DOBA V. THE QUEEN

• Pages: 268-271

268



NIGERIAN SUPREME COURT CASES

[1963] N.S.C.C.

That was the provocative incident. Alone, it cannot sustain the plea of provo-

cation: it was also necessary to show "loss of self- control, both actual and rea-

sonable, and the retaliation proportionate to the provocation." Split up there are

these ingredients of the second constituent of the plea - (a) loss of self-control,

both actual and reasonable, and (b) before there is time for passion to cool. The



5

narrative accepted as credible must show that the person who kills does so in the

heat of passion. Upon a favourable view it can be said that the appellant's temper

was up when he was accused of stealing: he drew his tapping-knife from his waist

as a spontaneous act of resentment. But he was disarmed and was later standing

around so quietly with those who had come that they were not on their guard; and



10

he took them off their guard: he suddenly snatched Nwodom's knife from his waist

and attacked the deceased. His conduct was that of a man acting with cool calcu-

lation, and that took his case out of section 318; which makes it unnecessary to

consider any other aspect of the events.

The other ground of appeal argued was that the appellant was wrongfully ar-



15

rested and killed to escape; or that the wrongful arrest was an act of provocation.

The latter plea must fail for the reasons already given. The former must also fail,

for it is not true in fact on the narrative of events accepted as true. It raises a num-

ber of legal questions, but it would be academic to discuss them in this case.

Before dismissing this appeal, we should like to draw attention to the one Nige-



20

rian case that comes to mind on killing to prevent unlawful arrest, namely

Joseph

Adu v. The Queen,

14 W.A.C.A. 462. Had it been necessary in the present case,

we would also have had to invite argument on the last sentence in section 283 on

unlawful arrest as provocation, and also on whether the arrest in this case was un-

lawful if considered at the point of time when the appellant drew his tapping-knife,



25

in the light of section 356(1) on assault to commit felony. These points were not

argued; they may be important in some other case hereafter: here they are not,

and they are merely mentioned in passing.

This appeal is dismissed.

Appeal Dismissed.



30

DOBA V. THE QUEEN

35

GARBA DOBA



APPELLANT

V

THE QUEEN



RESPONDENT



40

SUIT NO. FSC 39

4

/

1

963

SUPREME COURT OF NIGERIA

ADEMOLA,



C.J.N.

TAYLOR,



J.S.C.

BAIRAMIAN,



J.S.C.



45

21st November, 1963.

Legislation - Northern Nigeria - Penal Code. s.115(b).

Criminal Law - Corruption - Attempt to obtain gratification.



50