Mbang Efoli Mbang V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C.

This case revolves around a curious occurrence. A confession by the appellants that he and his co-accused ate human flesh. The appellant and three others were arraigned before the High Court of Cross-River State sitting at Ugep for the offence of murder contrary to section 319 (1) of the criminal code. The appellant was the 2nd accused. It was alleged that the accused persons on 7/10/89 murdered one Baba Okoi at Nko Village of Cross- River State. Each of the accused persons pleaded not guilty to the charge. At the conclusion of hearing, the trial Judge Obasse J. in his judgment found each of the four accused guilty of the offence and accordingly sentenced each to death.

The appellant (who was the 2nd accused before the trial Court) was dissatisfied with the judgment of the trial court. He filed an appeal against the judgment before the court of Appeal at Calabar (hereinafter referred to as ‘the court below.” On 25/4/06, the court below in its judgment affirmed the judgment of the trial court. The appellant has come on a final appeal before this court. In the appellant’s brief filed before us, only one solitary issue has been identified as arising for determination in the appeal. That issue is:

“whether the court of Appeal was right in holding that there was common intention between the appellant and other convicts to kill the deceased person in the light of the confessional statement of the 1st accused (co-convict) that he killed the deceased person without implicating the appellant however” The respondent’s counsel framed the issue for determination thus:

“Whether the court of appeal was right in affirming the conviction of the appellant by trial High Court for the murder Baba Okoi”.

In approaching the issue for determination a perusal of the evidence of prosecution witnesses is helpful. The prosecution called six witnesses in support of its case. The appellant elected not to testify. None of the witnesses called by the prosecution directly testified that the appellant joined in the killing of the deceased. The case of the prosecution was built on two planks. First, that the appellant was the person who invited the deceased out of his house and that the deceased was not subsequently seen alive. The second was that the appellant stated that he ate human flesh. He added however that it was not the flesh of the deceased Baba Okoi.

P.W.2 testified for the prosecution and in a part of his evidence said. “I know one Baba Okoi who is now dead. Before his death he was a soldier and he was serving in the Nigerian Army, Jos. On 7/10/89, the deceased came back from Jos to Nko. This was in the evening. At about 11.30pm, I saw one Mbang Efoli Mbang don spoil everything. I did not share the meat because I saw the body without head on the ground to be that of Baba Okoi who was in the dancing place with us. I been hear the time they blow whistle in the town announcing that Baba Okoi who came home from where he is working was missing. I was afraid to talk that time about what Eteng Ibor, Ibor Okuresin and Bassey Okon Etim do with Baba Okoi that Saturday night of 7/10/89,. Na Omini Uhuru came tell me say he been go back to Eteng Ibor house but they (Eteng Ibor) told him that they been carry the body of Baba Okoi to throw away at where there is sugar cane farm where water there near Jesam. I think Omini Uhuru will tell you better when you bring him. Me and Omini Uhuru follow the three men with Baba Okoi because of the way they leave dancing place. My own family been get land case in court with the family of Baba Okoi. It is not true that I kill Baba Okoi because of the land matter my family and his family get in court. Even the case in court was in our favour. How can I kill Baba Okoi because of land matter as Baba Okoi no get even groundnut farm in the village and he was not living in the village. It was Bassey Okon Etim, Eteng Ibor and Ibor Okuresing who kill Baba Okoi. At the place Baba Okoi body been lie down at Eleng Ibor house. I saw Ibor Okuresing his father with matchet”.

In a subsequent statement by the first accused, exhibit ‘C’ he said:

“In addition to the statement I made to the Police at Calabar On 7110/89 when we finish from Kojo dance, I came back home and go to shit for public latrin where dey at Etombe. As I return from latrin and cigar hungray me to smoke and I go to find cigar to buy at that time where be about midnight and everybody been long sleep and I see somebody wey sit far our market shed at Nko. The man wear one trouser and jumper. I go near the man and ask who are you the man no answer and use my hand and hit him on the neck and head and carry him and hit on the ground and then I carry stone and hit him on the head. When I see say the man don die, I turn him to see his face. Na then I know Say the man be Baba Okoi. When I know say man be Baba Okoi, and my brother. I no know wetting I go do. I carry him put for my shoulder through Ebonogbnoti farm road to Lokpoi (river) beach and through him inside the river. I no been out his head or any part of his body because it was like accident to me. All this things been happen on Saturday night wey be 7/10/89. I no been return to the village from that night till Monday morning. 9/10/89. From that Night 7/10/89 to Monday 9110/89 I been hide at the roofing mat grove near the village. When I hear say all the people in my compound have been arrested by the Police, I come out of my people. All the things I been tell the police before no be true as the blood of the person I killed been dey worry me. No body follow me kill Baba Okoi. From the night I kill Baba Okoi till Monday 9/10/89 that I come report myself to the police I no been eat anything, even the food my wife bring to me for police Station I no been fit eat. All the people I tell the police before that they follow kill Baba Okoi was not true.The people I mentioned before be Eteng Ibor Uket his father Ibor Uket alias Ibor Okuresin, Omini Uguru and Bassey Etime Okon that they follow kill Baba Okoi. None of them know anything about the killing of Baba Okoi. I only mention them because the blood of Baba Okoi was worrying me. The time I throw the body into the river was when the river in the river was too big. I think say the water don carry the body away.”

It is apparent that the statement of the 1st accused in exhibits ‘B’ & ‘C’ are inconsistent. In exhibit B, the 1st accused said he saw the headless body of the deceased which at first was to be butchered and shared out for eating. In exhibit ‘C’ however he stated that he killed Baba Okoi not knowing at the time who he was. He said he did not know he was a man from Nko village. More important however is the declaration by the 1st accused that he acted alone in killing the deceased.

In his own statement, Exhibit ‘E’ at page 141 of the record, the appellant denied that he was privy to the killing of the deceased. In exhibit ‘E’ the appellant said:

“On Saturday 7/10/89, I was in Nko my town. Also on that day, there was a burial ceremony for late Okon Moses who was killed during the war between Enyima and Onyedama early this year. As a member of Enyim Society, the mother invited us Enyim Society Members to be with her as the burial ceremony of our late Member was being performed.Enyim Society is made up Men who are ready to defend the entire Nko community whenever Nko is in war with other neighbouring villages. I know Baba Okoi, but I don’t know where he stays. He is a friend to my brother Pieco Okon Ekpo. I used to see the photographs of Baba Okoi in my brother’s house, I did not see Baba Okoi on Saturday 7/10/89 as recorded by the Nko Police and also the portion they wrote that I am a strong man in the community and that if my killing of human being is done at Nko I would be informed, is not also correct. The two portions are not my statements, but the rest are my statement. I have not known or heard anything about the death of Baba Okoi or took part in any way in his death. It was only at the police station that I heard that Baba Okoi is dead. As for the man killed in Onawa Enang Onen’s house I was not present. He Onawa Enang Onen only gave me a piece of cooked human meat on Sunday morning 8/10/89 and I ate it because it was small. I did not take part in the killing of that man whose meat was not given to me nor know how Onawa got the meat.”

I observed earlier in the judgment that the accused persons including the appellant elected not to testify in their own defence. The result is that the evidence against the appellant was no more than that he has called the deceased out of his house at 11.30pm on 7/10/89 and the deceased was not subsequently seen alive. The appellant had also admitted eating human flesh. Now, how did the trial judge approach the evidence before him in the determination of appellant’s culpability in the murder of Baba Okoi In its judgment, at page 129 of the record, the trial court said.

“There is also the evidence of P.W.2 that the 2nd accused went and called out Baba Okoi at 10.30pm. That since then he had not seen the said Baba Okoi again. The P.W. 2 said he knows the 2nd accused as an Nko man and so he did not ask questions. The 2nd accused did not deny going to call out the deceased at the time and date as he rested his case on that of the prosecution. That (sic) law presumes him responsible for the missing or killing of Baba Okoi as he was the last person seen with Baba Okoi before his death. In the case of Nwaeze v. The State (1996) 2 SCNJ page 42 it was held inter-alia: