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.”

The learned Justices of the Court of Appeal then set out in meticulous details the evidence against each appellant separately and concluded, rightly in my view, that there is sufficient evidence justifying the convictions of the appellants. The Court of Appeal affirmed the convictions on the basis of individual responsibility of the appellants for what each of them did in the commission of the offence and not from their common intention within the contemplation of Section 8 of the Criminal Code.

Although three original grounds of appeal had been filed for the appeal in this court and we granted leave to argue two additional grounds, the appeal was canvassed on question of facts only. It was argued on behalf of the appellants, particularly in the case of the 3rd appellant, that there is no evidence from which to infer, as the trial Judge did, that the 3rd appellant was predetermined to avenge her assault by having gone home to collect reinforcement or that the appellants went on a rampage within the town in search of the deceased. Much reliance was also placed on the apparent contradictions and inconsistencies in the evidence of the principal witnesses for the prosecution and their statements to the police concerning the account of the second encounter at which the deceased was mortally wounded. It was pointed out in particular:

1. In his statement, P.W.1 did not say what part the 3rd appellant had played but in his evidence he stated that the 1st appellant gripped the deceased by the neck and 2nd and 4th appellants were hitting him with sticks and stones while the 3rd appellant “stood by and was making movements with her hands uttering certain words which I do not clearly understand.”

2. Although in the night of the incident at the appellants’ compound P.W.3 identified 2nd, 3rd and 4th appellants to the police as being among the assailants, he did not mention the 3rd appellant in his statement made after the identification. His testimony reads: “As late Frank Okonjo alighted from the car one Alhaja woman (3rd appellant) hit him on the head. Adeshina (1st appellant) held him by the neck, while Monday Chidika (2nd appellant), Azuamaka Chidiaka (4th appellant) joined in hitting him on the head. At the same time, the Alhaja was encouraging them to perpetrate the assault on him. She was saying: “Is that not the son of Okonjo, kill him and let us see what will come out of it.” 3. Apart from stating that the 3rd appellant was present, P.W.4 did not say in his evidence what she did. He observed the 1st appellant held the deceased by the neck whilst the 2nd and 4th appellants were hitting him with sticks. The 4th appellant was encouraging them to beat up the deceased. PAGE| 5 I underlined the portions of the evidence to highlight the contradictions complained of. In respect of the 3rd appellant learned counsel submitted that the evidence of the degree of participation of the 3rd appellant is so tenuous that had the trial Judge not held that there was a premeditated common intention to kill and therefore it did not matter who did what the contradictions in the evidence and the statements would have been found to be material and the case against her not proved beyond reasonable doubt. In his well considered judgment, the trial Judge carefully reviewed the evidence and meticulously pin-pointed all the apparent contradictions complained of and after referring to many authorities on the issue including Jizurumba v. The State  (1976) 3 S.C. 89 and Ishola v. The State (1978) 9 and 10 S.C. 81, he concluded that the alleged contradictions were not material to affect credibility of the prosecution witnesses. It may be germane to the issue to point out that this point was not taken in the Court of Appeal. I have considered carefully the argument of learned counsel and I am satisfied that the matters complained of are not material inconsistencies to justify interfering with the convictions. I have earlier shown that the cause of death of Frank Okonjo was due to shock and asphyxia caused by head injuries and strangulation and the head injuries were caused by blunt objects. All the principal witnesses for the prosecution were ad idem that the 1st appellant strangled the deceased while, the 2nd and 4th appellants inflicted the head injuries. The trial Judge so found. Under the circumstances, the question of any reasonable doubt in their convictions is wanting. In respect of the 3rd appellant, the trial Judge found that she was actively present at the scene of the crime and she encouraged the other appellants to commit murder.

The case against her falls within the purview of Section 7 of the Criminal Code which provides: “7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence, and may be charged with actually committing it, that is to say – ………………………. (c) every person who aids another to commit the offence; (d) any person who counsels or procures any other person to commit the offence.” It is trite law that a person who is present at the commission of an offence and who encourages the principal offender to commit the offence is liable for the offence committed by the principal offender by virtue of Section 7 of the Code: Obasi v. The State (1965) NMLR. 119 and Mohammed & Anor. v. The State (1980) 3-4 S.C. 84. The contention of learned counsel that the defence of provocation had not been adequately considered is untenable.

I am satisfied that the trial Judge sufficiently considered the defence. He found that the appellants had not committed the crime in the heat of passion caused by sudden provocation but deliberately murdered the deceased in revenge for the assault on the 3rd appellant during the first encounter. Although he held the view that the 3rd appellant must have been provoked on that first encounter, the trial Judge found that there had been sufficient time for her passion to cool down and that her reaction in going home to collect more of her relations and with that reinforcement went in search of the deceased and P.W.1 was predetermined action to avenge her assault.

The trial Judge then considered the decision in Ifenedo v. The State (1967) NMLR 200 and concluded that the defence of provocation was not available to the appellants. The Court of Appeal entirely agreed with his decision. In Akong v. The State (1971) 1 All NLR 46, this court decided that for provocation to reduce murder to manslaughter the act of the provoked person must be done not in self-revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occassion. The facts of the case in hand, as found by the trial Judge, do not in law amount to provocation. The Court of Appeal therefore acted rightly, in my view, in rejecting the defence of provocation. Finally, I consider all the other points taken by learned counsel for the appelants to be devoid of merits. G. S. SOWEMIMO, JSC.: I have had a preview of the reasons for judgment just delivered by my brother, Bello, JSC., and I am in complete agreement with it.

C. IDIGBE, JSC.:  I have had the advantage of a preview of the judgment just read by my brother, Bello, JSC., and I agree entirely with him that it is for the reasons so adequately and clearly set out in the said judgment that I agree with the order of this court on 8th July, 1982, that the conviction by the learned trial Judge of the appellants for the murder, on the 28th day of December, 1978, of Francis Okonjo be affirmed. However, I would like to make it clear that as I do not consider a statement on the issue whether Section 8 of the Criminal Code is applicable to the facts in these proceedings necessary for our decision in this appeal, I make no comment on the views of their Lordships of the Federal Court of Appeal on the issue in their judgment which this appeal challenges.

Other Citation: (1982) LCN/2162(SC)