Nwibo Ogbali & Anor V. The State (1983)
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The two appellants, namely, Nwibo Ogbali, who was the 2nd accused at the trial, and Ali Okoro who was the 3rd accused at the trial, were with 5 other accused persons jointly tried for the murder of one Ekuma Elom in the High Court of Anambra State, holden at Abakaliki.
The trial court convicted the two appellants and two others of the offence. The Federal Court of Appeal allowed the appeals of the two others but dismissed the appeals of the two appellants and confirmed their convictions.
We also dismissed the appeals of both appellants and reaffirmed their convictions on 17th February 1983. We indicated that we would give our reasons for doing so today. I now state my reasons.
I think it is pertinent to start with the evidence relating to the cause of death of the deceased. The post mortem examination on the body disclosed a fracture of the neck, fractures of both fore-arms and a rupture of the liver which caused internal bleeding which was the cause of death. The consultant surgeon was of the opinion that the injuries on the body of the deceased could have been caused by blows inflicted with a blunt instrument such as a stick or fist blows.
The learned trial judge found on the evidence before him that a crowd including both appellants lynched the deceased by beating him with sticks but he found no evidence identifying which member or members of the crowd inflicted the fatal blow or blows that caused the death. In convicting the appellants and the two others who, as I have indicated, were acquitted by the Federal Court of Appeal, the learned trial judge adverted his mind to Alagba & Ors. v. The King XIX N.L.R.129 and Muonwem & Ors. v. The Queen (1963) 1 All N.L.R.95 and observed as follows:
”There can be no doubt but that the murder was committed by a gang of whom the 1st, 2nd, 3rd and 6th accused persons were amongst and in such a situation, it does not matter which of the accused persons did what”. (2nd and 3rd accused are the 1stand 2nd appellants respectively in this appeal).”
The only issue worthy of consideration on both appeals, in my view, is the question as to whether the convictions can be sustained under section 8 of the Criminal Code which provides:
“8. 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.”
I may point out straightaway that to render two or more persons liable for a murder by virtue of the provisions of the section, 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.
In the recent case of Yakubu Mohammed and Anor. v. The State (1980) 3-4 S.C. 84 at pp. 96-97, I made these observations on section 8:
”The provisions of the section have been considered in many cases. In Ofor and Another v. The Queen (1955) 15 W.A.C.A. 4 there was a dispute between the appellants on one side and the deceased on the other side. The second appellant went and armed himself with a matchet and cut the deceased on his hand, while the first appellant took a stick and hit the deceased on the base of the head and the deceased died as a result of that hit. The West African Court of Appeal was of the view that on the evidence the intention of each appellant was suddenly formed independently of each other and the second appellant was not liable for the murder of the deceased. The Court went on to observed:-
‘Common intention may be inferred from circumstances disclosed in the evidence and need not be by express agreement, but a presumption of a common intention should not be too readily applied. That proof of common intention is a condition precedent to conviction in this type of case is appreciated when it is remembered that if a combination of this kind is proved, a fatal blow, though given by one of the party, is deemed in the eye of the law to have been given by all those present and aiding. The person actually delivering the blow is no more than the hand by which the others all strike.’
It has been held that where a number of persons join in an unlawful assault it is a question of fact in every case whether the death of the person assaulted is a probable consequence of that particular assault and, if a weapon is used by one of the persons, the test to be applied is whether his use of the weapon was a probable consequence of their joint purpose: Muonwem & 4 Others v. The Queen (1963) 1 All N.L.A. 95 at 98 and Digbehin & 2 Ors. v. The Queen (1963) 1 All N.L.A. 388 at 392.”
Further, at page 96 of the same judgment, I defined “probable consequence” in these terms:
”The consequence of an act may be said to be probable if a reasonable man would consider its occurrence to be the natural and normal effect of the act.”
In other words, the consequence of an act may be said to be probable if a reasonable man would not be surprised by its occurrence.
The incident resulting in the tragic death of the deceased was precipitated by the superstitious belief at the material time that some people had the power to cause the disappearance of the male organ of a person by a simple bodily contact.
The facts of the case may be summarised thus: On the 1st of September, 1977, the deceased went to the hotel owned by the 1st accused, who as I have earlier indicated, was acquitted and discharged by the Federal Court of Appeal, to have a meal. The 1st accused felt that the deceased had accosted- him and had caused the loss of his male organ. On that account the 1staccused slapped the deceased and raised an alarm. The deceased ran out of the hotel and was chased by a crowd. PW6 testified that responding to the alarm, he ran to the scene where he saw the 1staccused holding the deceased. He asked the 1staccused why he was shouting and the latter replied that the deceased had taken away his male organ. The deceased denied the allegation.
Following the advice of PW6., the crowd took the deceased to the house of the councilor of the area. Unfortunately, the councilor was not at home and so the crowd conveyed him to the school compound where the crowd of about 40 people tied his hands and feet with ropes and lynched him by beating him with sticks and whips. Both appellants were identified by three prosecution witnesses as having been among the crowd and as having participated in the lynching. The police officer (PW7) who visited the scene of the offence immediately after its commission, found many pieces of sticks thereat. I have earlier in this judgment stated the medical evidence as to the cause of death.
Now it seems to me that unlike Ofor & Anor. v. The Queen (Supra) the intention of each member of the crowd in the case in hand to join in the unlawful assault on the deceased was not suddenly formed independently of each other. It is reasonable to infer from the circumstances, particularly from the evidence that the deceased was taken by the crowd from the Councillor’s house to the school compound where the crowd tied his hands and feet with ropes before lynching him, that by calculated design the crowd including both appellants had jointly formed a common intention to inflict at least unlawful assault on the deceased.
The evidence is clear that the crowd caused his death in circumstances amounting to murder during the prosecution of the unlawful assault. In my view, a reasonable man would not be surprised if such a concerted assault with sticks by about 40 persons caused the death of the victim as it in fact had done. It follows therefore that murder was the probable consequence of the unlawful assault which the crowd including the appellants had formed a common intention to prosecute.
In such circumstances, every identifiable member of the crowd is deemed to have committed the murder of Ekuma Elom. I am satisfied that the convictions of both appellants fall squarely within. the provisions of section 8 of the Code.
The foregoing are my reasons for dismissing the appeals of the appellants.
SOWEMIMO, J.S.C.: I have had the opportunity of reading in draft the reasons for judgment just delivered by my learned brother Bello, J.S.C. with which I am in agreement. I have no further comments to make.
ESO, J.S.C.: I have had the advantage of reading in advance the reasons for judgment just given by my brother Bello J.S.C. I respectfully adopt the reasons for agreeing that the appeal be dismissed.
ANIAGOLU, J.S.C.: I had read in draft, before now, the reasons for judgment just delivered by my learned brother, Bello, J.S.C., in respect of the above appeal which we dismissed, on the spot, on 17th February 1983, and I agree with his said reasons.
By reason of the persistence of appellants’ counsel, Mr. Shola Rhodes, in his submission, that there was no evidence of agreement of the appellants leading to a common intention, to kill the deceased or do him grievous harm, it is perhaps necessary to emphasise that the law never contemplated a formal agreement by participes criminis. It is enough if the common intention can be gathered from the circumstances of the case as disclosed by evidence.
Again, emphasis must be laid upon the fact that it is not a legal requirement that the intention of the different participants to the offence should always be formed contemporaneously. Like in the instant case on appeal, the early perpetrators may have been the first batch to form the intention. Those who later joined, on hearing the alarm, obviously formed theirs on joining and therefore subsequent to that of the early perpetrators, and so on, until the crowd reached the resultant number.
In those circumstances it appears to me that there is no difference, in the legal result, made by the fact that the intention of the later arrivals was formed subsequent to that of the early perpetrators, and if death resulted, they would be as much guilty of the offence as those early participants.
This is merely in amplification of those reasons for judgment given by Bello, J.S.C., with which I have already signified my agreement.
UWAIS, J.S.C.: I have read in draft the reasons for judgment given by my learned brother Bello, J.S.C. It was for the same reasons that I dismissed the appeals of both the appellants on 17th February, 1983. I have nothing to add.