Philip Ekpenyong Vs The State (1993)

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BELGORE, J.S.C. 

The appellant was on 4th day of December 1991 at Umuahia, in the High Court of the then Imo State found guilty of murder and was convicted and sentenced to death. His appeal to the Court of Appeal, Port Harcourt Division was dismissed. He has now appealed to this Court. For fuller apprehension of the case, it is pertinent to give a summary of its facts.

On 1st of January 1980 about 1700 hours, James Adaise (hereinafter referred to as “the deceased”) went to Daniel Ekpenyong to ask for his pomade to rub on his body. He returned it later but in giving it to Daniel Ekpenyong’s brother’s wife it dropped and hit her on the toe. He never tendered any apology for this. There ensued some altercations between these two men and a fight followed. As they were struggling, James Ekpenyong’s mother came out and tried to separate them.

Whilst on this, according to some people she collided with a bench, and according to others it was James that knocked her down. She was on the ground when Philip Ekpenyong (now the Appellant arrived at the scene). He saw his brother Daniel in struggle with the deceased and his own mother on the ground. Philip literally took over the fight from Daniel and he and the deceased were then fighting. According to the appellant, his mother had fainted and he obviously believed the deceased was responsible. Neighbours separated them and each combatant was led to his house. It seemed that was the end or the uproar.

However, Philip Ekpenyong (the appellant) broke loose from his room and went straight for the deceased in his house where he was with his mother. The struggle started again and the appellant took a kitchen knife he came with to the house and stabbed the deceased whereby it severed one of his kidneys and his viscera protruded. He was rushed to the hospital where he received treatment on admission. He died there on the 3rd of January 1980; the third day of the injury. The autopsy revealed a very deep wound that caused substantial loss of blood into the abdominal cavity and this was due to the destruction of one of the kidneys by a sharp object. This opinion tallies with the evidence of those who saw the stabbing. The death, according to the medical officer, was caused by severe loss of blood (haemorrhage) due to severed left kidney.

The Brief of Argument on behalf of the appellant in this Court raised the following issues:-

“ISSUES FOR DETERMINATION:

The following issues are for determination in this appeal, namely:-

2.01 Whether the defense of provocation as prescribed in Section 284 Cap 30 Laws of Eastern Nigeria, 1963 is wide enough to accommodate the defense as raised by the appellant in the Lower Court, and/or in the alternative, the defense of self-defense could have availed the appellant on the same set of facts and sufficient enough to reduce the charge of murder to manslaughter bearing in mind his station in life.

2.02 Whether the Forensic report on Exhibits ‘A’ and ‘B’ was relevant in proof of the killing of Deceased in circumstances where the report was inconclusive and Exhibits ‘A’ and ‘B’ were not obtained from proper custody.

The learned Justices of the Court of Appeal recapped at pages 110 and 111 of the record thus:-

‘The learned trial Judge summarized the facts as follows:

(1) It was the accused who stabbed the Deceased to death.

(2) The injury was inflicted on January, 1st 1980 and it resulted in the death of the Deceased on January, 3rd 1980.