Adesujo Akinkunmi & Ors. V. The State (1987)

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ESO, J.S.C.

The facts of this case are well stated in the judgment of Onu J.C.A., who delivered the unanimous judgment of the Court of Appeal. On 17th February 1981, the appellants travelled in a Mini Bus Regd. No. OD 1625 F from Iragbiji towards Ilesha.

They were stopped at a police road block in a place known as Oke Ayepe Police Road Block on the Oshogbo- Ilesha Road and accosted by the Police. The policemen at the post included Inspector Jacob Adeyemi Olufemi, who gave evidence as 2nd prosecution witness, and the deceased.

As a result of a search, conducted by the deceased, it was discovered that the vehicle contained a stolen goat. Meanwhile, the engine of the bus was kept running. 2nd appellant was at the wheel, but he was not the actual driver of the bus. The deceased was still in the vehicle when 2nd appellant pressed the accelerator and sped off. The deceased shouted words to the effect that he should be allowed to come down from the vehicle and also that he should not be pushed off.

The appellants sped off, or rather, 2nd appellant at the wheels sped off. There was a chase which ended in futility. But after negotiating a bend, not too far from the check point, the pursuing policemen found the deceased lying by the side of the road, with a broken skull and his broken rifle by his side.

The deceased was conveyed to the State Hospital Oshogbo, where he died after a week. The doctor put cause of death as fracture of the base of the skull.

The learned trial Judge took evidence, and after a most careful consideration of the evidence before him, set down three matters not in dispute to wit”

a) That on the night of 17/2/81, the four accused persons and somebody still at large were inside the commercial vehicle registration No. OD 1625 F that is Exhibit ‘A’.

(b) That they set out from Ondo town that day.

(c) That they were stopped for checking by the Police at Oshogbo check-point.”

He found, without any problem, that the 2nd appellant drove the vehicle and sped off with the deceased while shouting those words I had referred to above. He then considered issues of law arising and examined the act of the appellants as to whether they amounted to one of such a nature as to be likely to endanger human life.

He concluded –

“From the totality of the evidence adduced by the prosecution and my previous findings, I am satisfied that the prosecution had proved beyond reasonable doubt the ingredients of the offence of murder against the 2nd accused who drove Exhibit ‘A’ on the fateful day. I am also satisfied from the evidence before me that the four accused persons acted in concert and the behaviour and the evidence given by the 1st, 3rd and 4th accused persons richly justified my findings.”

He found the appellants guilty of murder and convicted and sentenced them accordingly.

The appellants appealed to the Court of Appeal. In that Court, Onu J.C.A. delivering the judgment of the Court of Appeal, reduced the issue before him to one. He asked the question “Was the trial Court right to hold that it was in the pursuit of the common intention of the appellants that led to the deceased death”

He expatiated –

“Was the death the probable consequence of the prosecution by appellants of their unlawful purpose”

He examined legal authorities and concluded on the facts of this case-

“In the appeal herein, I take the view that the 2nd appellant on the totality of the evidence adduced at the trial bore an intention with the 1st, 3rd and 4th appellants to prosecute an unlawful purpose to wit, to escape lawful arrest. See Section 8 of the Criminai Code, Cap. 28, Laws of Western Nigeria applicable to Oyo State and Ofor v. The Queen (1955) 15 W.A.C.A.4 and each of them by operation of law is deemed to have committed the offence. I therefore share the prosecution’s view that the sudden decision by 2nd appellant for escaping from lawful arrest in Exhibit A and from which the deceased died shortly thereafter to be an elongation or probable consequence of the prosecution of the common purpose to murder the deceased.”

He rejected the contention of the appellants that the decision of the 2nd appellant that is, the man at the wheel not to stop for police check had no nexus with the common intention to commit murder.

Both Omololu-Thomas and Sulu Gambari JJ.C.A. concurred with this decision.

And the four appellants had in consequence appealed to this Court relying on four grounds of appeal. Learned counsel for the appellants Namseh Eno in a full brief contended on behalf of the appellants that there could be no common purpose in the appellants to commit the offence of murder. Submitted learned counsel –

“It was the common intention of the 2nd, 3rd and 4th appellants to steal free roaming goats from the Highway and each would have been liable for the probable consequence of the execution of that unlawful purpose. But when the 2nd appellant on his own suddenly and independently decided to escape from arrest even when the others were entreating him to stop the intention between 2nd appellant on the one hand and the 3rd and 4th appellants on the other fell short of intending to cause grievous harm or to murder the late PC Rashidi Oni.”

In the case of the 1st appellant, it was the submission of learned counsel that the 1st appellant did not form any common intention to prosecute any unlawful purpose with any of the other appellants. He concluded that 1st, 3rd and 4th Appellants were not caught by Sections 8 and 254(3) of the Oyo State Criminal Code.

I think this appeal is capable of division into two compartments-

(1) The case of the 2nd appellant

(2) The case of the others.

In so far as culpability is concerned, that is the involvement of each group, on both the facts and the law. I intend to take the case of the 2nd appellant first; and I will proceed to state the evidence as accepted by the two lower courts against him.

Inspector Jacob Adeyemi Olufemi, 2nd prosecution witness was the leader of the Anti-crime patrol men on the fateful day. It was he who stopped the minibus carrying the appellants. It was the 2nd appellant that drove the vehicle at that stage. The deceased and the witness ordered this appellant to switch off the running engine but the 2nd appellant refused to do so. It was at this stage that the deceased entered the vehicle for the purpose of bringing an object that was wrapped and putting in the vehicle. But all of a sudden the 2nd appellant started the vehicle driving off with the other appellants and the deceased. The deceased continued to shout requesting the appellant to allow him to come off the vehicle. He also shouted the following words-

“Do not push me down”

The vehicle was, of course, very soon out of sight and the witness pursued the fleeing appellants. The witness then added –

“On turning to the corner, I met the Constable P.C. Rashidi Oni sprawling on the ground in pain. The constable sustained head injury and blood was gushing out from his head. The butt of his Mark 4 rifle also got broken. I therefore abandoned the pursuit and carried the constable to the hospital. I later referred the case to M.T.D. for further investigation.”

Of course, the constable as I had earlier stated in this judgment died. The appellant denied driving the vehicle in his evidence in court. The learned trial Judge found, however, that it was the appellant who drove the vehicle, sped off, while the deceased was searching it. The question is, on these facts was he guilty of murder S.254(3) of the Criminal Code of Oyo State under which the appellant was convicted provides –

“If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;”

it is immaterial that the offender did not intend to hurt any person. There was evidence, which was accepted, that the appellant, in concert with others, had just stolen a goat or goats which they were conveying to Ondo. There was evidence, which was accepted, that the appellant drove the vehicle which though had its regular driver was not permitted by the appellant to be driven by that driver. There was evidence, which was accepted, that the deceased entered the vehicle in prosecution of his duty, to search the vehicle for contraband. There was indeed evidence, which was accepted, that the appellant sped off with the vehicle to escape lawful arrest and though, the deceased pleaded that he be not pushed down, was later found shortly on the load with head injuries from which blood was gushing out. It was such a fall that not only cracked his head but broke the butt of his Mark IV Rifle. There is no problem in finding that the act of the appellant was in prosecution of an unlawful purpose. Anyone who behaved as the appellant had done in the circumstances related in the evidence of the prosecution and which was accepted by the Court must have intended at least grievous bodily injury to the deceased. In R. v. Idiong & Anor. (1950) 13 W.A.C.A. 30 Verity C.J., delivering the judgment of the West African Court of Appeal had held that-

“the act done must be of such a nature as to be likely to endanger human life”

Would a reasonable man not have expected the act of the 2nd appellant to produce the result it did Of course, the answer must be in the affirmative. I think an objective test must be applied. A man who falls from a motor vehicle, in the circumstances of this case, must be expected, objectively, to sustain the injuries described in this case.

Learned counsel had submitted that the escape from lawful arrest constituted the unlawful purpose. That might be, but it is not all. The circumstance of the escape. The speeding off of the vehicle with an unwanted policeman, who expressed fear for his life and dreaded being pushed off a moving vehicle was part of the unlawful purpose. I think the Court of Appeal was perfectly right in upholding the conviction of this appellant and his appeal is dismissed.

First Appellant

As regards this appellant the learned trial Judge found that though he was the regular driver of the vehicle, he did not drive that vehicle in point of time. The 2nd appellant took the key from him and he and his conductor shuffled themselves to the back of the vehicle. What then did he do wrong. He lied in his evidence in court. He falsely accepted driving the vehicle, when in fact he did not. He denied that a policeman boarded the vehicle, when in fact it so happened that the deceased boarded the vehicle. He was, no doubt a perjurer. And that was what he did wrong.

This, no doubt is reprehensible, but should it earn him a conviction for murder The learned trial Judge found that all the appellants acted in concert. In what concert He said the behaviour of the 1st appellant justified his finding that he was guilty of murder. Which behaviour Certainly the perjury Onu J.C.A. held that the 2nd appellant, on the totality of the evidence, bore an intention with the 1st, 3rd and 4th appellants to prosecute an unlawful purpose, to wit, to escape lawful arrest.

To my mind, apart from the reprehensible and incorrigible perjury of the 1st appellant, there is no evidence whatsoever of his contribution to the escape executed by the 2nd appellant. One could not stretch evidence in a criminal case to look for guilt. Circumstantial evidence must be such that points irretrievably to the guilt of the appellant. R. v. lregbu 4 W.A.C.A. 32.

There is no evidence whatsoever that the 1st appellant was involved in the theft of the goat, which involvement would warrant his planning an escape in the manner executed by the 2nd appellant. Why, if he was one of the gang, was the driving taken away from him Why was he shovelled to the back of the vehicle What, apart from the perjury that he drove the car (And that was not the charge against him) is the evidence associating him with this gang. I think his appeal must succeed and it is hereby allowed.

3rd & 4th Appellants

This leads me to the remaining two appellants. The case against them is that they were part of a goat stealing adventure. They must wish to escape, so, when 2nd appellant behaved the way he did, they acted in concert. What is the law on common purpose

S. 8 of the Criminal Code Oyo State 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.”

Let us analyse s.8.

(1) There must be two or more persons.

(2) They must form a common intention.

(3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another.

(4) An offence must be committed in the process.

(5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose.

In R. v. Ofor and afar (1955) 15 W.A.C.A. 4, it was held that common intention should be distinguished from common object. In that case, there was a common object, that of expelling the deceased and others of his party from the father’s camp. But the intention to expel the deceased was not the same as the intention to kill the deceased. But if the act of expelling applied by one went to kill, the others would be guilty. In Onuegbe v. Queen (1957) 2 F.S.C. 10, a man tried to intercept the act of stealing by a gang, he was killed in the act by those of the gang who were armed. The Federal Supreme Court allowed the appeal of those of them that were not armed.

In the instant case, there was a common intention to prosecute, with one another, an act of stealing goats. That satisfied (1) to (3) of the analysis supra. The offence that was committed, that of murder, was not in prosecution of the common intention to steal a goat but to escape lawful arrest. What then was the common intention to escape in the manner of the action of the 2nd appellant.

There has been no suggestion that either of the 3rd or 4th appellant knew the 2nd appellant would speed off with a police investigator in the vehicle. There is no evidence to show that either appellant sanctioned the act of the 2nd appellant before, during or after the act.

There is no suggestion that the common intention to steal a goat must necessarily include escaping in the manner of the action of the 2nd appellant that resulted in the deceased being found with broken skull. It is not being suggested that either appellant pushed the deceased out of the moving vehicle. I am not satisfied that the murder of the deceased was a probable consequence of stealing the goat. The fifth ingredient has not been met and the appeal of the 3rd and 4th appellants must succeed.

In all, the appeal of 2nd appellant is hereby dismissed. His conviction and sentence passed upon him by the trial Court affirmed by the Court of Appeal are hereby further affirmed. The appeal of 1st, 3rd and 4th appellants is hereby allowed. Their convictions and sentences passed upon them by the Trial Court are hereby set aside. The three appellants, that is, Adesujo Akinkunmi, Folajinmi Akinkuolie and Omotola Ayodele are hereby discharged and acquitted and shall be set free forthwith.

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SC.48/1986