Jide Digbehin, Godonu Etemode, Honfun Kete Nweh V. The Queen (1963)

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BRETT, J.S.C.

The three appellants were convicted of murdering a man named Noah Agemo, and it is not in dispute that he met his death in the presence of all three of them and of no other eye witness.

On the evidence, if the trial court was satisfied that the appellants, or any of them, killed him, the killing cannot have amounted to any lesser offence than murder, and the questions which have to be decided, in relation to each of the three appellants, are, whether the deceased was murdered, and, if so, whether the appellant was criminally responsible for the murder.

The salient facts were that in the evening of the 9th of May, 1962, Noah Agemo, who was a dealer in cloth, was travelling from Badagry to Tongeji with a quantity of cloth in a canoe paddled by Sijiko Kiki when they met another canoe with the three appellants in it. In consequence of what passed between them, the cloth belonging to Noah Agemo was transferred to the canoe drawn by the three appellants and he himself also entered that canoe and sat on his cloth.

The three appellants then set off in the direction of the Agbamalu Customs post. Sijiko Kiki followed them but as he was alone and all three of the appellants were paddling their canoe, he was unable to keep pace with them and lost sight of them. Later, after it was dark, he heard Noah Agemo calling out for help and Noah Agemo was not seen alive again.

On the following day, the dead body of Noah Agemo was found in the water near Soke Village. A post-mortem examination showed a number of severe injuries which the doctor considered were inflicted before death. There were external lacerations on the front of the right shoulder and on the elbow joint and the occipital region of the scalp, and the auxiliary and brachial arteries were cut. The main cause of death was hemorrhage from these injuries, though drowning may have been a contributory factor.

The first appellant made a statement under caution after his arrest and also gave evidence on oath at the trial. His story was that, as public-spirited citizens, they were taking someone whom they believed to be a smuggler to the Customs post when their prisoner suddenly jumped overboard and sank instantly. The Judge disbelieved him. The second appellant also made a statement under caudon after his arrest but did not give evidence at the trial. His statement is, of course, only evidence against himself. The substance of his story was that they were stealing the cloth and that when Noah Agemo started to shout that they should leave his loads the first appellant struck him on the head with a paddle and later pushed him into the stream.

The second appall ant denied taking any part in the assault on Noah Agemo, and both he and the first appellant denied that any of them was carrying an offensive weapon. The third appellant made no statement which was admissible in evidence and did not give evidence.

The trial Judge held that the following facts were not in dispute:-
“(a) The accused had held up the canoe in which Noah Agemo was travelling and had caused his loads to be transferred from his to their canoe;
(b) The accused at the time of that event had indicated to Noah Agemo that they intended to take him and his loads to a Customs Station;
(c) That Noah Agemo entered the accused’s canoe either under orders or on his own volition and sat on his loads in that canoe;
(d) That the accused paddled away with Noah Agemo and his    loads in their canoe;
(e) That, while in transit, Noah Agemo met his death in the presence of the three accused; and
(f) That Noah Agemo’s body was found floating in the lagoon near Soke on the next day.”
His findings on the facts as to which there was a conflict of evidence were as follows:-
“(i) That the first accused on accostng the deceased, said that they were policemen.
(ii) That the accused demanded money from the deceased.
(iii) That the first accused was armed with a cutlass at the time of taking away the deceased and that he was so anned was visible to anyone near by.
(iv) That the deceased after going off in the accused’s canoe shouted for help.”

The Judge was also satisfied from the evidence of the doctor that the deceased’s death was caused, or substantially contributed to, by someone who inflicted injuries upon him and who, in doing so, acted with volition and with intent to inflict grievous harm at least.

On these findings of fact he held it proved that at least one of the appellants inflicted the injuries on the deceased, and we do not consider that he could reasonably have come to any other conclusion. He further expressed himself as satisfied that it was the first appellant who inflicted the injuries and, having regard to the evidence that it was the first appellant who was seen to be carrying a cutlass, we agree with this inference also.

He then proceeded to examine the case against the second and third appellants, between whom he saw no reason to differentiate, in the light of section 8 of the Criminal Code of Western Nigeria, which reads as follows:-
“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 has repeatedly been held by the courts in this country that if two or more men set out to steal and one of them is known by the others to be armed with a lethal weapon, all of them may be held criminally responsible for any consequences which result from the use of the weapon by the one who carried it, even if there is no evidence to show that there was any express pre-concerted agreement that he was to use it; there was nothing in the evidence in the present case to exclude such a finding as regards the second and third appellants.

In commending on their omission to give evidence themselves the judge said “As to the second and third accused, neither of them elected to give evidence or make a statement to the court, although the nature of their purpose was a matter peculiarly within their and the first accused’s knowledge, as were the circumstances in which the deceased met his death. Instead, they elected to rely on the first accused’s evidence. That evidence being found to be a broken reed, they can derive little benefit from it.” We consider this comment was justified, and there is nothing in the complaint that as they did not expressly say they relied on the first accused’s evidence they ought not to have been described as doing so.

There was therefore ample precedent for the process of reasoning which the trial judge applied in the present case as regards the second and third appellants . It was submitted on their behalf in this Court that it is a usual practice in the rural parts of this country for people to carry cutlasses with them wherever they go, so that it would be unjustifiable to hold that the second and third appellants ought to have attached any particular significance to the fact that the first appellant was carrying a cutlass, or that as against them his use of the cutlass to kill the deceased was a probable consequence of the prosecution of their joint purpose.

Such reasoning has never been accepted in the case of robbers or burglars on land, and we see no justification for applying it in the present case.

It was further submitted that if the deceased had jumped overboard voluntarily in an attempt to escape and had then been assaulted by the first appellant with his matchet, the other two appellants ought not to be held liable for this, but the trial judge rejected the evidence that the deceased had jumped overboard, and in any event the test to be applied under section 8 of the Code is not whether the second and third appellants had counselled or procured the first appellant to use the matchet but whether his use of the matchet was a probable consequence of their joint purpose.

The judge held that the three accused had the common intention to extort from the deceased or to steal his loads, and that “all of the accused must have known that one of their number was armed with a cutlass, from which it may be inferred that their common intention extended to achieving their common purpose at least by the threat of violence if necessary.”

He then went on to hold that the killing of the deceased was a probable consequence of the prosecution of the unlawful purpose of stealing by the threat of violence. In our view, the judge applied the correct test and applied it in a correct manner. The evidence justified his conclusions and the appeals of all three appellants must be dismissed.

E.S.C.217/1963