⦿ CASE SUMMARY OF:
Mbang Efoli Mbang V. The State (2009) – SC
Mbang Efoli Mbang
(2009) 18 NWLR (Pt. 1172) 140;
⦿ LEAD JUDGEMENT DELIVERED BY:
G. A. OGUNTADE, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Nnamonso Ekanem Esq;
* FOR THE RESPONDENT
– Mrs Sylvia Shinaba;
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.
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?
⦿ HOLDING & RATIO DECIDENDI
ISSUE 1: The Appellant’s appeal was allowed and so he was acquitted.
i. In this appeal, there was no evidence that the four appellants were engaged in a common purpose when the 1st accused killed the deceased Baba Okoi. Even if all of the accused relished the taste of human flesh there was no evidence that they had delegated the 1st accused to kill the deceased so that they could afterwards eat his flesh. There was evidence that the appellant and the other accused persons ate human flesh but it was not made clear whose flesh they ate. In the confessional statement of the 1st accused, he stated that he dumped the body of Baba Okoi in a river. This statement was never shown to be false. It seems to me that the prosecution could not eat its cake and still keep. Since the prosecution could not establish how Baba Okoi died by any other way other than the confessional statement of the 1st accused, its case stood to succeed or fail only upon the said confessional statement. The 1st accused confessed that he alone killed the deceased. This statement true or false was never challenged. The appellant did not confess that he joined in the killing of the deceased. An accused making a confessional statement as to his participation in a crime is not confessing for his accomplices. A man’s confession is only evidence against him and not against his accomplices and it is a misdirection which may lead to the quashing of the conviction to omit to warn a jury or assessor of this fact.
Section 8 of the Criminal Code;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
In the case of Nwaeze v. The State (1996) 2 SCNJ page 42 it was held inter alia: “where accused person is the person with whom the deceased was last with or seen with alive the implication of or necessary inference to be drawn from the fact is that the accused murdered the deceased”.
⦿ NOTABLE DICTA
Where there is undisputed evidence as to how the deceased met his death, the necessity to draw any inference that it was the person last seen with him alive who killed him would be irrelevant and unnecessary. – OGUNTADE, J.S.C. MBANG v. STATE (2009)
I may point out straightaway that to render two or more persons liable for murder by virtue of the provisions of the section (section 8 of the Criminal Code), there must be evidence of the three elements that constitute the offence under the section. Firstly, there must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; and thirdly that the death of that person was a probable consequence of the prosecution of the unlawful purpose. – OGUNTADE, J.S.C. MBANG v. STATE (2009)
An accused making a confessional statement as to his participation in a crime is not confessing for his accomplices. A man’s confession is only evidence against him and not against his accomplices and it is a misdirection which may lead to the quashing of the conviction to omit to warn a jury or assessor of this fact. – OGUNTADE, J.S.C. MBANG v. STATE (2009)
The revelation made before the trial Court during the hearing is unnerving. The accused persons, all from Cross River State of Nigeria as at 1989 were freely eating human flesh as snacks. Cannibalism in Nigeria in 1989, this was a strange occurrence. It is directed that the proceedings and judgment in this case be sent to the Attorney-General of the Federation and Cross Rivers State to enable them take necessary steps to stop the continuation of this barbaric practice. – OGUNTADE, J.S.C. MBANG v. STATE (2009)