Benjamin Oyakhere V. The State (2005)

LawGlobal-Hub Lead Judgment Report

RHODES- VIVOUR J.C.A.

In the High Court of Justice in Lokoja, Kogi State, the appellant and two others were arraigned before the Hon. Mr. Justice Umaru Eri, Chief Judge of Kogi State on four counts as follows:

(i) That on the 17th day of February, 2001, at Okene in Kogi State, the three accused persons caused the death of one Mamodu Abdullahi Ajawo, one Rafiu, one John Ogara, one Thomas Onah and one Alfa by inflicting gun shot wound on the said Mamodu Abdullahi Ajawo, and setting ablaze on fire the vehicle registration No. Osun XB 104 SBG conveying the other named deceased, consequently, burning the said deceased persons and the vehicle to ashes and thereby committed culpable homicide punishable with death contrary to Section 221 of the Penal Code.

(ii) That on the same 17th day of February, 2001, the three accused persons, in an amended second head of charge dated 12/3/01, armed with their service rifles, committed the offence of robbery on Saka Jimoh, Mamodu Abdullahi Ajawo, Suleiman Badmus and the other passengers in the said vehicle registration No. Osun XB 104 SBG by forcefully removing from their possession a total sum of N1,400,000.00 (One million, four hundred thousand naira), an offence contrary to section 298(c) of the Penal Code.

(iii) That on the said same 17th day of February, 2001, at the same Okene, the three accused persons committed mischief by fire with an explosive substance by causing damage to the vehicle, registration No. Osun XB 104 SBG conveying passengers leading to the said vehicles total destruction to ashes, an offence punishable under section 336 of the Penal Code.

(iv) That on the said 17th day of February, 2001, at Okene, the three accused persons agreed to commit an illegal act, to wit, armed robbery, leading to the deaths of human beings and destruction of property contrary to section 97(1) of the Penal Code.

At the trial, the prosecution called six witnesses and tendered nine exhibits in proof of the four counts, while appellant testified for himself, and called no witness.

After the close of evidence, learned Counsel for the appellant Mr. W. Aliwo and the “Director of Public Prosecution for the State (respondent) waived their right to address the court.

In a considered judgment delivered on the 26th day of March, 2001, the appellant and the other two persons charged along with him were convicted as follows:

Count 1 – death

Count 2 – life imprisonment

Count 3 – 7 years imprisonment

Count 4 – life imprisonment.

Dissatisfied with the sentences, only the 1st accused person/appellant appealed to this court.

Appellant filed a notice of appeal containing a sole ground of appeal, but after obtaining leave of court on the 7th of November, 2002, four additional grounds of appeal were filed. There are now five grounds of appeal and they are:

“1. The judgment of the trial court was unreasonable and unwarranted having regards to the evidence.

2. The court erred in law, when it failed to grant the appellant a fair trial in accordance with the Constitution of the Federal Republic of Nigeria, 1999, thereby occasioning a miscarriage of justice.

Particulars of error:

i. Appellant, along with his co-accuser were arraigned and tried without a fair opportunity for them to consult a lawyer of their choice.

ii. Page 56 of the record of proceedings shows that the lawyer assigned to them never had a previous opportunity of being briefed by or interviewing the accused persons before the prosecution closed its case.

iii. The speed of the trial did not guarantee fairness to the accused/appellant.

iv. The prison authorities even had to be ordered by the court to allow counsel access to the appellant and the other accused persons.

3. The court erred in law, when it convicted the appellant and others of culpable homicide punishable with death when there is no evidence that the death of Mohammed Ajawo or Rafiu or John Ogara or Thomas Onah or Isiaku resultedfrom the acts of the appellant or acts of the others at the instance of the appellant and thereby occasioned a miscarriage of justice.

Particulars of error

i. There is no credible evidence that the appellant fired any shot resulting in the death of the deceased persons.

ii. No ballistician’s report was tendered to show which of the guns of the accused persons was fired even though the guns were sent for ballistic examination.

iii. The court relied heavily on the evidence of 2nd and 3rd accused persons against the 1st accused person, without caution.

iv. Conviction ought to be based on evidence and not speculation as the court observed that either accused I or 2 or accused 3 fired the deadly weapon that killed Ajawo.

v. The court believed that appellant fired a shot at the passengers inside the bus causing the explosion being his finding on the evidence of the 2nd and 3rd accused persons.

vi. Appellant submitted his rifle with the number of ammunitions he was issued with and therefore did not fire his rifle.

4. The court erred in law when it concluded that “only accused 1, 2, and 3 were with their respective service rifles”. This occasioned miscarriage of justice.

Particulars of error

i. None of the prosecution witnesses knew what the passengers in the vehicles carried other than money.

ii. The PW5 said at page 51 “I did not know everything that each passenger carried.”

iii. The court’s finding is speculative in the sense that it assumed that the passengers had no gun or explosive which could have exploded.

5. The court erred in law, when it concluded that the appellant had intention to commit unlawful purpose when it is clear that appellant and the other accused persons changed their minds after two of the passengers had escaped and thereby occasioned a miscarriage of justice.

Particulars of error:

i. The court did not make any finding on the evidence of the appellant on the change of minds.

ii. The burning of the bus and the passengers was not intended act of the appellant and the others and did not flow from their original intention which had changed before the explosion and fire.

iii. By this change of mind, the appellant could not have been convicted for mischief by fire and for causing death of the passengers in the bus.”

In compliance with the rules of this court, the parties through their counsel filed briefs of argument. At the hearing of the appeal on the 1st of June, 2005, learned Counsel for the respondent adopted his brief and urged us to dismiss the appeal and confirm the sentences of the lower court.

There was no representation for the appellant.

Invoking the provisions of Order 6 rule 9(5) of the Court of Appeal Rules, notwithstanding the absence of learned counsel for the appellant at the hearing of the appeal, the appeal shall be treated as having been duly argued.

In his brief for the appellant, the learned counsel has submitted to this court for the determination of the appeal, the following issues:

“1. Whether having regards to the speed of the trial and failure to grant the appellant access to a lawyer in good time, there was no breach of the appellant’s right to fair hearing and fair trial.

2. Whether having regards to the evidence before the court the relevant intention to commit the offences still existed when the fire broke out and passengers in the vehicle along with the vehicle got burnt.
3. Whether the identity of the killer of Mohammed Ajawo and the passengers in the bus has been proved beyond reasonable doubt.
4. Whether the offences of criminal conspiracy, culpable homicide punishable with death, armed robbery and mischief by fire have been proved beyond reasonable doubt.”

Learned Counsel for the respondent identified two issues for determination, and they are:

“1. Whether having regard to all the circumstances of this case appellant was denied his right to a fair trial by the lower court.

2. Whether the lower court was right in holding that the prosecution has proved its case against the appellant beyond reasonable doubt as required by the law.”

These issues are almost identical with issues Nos. 1 and 4 formulated by the appellant. The issues formulated for determination by the appellant are to be preferred as they cover the issues formulated by the respondent.

Before examining the issues, it is necessary to set out the facts in this case.

The appellant and the two other convicts are policemen attached to the Police Mobile Force Unit, Kogi State. On the 17th day of February, 2001, they stopped a commercial Bus registration No. Osun XB 104 SBG. Their intention was to rob the passengers in the vehicle of their money. See statement of appellant. He said:

“It was at Okene Police Station that we decided that we should go out and look for money…”

and in evidence under oath the appellant said in evidence in chief that:

“When I noticed that two passengers had escaped, I changed my mind towards the commission of robbery.”

In the bus were the following:

(i) Mohammed Abdullahi Ajawo (deceased)

(ii) Rafiu (deceased)

(iii) John Okara (deceased)

(iv) Thomas Onah (deceased)

(v) Alfa (deceased)

(vi) Sarafa Isiaka (deceased)

(vii) Suleiman Badmus (PW4)

(viii) Jimoh Saka (PW5)

The bus was coming from Oshogbo and going to Benue State. Some of the passengers were traders. They had a lot of money with them. The appellant and the two others stopped the vehicle at Obehira Junction in Okene. They boarded the bus and diverted it to a secluded spot on the Lokoja Highway. The passengers were tied, made to lie on the ground and dispossessed of their money.

At all times, the appellant and the two others were armed with their service guns. The passengers were then ordered back into the vehicle. Suleiman Badmus – PW4 and Jimoh Saka – PW5 managed to escape. They heard gun shots. Mohammed Abdullahi Ajawo was shot dead, while all the others in the bus were burnt alive when the vehicle was set ablaze. These are the facts.

I shall now deal with the issues for determination in this appeal.

Issue No.1

Learned Counsel for the appellant observed that the speed and manner of the conduct of the trial by the learned Chief Judge offends the right of the appellant to fair hearing as enshrined in section 36(6) of the Constitution. He further observed that the appellant never related with the defence lawyer before the close of the prosecution’s case.

He submitted that where the appellant was not afforded the opportunity and facility to prepare his defence the trial should be nullified. Reference was made to -Agbogu v. Adiche (2003) 2 NWLR (Pt. 805) 509, (2002) FWLR (Pt. 127) p. 1218; Solomon Ogboh v. The Federal Republic of Nigeria (2002) FWLR (Pt. 106) p. 986, (2002) 10 NWLR (Pt. 774) 21 contending that the trial was conducted in breach of the appellant’s right to fair hearing and fair trial and should be nullified.

In reply, learned Counsel for the respondent observed that learned Counsel for the appellant did not raise the issue of access to the appellant, contending that counsel cannot now blame the lower court for his own omission to take steps to interview the appellant. Relying on Okosi v. State (1989) 1 NWLR (Pt. 100) 642, (1998) 1 ACLR p.301; Alor v. State (1997) 1 NWLR (Pt. 501) 511, (1998) 1 ACLR p. 658, he submitted that there was no violation of the provisions of section 36(6) of the Constitution.

By virtue of the provisions of section 36(6) of the Constitution every person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence. In that regard, he is also entitled to defend himself in person or by legal practitioners of his own choice.

One must at all times bear in mind cases in which the accused person was not afforded opportunity or at least adequate opportunity to be represented by a legal practitioner of his choice in which case the trial is a nullity, being in breach of section 36(6) of the Constitution. See Ogba v. State (1992) 2 NWLR (Pt. 222) p. 164; Mohammed v. Kano N.A. (1968) 1 All NLR p. 424; Ariori v. Elemo (1983) 1 SCNLR p. 1; Ogboh v. F.R.N. (2002) 10 NWLR (Pt. 774) 21 and a case in which the accused person was given opportunity to be represented by legal practitioners and was represented by legal practitioner, but the said legal practitioner failed to discharge his duties to his client.

In this case the appellant was represented by Mr. A. Aliwo.

There is nothing to show that the counsel failed in his duty to the appellant. That is not even remotely suggested as it is the same counsel who filed this appeal. The accused person had opportunity to consult a lawyer and he was very well represented by Mr. A. Aliwo.

At the close of the case for the prosecution this is what Mr. Aliwo had to say to the court:

“I have not been privileged to interview the accused persons. I pray this court to grant me time to relate with them before they give evidence towards their defence. The D.P.P. and myself have agreed for Monday, 26/3/2001. I therefore crave the indulgence of this court to grant us adjournment until that date.”

In response, the trial Judge had this to say:

“Justice demands that the learned Counsel to the accused persons relate with them as rightly said. This case is therefore adjourned to Monday, 26/3/2001, for commencement of defence of the accused persons…”

It is very well settled that a counsel retained to conduct a case has general authority to decide in his discretion how to conduct the case. The appellant and indeed clients are bound by counsel conduct of their case. The remedy available to a dissatisfied client is to withdraw the brief. See – Mosheshe General Merchants Ltd. v. Nigeria Steel Products Ltd. (1987) 2 NWLR (Pt. 55) 110.

Mr. Aliwo was briefed and he accepted the brief and appeared for the appellant. He appeared in the lower court on all the days the case was heard, he never complained or raised the issue of access to the appellant. In his own wisdom, he decided to interview the appellant at the close of the prosecution’s case, he cannot now blame the lower court or anyone for that matter for the steps he took in the conduct of the case.

The lower court granted leave to the respondent to proffer charges against the appellant and two others on 8/3/2001. The plea of the appellant was taken on 12/3/2001. Thereafter trial commenced. Trial came to an end on 26/3/2001 after six witnesses testified for the respondent and tendered nine exhibits, while the appellant and the two other convicts gave evidence in their defence. Judgment was delivered on 2/4/2001.

Trial was concluded within one month.

Learned Counsel complains that trial was too fast and so the appellant was denied fair hearing. It is usually the practice to complain of unreasonable delay in a trial but to say the trial was too fast is a bit strange.

Criminal trials are to proceed with dispatch and go on from day to day until concluded. On no account should criminal trials be unnecessarily adjourned, or adjourned for long periods.

The right to fair hearing is fundamental and it is entrenched in the Constitution. This right involves the audi ulteram partem rule and the court has the duty to ensure at all times that the right has not been infringed.

There is nothing to show that the appellant’s right to fair hearing was infringed as it has not been shown in what way the “speedy” trial had adversely affected the appellant or prejudiced his case.

Issues 2, 3 and 4

Learned Counsel for the appellant observed that in establishing the guilt of the appellant the requisite intention to commit the offence must be established, contending that since the appellant changed his mind about committing the crime he could not have been said to have intended the burning of the bus and the passengers.

He further observed that the trial Judge was wrong to rely on the evidence of the other accused persons to conclude that it was the appellant who fired his gun inside the bus thereby causing the explosion which led to the deaths of the passengers in the bus. Relying on Ozaki v. State (1990) I NWLR (Pt. 124) p. 92; Section 27(3) of the Evidence Act, he submitted that the trial Judge ought to warn himself before relying on the evidence of a co-accused. He further submitted that since the evidence of the co-accused was not adopted by the appellant he could not be convicted on it. Reliance was placed on Yongo v. COP (1992) 9 SCNJ p. 133, (1992) 8 NWLR (Pt. 257) p. 36.

In conclusion, learned Counsel observed that since the prosecution failed to establish who shot Mohammed Abdullahi Ajawo, and the cause of the explosion in the bus which led to the death of five passengers, the appellant should be discharged and acquitted as the case was not proved by the prosecution beyond reasonable doubt.

In reply learned Counsel for the respondent observed that the appellant and the other two convicts participated in the conspiracy.

He submitted that the fact that the prosecution witnesses could not specifically say who amongst the three policemen shot the deceased is immaterial as the deceased was killed by the appellant and his co-accused in the prosecution of an unlawful purpose. Reliance was placed on A. Alarape & Ors. v. The State (2001) 2 G SCNJ, (2001) 5 NWLR (Pt. 705) p. 79.

Learned Counsel observed that the other deceased persons were killed, when the appellant forced them into the bus, locked them up inside and set it ablaze by shooting into the bus.

He further submitted that there is abundant evidence against the appellant that he and the other two convicts committed the four offences which they were convicted on.

Concluding his submission, learned Counsel urged the court to affirm the sentences, dismiss the appeal since the prosecution proved the case beyond reasonable doubt.

The appellant pleaded guilty to all the counts. He made a confessional statement which was admitted in evidence as exhibit 1.

In exhibit 1, the appellant admitted he and the other two convicts robbed the passengers of their money, which was eventually shared by the three of them. He denied setting the bus ablaze or shooting anyone.

I must state that the testimony of the appellant in court is not different from his statement – exhibit 1. In oral testimony on oath, which the trial Judge believed, he said that the incident of 17/2/2001, at Okene was planned and agreed by the three of them. They agreed to go in search of money.

Under cross-examination he said that:

“Our original intention and discussion amongst the three of us accused persons was to rob the passengers of their money. The money which got burnt inside the bus was more than the money we got.”

The above sums up the fact that the appellant took an active part in the horrid events of 17/2/2001, which eventually led to his being charged for criminal conspiracy, culpable homicide, armed robbery and mischief by fire contrary to sections 97(1),221,336 and 298(c) of the Penal Code.

When two or more persons agree to do or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.

The offence of conspiracy is complete as soon as two or more agree to carry the intention into effect, and it is open to the court to infer compliancy from the fact of doing things towards a common end. See Balogun v. Police (1953) 20 NLR p. 148; Ligali v. Laja (1959) 4 FSC p. 7; Onochie v. The Republic (l966) 1 SCNLR 204; (1966) NMLR p. 307; A. Enahoro v. The Queen (1965) 1 All NLR p. 125.

If two or more persons stop a bus, divert the bus to a secluded area and proceed to dispossess the passengers in the bus of all their money, it must be because they had conspired so to do.

To succeed in a charge for culpable homicide the prosecution must prove that:

(a) death occurred;

(b) the accused killed the deceased, and

(c) the accused had intention to commit the murder or to do dangerous bodily harm to the deceased.

See Yangetor Angulu v. State (1968) NMLR p. 201; Adamu Kumo v. The State (1968) NMLR p. 227

It is necessary to prove a criminal intention to kill on the part of the appellant.

For the offence of armed robbery, the person charged with the offence must have been armed with a dangerous or offensive weapon at the time the offence was committed. See – Ajiloye v. State (1983) 6 SC 1; Nwachukwu v. State (1985) 3 NWLR (Pt. 11) 218; Adeyemi v. State (1991) I NWLR (Pt. 170) 679.

For the charge of mischief by fire the prosecution must prove that the mischief was committed by fire or an explosive substance and the mischief destroyed a property.

Now, under section 79 of the Penal Code, when 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. There must be evidence of the three elements that constitute the offence, and these are:

(a) there must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose together;

(b) that in furtherance of the execution of the unlawful purpose, a person was killed in the circumstances amounting to murder; and

(c) that the death of that person was a probable consequence of the prosecution of the unlawful purpose.

See – Ogbali v. State (1983) I SCNLR 161; Akpan v. State (1994) 8 NWLR (Pt. 361) 226.

An aspect of this appeal which learned Counsel for the appellant has raised is that it was not the appellant who shot Mohammed Abdullahi Ajawo, neither was he the one who set the bus ablaze.

Indeed section 79 of the Penal Code is designed to resolve a case where, as in this case it is difficult to distinguish between the acts of the appellant and the other two convicts or to prove precisely the part played by each of them. The position of the Law is that if two or more persons intentionally do a thing jointly it is the same as if each had done it individually. It does not matter which of the three of them, which included the appellant, did what.

In Dabo Fulani & Njobi Fulani v. Bornu N.A. (1966) 1 All NLR p. 260, (1966) 2 SCNLR 274, each defendant shot arrows in furtherance of a common intention to rob. The Supreme Court found each defendant liable for killing the deceased as it did not matter whose arrow it was that killed him.

Also, in Mimvem Miri and Others v. The State (1968) I All NLR p. 55, it was held by the Supreme Court that once it is proved that the eighth accused was one of at least two attacking the deceased, then whether his was the blow that killed him or not he would have been equally liable by virtue of section 79 of the Penal Code.

See Alagba & Ors. v. The King (1950) 19 NLR p. 129; R. v. Atanyi (1955) 15 WACA p. 34; R. v. Gyang and Nafam (1954) 14 WACA p.584; Garba v. Hadejia Native Authority (1961) NNLR p. 44; R. v. Muonwem and Ors. V Queen (1963) I SCNLR 172, (1963) I All NLR p. 95; R. v. Mensah & Anor. (1941) 7 WACA 71; R. v. Bada & Another (1944) 10 WACA p. 249; R. v. Digbehin and Others v. Queen (1963) 2 SCNLR 371, (1963) I All NLR p. 388.

Once the appellant and the other two convicts consented to the commission of crime, they are liable for their own acts and the acts of each other in the furtherance of the common intention.

In the instant case, the appellant said on oath before the trial court and in his statement, exhibit 1 that they all agreed to rob.

The learned trial Judge, the Chief Judge of Kogi State Umari Eri, C.J. properly evaluated evidence and came to a very reasonable decision.

Apart from the fact that the appellant pleaded guilty to all counts, an admission that he did commit the offences, exhibit A a confession by the appellant, there is also the testimony of PW4 and PW5, eye-witnesses to the crimes committed on the 17th of February, 2001. An eye-witness’s testimony is usually the best evidence in criminal trials. There was clearly common intention having regard to the circumstances and to the provisions of sections 79 and 80 of the Penal Code.

The appellant and the two other convicts, all policemen turned their guns on defenceless proletariat, a people they are to protect. The attack was ferocious and indiscriminate, absolutely appalling and indescribable, clearly a wicked and despicable act. It is about time something is done to curtail the excesses of trigger happy policemen.

The police authorities must go the extra mile to ensure that constant checks are carried out on policemen, who carry guns, and these checks should include constant examination by a psychiatrist.

The appellant was part of a conspiracy that led to the robbery on the defenceless passengers on 17/2/2001 and their eventual slaughter.

The evidence against the appellant is so overwhelming as to make interference with his conviction unwarranted.

This appeal has no redeeming features, it is accordingly dismissed.

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Other Citations: (2005)LCN/1803(CA)