Samuel Onwe & Ors V. The State(1972)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

In the High Court, Akure Judicial Division of the Western State, four accused persons, Samuel Onwe, John Odaha, Sunday Ogeyin and Sunday Omirewe, were charged with the murder Gabriel Ezemah on June 5, 1969, at Jemikin Camp near Isho in Akure, and all except the second accused were found guilty of the offence by Fakayode, J., on June 15, 1970.

The learned trial Judge found that the accused persons and Sunday Abo (a soldier who had escaped prosecution because his whereabouts became unknown soon after the incident) had guns with them on June 5, 1969, that they were looking for Ibos, and that the deceased, an Ibo, was one of those given gun-shot wounds by the gangs of the accused on the day in question. Thereupon, he held as follows:

“At least the 1st, 3rd and 4th accused persons and Sunday Abo went out that day with the purpose of killing or causing grievous bodily harm to Ibos. They held guns. I hold therefore that the shooting at the deceased by the 1st accused was an act done in the prosecution of their unlawful purpose and since the death of the deceased was the natural and probable consequence of such an act of shooting, I hold that the 1st, 3rd and 4th accused are guilty of the murder of the deceased.”

He explained that this reason for discharging and acquitting the second accused was that “there is no evidence before me that the second accused held any deadly weapon or that he did any violent act” and, a little later on, the learned trial Judge added, “I have my doubts if the second accused was ever present when the deceased was shot, and if present, whether he had the intention with the others of killing or causing grievous bodily harm” His conviction of the remaining three accused persons was based upon his interpretation of Section 8 of the Criminal Code, Cap. 42, which reads:

“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.”

On appeal to the Western State Court of Appeal, all three convicted persons filed the following grounds of appeal:

“1.    That admissible evidence has been rejected or inadmissible evidence has been admitted by the Judge and that in the latter case there is not sufficient admissible evidence to sustain the decision after rejecting such inadmissible evidence.

2.     That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.

3.     That the sentence passed on conviction is excessive or inadequate unless the sentence is one fixed by law.

4.     The learned trial Judge misdirected himself and erred in law in relying on the contents of the statement Exhibit R in convicting the 1st and  2nd appellants when the said statement could not be used as legal evidence against the 1st and 2nd appellants.

5.     The learned trial Judge misdirected himself when he wrongfully invoked the provision of Section 8 of the Criminal Code, Cap. 42, Laws of the West to convict the appellants and thereby came to a wrong decision.

6.     The learned trial Judge misdirected himself in convicting the appellants when the evidence of the prosecution was unsatisfactory and full of inconsistencies and thereby came to a wrong decision.

7.     That the learned trial Judge erred in law in convicting the appellants when the prosecution failed to discharge the onus cast upon it to establish the case of each of the appellants beyond a reasonable doubt.
8.     The decision of the learned trial Judge is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.”