Boy Muka & Ors V. The State (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI–WILLIAMS, JSC. 

 On 24th July, 1975, the accused persons were jointly tried and convicted in the High Court of Bendel State, sitting at Ubiaja, for the murder of one Izevbigie Agbon and sentenced to death. They have now appealed against the conviction.  

The facts on which their conviction was based may be summarised as follows: The people of Ekpon near Ubiaja and the people of Mbiri near Agbor, both in Bendel State, had a boundary dispute. Following the dispute, the two groups fought each other in a place known as Ekpon bush on 29th April, 1974. Samson Erabor (2nd P.W.), who is an Ekpon   PAGE| 2   man, said that the number of Mbiri people who joined in the fight was about forty and that they went to each of the Ekpon people in their different farms and attacked them there.

He said the Ekpon people did not fight back. Augustine Egbumokei (P.W.10) the Assistant Inspector of Police from the State C.I.D., Benin City, who led the team of detectives who went to investigate the death of Izevbigie Agbon, the deceased, however, described what he saw as follows:

“In the bush we saw a search party from Ekpon who were looking for their missing men. The remaining men were picked up in the bush and taken home with the search party. We thence moved to Uromi General Hospital where we were shown men and women admitted for wounds sustained from the fight. After interviewing them we returned to Agbor. Through information received, we went to the General Hospital, Agbor, to see those admitted there. We saw three men still on admission. Some had been discharged. These people came from Ugboko Iyama in Mbiri side of Ekpon. We interviewed them.   On 2nd May, 1974, we moved to Mbiri on information received. The third accused was arrested, taken to Agbor Police Station for questioning. On 5th May, 1974, the two remaining were arrested and taken to Agbor in connection with the murder of Izevbigie. We had gone through the bush on the 2nd. I saw yams in barns and crops destroyed. There were three murders in all, two of which are not here. There were signs of fight in the bush – like a battlefield”. (The underlining is ours).

Under cross-examination, P.W.10 testified further as follows: “Both Mbiri and Ekpon people showed me their yams destroyed. I was not present but it seemed to be a free for all fight. Before this incident, a report was lodged that Mbiri people were kidnapped by Ekpon people and on police intervention they were released. It followed dispute over boundary. The people of Ekpon even complained to Ubiaja police and those of Mbiri complained to Agbor police. Before I started I had no clue as to the identity of any of the accused. I arrested them precisely on my investigation”.

After completing his investigation, the 10th P.W. wrote a report about it and also about the identification parade at which the three accused were identified. Part of the report (Exhibit “K”) dated 14th May, 1974, reads – “The first witness Obighede Egbule said he and Izevbigie Agbon the deceased were tied by Ekpon people and carried to a room in Iyama town where suspect No.3, Boy Muka, cut Izevbigie with a matchet and he died on the spot. He alleged further that suspects Nos. 1 and 9 hit deceased Izevbigie Agbon with sticks”.

It is necessary at this stage to point out that suspects 3, 1, and 9 were those later charged and convicted as the 1st, 3rd and 2nd accused persons. Olugbede Egbule testified for the prosecution as their first witness and he was the only witness who gave an eye-witness account of how the three accused persons attacked the deceased on the day of the fight.  

Baglary Fada Otito (13th P.W.), an Assistant Superintendent of Police, who also visited the scene of the fighting on 29th April, 1974, where the body of the deceased was found with his bicycle lying damaged a few yards away, described what he saw as follows:- “The scene looked like that of a big fight. The Ekpon people told me of the boundary. I did not know it previously. No name was mentioned to be as responsible for the murder”.  

Another police officer who testified for the prosecution is Inspector Wilfred Owhe (7th P.W.). He conducted the identification parade at which the three accused were identified by Olugbede Egbule (1st P.W.) as the persons who killed the deceased (Izevbigie Agbon) in the bush on 29th April, 1974. Part of his testimony under cross-examination reads:   “I know the Regent of Mbiri. I am not aware of a report by the Regent that Ekpon people had kidnapped their men and detained them and police had to rescue them. I am aware that several Mbiri people were seriously matcheted and admitted in hospital during the fight”. (The underlining is ours).  

The only eye-witness account of how the deceased died was given by Egbule (1st P.W.). He is a native of Ekpon. The three accused persons are natives of Mbiri. Because of the importance which the learned trial Judge attached to his testimony, the relevant portion of it is reproduced hereunder:   “I remember 29th April, 1974. That day I went to the farm near farm settlement in Ekpon bush. It was in the afternoon. I started to clear the bush for farming. I heard an alarm. The alarm was raised by Omorogie Agbon whose farm was close to mine. I ran there. I met Izevbigie Agbon on the way. He was riding a bicycle. We continued the journey but I was walking.

As we went along, I saw 1st accused and several others running towards us. They all belong to Mbiri village. They met Izevbigie, pulled him down from his bicycle and matcheted him. Among them I know 1st accused. I saw him. I also know 2nd accused. I also know 3rd accused. I knew them before the incident. It was the three accused who matcheted Agbon. I ran into the bush and lay to watch. The people I saw held cutlasses and sticks. I observed that they had killed him so I ran home to report. I hid about 25 feet from the scene. They also cut the tyres and tubes of the bicycle. I saw 1st accused matchet   PAGE| 4   Izevbigie on the head. 2nd accused gave him a cut on the shoulder.

The 3rd accused used his stick to beat him. They were the three I observed”. (The underlining is ours). When he was cross-examined about what he told the Inspector (7th P.W.) at the identification parade which he (the Inspector) later recorded in the Report (Exhibit “K”), the 1st P.W. replied –   “I did not tell the Inspector that Izevbigie and I were tied up and taken to a room in Iyama Camp. I did not say that 1st accused then and there matcheted the deceased in that room.

I did not say he died in that room. I did not tell him that 2nd and 3rd accused used sticks on the deceased, it was only 3rd accused I told him of.”   When he was asked whether he knew the three accused persons before the incident, he testified further as follows: “I knew 1st accused before the incident. I now say that I did not know 2nd and 3rd accused before then. I knew the names of 2nd and 3rd accused in court”.   To further questions about the actual time of the incident, he replied: “Time of the incident was forenoon about 11.30 a.m.” After denying the suggestion of learned counsel for the accused that he was not present at the farm that day and that he had been bought by the Ekpon people to come and testify, he testified finally as follows:   “I have a common boundary with 1st accused”.

Since the witness is an Ekpon man while the 1st accused is an Mbiri man and the fight arose out of a boundary dispute, this reply is significant, to say the least.   Although the 1st P.W. had testified finally that the fight took place at about 11.00 a.m., another witness called by the prosecution said the 3rd accused was with him from 9.00 a.m. until 3.00 p.m. on the day of the fight. The witness, Anthony Oshiegbu (11th P.W.), is a surveyor and was at Mbiri village on 28th and 29th April, 1974, to survey the land in dispute for the Mbiri people. According to the witness, the 3rd accused was the leader of those appointed by the Obi of Mbiri to direct him to t

Other Citation: (1976) LCN/2225(SC)