Dan Akpan Vs The State (1972)

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SOWEMIMO, JSC.

The charge against the appellant, then accused, at the Calabar High Court, was that on the 9th of September, 1970, he murdered one Mary Okon, hereinafter referred to as the deceased, at Eto-Mkpe village, Akpabuyo, Calabar. He was tried and on the 27th of July, 1971, was convicted of murder and sentenced to death by Kooffreh, J. His appeal against the conviction was dismissed by this court on 15th August, 1972, and we now give our reasons.

The facts of the case are hardly in dispute. On the 9th of September, 1970, the deceased left her residence in order to purchase palm oil from one Nna. When she did not return till night-fall a search party, comprising Michael Udo, the 3rd prosecution witness and Nna, proceeded to the surrounding bushes to look for her. During the search they saw a disturbed portion of ground in a cassava farm. The spot looked like a fresh grave.

They observed blood stains and some clots of blood along the path leading the spot which they suspected to be a grave. The 3rd prosecution witness went to report their finding to the husband of the deceased, one Udo Udoma, the 5th prosecution witness. At the same time Nna, who had earlier seen the deceased in the company of the accused, suspected that he must have had something to do with the disappearance of the deceased. She therefore returned to the village and, with the help of the villagers, the accused was arrested. The accused was taken to the house of the Village Head and there confronted with the murder of Mary Okon. A report was later made to the Police, who on arrival visited the spot suspected to be a grave. The place was dug up and the corpse of the deceased was found in the shallow grave. There were several wounds on the body, which appeared to be matchet cuts.

The body was found lying face downward. The corpse was wrapped with the loin cloth, which the deceased had worn when she was last seen. Dr. Udoh, the 2nd prosecution witness performed a post mortem examination on the body of the deceased at the General Hospital, Calabar. The material portion of the evidence relating to his findings is as follows:-

“The body was that of an African female about 5ft 3in. tall with dark hairs. On examination there was multiple matchet wounds on the body of the deceased. The sides affected were the exterior aspect of the right wrist, right side of the abdomen, left breast, a perineum including the vagina and the exterior aspect of the neck. The internal organs were normal. Death in my opinion was due to shock and massive haemorrhage caused by wounds. The instrument like a matchet shown to me in the court could have caused the injuries I have discussed. Death occurred about the 9th of September, 1970.”

The accused, when arrested by the Police, made a confessional statement admitting that he killed the deceased. His version of the incident was that on the 8th of September, 1970, he was sent by the 1st prosecution witness, one Affiong Edem, to harvest some cassava roots from his farm. The accused at the material time was a tenant of the 1st prosecution witness. He harvested two basket fulls of cassava. While in the farm the deceased, Mary Okon, and one other man came to meet the accused. They expressed a wish to buy a basket of cassava and after negotiation, a price of 10/7d was accepted by the accused. The man carried away the basket of cassava leaving the deceased behind with the accused, with a promise that he would return with the purchase price of 10/7d. He failed to turn up that day. The deceased promised to return the following day and both she and the accused then left the farm. On the following day, which was the 9th of September, 1970, the accused went to the cassava farm, and whilst there the deceased came and wanted to bargain for more cassava roots. The accused demanded the amount of 10/7d, value of the basket of cassava purchased the previous day.

The deceased refused to pay up and so the accused held on to her. There was a struggle. The accused at this stage became annoyed. He got hold of his matchet and inflicted matchet cuts on the deceased. The first matchet cut was on the neck. He further inflicted other cuts on some parts of the body of the deceased and stated that these cuts were accidental. He said that when he found that the deceased had died he dragged her body to a spot where he dug a shallow grave and buried the corpse.

He had done so because he did not want her body to be eaten up by ants. The learned trial Judge considered whether, in the circumstances of the case, the defence of provocation was open to the accused. He examined the evidence closely and considered whether the provision of Section 284 of the Criminal Code, which deals with the defence of provocation, was applicable. He came to the conclusion that, in the peculiar circumstances of the case before him, the defence of provocation could not be made out. He therefore convicted the accused on the charge of murder and sentenced him to death. On appeal before us, learned counsel for the appellant had nothing useful to urge in favour of the appellant. After a perusal of the records ourselves we saw no reason to disagree with learned counsel. We upheld the verdict of the learned trial Judge, and dismissed the appeal.

Other Citation: (1972) LCN/1301(SC)