Okon Umana Vs The State (1972)

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O. ELIAS, C.J.N 

On October 25, 1971, Allswell-Uranta, J., in the High Court of the Ikot Ekpene Judicial Division in the South-Eastern State found Okon Umana guilty of the murder of Edem Umoh (deceased), contrary to Section 319 of the Criminal Code and sentenced him to death. On March 22, 1972, we dismissed the appeal brought by him, and we now give our reasons therefore.

The learned trial Judge found that the accused gave three inconsistent stories of what happened. In the first, in a statement which he made to the Police (Exhibit C), he said that on 20/2/71 he saw on his palm estate one Victor Peter cutting his palm fruits for Edem Umoh, the deceased. When he asked Edem Umoh, the deceased, why he cut the palm fruits, he said that the latter told him that, as his father was not from Ikot Ayan Ndiya village, he had no right to cut palm fruit along that area of the bush. Following this exchange of words, he said that the deceased, who was carrying one palm fruit towards the main road, “threw it on the left of my forehead”. He added” “For this reason I cut him with my matchet on the lower side of the neck and cut him also on the right thigh. I left him there on the ground. I returned my matchet to my house which I later show the matchet to the police. I visited the scene with the police. Before now Edem Umoh (m) is dead. This is the corpse. This disputed bush, I recovered from Chief Ekanem Etuk Udo for 40 manilas in 1961. I have been farming on the land.” He admitted in cross-examination that this statement had been correctly recorded and said that he was beaten up by soldiers, but that he did not receive the injury to his head from them but during the struggle with the deceased. The relevant portion of the accused’s evidence at the trial is:

“I went to where Edem Umoh was stacking the palm fruits by the roadside and asked him if I sold the fruits to him. He answered that the whole land belongs to his father and that he does not know me… I then stooped and lifted a cone of palm fruits. He Edem Umoh picked up another cone and threw it on my head. We then started to struggle. Both of us had our matchets during the struggle. He tore my shirt and both of us fell on the ground. When I got up I saw that he was wounded. I did not know how he got the wound… When he threw the cone of palm fruits on my head I was wounded… Victor was on the top of a palm tree all the time. I did not see P.W.1 at the scene… I did not see Victor when I left the place… Edem Umoh was a blood relation of mine. I had no previous dispute with the deceased over land”.

The accused’s third story, which was the evidence he gave at the preliminary investigation, was as follows:

“When the deceased took the palm fruits I followed him to the road where he kept them, and when he put them down, I took the palm fruits and we struggled for the palm fruits. He had a matchet during the struggle and I also had my matchet. While struggling the deceased waved his matchet to stab me and I waved my own too against him and my matchet stabbed him he fell down”.

This is how the learned trial Judge summed up the three conflicting stories:

“He told the Police that he was still questioning the deceased when the bunch of palm fruits was thrown at him, and he immediately struck back with his matchet. The second version at the preliminary enquiry was that during a struggle which ensued each of them waved his matchet and his own stabbed the deceased. The last version is that they struggled with their matchets in hand and fell down together. He got up and observed the deceased was wounded, and could not account for the injury. It will be observed that when the facts were still fresh in his memory the accused said nothing about the deceased being in possession of a matchet. The second story suggested they were both standing and brandishing their matchets when the deceased sustained the injuries. The third indicates the matchet was not deliberately applied.”

In these circumstances, the learned trial Judge rejected the learned defence counsel’s submission that the accused was provoked and that he acted, in self-defence. With regard to the defence of provocation, the learned trial Judge quite rightly found that cutting a person dead with a matchet could not be regarded in law as justifiable retaliation for the infliction of a slight bruise by means of a bunch of palm fruits, even if that bruise had been inflicted by the deceased although Corporal Ebri Ubi said that the accused told him that he received the injury while resisting arrest by the soldiers. Medical evidence showed that the deceased’s “head was almost severed from the trunk but for a strand of skin at the front of the neck. The outer side of the right thigh had a 4″ x 2 and the left forearm a 3 x 11/4 incised wounds”. As respects the plea of self-defence, the learned trial Judge, quite rightly in our view, failed to see what the accused (aged 40) had to fear from the deceased (aged 60) who was not attacking him with any lethal or dangerous weapon so as to make the accused believe on reasonable grounds that he could not otherwise save himself from death or grievous bodily harm than by using such force as he did: The Queen v. Jinobu (1961) All NLR 627. Moreover, he in no way tried to disengage as he should have done, if he was to succeed in this defence of self-defence: Mgboko v. The State (1972) 2 S.C. 123, at p. 125.

The learned counsel for the appellant, Mr. F.O. Akinrele, said he had nothing to urge in his favour, and as we were of the view that the learned trial Judge was right in finding the accused guilty of murder, we dismissed the appeal.

Other Citation: (1972) LCN/1446(SC)