of Western Region.

Ayoola (with him Okuwa) for Appellant.

Kayode Eso, Senior Crown Counsel, for the Crown.

Bairamian, F.J., delivering the Judgment of the court:-The appellant was convicted in the High Court at Ibadan, on the 15th December, 1959, on a count which states that he "with intent unlawfully to kill Edefiagbor Onoro, did an act, to wit, grievous harm to the said Edefiagbor Onoro, such act being of such a nature as to be likely to endanger human life"-a wording taken from section 320(2) of the Criminal Code-which is the second instance of an attempt to murder.

What he did was to strike a blow with a hatchet which cut through the left shoulder down to the root of the neckand split the bone round by the spinal cord, having cut through the muscles and the nerves. Had it caught the complaint's body an inch upwards, it would have severed the head from the body. Having regard to the nature of the wound, the learned Chief Justice was of opinion that it afforded the inference that the intention was to kill the complainant.

At the hearing of the appeal, it was argued that the trial Judge overlooked an important fact, namely that the complainant admitted in cross-examination that:-

When the defendant knocked off the cutlass from my hand I did hold the defendant's penis with the result that the trial Judge erred in not holding that the appellant acted in self-defence and under acute provocation and was justified in striking the blow he struck with the hatchet.

It is true that the typescript gave the answer as above; but when defending Counsel addressed the trial court, he referred to the evidence of the defendant that the complainant held his penis: he did not say that the complainant had admitted it in his evidence; and in his Judgment the trial Judge pointed out that the defendant had not said anything about it in his statement to the police. It occurred to us that the typescript must have been wrong and that the answer should have read "I did not hold the defendant's penis." We have caused an inquiry to be made, and learnt that the word "not" was omitted from the typescript in error. Thus the whole argument for the appellant was based on a mistake in the typescript.

It was a sad case of two brothers falling out after a quarrel between their wives. The appellant went to his brother's house in an angry mood, and in the course of what ensued picked up a hatchet and gave his brother the savage blow described above. Fortunately his brother's life was saved. The appellant was rightly convicted on the count as laid, and his appeal is dismissed. The sentence was as lenient as it could have been.

Appeal dismissed.