Godwin Alao V The State (2015)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.
This is an appeal against the decision of the Court of Appeal Benin Division, herein called court below, which judgment was delivered on 10th day of March, 2011.
The appellant herein Godwin Alao was tried along with his younger brother, Omokhefe Alao. The Appellant stood as the 2nd accused person. Both accused persons were tried for the offence of murder on 19th June, 2007.
The facts are clear, that prior to the 14th day of February, 2005, the deceased brothers and the appellant and his brothers had some mis-understanding which led the PW1 Ovie Julius and his brothers including the deceased to report the matter to the police notwithstanding that, the mis-understanding generated into serious fracas where the appellant, herein, his younger brother, 1st accused person and one Edemoses stabbed the deceased to death.
CHARGES
COUNT 1
Conspiracy to murder punishable under Section 516 of the Criminal Code Cap. 48 Vol. II Laws of Bendel State of Nigeria, 1976 applicable in Edo State of Nigeria.
PARTICULARS OF OFFENCE
Omokhefe Alao and Godwin Alao on or about the 14th day of February, 2005 at Sabongida-Ora in Sabongida-Ora Judicial Division conspired with one another to commit a felony to wit. Murder
COUNT 2
Murder punishable under Section 319(1) of the Criminal Code Cap 48 Vol. II Laws of Bendel State of Nigeria, 1976 applicable in Edo State of Nigeria.
PARTICULARS OF OFFENCE
Omokhefe Alao and Godwin Alao on or about the 14th day of February, 2005 at Sabongida-Ora in Sabongida-Ora Judicial Division murdered one Edwin Asaba Ovie (M).
The prosecution called four (4) witnesses and tendered four Exhibits to prove the two count-charge. The charges were framed at the High Court of Justice Edo State in the Sabongida – Ora Judicial Division at Sabo. It was the Hon Justice E. A. Edigun J.
The two count-charge of conspiracy and murder, contrary to Section 516 and 319 (1) respectively of the Criminal Code 48 Vol. II Laws of Bendel State of Nigeria, 1976 applicable in Edo State of Nigeria. Each of the two accused persons pleaded NOT GUILY and testified in his defence and called witnesses in his defence. After considering the testimonies of the five (5) prosecution witnesses and the four exhibits tendered by the prosecution, the two accused persons, including the appellant herein, were found guilty as charged and the present appellant (2nd accused) was convicted alone of murder and sentenced to death. See (pp 100-47) of the record. Here the learned Judge of the High Court Edigun J, on P.145 held.
“The offence of murder having been proved against the 1st and 2nd accused persons beyond reasonable doubt, I hereby find the 1st and 2nd accused persons guilty as charged of the offence of murder as stated in count 2. I convict the 2nd accused person accordingly. Section 16 of the children and young persons law states that the words “convicted” and “sentence” shall not be used in relation to a child or young person so I can only enter a verdict of guilty for the 1st accused which I have already done above”.
Dissatisfied with the judgment of the trial High Court the appellant has unsuccessfully appealed to the court of appeal Benin Division. The appellant filed a Notice of Appeal containing three grounds of appeal, additional ground of appeal inclusive. They are stated without their particulars:-
a) That the learned trial judge erred in law in convicting the appellant of murder/robbery when there was no direct evidence before the court, that the appellant was responsible for the death of the deceased.
b) That the decision of the trial judge is therefore un-warranted, unreasonable having due regard to the weight of evidence.
c) The learned trial judge erred in law and caused grave and serious mis-carriage of justice when he convicted the appellant of the offence of murder when the totality of the case of the prosecution was completely filled with doubts and contradiction.
After serious arguments and submissions by both counsel on behalf of the defence and prosecution in the court below and after considering all the issues raised, the court below dismissed the appeal. The court below in a unanimous decision dismissed the appeal before it and affirmed the decision of the trial High Court.
Amiru Sanusi JCA as he then was, on p.30 of the record of proceedings has this to say:-
“from the surrounding circumstances of this case and as an appellate court, the law does not permit me to interfere with or disturb the findings and conclusions arrived at by the trial court which I feel the trial court based such findings and conclusions on credible credence adduced before it as would warrant or justify the conviction of the appellant of the offence charged.
In conclusion therefore, and having resolved all the issues against the appellant, herein, I am unable to see any merit in the instant appeal. This appeal therefore fails and is accordingly dismissed by me for being devoid of any substance. The judgment of the Lower Court delivered on 19th of June, 2007 in suit No. HSO/IC/2005 convicting the appellant of the offence of murder and sentencing him to death are hereby affirmed”.
The other two learned Justices George Oladeinde Shoremi and Chioma Egondu Nwosu-Iheme JJCA agreed with the lead judgment, making any appeal a difficult hurdle to cross.
Nonetheless, the appellant being aggrieved by the above decision of the court below filed an appeal to this court and filed a Notice of Appeal containing three (3) grounds of appeal.
The three grounds of appeals without their respective particulars are hereunder stated:-
GROUND 1.
The learned justices of the Court of Appeal, Benin City erred in law in affirming my conviction and sentence of death by hanging by the trial court when it is manifest on the face of the record before the court that the prosecution failed woefully to prove its case beyond all reasonable doubts as required under the law in view of the serious doubt and non credible nature of the case of the prosecution.
GROUND 2.
The learned justices of the Court of Appeal Benin City erred in law in affirming my conviction and sentence of death by hanging passed on me by the trial court when they attached weight to the vivavoce evidence of the star witnesses Pw1 and Pw3 who gave evidence before the trial court that I held the deceased before he was stabbed by the 1st accused at the trial court.
GROUND 3.
The learned justices of the Court of Appeal, Benin City erred in law affirming my conviction when it was clear from record that from the totality of the case of the prosecution and the case presented by the appellant, the prosecution case was laden with serious doubt which ought to be resolved in my favour.
In accordance with the practice and accepted procedure of the Supreme Court, parties filed and exchanged briefs, appellant raised and adopted alone issue to which the respondent agreed and relied on it. It reads:
“Whether the Lower Court’s affirmation of the trial Court’s decision that the charge of murder was proved against the Appellant beyond reasonable doubt was predicated on perverse findings of fact and liable to be quashed.”
While it is clear that both parties agreed with the formulation of the above sole issue, they disagreed on the arguments to be forwarded to this Court or the mode of treatment vis-a-vis the said issue.
The Appellant while arguing the issue submitted that in a murder case, the prosecution has the burden to prove the guilt of the accused person beyond reasonable doubt and that such burden does not shift. He cited the three judgments of this Court in the following cases:
i. Mrs Patience Ayo v. The State Un-reported decision of the Supreme Court delivered on 9/7/2000 case No.CA/B/156/2003.
ii. Ochuko Tegwonor V The State No.CA/B/33/2005 delivered on 28/6/2008 and
iii. Lori V The State (1980) 8 – 11 SC.81 at 95/96.
As part of his argument learned Appellant’s counsel submitted that in order to secure and obtain conviction in a murder trial, the prosecution is bound to prove the following ingredients of the offence of murder which includes:
a). That the death of a human being took place
b). That such death was caused by the accused – and no other, and
c). That the act of the accused was intentional or with knowledge that death would be the probable consequence of his act, see the case of ADAVA v. STATE (2006) 9 NWLR (Pt.984) 152 at 167 paragraphs F – H, 171 paragraph B – C. The learned Appellant’s counsel added that the above three ingredients must co-exist and when one is missing or tainted with doubt, the charge of murder is not proved.
See Obada V State (1991) 6 NWLR (Pt.198) 430,
Aigworeghian V. State (2004) 3 NWLR (Pt.860) 367 at 373.
In addition the learned Appellant’s counsel though conceded that the death of human being was proved to have been caused he however submitted that it had not been established that such death was caused by the act of the Appellant. Expatiating on this, the learned Appellant’s counsel made copious reference to the testimonies of Pw3 and Pw1 at the Lower Court and the former’s statement to the police. According to the counsel, the Pw3 told the Lower Court that it was the Appellant and one Ele that helped the deceased before the 1st Accused Person stabbed the deceased victim as shown on pp 66 -67 of the record.
He posited Pw3 did not however admit that he made such revelation in his statement to the police on 29/3/2005.
With regard to the evidence of Pw1, the Appellant’s counsel argued also that Pw1 also testified in Court that it was the appellant and one Ele who help the deceased before the accused stabbed the deceased as shown on pages 62 66 of the record, but, alas under cross examination he admitted never saying so in his statement to the police. If I may digress a little, to the learned appellant’s counsel these pieces of evidence amounted only, to contradictions, yet the learned trial judge ignored them to the disfavour of the appellant. In support of his submissions he cited the case of Ugbeneyorwe V. State (2005) All FWLR (pt.245 ) 1006 at 1032, Nwosu V. State (1986) NSCC (Pt.11) 1029 at 1038.
Learned Appellant’s counsel brilliantly in my view, further submitted that where a set of facts is capable of two interpretations, the trial Court should go for such interpretation which is favourable to the accused person only. He refers to Ifejirika V. State (1999) 3 NWLR (Pt.593) 79; Adeyemi V. State (1991) 4 LRCN 363 at 1138; Udosen V. State (2007) All FWLR (Pt.356) 669 at 669.
The learned appellants counsel while urging this court to discharge and acquit his client, also submitted that a glance at the evidence adduced by the prosecution clearly revealed that the appellant ought not to be charged with the offence of murder as the police had earlier advised the Dpp’s office as shown in the record of appeal and he therefore urged this court to take judicial notice of such investigative report contained in the case file which courts have right to suo-motu do so. See ITAINTER LTD v. M B PLC (2005) 9 NWLR (pt.930) 274.
Counsel finally submitted that the standard of proof in criminal cases is one beyond reasonable doubt and where any doubt exists, the same must be resolved in favour of the accused person adding that the evidence adduced by the prosecution in the case is short of such standard of proof hence the appellant should be acquitted. See the case of Abdullaisi V. State (2008) All FWLR (432) 1047 at 1064.
Respondent on the other hand, submitted that it led evidence to prove the offence of murder against the appellant beyond reasonable doubt at the trial court as required of them by Section 138 of the Evidence Act, Cap 112, LFN of 1990, adding that they did prove the offence against him beyond reasonable doubt and not beyond every iota of doubt. It cited and relied on the case of Esangbedo V. State (1989) NWLR (Pt.113) 57 or (1989) SCNJ 140; Idemudia V. State (1999) 69 LRCN 1043 at 1063 and Igabele V. State (2000) NWLR (Pt.795) 100 at 127. As if it is not enough learned appellant’s counsel also submitted that to prove a case beyond reasonable doubt does not mean or imply that the case against the accused must be proved beyond all shreds of doubt. See Akinyemi v. State (2001) 2 ACLR 32 at 44.
The learned counsel for the respondent in further submission endorsed the appellant’s counsel’s list of the three ingredients to be proved by prosecution in order to obtain conviction in a charge of murder under Section 319 (1) of the Criminal Code. He also relied on the authorities of:
a) Edwin Ogba V. State (1992) 2 NWLR (Pt.222) 109
b) Kalu V. State (1993) 6 NWLR (Pt.279) 59 AT 90; and
c) Okeke V. State (1992) 2 NWLR (pt 246) at 273.
Again the learned respondent’s counsel submitted that the prosecution has proved beyond any doubt that the victim Edwin Asaba Ovie died as a result of stab wounds on his chest vide the evidence given by Pws 1, 2, 3 and 4 more particularly the evidence of Pw2, the medical doctor who performed post mortem examination on his body. He further argued that it was the act of the appellant and his younger brother, the 1st accused, that caused the death of the deceased due to the wounds inflicted on his chest, adding that pw1, pw3 and pw4 gave eye witness account of all that had happened on the fateful day.
Another submission made by the learned respondent’s counsel is to the effect that by virtue of the provisions of Section 7(c) of the Criminal Code, every person who aids another in the commission of an offence is deemed to have taken part in committing the offence and is to be guilty and may also be charged with the actual offence. He relied on the following authorities:-
i) Enwoenye V. The Queen (1955) 15 WACA 1 at 3;
ii) The State V. Ede (1972) 15 SC 140;
iii) Iyaro V. State (1988) 1 NWLR (pt.69) 256 at 263;
He added that where two or more persons as in this case, form an intention to prosecute an unlawful act in conjunction with another, and in prosecution of such act, an offence was committed of such a nature, commission was a probable consequence of the prosecution of such purport each of them is deemed to have committed the offence. See State v. Oladimeji (2003) Vol. 109 LRCN 1298 at 1308; Fatai Alani V. State (1993) 7 NWLR (pt. 303) 113 R 1 and 2.
Furthermore, submitted the learned respondent’s counsel, witnesses called by the prosecution were consistent with and confirmatory of each other and not contradictory and even when asked about his failure to state what he testified in court in his earlier statement to the police, Pw1 explained under cross examination that he was not himself on that day because the incidence was still very fresh in his memory.
On the issue of credibility of witnesses, it was submitted that such was solely within the province of the trial court and as an appellate court; this court has no duty to reverse findings of facts of a trial court unless and until they are shown to be perverse which was not the case here. See:-
- Mufutau Bakare V. State (1987) 11 NWLR (pt.52) 575 at 580;
- Military Governor of Western Region V. Afolabi Laruba (1974) 10 SC 227 at 233.
He finally urged this court to resolve the two issues in favour of the respondent.
Both learned counsel to the parties are ad idem on the ingredients of the offence of murder under Section 319 of the Criminal Code which the prosecutions are required to establish in order to obtain conviction. Even at the peril of being repetitive. I shall state the elements that the law made trite a non. Those ingredients to be proved in charge of murder are thus:-
i. that the victim died;
ii. that the death of the deceased resulted from the act (s) of the accused person or persons; and
iii. that the act of the accused was intended or done with the knowledge that death or grievous bodily harm was the probable consequence.
I am fortified by the following authorities, namely;
a) Akinfe V. State (1988) 3 NWLR (Pt.85) 729.
b) Oneh V. State (1985) 3 NWLR (Pt.12) 236.
c) Oguonze V. State (1998) 5 NWLR (Pt.557) 51; and
d. State V. Mabaruji (2002) 2 CLRN 107.
Perhaps, it is apt to stress here, that the above listed elements or ingredients must co-exist and where one of them is missing or tainted with some doubt (s) then the charge is not proved. See Ochaemmuaye V. State (supra). Now reflecting on the evidence adduced in the instant case, there is no any iota of doubt that the prosecution had sufficiently proved the death of the deceased victim and that is beyond any dispute. The testimony of Pw2, the medical doctor who performed autopsy on the deceased person’s body had this to say on pages 66 – 67 of the record.
“The autopsy was subsequently done, it shows that there was a penetrating wound on the left side of the chest precisely around the ribs. The wound was deep enough to have affected the heart tissue leading to severe bleeding and death. The cause of death in my opinion was a stale wound penetrating”.
(Italics mine).
From the above piece of evidence, there is no gain saying that death of the deceased was established, as well as the fact that what caused the deceased victim were the wounds he sustained on the left side of the chest around the ribs which said the wound was deep enough to have affected the heart tissue leading to severe loss of blood, ultimately resulting to death of the victim.
This piece of evidence of Pw2 was uncontroverted or unshaken during cross-examination. However, in murder cases, it is not enough for the prosecution to simply prove that a human being dead or that death of a human being was caused. It is more than that. The prosecution is required also to prove beyond reasonable doubt, that it was the act of the accused, in this case the appellant, that had actually caused the death of the latter if there is any possibility, for instance, that the deceased died of a different cause or act. This is because if there is the possibility showing that the deceased died from cause (s) other than the act of the accused, then the prosecution has not established the case against the accused person. I refer to:-
i. Audu v. State (2003) 7 NWLR (pt.820) 576.
ii. Uguru v. State (2002) 9 NWLR (pt.771) 90.
iii. R. v. Owe (1961) 2 SCNLR 354.
iv. Nwokocha V. State (1949) 12 WACA 453.
This is so, and in fact it is trite and also settled law, that whenever it is alleged that death has resulted from the act of a person, a causal link between the death and the act of the accused/appellant must be established and proved beyond reasonable doubt too, that it was the act of the accused/appellant that caused the death of the victim. See Sowemimo V. State (2004) LEN 414 at 415 paragraph P. U., see also Oforlete V. The State (2003) FWLR (pt.12) 208 at 269 RE-F. And where there is any intervening factor as could create some doubts on the actual cause of the death of the deceased, such doubts created must be resolved in favour of the accused/appellant. See Oforlete V. State (supra). In the case at hand, the prosecution led credible evidence through Pws1 and 3 to show that it was the second accused who held the deceased for the co-accused to stab him twice on the chest on the fateful day.
Also Pw2, the medical doctor’s testimony corroborated their testimonies that the deceased died of the wound he sustained on his chest region near the heart which led to his death. No evidence whatsoever was led by the defence to suggest that there was any intervening factor that could have led to the death of the deceased beside the chest injuries he received from the stabbing by the 1st accused person. The evidence adduced by the prosecution at the Lower Court (i.e trial court) had therefore clearly established that it was the injury inflicted on the chest of the deceased by the 1st accused person and the appellant herein that caused the death of the deceased. In my humble view, what is material and is relevant too, is that it was the said injury on the chest of the deceased that ultimately led to the death of the victim as rightly found by the trial judge and affirmed by the Court of Appeal. I am therefore unable to see any justifiable reason to disagree with the conclusion of the Lower Court in that regard, since such conclusion is supported or based on the unchallenged testimonies of the prosecution witnesses especially Pws1, 2 and 3. I therefore have no reason to disturb the finding of the learned trial judge which the court below also affirmed. I bear in mind the conclusion of the trial judge which the Court of Appeal also affirmed. The trial judge had concluded thus on the issue of contradictions in the case of the prosecution as follows:-
“…The evidence of the witnesses were not materially discredited under cross-examination to render them incapable of belief. They were eye witnesses of the act of the 1st and 2nd accused persons in which the 2nd accused person held the deceased down for the 1st accused to stab. They gave convincing account of what had happened from the time they got to the scene and what they saw. Their evidence is direct cogent and convincing. They all spoke with assurance and such confidence that I find it difficult not to believe them. So I believe their evidence…”
The above finding of fact to my mind, has not been shown by the appellant to be perverse. From the evidence adduced in the case, there is in my view no dispute whatsoever, that the 1st accused stabbed the deceased after the appellant herein, held him (the deceased). Pws1 and 3 who were eye witnesses to the event testified in that regard and their testimonies were no contradiction and therefore un-assailable and uncontroverted at all. There is equally no doubt that the deceased victim died as a result of the act of the 1st accused and the appellant herein.
The next point to consider is whether the act of the appellant and the 1st accused was intentional or with knowledge that death or grievous bodily harm was the probable consequence. It is always the gravity of the act/assault (say on vital part of the body) that could lead to conviction of either murder or manslaughter. As I posited above, evidence abounds in the instant case that the appellant and the 1st accused jointly caused grievous body harm on the deceased by dealing stabs on his (deceased) chest which is certainly a vital part of his body. To establish a charge of murder it must not only be proved that the act of the accused/person could have caused or led to the death, but that it actually did. See the case of R. V. Williams Oledima, 6 WACA 202. I am not un-mindful of the fact that it is difficult, if not impossible to prove common intension. However, I feel its existence can be inferred from the surrounding circumstances disclosed in a given case. See Nwankwoala V. State, supra.
I think it is a matter of common knowledge, that if one deals stab or stabs with a sharp object on vulnerable part of the body, such person could be deemed to have intended to cause such bodily injury as he knew death could result from his action. See Garba V. The State (2000) 4 SCNJ 315.
It is trite, that where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participate in the crime. What each of the participant did in furtherance of the commission of the crime is immaterial. The mere fact that the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See Nwankwoala V. State (2006) 14 NWLR (Pt.1000) 663; Ikemson v. State (1989) 3 NWLR (Pt.110) 455; Oyakhire V. State (2001) 15 NWLR (Pt.1001) 157. In the instant case, Pw1 in his testimony in court stated as follows:-
“As we were running, 2nd accused person (sic) and Elle Moses held Asaba (deceased) down. Suddenly 1st accused person brought out a dagger and stabbed Asaba twice on the chest and stomach and fell down. When Friday Ojeogba saw that the mission has been completed he took John Adebe and drove away. We rushed Asaba to the General Hospital, Sabongida-Ora on our way to hospital, Asaba died”.
(Italics mine)
Similarly, the Pw3, Emmanuel Josiah testified in court in line with the above testimony of Pw1, when he stated that:-
“I was holding Julius Ovie not to fight. The 2nd accused person gripped Asaba (deceased) on the neck from the back then Elle Moses held Asaba’s hand. Then 1st accused person pick a dagger and stabbed him on his chest”.
Also, the Pw4 in his testimony stated thus:-
“Elle Moses and 2nd accused person held Asaba and 1st accused person come from an uncompleted building and stabbed Asaba twice beneath his breast….”
And during rigorous cross-examination by the defence, the witness remained adamant, rigid and resolute by maintaining his earlier stance when he said:-
“It is correct to say that it was the 2nd accused person that held the deceased for the 1st accused person to stab…”
(Italics mine)
All these pieces of evidence by these witnesses were neither assailed nor shaken during cross-examination by the defence. They were accepted by the trial court and affirmed by the court below. I also, with tremendous respect to appellant’s counsel, accept same.
Furthermore, it was the submission of the learned counsel for the appellant that there was contradiction in the testimony of Pw1 that in his testimony in court he stated that it was the appellant and one Ele who held the deceased before the 1st accused person stabbed the deceased. He argued that he did not say so in his statement recorded by the police. To the learned appellant’s counsel, that amounted to a contradiction, since such piece of evidence was not so stated to the police. Similarly, added the learned appellant’s counsel, Pw3 also in his testimony in court equally stated that the appellant and one Elle Moses held the deceased for the 1st accused to stab the former. He also argued that the fact that he did not make such revelation in his statement earlier recorded by the police such according to the learned counsel, also amounted to contradiction, with due deference to the learned appellant’s counsel to my mind,the word “Contradiction”, “Discrepancy” or “Inconsistency” in evidence of a witness generally connotes the act of reversing oneself or changing a course from what he stood for earlier. It is a deviation or retraction of what one had earlier said. See Ike V. Ofokoja (1992) 9 NWLR (Pt.263) 42; Odibe v. Azeg (11) 7 NWLR (Pt.200) 724; Dawaki General Enterprises Ltd & Anor V. Ainaf Co. Enterprises Ltd & Ors (1999) 3 NWLR (Pt.594) 224.
In the case at hand, the learned Appellant’s counsel admitted, rightly too, that none of the two witnesses mentioned above made a statement regarding the holding of the deceased by the appellant for the 1st accused to stab the former. Where then is the contradiction since no mention of that in whatever form was made by them in their respective statements to the police. A contradiction can only arise where an earlier remark or statement was made later. This is not the case here. On that piece of evidence, the witnesses therefore neither contradicted themselves nor contradict one another.
Even if such amounted to contradiction, it is settled law that a contradiction in the evidence of the prosecution’s case is not a minor or immaterial contradiction which merely scratches the surface of an inconsequential or innocuous point. It is even noted by me, that Pw1 even when cross-examined on his failure to state in his statement to the police what he told the court on the issue of holding the deceased by the appellant, he explained by saying that he was not himself on the day because the incident was still fresh in his memory, I think we, should not disregard the fact that human beings differ in their nature likewise their memories. That is part of the law of nature. My lords I apologise if I sound philosophical. As I said earlier on, I do not even regard as a contradiction or inconsistency as the learned counsel for the appellant harped upon with regard to the a failure of Pw1 and Pw2 to state that in their earlier statements to the police. Even so, the statement of Pw4 clearly supported or corroborated the testimonies of Pws 1 and 3 on the point. I must emphasize here again, my noble lords that it is not every discrepancy or contradiction in the evidence of the prosecution witnesses that would lead to the rejection of such evidence. It must be shown that the alleged contradictions or inconsistencies are so material and are adequate enough to cause doubts in the case of the prosecution.
Onugogu Vs. Sate (1974) 1 All NLR (Pt.11) 5,
Namsoh v. State (1993) 5 NWLR (Pt.244) 642 at 649,
Effia V State (1999) 8 NWLR (Pt.613) 1.
I also do not share or agree with submission of the learned counsel for the appellant, herein, that the present scenario is capable of bringing to the fore, two possible interpretations as being suggested by the learned counsel for the appellant. The same scenario did not or could not create any gap or lacuna in the prosecution’s case since even one of the witnesses clearly explained that he did not state in his statement to the police the point he mentioned in his testimony and such point was emphatically stated or covered by the testimony of Pw1 which was also not contradicted or challenged by the defence.
On the whole, considering the surrounding circumstance of the instant case, the evidence led by the prosecution on the point were consistent and in consonance with each other, rather than contradictory or conflicting as being suggested or argued by the Appellant’s counsel.
For the avoidance of any possible doubt, it needs to be stressed again here that whether that the appellant, herein, had held the deceased for the 1st accused person to stab him or not is even immaterial. This is because as I said earlier in this judgment, where common intention, among several participants in a crime is established against those who are jointly charged of committing such crime it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the existence of the common intention manifesting in the execution of the common object in enough to render each of the members of the groups of the accused person guilty of the offence by virtue of the provisions of Section 7 of The Criminal Code Act. By the provision of Section 7 of Criminal Code, every person who aids another in the commission of an offence is deemed to have taken part in committing the offence and could be charged with the actual offence. See the following:
i) The State V. Ededey (1972) 1 SC.140,
ii) Iyaro Vs. State Supra,
iii) Enwoenye V. The Queen (1955) 15 WACA 1 at 3
iv) Akran V. I.G.P. (1960) 5 FSC 3,
v) R V. Akpunonu (1942) 8 WACA 107.
My lords, having duly considered the arguments and submissions of learned counsel on the issues, I am of the firm view that same ought to be resolved against the Appellant and in favour of the respondent. I, accordingly do so.
In considering the totality of the evidence adduced I have not seen any cogent reason to fault the unperversed decision of the trial Court which was ably and correctly affirmed by the Court below. The effect of this is that the appeal is devoid of merit and same is deserved to be dismissed. I dismiss this appeal and uphold the powerful decision of the Court below.
SC.237/2011
