Ewo Akang Vs The State (1971)

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COKER, J.S.C. 

The appellant was charged and tried for murder contrary to section 319(1) of the Criminal Code. He was convicted by Alexander C.J. in the High Court, Calabar (South-Eastern State) and sentenced to death. He had appealed against his conviction.

The facts of the case on which the prosecution relied are simple. On the 5th July, 1969, one Akang Abang had invited some friends, including the deceased, Andor Akang, to a party in his house in Abiasu near Obudu in connection with the funeral obsequies of his deceased mother. In the course of the celebrations food was served and the accused, one Atin Andor and Andor Akang (later deceased) were all eating together when the accused got up and left the house. He was away for sometime but he returned later armed, however, with a cutlass. As soon as he entered the house of Akang Abang the accused attacked Andor Akang with his cutlass, struck him many times with it until he died on the spot. The accused then tried to get away on a bicycle but he was soon caught, brought back to the village and then to Obudu Police station. A doctor, Dr. Parlato of the Sacred Heart Hospital, Obudu, had performed a post mortem examination on the corpse of the deceased, Andor Akang. According to the deposition of the doctor, which in the events that occurred, was produced and admitted in evidence as exhibit 8, he found on the deceased “many deep matchet cuts” one of them very deep and large. The wounds occurred in the right-hand side of the neck, right shoulder across the back, the right thigh, right leg, right knee and the left arm and hand. The doctor thought the wounds he had seen were responsible for the death of Andor Akang.

The accused himself made a statement to the police after his arrest. In it he described how he was being taunted by his fellow villagers that he was impotent. He then left for the neighbouring village of Ikom in the hope that he could thereby be free of their taunts. He later returned to his own village to find that the villagers, including Andor Akang, who was his own half-brother, still persisted in ridiculing him and taunting him with songs about his impotence. He said further in this statement admitted in evidence as exhibit 1, that as he was eating with the others in the house of Akang Abang on the 5th July, 1969, Andor Akang told them that he (the accused) was going to die soon as he had already “finished” him in the bush earlier on that day. He therefore became angry and annoyed at Andor Akang because he always had the feeling that Andor Akang was one of those responsible for his impotence. He then went home, fetched his cutlass and killed him as he did with it. In his testimony in court at his trial he repeated the same story.

The only defence raised at the trial was that of provocation, it being manifest that unless there were extenuating circumstances the killing of Andor Akang by the accused in the way described by the prosecution witnesses was clearly murder. The learned Chief Justice who tried the accused considered extensively the plea of provocation rather ably put up for the accused by learned counsel for the defence. He came to the conclusion, nevertheless, that provocation within the provisions of section 318 of the Criminal Code was not established.

Before us on appeal the only ground of appeal argued was that “the learned judge erred in law in rejecting the plea of provocation put forward by the appellant when all the essential ingredients in law (of that plea) were proved”. We were of course unable to accede to this complaint. It is true that the learned Chief Justice found that the acts done by the accused were done in the heat of passion but he rejected, and rightly so in our view, the suggestions that the reaction of the accused was caused by sudden provocation and that there was no time for his passion to subside and his reason to resume control of him. The essence of the defence of provocation was discussed fully by this court in Chukwu Obaji v. The State, (1965) 1 All N.L.R. 269.

It is neither possible nor necessary to lay down any hard and fast rule about the inferences that should be drawn from certain acts or the way these inferences should be drawn. Our several ways of reacting to the same external stimuli cannot be comprised within a single mode of positive physical response nor confined within the limits of a single system of thinking. One’s station in life, the nature of the provoking act, deed or even words and a number of other phenomena have been held to be relevant for consideration. In the case in hand, the learned Chief Justice clearly considered the station in life of the accused and stated equally clearly that the taunts leveled at him concerning his impotence were capable of angering him.

Provocation which reduces what would otherwise amount to murder to manslaughter is a legal concept made up of a number of elements which must co-exist. It is of paramount importance in the consideration of this concept that the act held out as a natural and justifiable reaction of the provoked person be done not in self revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occasion. (See Vincent Chukwu v. The State, (1966) N.M.L.R. 274). The accused in this case went home to fetch his cutlass and then used it freely on the deceased as described by the eye witnesses to the killing of Andor Akang. The learned Chief Justice found there was sufficient time for the accused for his passion to cool down; and more important was the finding by the learned Chief Justice that the taunts and the threats described by the accused were not sufficient (considering as well the fact that he had a child) to cause a man of his station in life and, a fortiori, the accused himself, the sudden and temporary loss of self control which is a necessary element in the legal concept of provocation. The learned Chief Justice found that the act of the accused was done in revenge, the accused having made up his mind to kill Andor Akang for the taunts he had leveled at him, for the threats he had issued concerning the life of the accused and for his statement that he had already “finished” the accused in the bush and that the accused would die soon.

We concluded that the findings of the learned Chief Justice were supported by the evidence which he had accepted, that his application of the law to those findings had not been successfully challenged and that the accused was in the circumstances rightly convicted of murder. We therefore dismissed the appeal at the hearing and now give our reasons for doing so.

Appeal dismissed.

Other Citation: (1971) LCN/1220(SC)