Inyere Akpuenya V. The State (1976)

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O. OBASEKI, AG. JSC 

We dismissed this appeal on the 14th day of October, 1976 and now give our reasons. The appellant was at Agbor tried and convicted by the High Court of Mid-Western State (Ovie-Whiskey, J., (as he then was) of the murder of Edobor Ekhoragbon on the 12th day of February, 1974 at Abavo bush contrary to Section 257(1) of the Criminal Code Cap.28 Vol.1 – Laws of Western Nigeria applicable in the Midwestern State. He was sentenced to death on the 2nd day of December, 1975 and being aggrieved by the conviction he appealed to this court.  

Two grounds of appeal were with the leave of this court substituted for the original grounds of appeal and argued before us by his counsel. These were principally based on facts and read as follows:   “(1) The judgment of the High Court is unreasonable and cannot be supported having regard to the evidence. (2) The learned trial Judge erred in law and on the facts in convicting the appellant when the case against him was not proved beyond reasonable doubt and also because the evidence of prosecution witnesses were (a) contradictory; and (b) inconsistent with previous statements made by such witnesses.”

We may now refer to the facts established before the learned trial Judge. The deceased, Edobor Ekhoragbon hailed from Ogbe-Obi quarters in Abavo town in Ika Division. Inyere Akpuenya the accused hailed from odumasogba quarters, Igbogili village. A dispute over farming rights or farmland ownership erupted between the people of Ogbe-Obi quarters and the people of Igbogili at the material time and it appears the dispute was never settled before the untimely death of the deceased and the dispute was proved to be the motive for the murder.    The appellant was friendly with the Obi of Abavo and it appears that this relationship deprived the Obi of the courage to resolve the dispute before it got out of hand. It was known to the people of Igbogili that the deceased and others of Ogbe-Obe quarters in Abavo had farms on the land claimed by the Igbogili people and they decided to deal with them violently whenever they set foot on their farms. On this fateful day, the deceased went to his farm at Obiegwa bush in company of his son John Edobor (P.W.1). Okoh Okwa (P.W.3), Martin Ijohon (P.W.4), Augustina Jegbefume (P.W.5) and Peter Ojoh (P.W.11) went to their farms in the same bush on the said 12th day of February, 1974.

While the deceased and his son P.W.1 were working (clearing the bush) in their farm, the accused and two others, Iheonakwu Okudolo and one Nwoko entered the bush inside their farm shouting “Oshebe Ehe, Oshebe Ehe”. This attracted the attention of P.W.1 who on raising his head and turning his face towards the direction of the alarm saw the three persons (the time being broad daylight after the break of day). To his surprise, the assault on them started.

They pelted them with sticks. To escape their attack, they took to their heels. P.W.1 was in front with his father behind. Suddenly, he heard his father’s cry “Heu  Heu”. This made him stop and look back. There and then he saw the accused and the two other persons beating his father with sticks. Exhibits A1 and A2. His father was still on his feet. Still bent on drawing blood from the deceased, the accused person drew his dagger from its scabbard and with it stabbed the deceased on his neck. This made the deceased cry out “Inyere has killed me” “Inyere has killed me”   Being fatally wounded, he sank down, collapsed and fell down. The cry of the deceased was heard by P.W.3 and P.W.5 who thereupon raced to the scene from their farms. P.W.4 also heard the death cry of the deceased “woh” “woh”, which made him dash for the place where the cry was coming from; but the Igbogili people drove him back.

The farm of P.W.3 has common boundary with that of the deceased and he saw the accused standing by the deceased with a blood stained dagger in hand, as the deceased lay on the ground with blood gushing from the open wound on the neck. P.W.1 summoned courage and moved to give his father first aid. P.W.3 joined him by pouring cold water on his head and bandaging the wound to stop the bleeding. When P.W.3 asked the accused    “Is this what you have done to your neighbour? He replied that “It has happened”, and then threw away the blood stained dagger into the cleared area of the bush behind.

As they were rendering first aid to the deceased, the people of Idumusogba Igbogili in Abavo came and drove them off by throwing sticks at them. By this time, the deceased was at the point of death. To save their own lives, they ran. They ran into Ayiko Eduje who removed the P.W.1’s matchet from him, struck his head with it and but for the plea of P.W.3 would have killed him before he escaped. On seeing P.W.1 escape, he ran after P.W.3 but he too escaped and they made for the Police Station at Agbor and lodged a report. P.W.1 arrived before P.W.3 and reported the matter. The police followed them in company of many others to the scene to meet the deceased dead.    The corpse was conveyed to the public mortuary and on 13/2/74, Dr. Salama Ahmed Fathelba, P.W.2 performed the autopsy and found according to his evidence “a deep wound on the left side of his neck about 2 inches long and 3 inches deep…… and that the blood vessels inside were severed.” He certified the cause of death as “due to haemorrhage and shock due to the cut blood vessels which supply blood to the brain”.    

The accused who claimed that he held the title of Imasuen set up a defence of alibi. According to him, he lost a son of tender age (7 years) named Bon Boye the morning of that day and he stayed in all day until evening when he set out in company of Ugboma Dayi, D.W.1 and one Ighoghon to bury him.  This defence was investigated by P.W.7, Emmanuel Iyeke but accused could not show him the grave where he buried his son and asserted that he could not identify the grave any more.

At the close of evidence, the learned trial Judge in a considered judgment rejected the defence of alibi and accepted the case put up by the prosecution. Rejecting the evidence of the accused appellant, the learned trial Judge in his judgment said:   “I do not believe the evidence of the accused and his only witness when they said that the accused’s son died on the 12th of February, 1974 and that he remained at home from morning till evening of that day. I believe and accept the evidence of the 1st , 6th and 7th prosecution witnesses when they said that they went to the quarters of the accused at Abavo on the 12th of February, 1974 and that it was deserted. I wholly reject the defence of the accused person which I consider in my judgment to be a tissue of lies and an afterthought.”    Dealing with the case for the prosecution, the learned trial judge said: “I believe and accept the evidence of the 1st prosecution witness when he said that he knew the accused person very well and that he is a titled man in their village.

The accused himself admitted in evidence that he is a titled man in their village. I also believe and accept the evidence of the 1st prosecution witness when he said that he saw the accused person stab his late father Edobor Ekhoragbon on the neck with a two edged dagger which the accused later threw away and that the deceased as he fell down after being stabbed shouted in Ika language “Inyere has killed me”. I believe and accept these pieces of evidence of the 3rd prosecution witness. I also believe and accept the evidence of the 3rd prosecution witness when he said that he asked the accused if he did such a thing to his neighbour and the accused replied “it has happened”.”

On the question of the identity of the corpse examined by the 2nd prosecution witness, he said: “I am satisfied beyond all reasonable doubt on the copious evidence before me that it was the dead body of Edobor Ekhoragbon deceased that the 2nd prosecution witness performed post mortem on It is clear beyond all reasonable doubt on the evidence before me, even apart from medical evidence of 2nd prosecution witness, that the deceased died from the stab wound inflicted on him by the accused person.”

The learned counsel for the appellant argued the two grounds of appeal together.    He submitted that the appellant was wrongly identified as the killer of the deceased and referred to the evidence of the 1st and 3rd prosecution witnesses and their statement to the police Exhibits B and C respectively, which, while agreeing in the description of the shirt or jumper worn by the accused disagreed on the description of the dress worn to cover the lower part of the accused body at the material time. In their evidence before the court, they described the dress as ‘a pair of shorts made of native calico’, but in the statement to the police, they described it as a cloth made of native woven calico tied round the waist and was neither a pair of knickers nor a pair of trousers.

We observe that the learned trial Judge directed his mind to the contradiction and commented quite rightly in our view as follows: “These contradictions and some minor conflicts in the evidence of the prosecution witnesses are not in respect of material particulars in this case. I consider the contradictions immaterial and unimportant to the decision in this case. It is to be noted that the police actually recovered a jumper made of native woven calico used as farm wear from the accused’s house.”   

Where contradictions and conflicts in evidence raise no doubts as to the guilt of the accused, the learned trial Judge’s only duty is to observe and comment on them as such. This, the learned trial Judge has done in this case and we find no substance in the submission.    

The next point raised by the learned counsel in his submission was as to the identification of the corpse of the deceased to the doctor, 2nd P.W., before post mortem examination. He observed that the 1st prosecution witness who admitted identifying the corpse to all the police officers who took part in the investigation denied being present when the post mortem was performed by the doctor, 2nd prosecution witness, and thereby contradicting the evidence of the doctor that it was he who identified the corpse to him.    

We are unable to see any positive conflict in the evidence.  The 1st prosecution witness’ evidence on the point reads: “The police later asked the members of my family to convey the corpse of the deceased to the Police Station at Agbor. From the Police Station, the corpse of the deceased was conveyed to the public mortuary at Agbor.  I was not present when post mortem examination was performed.”    It would appear that he was not led in evidence on the question of identification of the corpse to the doctor. We do not see how the doctor could tolerate his presence when carrying out his examination he not being on his staff. The doctor, (2nd prosecution witness) was emphatic on the point that it was John Edobor the son of the deceased who identified the body of Edobor Ekhoragbon, the deceased, to him.

This is borne out by his evidence which reads:   “The corpse of the deceased was brought to the public mortuary on the 12/2/74. The dead body of the deceased was identified to me by one John Edobor the son of the deceased. I saw the man who identified the corpse of the deceased to me in the mortuary and he actually identified the dead body of the deceased before I performed post mortem examination on it.”    

This evidence was accepted by the learned trial Judge in his judgment the material portion of which reads: “I believe and accept the evidence of the doctor who is the 2nd prosecution witness in this trial, when he said that the corpse of the deceased was identified to him.”    

We also agree with the observation made by the learned trial Judge that, apart from the medical evidence, there is sufficient evidence to infer beyond reasonable doubt that the deceased died from the stab wound inflicted on him by the appellant (see Tonara Buhari v. The State 1965 NMLR 163).    

We therefore find no substance in this submission.  Apart from these two points, the learned counsel for the appellant had nothing useful to argue in favour of the appellant. We found no need to call on the respondent’s counsel and dismissed the appeal for lack of merit.

Other Citation: (1976) LCN/2222(SC)