Rowland Ebholmien and 4 others v. The Queen (1963)

LawGlobal-Hub Lead Judgement Report

BAIRAMIAN [Justice of The Supreme Court of Nigeria]

The five appellants were tried with four others on a count of murdering one Yekini Momodu at Ujogba Village in the Benin Division on 18th September, 1961. The other four were acquitted; the five appellants were convicted of the murder by Kester, J. on 8th April, 1963, in the High Court of Western Nigeria.

One Onitiri hired a van at Lagos to take thirteen Yoruba men from Lagos to Benin. At Benin they met one John Omigie (p w. 4), who took the van with ten of the men in it to Ebelle for the night between the 17th and 18th September, 1961, and on the 18th he sent them to Ujogba. John Omigie said that the men were brought from Lagos to act as bodyguard for him and other leaders of the Action Group in Ishan Division because members of the N.C.N.C. were destroying and looting their houses.

Arrived at Ujogba, the men were entertained by Okosun (p.w. 14) at his house; then the men, with two others (p.w. 11 and p.w. 18) and Okosun, entered the van. Going along the road, Okosun, who sat in front, told the owner of the van (p. w. 1), “Look at the people, stop”; he meant about a dozen persons standing on either side of the road at a certain point where stood the house of the 1st appellant, the leader of the N.C.N.C. at Ujogba. The owner of the van asked his driver (p.w. 2) to stop. The Yoruba men from Lagos and p.w. 18 got down from the back and, shouting “Awo, Awo, Awo”, chased those who had been standing by as they ran into their houses. Then some persons came out of the houses near by armed with guns and other weapons. Someone fired at a tyre, so the owner ordered his driver to reverse and scuttle off-which he did. There were three men still at the back of the van; one was Ishola (p. w. 16), who had a gunshot wound in the back. That was the version of the owner and of the driver of the van; it was the version accepted by the trial Judge; they were the independent witnesses without political bias.

The judgement goes on to say this:
“I believe the evidence of the 18th p. w. that when the armed crowd fired at them, he saw the 1st accused shoot the deceased, Yekini Momodu with his gun and that the latter fell on the ground. Although it was possible from the account given by him that after the deceased fell down he saw some people attacking him, I very much doubt if, in the circumstances of the case, he was at that moment in a position to identify those who were attacking him and what weapon each of them used in the attack.”
Mr.. Ikpeazu, for the appellants, has pointed to this passage of the evidence given by p. w. 18 in cross-examination:

“When the first gun shot sounded we all came down from the van and started to run . Momodu Yekini was running in the same direction with me. We were near each other. The next gun shot hit Yekini Momodu and he fell. I saw the 1st accused when he fired the gun at him. When he fell down I looked at him.”
Mr. Ikpeazu has argued that the trial Judge ought to have doubted as much about the 1st appellant as about the 5th, that p. w. 18 could have seen the 1st fire at the deceased. It is also curious to find in the penultimate page of the judgement this paragraph:
“The evidence of the 18th p. w. is that he saw the 1st accused at the scene and that he fired his gun at the deceased Yekini Momodu who fell down. Also at the scene, 18th p. w. saw the 5th accused. According to him it was the 5th accused who shot him in the thigh with his gun. I believe the evidence of the 18th p. w. on these points.”
That does not tally, on Accused 5, with the earlier passage quoted from the judgement.

As to Accused 1, p. w. 10, Chief Omoben said that Accused 1 and Accused 2 came to him that day and told him that Omigie had sent members of the Action Group to fight members of the N.C.N.C. at Ujogba, and that the N.C.N.C. captured three; and that Accused 1 produced a notebook which he said was found on one of them. In our view that does not incriminate them in the murder.

We think that the evidence for convicting Accused 1 and Accused 5 was far from satisfactory. The evidence for convicting Nos. 2, 3 and 4, lay in the statements they made to the Police. When these were tendered, Defence counsel objected, and the circumstances were gone into.

On the 24th September, 1961, A.S.P. Inyang of Lagos went to Ujogba with a team including the late Inspector Uzoigwe. The A.S P. says he took 15 or 20 men, women and children to Ubiaja police station but not under arrest. That is a nice distinction. In cross-examination the A.S P. says they were 20-25. P.C. Dennis Lawani says they were 50 or 60. The A.S.P. admits that the men folk were distressed about their wives and children being brought to Ubiaja, where he says they were kept for three days, not so much as a week. The 2nd accused testified that his wife was among them, and a child of his.

The 4th Accused testified that his wife and mother were among them. Chief Omoben, called by the defence, said there were about 100 persons brought from Ujogba; and that the late Inspector Uzoigwe, with P.C. Lawani as interpreter, told the Elders of Ujogba that they should tell their people that those who had committed the offence should come forward so that the innocent ones detained at Ubiaja might be released, and that they should not be afraid to own up since it was the other side who had brought the fight to Ujogba. Chief Omoben then rang the bell for people to come out from hiding in the bush.

In the Ruling on the admissibility of the statements the trial Judge gives it as his view that what is alleged as having been said by the late Inspector Uzoigwe was no more than words of exhortation-with which we do not agree; and that as Accused 2, 3 and 4 did not say to the Chief that they were admitting the fact of firing a gun in order to get their womenfolk released from Ubiaja, that shows there was no inducement operating on their minds when they made their confessional statements.

The admission of the confessional statements has been attacked by Mr. Ikpeazu on the ground that they were not free and voluntary. We have to stress that it is the duty of the prosecution to show that a confession was free and voluntary. Here there is the undoubted fact that the Police, clearly with a view that it should operate on the minds of the Ujogba people, took a large number of men, women, and children to Ubiaja, and were wrongfully detaining them there. The zeal of the Police in the case exceeded their wisdom and good sense, and a copy of this judgement should go to the Inspector-General of Police for his information. In our view the statements should not have been admitted.

It remains to add that no counsel appeared on behalf of the Attorney General of the Mid-Western Region, who had been sent notice. We do not know the reason; we thought that it was only right to hear the appeal.

The Court orders that the appeal of the five accused convicted of murder in the Benin charge No. Bn4C/62 on 8 April, 1963, by the High Court be allowed, that the conviction and sentence be set aside, and a verdict of acquittal be entered.

Other Citation: (1963) LPELR-FS.C.163/196F