3PLR – UKPONG UDO V. THE QUEEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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UKPONG UDO

V.

THE QUEEN

SUPREME COURT OF NIGERIA

F.S. C. 207/1963

9TH OCTOBER, 1963.

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:

SIR ADETOKUNBO ADEMOLA, C.J.N. (Presided)

JOHN IDOWU CONRAD TAYLOR, J.S.C.

SIR VAHE BAIRAMIAN, J.S.C. (Read the Judgment of the Court)

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE – Murder – Provocation – Defence of provocation – Meaning and purport of.

REPRESENTATION

1. B. Famakinwa – for the Appellant.
2. I. Emembolu, Senior Crown Counsel -for the Respondent.

BAIRAMIAN, J.S.C. (Delivering the Judgment of the Court):     When this appeal was heard on September 23rd, it was dismissed for reasons which will now be given.

The appellant was convicted at Calabar by the High Court of the East­ern Region, on April 11th, 1963, of murdering Akpan Ndem on the 28th September, 1962. He was the tenant of the deceased, and had a duty to sweep the whole premises. The deceased had been away for some days, and on coming back found the premises untidy, and reproved the appellant, who gave it as his excuse that it had rained the previous night. The deceased was angered by the excuse and slapped the appellant; he then returned to his room. The appellant picked up a piece of iron piping, entered the room, and struck the deceased on the head and body, and thus caused his death.

The question was whether the appellant had received such provocation as would reduce the killing to manslaughter. There is a good deal on the subject of the law of provocation in the judgment under appeal. The question lies within a small compass. We were referred by learned counsel for the appellant to this portion of his evidence –

“Suddenly, he came out of the room and came to me where I was in the verandah and said to me: ‘I have told you to keep quiet. Do you think you are talking to your mother or father?’ He then slap­ped me, and returned to his room. In the heat of anger, I went after him with a short iron, namely Exhibit B. (This exhibit having been shown to witness.) With this iron (Exhibit B) I hit him in the neck and on the head. And he fell down.”

From the doctor’s evidence it appears that not only did he break the head of the deceased with a number of savage blows, but also struck him on the right side and broke his ribs in two places, so badly that they wounded the lung.

The law of provocation is a concession to human frailty: it is not, however, available in mitigation of sheer brutality. We were of opinion that the retaliation in this case was inordinate and completely out of proportion to the degree of provocation given to the appellant by the deceased, and approved the judgment of the High Court, for which reason we dismissed the appeal at the hearing.

ADEMOLA, C.J.N.:             I concur.

TAYLOR, J.S.C.:   I concur.

Appeal Dismissed.