Adeshina Ashimiyu & Ors V The State (1982)

LawGlobal-Hub Lead Judgment Report

M. BELLO, JSC. 

We dismissed the appeal of the 4th appellant on 8th July, 1982, because he had died before the hearing of the appeal. On the same day, after hearing learned counsel for the three other appellants and without calling on the Deputy Solicitor-General, Bendel State, for his submissions, we also dismissed the appeals of the three appellants and affirmed their convictions for murder. We indicated then that we would give our reasons for doing so today. I now state my reasons.

The four appellants, namely, Adeshina Ashimiyu, Monday Chiadika, Alhaja Moriamo Otuyelu and Azuamaka Chiadika were the 1st, 2nd, 3rd and 4th accused respectively at the trial of the case and were the 1st, 2nd, 3rd and 4th appellants respectively in this court. The four appellants together with four other accused persons were jointly tried in the High Court of Bendel State, holden at Ogwashi-Uku, for the murder of one Frank Okonjo.

At the close of the case for the prosecution, the trial Judge discharged two of the accused persons on the ground that no prima facie case had been established against either. The remaining six accused persons entered upon their defence. Each accused gave evidence on his or her own behalf and Sgt. Luke Nnadi also testified for the defence.

In a reserved judgment, the trial Judge acquitted and discharged two accused persons. He convicted the appellants of murder and sentenced them to death. The episode leading to the death of Frank Okonjo began at 5.00 p.m. on 28th December, 1978, when the deceased, P.W.1 with him, was driving his car in Ogwashi-Uku town. The 1st appellant, who was the driver of the 3rd appellant, drove his Toyota car from the opposite direction in such a reckless manner that jolted the deceased and the latter had to swerve his car to avoid a collision.

The deceased did not tolerate that. So he gave the Toyota car a chase, over-took it and forced the 1st appellant to stop. Altercations then ensued between the deceased and the passengers, namely the 1st, 3rd and 4th appellants, in the Toyota car. As soon as PW.1 came out of the car of the deceased, the 1st appellant attacked him and both engaged themselves in a fight. The deceased separated the combatants and drove with PW.1 away from the scene. The appellants, except the 2nd who was not present during the fight, testified that the deceased had slapped the 3rd appellant during the fight. The trial Judge further found that between 6.00 p.m. and 8.00 p.m. of the same day, the 2nd, 3rd and 4th appellants in company of many other persons conveyed in three cars visited the hotel of PW.2, who is the mother of PW.1, in search of her son.

They were impatient, angry and noisy. In the presence of 2nd and 3rd appellants, the 4th appellant told PW.2 that her son had assaulted their sister, the 3rd appellant, and that they would kill the son wherever they would meet him and would bring his corpse to her. Despite her entreaty, they would not listen to her appeal when they left the hotel. The old Abuano Market Square in Ogwashi-Uku was the venue of the tragedy where, apparently by coincidence, the opposing parties met at about 9.00 p.m of the same day. The deceased was then driving his car with PW.1 and PW.3 as passengers when they saw three cars being driven from the opposite direction. One of the cars driven by the 2nd appellant suddenly stopped in front of the deceased’s car and thus forcing the deceased to an abrupt halt. The second car parked by his side while the third car parked behind him. The deceased was so completely encircled that he had no room to retreat. Immediately the deceased came out of his car, he was attacked by the passengers of the three cars. The 1st appellant gripped the deceased by the neck while the others including the 2nd and 4th appellants joined in beating him with sticks, bottles and stones. Gesticulating and shouting, the 3rd appellant incited his assailants to kill the deceased.

When P.W.1, PW.2 and PW.3 went to his rescue, they were attacked and were compelled to run for dear life. After the deceased had become unconscious, his assailants drove away. PW. 3 and PW. 4 then came out from their hiding place, helped the deceased into his car and they drove to the police station where they lodged a complaint. The police took the deceased to Asaba hospital where he died shortly on arrival. The medical evidence as to the cause of his death is as follows: “On examination, it was body of an adult African male showing bleeding from the mouth. There were swelling of right upper eyelid and protrusion of right eyeball which was congested also.

There were abrasion of 1/2 and 1/4 inch size over the front of the right eye at the lower part. Another abrasion of 1 x 1/4 size over the middle of front of left leg. There was another abrasion of 1 x 1/4 size of the left shoulder. There was an ill-defined bruise over the right side of the neck. The nail beds were bluish due to asphyxia that is, lack of oxygen supply to the blood. On dissection, there was laceration of the muscles of the neck with extravascation of blood that is, blood coming out of blood vessels and staining the surrounding tissues. There was fracture of thyroid cartilage with bleeding in the trachea, upper wind pipe. There was dislocation of 3rd and 4th cervical vertibrae, back of neck.

On dissection of the head, there was defused subcutaneous haemorrhage associated with transverse fracture of the left temporal bone and both the perietal bone with subdural haemorrhage over both the cerebral hemisphere. There was no other significant finding. I certified the cause of death in my opinion to be due to shock and asphyxia due to head injuries and strangulation. The injuries I noticed on the deceased which I have described do not appear to be self inflicted. The abrasions I noticed could be caused by blunt objects.”

The trial Judge rejected the defence of the appellants that P.W.1 had caused the death of the deceased by accidentally hitting him with a stick during the fight between the deceased and the prosecution witnesses on one side and the appellants on the other side. He also rejected the defences of provocation and self-defence. In convicting the appellants of the charge, he referred to the evidence of P.W.2 showing that the appellants had formed a common intention to kill her son (P.W.1) and observed as follows: “That finding leads inevitably to the further conclusion that the accused in dock were partners in crime who have set out with predetermined intention to attack and kill if need be, the deceased and his other companions.

They were not alone. They went in company of others using a total of three cars in their planned attack. I accept the evidence of the prosecution that the accused were fully armed with lethal weapons which they freely used at the scene of crime. I believe that it was they who blocked the movement of the deceased at Abuano Market Square and thereafter attacked and over-powered him inflicting on him various injuries described by the medical Pathologist P.W.9, which led to the death of the deceased.

I need hardly repeat that the attack on the defenceless deceased person was most savage. It follows therefore, that Section 8 of the Criminal Code Law is properly brought into play in this case on the basis of my finding that the second persons and others unknown acted with common intention. Section 8 provides: ‘When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.’ It is also my view already expressed that “in this circumstance, it does not matter which of the accused did what.” See Alagba & Ors. v. King (1950) 9 NLR 1 29. See also the Muonwem & Ors. v. The Queen (1963) 1 ANLR 95.”

The Court of Appeal did not agree with the foregoing view of the trial Judge. The Court of Appeal held that the trial Judge erred in law to apply Section 8 of the Criminal Code. In his judgment, Agbaje, JCA., – concurred by Ete, JCA., and Okagbue, JCA., – stated: “I agree with counsel for the appellants that the criminal responsibility of each of the appellants for the murder of  the deceased must be decided without praying in aid Section 8 of the Criminal Code Law and that the Judge was in error in examining this issue as if the provisions of Section 8 applied. But this is not the end of the matter. It still behoves me to decide whether on the facts found proved by the prosecution the appellants could be convicted of the murder of the deceased without having recourse to Section 8 of the Criminal Code Law.”