The appellant's story that he did not hit the deceased with a stick but that when she fell the palm fruits fell on her stomach was rejected by the learned trial Judge.

The material evidence as to the cause of death was given by the Medical Officer of Annang Joint Hospital, Ikot Okoro, Dr Samuel Murray Ross, who performed a post mortem examination on the body of the deceased. In the opinion of the doctor, death was caused by rupture of the deceased's spleen. Continuing his evidence, Dr Ross said that the deceased had a large spleen, which was diseased owing to chronic malaria. He opined that but for the rupture of the spleen caused by the blow, the deceased might have continued to live in spite of the enlarged spleen. He added that an enlarged spleen is common in the area with about 90 per cent of the population. Finally, he was of the opinion that in spite of the diseased spleen the deceased was quite healthy prior to her death.

The first submission made by Counsel for the appellant for our consideration was that death in this case occurred in a chance medley. We have no hesitation in rejecting this. We hardly think this is one of such cases.

We have also considered the question of provocation which was submitted for our consideration, and we have arrived at the conclusion that there was not enough evidence of provocation. We cannot in the circumstances of this case consider that struggling for the possession of a basket is enough provocation.

The point which has given us the most anxious consideration in this matter is the insufficiency of medical evidence not on the cause of death of the deceased, but on the probability of the effect of such blows on a person who had not an enlarged spleen. In other words, would the deceased's spleen have been ruptured and would she have died in any case if she had not an enlarged spleen in consequence of such blows? It appears this question was never put to the doctor so as to elicit a definite answer. Nor was it put to the doctor whether such blows as were delivered to the deceased were likely, in normal circumstances, to cause grievous harm.

On this matter we have considered from the whole evidence on record whether there was any intention on the part of the appellant to kill the deceased or to do her grievous bodily harm in order to bring the case within the definition of section 316(1) and (2) of the Criminal Code defining murder. It reads:-

316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:-

(1)     if the offender intends to cause the death of the person killed, or that of some other person;

(2)     if the offender intends to do to the person killed or to some other person some grievous harm;...

We are satisfied from the evidence on record that there was not the intention specified in subsection (1). In fact, the evidence before the court negatives this. With regard to subsection (2), namely, whether the appellant intended to do grievous bodily harm to the deceased, we are of the view that there was not enough evidence led in the court below that the appellant intended to do grievous harm to the deceased nor from the whole evidence can we arrive at the conclusion that a reasonable man, in the circumstances, could have foreseen that the blows inflicted on the deceased could have caused grievous bodily harm.

For the above reasons we are of the view that the killing, though unlawful, does not amount to murder, and that a verdict of manslaughter should have been returned.

We therefore set aside the verdict of murder and substitute a verdict of manslaughter.

The appellant is sentenced to a term of imprisonment for 10 years with hard labour and this will be the Judgment of the court.

Appeal allowed: Verdict of Manslaughter substituted.