BELLO V. KASSIM

• Pages: 228-233

228

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

death was due to internal haemorrage and that this could have been caused either

by the abdomen wound or from the 7 other stabs wounds which he found on de-

ceased's body. The answer in cross- examination was to one particular question

and was not exclusive of other possibilities such as that death arose from some of

the 7 stab wounds which certainly could not have been self-inflicted.

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Mr. Cole then argued his last ground appeal which read:

"The lower court failed to direct the jury on acts which might have constituted

provocation as would reduce the charge to manslaughter."

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It was his submission here that the learned trial Judge in his summing-up to the

jury dealt only with the questions of self defence and provocation but did not give

examples of what provocation would reduce the killing from murder to man-

slaughter; in particular that he did not put to the jury that it was the defence case

that the killing was in the course of a fight and that if they had accepted this story

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they should have brought in a verdict of manslaughter. We agree with Mr. Cole

here that the learned trial Judge did fail in his summing-up to put this issue to the

jury at all. However even if the acceptance of the evidence of the 1st P.W. had

been in fact left as an issue to the jury and they had found against it there would

still in our view have been the evidence of the 7th and 8th P.Ws as to what the ac-

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cused told them happened - namely, that he killed the deceased in a fight and on

this, coupled with the finding of the pathologist that the deceased suffered a wound

in the abdomen and seven other stab wounds, we are satisfied that at the least the

jury would have found that accused guilty of manslaughter.

As therefore the defence that there was a fight and the deceased died in the

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course of it was not ever properly put to the jury, we cannot allow the verdict of

murder to stand and we do hereby set it aside together with the sentence of death

and do enter a verdict of manslaughter against the accused.

Appeal allowed. Conviction for

manslaughter substituted.

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BELLO V. KASSIM

35

CHIEF TAWALIU BELLO

V

N.M. KASSIM

APPELLANT

RESPONDENT

SUIT NO. SC 687/66

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SUPREME COURT OF NIGERIA

COKER.

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C.J.N.

LEWIS,

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J.S.C.

FATAI-WILLIAMS,

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J.S.C. (AG.)

20th June, 1969.

Evidence - Failure to call a witness - Whether correct to apply the presumption

in s.148 (d) of the Evidence Act

Civil Action - Practice and Procedure - Visit to

Locus -

Failure to record

observations made at - Effect - Evidence Act s.148 (d).

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