Tunde Adava & Anor V. The State (2002)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

The 1st and 2nd appellants in this court, were charged and tried in the Obangede Division of the High Court of Kogi State of Nigeria for:

“That you, Tunde Adava and Ohiare Ohino, on or about the 14th day of March, 1996, at Ikuehi via Ihima in Okehi LGA of Kogi State, within the Kogi State Judicial Division in furtherance of your common intention did commit culpable homicide punishable with death in that you caused the death of Abdullahi Bello by doing an act, to wit: Shooting him with a gun with the intention to causing his death and thereby, committed an offence punishable under section 221 of the Penal Code read along with section 79 of the same code.”

Five witnesses, including the medical doctor, who performed post-mortem examination on the body of the deceased gave evidence for the prosecution.

The two accused persons/appellants each testified in his own defence. They jointly called four other witnesses.

At the end of the trial, each accused person was found guilty as charged, convicted and sentenced to death.

Being dissatisfied, the appellants have appealed to this court by filing separate notices of appeal each containing four grounds against the judgment of the trial court.

With leave of this court, each of the appellants has filed a fifth ground of appeal.

The facts briefly are that-

On 14th March, 1996, at about 6.00 p.m. following a political rally, there were public disturbances in which the deceased was shot dead with a gun in front of his house by one of the groups from the political rally.

The allegation against the two accused persons is that the group in question reached the house of the deceased and started throwing stones and other missiles. The 1st accused appellant on the order of the 2nd accused/ appellant then shot a gun at the deceased in the stomach. The deceased died two days later.

The five grounds of appeal contained in the respective amended notices of appeal, without the respective particulars are:-

“1. Ground One

The trial court erred in law, when it held that the prosecution had proved its case beyond reasonable doubt.

2. Ground Two

The trial court erred in law, when it failed to properly consider the case of alibi raised by the appellant at the trial.

3. Ground Three

The trial court erred in law, when it failed to resolve the material contradictions in the evidence of the prosecution in favour of the appellant and thereby occasioned miscarriage of justice.

4. Ground Four

The judgment of the trial court is unreasonable, unwarranted having regard to the evidence adduced.

5. Ground Five

The trial court erred in law, when it convicted the appellant on single charge containing two offences of conspiracy and culpable homicide.”

In the joint briefs of the appellants five issues have been formulated for determination in this appeal thus:-

“i. Whether or not the prosecution has proved all the essential ingredients of the offences by linking the appellants to it.

ii. Whether or not the trial court properly considered the defence of the appellants.

iii. Whether or not the trial High Court has the right to convict the appellants in the face of material contradictions in the evidence of the prosecution.

iv. Whether the court properly evaluated the evidence before it as required by law.

v. Whether or not the charge upon which the appellants were convicted is bad in law and therefore occasioned a miscarriage of justice.”

For the respondent there has been formulated three issues for determination thus:-

“1. Whether the prosecution proved its case beyond reasonable doubt – (Grounds 1, 3 and 4).

2. Whether the trial court considered and rightly rejected the defence of alibi of the appellants (Ground 2).
3. Whether the charge framed against the appellants is good in law – (Ground 5).”

The three issues formulated by the respondent fully encompass the five issues formulated by the appellants.

Therefore in this judgment, I shall adopt the issues as formulated by the respondents.

Issue 1 – whether the prosecution proved its case beyond reasonable doubt.

This covers the same grounds as are covered by issues 1, 3 and 4 in the respondents’ brief.

For the appellants, it is submitted that-

The essential elements which the prosecution must prove in a charge of culpable homicide under section 221 of the Penal Code are:-

(i) That death of a human being actually took place;

(ii) That such death has been caused by the accused person;

(iii) That the act of the accused person was done with the intention of causing death or death was the probable consequence of the act; and

(iv) That the injury was caused with the intention of causing death.

It is the contention of the appellants that the prosecution has failed to prove these essential elements nor has it proved the essential ingredient of the offence of conspiracy under section 97 of the Penal Code. I must say straightway that in no way is the charge against the accused persons/appellants connected with conspiracy or section 97 of the Penal Code. I shall deal more on this directly later.

The appellants contend that the prosecution has not proved the cause of death to be due to the gun-shot wound alleged inflicted by the 1st appellant.

It is contended with regard to the medical doctor that his evidence in court in which he opined that a pellet from a gun might have caused a hole found in the stomach of the deceased which was the cause of death is inconsistent with his medical report exhibit 1 which is to the effect that a “pentorutu” from a penetrating abdominal injury caused the death.

It is suggested that the doctor in giving his opinion in court must have relied upon information by the policeman who brought the corpse of the dead man to the hospital for post-mortem examination that the dead man was shot two days before.

Again, it is contended that the court having received exhibit 1 – the medical report in evidence ought not to have taken oral evidence from the doctor who performed the post-mortem examination as the appellants had no quarrel with exhibit 1. It is therefore, submitted that oral evidence taken from PW1 is contrary to the provisions of s.249 of the Criminal Procedure Law, Cap. 30, Laws of Northern Nigeria, 1963, and led to a miscarriage of justice.

It is also suggested that the hole on the body might have been caused by an intervening event such as an attempt by the native herbalist to whom the deceased was taken shortly after the gun shot.

It is therefore, suggested that this ought to have cast a doubt on the mind of the trial Judge which ought to have been resolved in favour of the appellants – Alonge v. IGP (1959) 4 FSC 203.

It is contended that in spite of the evidence by PW2, PW4 and PW5, that the deceased was shot by 1st appellant on the instruction of the 2nd appellant no act was proved against the 2nd defendant to make him liable; that the evidence of the three prosecution eye-witnesses contradicted each other and ought not to have been believed by the lower court. It is also contended that the respective written statements of PW2 and PW4 to the police – exhibits 2 and 5 respectively contradicted each other on this aspect.

On the evidence of the prosecution that when the victim saw the riotous group, he and other neighbours present in front of the house the deceased ordered the children of the victim into the house, it is pointed out that, the evidence of the prosecution witnesses were not the same as to which of PW2, PW4 and PW5 or whether it was all of them who assisted the victim in ordering the children into the compound.

It is therefore, contended that there is doubt as to whether the three witnesses were in fact at the scene of event.

First on the essential ingredients of the offence charged, in order for the respondent to emphasis that the accused persons stood trial on one charge of culpable homicide punishable with death under s.221 read along with s.79 of the Penal Code as against the stand of appellants that they stood trial on two charges under sections 221 and 79 of the Code respectively; respondents formulated a different ingredient which they must establish beyond reasonable doubt from that of No. 4 formulated by appellants. According to the respondents, the fourth ingredient is:-

“That the accused persons had a common intention.”

(Italicising by me)

Respondents’ brief continued thereafter, thus:-

“The material facts in this respect are-

(i) The first and second appellants were in a group of people who came to the house of the deceased on 14/3/96 armed with dangerous weapons. The first appellant was armed with a gun.

(ii) The second appellant asked the first appellant to shoot the deceased, who was sitting outside with PW2.

(iii) The first appellant shot the deceased in the stomach with his gun.

(iv) The deceased died on 16/3/96.”

It is contended that the prosecution established through PW1, PW2, PW4, PW5 and exhibit 1 that Abdullahi Bello, the victim was shot by 1st appellant in the stomach with a gun on 14/3/96.

Exhibit 1 – the medical report of the post-mortem examination states that death was caused by penturotu from a penetrating abdominal injury: PW1 who wrote that report gave evidence that there was a hole a little bit below and to the right of the umbilicus i.e. the navel. PW1 then opined that the hole might have been brought about by a hot object either directly or at a high velocity – explaining that a pellet from a gun might have caused such a hole.

It is therefore, submitted that it was the shooting by the first appellant on the instruction or directive of the second appellant that caused the death of the deceased; and not an intervening circumstance.

As to the suggestion by appellants that the activities of the native doctor in attempting to remove the pellets from the stomach might have caused the hole which resulted in the death of the victim, respondents invited attention to the evidence of PW4 at page 86 of the record that “the native doctor rejected him” (the victim) when the victim was taken there for attention and submitted that the suggestion of appellants is misleading and a distortion of the truth as none of the witnesses testified that the herbalist ever treated the deceased.

It is further contended that a gun is a lethal weapon; that the 1st appellant who shot the deceased with a gun in the stomach, a vital part of the human anatomy, must be taken to intend the natural consequence of his act which is probably death.

On the suggestion by appellants that there were contradictions in the evidence of the prosecution, it is contended that there is no material contradiction in the testimonies of the prosecution witnesses on material facts, which must be determined before a proper verdict can be arrived at in the case; that where they occurred they were not such as to cast a doubt on the credibility of the witnesses.

Reliance is placed on – (i) Jonathan Igbi v. The State (2000) 2 SCNJ p. 63, (2000) 3 NWLR (Pt. 648) 169. (ii) Grace Akpabio v. The State (1994) 7-8 SCNJ (Pt. 11) p. 429, (1994) 7 NWLR (Pt. 359) 635.

Finally, it is submitted that the minor inconsistencies in the testimonies of the witnesses are not material and therefore inconsequential.

The portions of the judgment of the lower court on the evaluation of the evidence of the prosecution which relate to the requirement of proof beyond reasonable doubt of the ingredients of the offence charged are as follows:-

With regard to PW2 the learned trial Judge had this to say:

“The evidence of PW2 that the 1st accused person shot the deceased with a gun in the stomach is consistent with his statement to the police, exhibit ‘2’. The PW2 made a further statement to the police on 24/4/96 in which he repeated the same thing. In the first statement he made to the police on 30/3/96, PW2 stated, inter alia as follows:

“It was on that same date about 6.30 p.m. after closing, I was in my father’s house with my late brother Abdullahi Bello, when he came from the farm, I heard the people singing, beating the drums then we came out to watch the play, then I saw the following people in the play: Ireyi Oniwon, Ireyi Adavi, Olu Salawu, Onipe Momoh, Maliki Kabiru, Lawal Sumaila, Tunde Adava, Ohiare Ohino, coming with many others with dangerous weapons of all kinds, throwing stones, shooting guns, carrying sticks… when my brother saw them, he asked us to go inside.

During that process, I assisted him chasing the people inside the house then they started throwing us stones, then I heard Ohiare Ohino, telling Mr. Tunde Adava to shoot him, why must he be waiting, then I heard the sound of the gun from Tunde. Then my brother shouted ‘Tunde, why do you shoot me?’ Everybody was running when they heard sound of the shot, I quickly helped my brother…”

In his further statement of the police on 24/4/96, PW2 stated, inter alia :-

‘I was not in the rally therefore, I don’t know who gave Tunde Adava, gun to shoot my father (sic) that resulted to his death. I only heard from Ohiare Ohino, said Tunde I said you should shoot him, then I heard the sound of the gun as he shot my father.’ (sic). (Italicising is mine).

The incident in question happened on 14/3/96. The PW2 made his first statement to the police on 30/3/96 and a further statement on 24/4/96. He testified in court on 30/7/97. All through, PW2 was consistent in his narration that the 1st accused person shot the deceased with a gun in the stomach on the order of the 2nd accused person. The PW2 held on to his assertion under cross-examination without wavering.”

With regard to PW4, the learned trial Judge had this to say –

“PW4 witnessed the shooting of the deceased by the 1st accused person on the order of the 2nd accused person. His evidence is consistent, in the main, with his statement to the police, exhibit ‘5’. There were some things which the PW4 said in his evidence which he did not say in his statement to the police, exhibit ‘5’ and vice versa. For instance, PW4 told the court that the 2nd accused person ordered the 1st accused person to shoot the deceased, but merely said in exhibit ‘5’ that the 1st accused person shot the deceased. In exhibit ‘5’, PW4 did not state that the deceased was taken to a herbalist but in his evidence, he said he was. These cannot be regarded as inconsistencies or contradictions. The PW4 was only more detailed in the information he gave in one respect than in the other. Even if they are regarded as inconsistencies and contradictions, which I hold that they are not, they are not material and therefore do nor raise any doubt in my mind.”

With regard to evidence of PW5, the learned trial Judge had this to say:-

“While PW2 said that he and PW4 took the deceased to a herbalist, PW4 said that he did not go with him. While PW4 testified that the deceased was taken to Ohiya Memorial Hospital where he was rejected, PW2 did not say that much. Even if these are regarded as inconsistencies or contradictions, they are not material at all. They do not go to the gravamen of the evidence which is that the PW2 and PW4 saw the 1st accused person shoot the deceased in the stomach with a gun,”

While PW2 and PW4 said that the 2nd accused person was not armed, the PW5 said that he was armed with a cutlass. While PW5 said the deceased died in a hospital, PW2 and PW4 said he died at home. These inconsistencies and contradictions are not material for the same reasons I gave earlier on.

While PW5 may not be as accurate as PW2 and PW4, in his account of the things that happened, there is no doubt that he was an eye-witness who saw the 1st accused person shoot the deceased in the stomach at the prompting of the 2nd accused person.

In the main, the evidence of the PW5 is consistent with his statement to the police, exhibit “6”, wherein he stated, inter alia that-

“I was at the frontage of my house at about 6.30 p.m. I saw the same group of people with dangerous weapons such as locally made pistols, sticks, knifes and other things. When they got near to my house they started shooting guns and throwing stones. I then pushed my children inside the compound. When I was driving the children inside the compound together with my Uncle Abdullahi Bello, whom they shot to death. When I heard the deceased was shouting that Tunde Adava, why did you shoot me? I also heard Ohiare Ohino was saying that shoot anybody you see after shooting my Uncle Abdullahi Bello, now late same Ohiare Ohino commanded them to destroy our house.

xxx It was Tunde Adava who shot and killed Abdullahi Bello.”

The PW5 had been reasonably consistent as to what he heard and saw at the scene of crime on the day in question.

The PW2, PW4 and PW5 are at one in their evidence that the 1st accused person shot the deceased in the stomach with a gun at the prompting of the 2nd accused person. They are eye-witnesses.

The difference in their accounts, as I have earlier on held, are not material and therefore do not affect their credibility. They do not create any doubt in my mind…

”The PW2, PW4 and PW5 are truthful witnesses. Their evidence to a large extent is consistent with their statements to the police, which is an indication of their truthfulness. There is nothing to show that they are tainted witnesses who had their own purpose to serve in this matter…”

In this case, I have considered exhibits 2, 5 and 6 as well as the evidence on record given by PW2, PW4 and PW5 respectively. I agree with the views of the learned trial Judge expressed in the judgment that there is no material inconsistency between these extrajudicial statements and the evidence in court of PW2, PW4 and PW5 respectively. The credits of the witnesses are in no way impeached as to cast a doubt in the mind of the court on the facts upon which the witnesses gave evidence.

The appellants contend that since the defence had no quarrel with the medical report – exhibit 1 – the evidence in court of PW1, the medical officer who wrote the report was contrary to the provisions of section 249 of the Criminal Procedure Law, Cap. 30, Laws of Northern Nigeria, 1963.

Section 57 of the Evidence Act, provides that when a court has to form an opinion, upon a point, inter alia, of science or art, the opinions upon that point of persons specially skilled in such… or science or art… are relevant and that such persons are called experts.

Section 249 of the Criminal Procedure Law provides as follows:-

“249(1) The evidence of any medical officer or registered medical practitioner taken on oath before a court in the presence of the accused may be read in evidence in any inquiry, trial or other proceeding under this Criminal Procedure Code although he is not called as a witness.

(2) The court may, if it thinks fit summon such medical officer or registered medical practitioner to appear before it as a witness.

(3) (a) A written report by any medical officer or registered medical practitioner may at the discretion of the court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him.

(b) On the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the court.

(c) If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the court shall summon such medical officer or registered medical practitioner to appear as a witness.”

It is my view that subsection (2) and subsection (1) of s. 249 are not mutually exclusive of each other.

I am equally convinced that the procedure set out in subsection 3(a)-(c) is not mutually exclusive of the procedure set out in subsection (1) or subsection (2) of section 249 of the Criminal Procedure Law.

It is therefore, my view that taking of evidence on affirmation from PW1 on the subject matter of exhibit 1 is not contrary to the provisions of s. 249 of the Criminal Procedure Law.

It is also the contention of appellants that the failure to call evidence and tender the statement of the deceased to the police as to the person who shot the deceased is fatal to the case of the prosecution.

It is trite that it is not necessary for the prosecution, in order to discharge the onus of proof lying upon it, to call every available piece of evidence; it is enough if evidence is called sufficient to discharge the onus-

(i) Joshua Alonge v. Inspector General of Police (1959) 4 FSC 203 at 204;

(ii) Onafowokan v. State (1987) 3 NWLR (Pt. 61) p. 538

(iii) Igbo v. State (1975) 9-11 SC p. 129 at p. 136, (1975) 1 All NLR (11) 70.

The role of a trial court is to hear evidence, to believe or disbelieve witnesses, to make findings of fact based on the credibility of the witness, who testified and to decide the merits of the case based on the findings. In the present case the learned trial Judge had the privilege of listening to the witnesses and watching their demeanour.

He came to the conclusion that PW2, PW4 and PW5, amongst others presented by the prosecution were witnesses of truth. I have myself considered the evidence on the printed records and the exhibits. I have no reason to disagree with the findings of the lower court in that respect.

In addition, I have considered the application by the learned trial Judge of the law to the facts as found by him. I am of the respectful opinion that the lower court correctly applied the law to the facts found by him. In the circumstance, I resolve issue 1 in favour of the respondent.

I now consider issue 2 which is whether the trial court considered and rightly rejected the defence of alibi of the appellants-

The defence of each of the two appellants is that he was not at the scene of crime. The 1st appellant contends in exhibit 3 and maintains in evidence in court that at the time of the incident, he was at his welding workshop at Oboroke. It is the statement in exhibit 4 and the evidence of 2nd appellant, that at the time of the alleged incident, he was in his house. At about 8.00 p.m. on the day in question i.e. on 14/3/96, he went to his family house in town.

It was then he discovered that the family house had been destroyed. He denied knowing that the deceased, who was his own relation had been shot to death earlier on that day even when he made his statement to the police on 01/04/96.

It is contended for the appellants that since the police investigated the alibi of each accused person and took statements from persons who corroborated the statements, and since the appellants were not cross-examined in respect of their evidence, the court had no choice but to regard the evidence of the accused persons and their witnesses DW3, DW4, DW5 and DW6 as unchallenged and accept such as the truth.

Reliance is placed on Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) p. 664.

It is also contended that the finding of the learned trial Judge, that there was no substance in the defence of alibi raised by 1st accused is not based on evidence adduced before the court but on speculation and possibilities.

On the contrary, it is contended by the respondent that the defence of alibi raised by each of the accused persons at the trial did not exist having regard to the factual evidence adduced by the prosecution to the contrary through PW2, PW4 and PW5, who knew each of the accused persons and who were not strangers to either of the accused persons, when the witnesses fixed each appellant to the scene of crime; particularly since PW2, PW4 and PW5, each gave evidence that he was at the frontage of his house at the scene of the crime, when the 1st appellant shot the deceased with a gun.

It is therefore, submitted that in such circumstance, it is settled law that any alibi raised by the accused persons is logically destroyed.

Reliance is placed on:

(i) Patrick Njovens v. State (1973) NNLR 76;

(ii) Hausa v. The State (1994) 7-8 SCNJ (Pt.1) 144, (1994) 6 NWLR (Pt. 350) 281, (1973) 5 SC 17.

The learned trial Judge had this to say in respect of the evidence adduced by the parties concerning the alibi of the appellants-

“The defence of alibi raised by the 1st accused person is weak in the face of the unimpeachable evidence of PW2, PW4 and PW5 fixing him at the scene of crime.

In the case of Michael Hausa v. The State (supra), the Supreme Court held, inter alia, as follows:-

‘If the prosecution adduced sufficient and accepted evidence to fix an accused person at the scene of crime at the material time, his alibi is thereby logically and physically demolished.’

There is no substance in the defence of alibi raised by the 1st accused person because as shown by evidence, Oboroke, where he claimed he was at the material time is a part of Ihima town like Ikuehi where the incident took place. It is quite possible for a person to commit a crime in Ikuehi, Ihima, and run to Oboroke, Ihima, in the next minute. It would have been a different matter if his defence of alibi was in relation to a completely different town.

In any case, since I have accepted the evidence of PW2, PW4 and PW5 that they saw the 1st accused person at the scene of crime at the material time the defence of alibi was set up on a mere sinking sand.

I do not believe the evidence of the 1st accused and his witnesses, DW5 and DW6 that the 1st accused person was at his workshop at Oboroke, Ihima at the material time. I also do not believe the evidence of the 2nd accused person and his witnesses, DW3 and DW4, that the 2nd accuses person was not at the scene of crime and that it was one Sunday Popo Yusuf who shot the deceased. I reject their evidence.”

I need only add that contrary to the contention of appellants that there is no evidence to support the finding of the learned trial Judge that both the respective places in which 1st and 2nd appellants claimed to be at the time of the crime was in the same township in which the crime was committed and that movement from one place to the other was easy, there is in fact abundant evidence on record to justify the finding and conclusion of the learned trial Judge.

In giving evidence as DW1, the 1st appellant stated thus at page 94 of the record:-

“My name is Tunder Adava. I live at Oboroke, Ihima. On 14/3/96 I was at my place of work at Ebako, Ihima.

About 7.00 p.m. my commercial vehicle driver by name Mohammed came to me in my place of work and informed me that there was disturbance at Ikuehi…”

Similarly, in giving evidence as DW2, the 2nd appellant at p. 97 stated thus:-

“My name is Ohiare Ohiano. I am a tailor. I live at Ikuehi. On 14/3/96, there was a political rally at Ikuehi, but I was not there. When I got to my father’s house at Ichemya Ikuehi at about 8.00 p.m. on 14/3/96 I saw that the house has been destroyed…”

For his part DW6 testified at p. 101 thus:-

“DW6: Moslem. Affirmed. Speaks Ebira. My name is Mohammed Ibrahim. I live at Obeiba, Ihima. I am a driver. I know the accused persons. The 1st accused was my employer. I was his driver. I was the driver of his commercial vehicle.

On 14/3/96 I was coming from Okene about 6.00 p.m. When I got to Ikuehi I discovered that some people were rioting. I then decided to go through another route to Oboroke. I went to my employer, the 1st accused, in his workshop, where I told him that there was a riot at Ikuehi. I then went to the motor park to park the vehicle.”

It is clear from the evidence in the record that the places named i.e. Oboroke, Ebako, Ikuehi and Obeiba are all in Ihima and are accessible from and to each other.

In the event, I am of the humble opinion that the finding by the learned trial Judge at p. 141 of the record that-

“there is no substance in the defence of alibi raised by the 1st accused person because, as shown by the evidence, Oboroke, where he claims he was at the material time is part of Ihima town like Ikuehi, where the incident took place… It would have been a different matter if his defence of alibi was in relation to a completely different town”,

is not a matter of speculation as suggested by appellants but is fully rooted in the evidence.

As for the 2nd appellant, one cannot even say that he gave any explanation worth investigating in support of his defence that he was neither at the scene of the political rally nor at the scene of the crime.

In the event I resolve issue 2 in favour of the respondent.

I now turn to issue 3 again as formulated by the respondent.

It is whether the charge framed against the appellants is good in law.

All through the brief and particularly on this issue, appellants attempted to contend that there were two counts in the charge for which the accused/appellants stood trial and that the charge is bad for duplicity and has occasioned miscarriage of justice on the appellants. It is the contention that the charge consists of a count of conspiracy under section 97 of the Penal Code and another count of culpable homicide under s. 221 of the same Code.

With respect, I do not think that the arguments of the appellants on this issue need exert one’s energy. It is mischievous of appellants to attempt to present a picture that they were being charged for conspiracy under s. 97 of the Penal Code and also for culpable homicide under s. 221 of the Code.

The charge at p. 40 of the record which I have earlier quoted in this judgment is clear and unambiguous. It is a one-count charge of culpable homicide punishable under s. 221 of the Penal Code when read together with section 79 repeat section 79 of the same Code.

The one count charge is so framed because it was intended by the prosecution to show by evidence that 1st accused person did the act of shooting the deceased in furtherance of a common intention by both 1st and 2nd accused persons and by the rule established under the provisions of s. 79 of the Code each would be liable for the act of the other performed in furtherance of their common intention.

Section 79 provides:

“79. Where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

On the other hand s. 97 which appellants choose to misquote and rely upon provides:

“97.(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for term not exceeding six months or with fine or with both.”

This is a provision for the offence of conspiracy.

To make matters clear the learned trial Judge had this to say at p. 142 of the printed record:-

“Section 79 of the Penal Code provides thus:-

‘Where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.’

This section states the general doctrine of joint liability in crime. If two or more persons intentionally do a thing jointly it is the same as if each had done it individually.

Since it was in fact the 2nd accused person, who ordered the 1st accused person to shoot the deceased, it has been established that they both had a common intention to commit culpable homicide which was actually committed.

I am satisfied that culpable homicide as defined in section 220 of the Penal Code has been committed by the 1st and 2nd accused persons. I am equally satisfied that the circumstances in which it was committed constitute an offence under section 221 of the Penal Code.”

I note with some concern and dismay that the application filed by appellants in this court on 19/3/2000 for leave and extension of time to file additional ground 5 and for leave to argue the same gave particulars of error in respect of the additional ground as:-

“(i) The prosecution framed a single charge for the offences of conspiracy and culpable homicide contrary to section 221 and 79 of the Penal Code. The trial court went ahead to review the offences under Ss. 79 and 221 of the Code to convict the appellants. See page 40, pages 23 to 25, pages 142 and 143 lines 21 to 25.”

Similarly, the arguments contained in the accompanying issue – exhibit II to the affidavit in support argued and made submission on section 79 of the Criminal Code.

One is therefore, at a loss to find that the arguments on issue No.5 of the appellants’ brief on the last three pages of appellants’ brief titled “ground 5” have been entirely on s. 97 of the Penal Code (instead of s. 79 of the Code) when no leave of this court was sought or obtained for the substitution.

In the event, the arguments contained in the brief on issue No. 5 of appellants’ brief which correspond to issue No.3 in the respondent’s brief are hereby struck out.

In consequence, I resolve issue No.3 also in favour of the respondent.

Finally, I find no merit in the appeals of the two appellants.

I dismiss both appeals.

I affirm the decision of the learned trial court and the conviction of both appellants for the offence as charged as well as the sentence of death by hanging for each appellant.

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Other Citations: 2002)LCN/1214(CA)