Aor Nyam & Ors V. The State (1964)

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IDIGBE, J.S.C. 

We now give our reasons for dismissing this appeal on the 26th September, 1964.

The appellants were on the 27th day of May, 1964, at the High Court, Jos, sitting at Gboko, convicted by Bate J. of culpable homicide punishable with death for causing the death of Dzaria Ehor at Mbagen Village on the 16th February, 1964.

Briefly, the case for the prosecution was as follows:-The deceased was attacked and killed in his farm on the 16th of February, 1964, by members of an armed mob which had moved from house to house doing violence to members of a political party – the N.P.C. – who were resident at Mbagen Village. There was evidence that the deceased was a member of the N.P.C. and that members of the crowd had uttered threats against members of the N.P.C. as the crowd moved from place to place in the village. The only witness for the prosecution who claimed to be an eye witness to the actual killing of the deceased, was Mbeger Mberiko (P.W.1); and he was originally charged along with appellants but was discharged before trial commenced, following a nolle prosequi entered by the prosecution. P.W 1 claimed that he saw the first and fourth appellants in an armed crowd which was moving from the village market place to the house of one Dominic Akishi (PW.5.), and that he and second appellant joined the crowd on its way to the house of P .W.5. First and second appellants carried matchets while the fourth was armed with a club studded with nails. The mob eventually destroyed Dominic’s property but was restrained from further violence to Dominic by P.W11 (Awua Hom), P.W.10 (Achiam Gberiko) and one Ikiagba. There was evidence also that before the mob moved out of Dominic’s house one of its members had urged that they should go and kill Dzaria in his house. PWI further testified that on leaving Dominic’s house some members of the crowd returned to the market while others, (including the appellants), moved on towards Dzaria’s house. On the way, Dzaria was seen in his farm and was attacked and killed by some members of the crowd. P.W.1 claimed that he actually saw first and fourth appellants as well as three other men attack the deceased; and one of them, Haanya, actually thrust a knife into deceased’s throat. He added that during the attack he saw second appellant and some other members of the crowd chase the wife of the deceased (P.W.2) away from the farm. Later, he saw the body of the deceased in the farm covered with matchet cuts.

P.W. 11 (Awua Hom) confirmed parts of the evidence of P.W.1. He had seen the crowd in Dominic’s house and together with P.W. 10 and another member of the village he successfully restrained the mob from doing more violence to Dominic, who was bleeding badly from the head and speechless. He saw the appellants at Dominic’s house, and had also seen them in a group of about 40 men move towards Dzaria’s house. Following a subsequent report he received from Dzaria’s wife (P.W.2) he interviewed the first appellant who admitted to him that he had taken part in the attack on the deceased. He then arrested first appellant and handed him over to the police. The learned trial Judge was impressed with Hom’s testimony which he accepted.

Each appellant denied the charge and each of the second and fourth appellants put up a plea of alibi, but the learned trial Judge rejected their defence. In his written statement to the police, Exhibit 3, first appellant admitted that he was one of those who attacked and killed the deceased, and in Exhibit 5, the written statement of second appellant, he admitted having taken part in chasing and catching P.W.2, the deceased’s wife, who saved herself by pleading with one of her captors that was related to her. The learned trial Judge was satisfied that each of the statements (Exhibits 3 and 5) was voluntarily made by first and second appellants. The submission by the defence that P.W.1 was an accomplice was accepted by the learned trial Judge who warned himself that there was need for corroboration of the evidence of P.W.1; he however found sufficient corroboration on the evidence before him and came to the conclusion that the first and fourth appellants were guilty of the offence of culpable homicide by virtue of section 79 of the Penal Code (Northern Nigeria), while the second appellant was equally guilty by virtue of section 108 of the Penal Code.

Learned Counsel for appellants, rightly in our view, had nothing to urge in favour of the first and fourth appellants. In regard to the second appellant, however, he submitted that notwithstanding the provisions of section 108 of the Penal Code the second appellant ought not to be convicted in absence of any evidence that he had the requisite intention to commit the offence as prescribed in section 221 of the Penal Code. Such intention he argued, is not to be inferred merely because some members of an assembly to which second appellant belonged had attacked and killed the deceased.

We were unable to accept the submission. The provision in Section 221 (P.C.) reads as follows:

“221. Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death

(a) if the act by which the death is caused is done with the intention of causing death; or

(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”

Therefore, a person is clearly guilty of an offence under section 221 if he does an act which causes death with intention of killing or if he knew or had reason to know that death would be the probable consequence of his act; and as explained in section 221 the question whether an act was the probable or likely consequence of an act is one of fact. Section 79 (Penal Code) provides as follows:-

“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.”

Section 79 was considered in Tambari Maijamaa, S.C. 524/63 decided on 16th June, 1964; it does not arise in the case of the second appellant; he was convicted by operation of section 108 (Penal Code, Northern Nigeria) which reads:-

“If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every person, who at the time of the committing of that offence is a member of the assembly, is guilty of that offence.”

The language of section 108 differs from that of section 79; it does not speak of ‘a criminal act done by several persons in furtherance of the common intention of them all’, but of an offence ‘committed by any member of an unlawful assembly in prosecution of the common object of that assembly’; presumably section 108 differs in intent and contemplates other circumstances. These are, as section 108 indicates, that there is an unlawful assembly, and that a member of it commits an offence in prosecution of the common object of that assembly-that is an offence in following up the common object: in such circumstances every person who is a member of that assembly at the time of committing that offence is guilty of that offence. The common object is some one of those specified in section 100; and its existence may be inferred from the circumstances.

In this case we have an armed mob who went into the compound in which Dominic lived and beat him up badly; it was Awua Hom’s intervention which saved him from further violence, which might have caused his death.

The second appellant was there; the common object of trespass and extreme violence to persons disliked by the mob was clear to him. A number went no farther; others went on from there to Dzaria’s place, and the second appellant was with those who went. He admits in his statement that he was one of those who chased and caught Dzaria’s wife, but she saved herself by pleading with a relative. Others murdered Dzaria in the pursuit of the common object of the mob, which he obviously shared. The second appellant was plainly liable for the murder by operation of section 108.

For those reasons the appeal of second appellant was also dismissed at the hearing along with the appeals of the first and fourth appellants.

Other Citation: (1964) LCN/1110(SC)