Jimoh Michael Vs The State (2008)
LAWGLOBAL HUB Lead Judgment Report
DAHIRU MUSDAPHER, JSC
In charge No. HCL/6C/2001 before High Court, Kogi State holden at Lokoja, the appellant herein as the second accused with two others were jointly tried on four heads of charge of criminal conspiracy, culpable homicide, armed robbery and mischief by fire contrary to sections 97(i), 221, 336 and 298(c) of the Penal Code Law. The charges read as follows:-
1st head of charge
“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, at Okene within the Kogi State Judicial Division committed culpable homicide punishable with death in that you caused the death of Mamodu Abdullahi Ajawu and the death of Rafiu John, John Ogara, Thomas Ona and Alfa by doing an act to wit: you shot Mamodu Abdullahi Ajawu with a rifle and set Rafiu, John Ogara Thomas Ona and Alfa ablaze with the intention of causing their death and you thereby committed an offence punishable under section 221 read along with section 79 of the Penal Code.”
2nd Head of Charge
“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001 at Okene within the Kogi State Judicial Division while armed with your service/ rifles robbed Saka Jimoh, Abdullahi Ajawu, Suleiman Badumos, and other passengers in a vehicle Registeration No. Osun XB 104 SGB of the total sum of N400,000.00 and you thereby committed an offence punishable under section 298 of the Penal Code.”
3rd Head of Charge
“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, at Okene within the Kogi Judicial Division set a vehicle with the registration No. Osun XB 104 SGB on fire, intending to cause or knowing that the said vehicle will likely be destroyed or damaged and you thereby committed an offence punishable under section 336 of the Penal Code.”
4th Head of Charge
“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, agreed to do an illegal act to wit: to commit armed robbery, culpable homicide and to set ablaze property of another person and you thereby committed an offence punishable under section 97 of the Penal Code.”
The appellant and the other two accused persons pleaded not guilty to the heads of charge. After the trial before Eri C.J, the accused, including the appellant herein, were convicted as charged. On the 1st head of charge each accused was sentenced to death, on the second head of charge each was sentenced to life imprisonment, on the 3rd head of charge each of the accused was sentenced to 7 years imprisonment, on the 4th head of charge criminal conspiracy, each was sentenced to life imprisonment. All the sentences were ordered to run concurrently. Aggrieved with the decision the appellant herein and the 3rd accused appealed to the Court of Appeal. On the 14/12/2006, the Court of Appeal dismissed the appeal of the appellant and affirmed the decision of the trial court. This is a further appeal by the appellant to this court. The Notice of appeal contains two grounds of appeal. One issue for the determination of the appeal was submitted by the learned counsel for the appellant. The issue reads:-
“Whether the offence of culpable homicide punishable with death and setting the vehicle on fire as charged against the appellant were proved beyond reasonable doubt as affirmed by the Court of Appeal.”
Before the examination of the issue for the determination of the appeal, it is convenient to state be it briefly the facts. The facts are that, on the 17/2/2001 the appellant and the two other accused were serving policemen in the PMF 37 Mobile Squadron of the Nigeria Police Lokoja, Kogi State. They stopped a commercial passenger vehicle Registration No. OSUN XB 104 at Okene. The vehicle had earlier on took off from Oshogbo through to Akure to Okene and had 10 passengers including P.W. 4 and P.W. 5. The appellant and his partners arrested the vehicle, searched the passengers and saw that some of the passengers had a lot of money on them. The appellant and the other policemen drove the vehicle on the Okene to Lokoja Federal highway and stopped at a secluded spot where they robbed the passengers of their money at gun point. The total amount robbed was N400,000.00. In the process of the robbery one of the passengers Mamodu Abdullahi Ajawu was shot dead by one of the policemen. The vehicle was set ablaze and as a consequence the driver whose identity remained unknown, Rafiu, John Ogara, Thomas Ona Alfa and Sarafa Isiyaka, were burnt to death. P.W 4 and/P.W. 5 survived the ordeal by escaping. The only issue in controversy between the appellant and the other policemen was who among them shot and killed the passenger who died of gun shot wounds and the other passengers who were burnt to death. Each accused including the appellant blamed one another. As mentioned above all the accused including the appellant were at the end of the trial found guilty as charged and sentenced. The appellant and one other unsuccessfully appealed to the Court of Appeal.
The appeal by the appellant is confined to the affirmation of the conviction of the appellant by the Court of Appeal on the offences of culpable homicide and mischief by fire. The appellant did not appeal against his conviction on armed robbery and criminal conspiracy. It is the law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only while the other points or decisions not appealed remain unchallenged. So, in instant case, the issue of criminal conspiracy and of armed robbery stand accepted as correct by the appellant and discussion on them does not arise.
It is submitted for the appellant that the cause of death in the instant case cannot be attributed to the act of the appellant. The trial judge found it was accused No. 1 who fired the gun that caused the deaths of the passenger and ignited the fire that caused the burning of the vehicle and the death of the other passengers inside the vehicle. The appellant also testified that it was accused No. 1 who fired the gun that caused the deaths and burnt the vehicle. It is submitted that since the appellant was not the one who fired the gun that caused the deaths and the mischief, the appellant could not be held responsible for them. It is argued that there must be evidence of intention between the act of the appellant and the resultant offences committed. Learned counsel referred to Okafor v. The State [1990] 1 NWLR (Pt. 128) 614. It is further stressed that the deaths of the victims are not unequivocally traceable to the act of appellant. Learned counsel referred to the cases of Okorogba v. State [1992] 2 NWLR (Pt. 222) 224 at 253, see also Igabele v. State [2004] 15 NWLR (Pt. 896) 314 at 336; Nwosu v. The State [1986] 4 NWLR (Pt. 35) 348 at 359 Amaike v. The State [2004] 6 NWLR (Pt. 870) 541 at 548 it is again argued that the appellant did not by his act cause the fire that caused the damages nor did the evidence manifest any intention on his part to do so.
On the issue of the conviction of armed robbery under section 298 (c) of the Penal Code, it is submitted that the charge was framed against the appellant under section 298 (b) and that the evidence of the weapon [i.e horse whip] used was not proper, learned counsel referred to the case of Aruna v. The State [1990] 6 NWLR (Pt. 155) 127. It is further argued that “horse whip” was not part of the charge nor is it a dangerous weapon see Ibrahim v. The State [1991] 4 NWLR (Pt 186) 399 at 417.
On the issue of common intention, it is submitted that the principle of common intention should not be too readily applied at all times. Learned counsel referred to the cases of Alarape v. The State [2001] 5 NWLR (Pt. 705) 79 at 110, R. v. Offor & Offor [1955] 15 WACA 4. R. v. Mensa H & Anor. [1941] 7 WACA 212, R. v. Bade & Anor [1944] 10 WACA 249.
On the issue of common intention, the learned counsel submitted that there are five ingredients and all must be present vide Okeke v. State [1999] 2 NWLR (Pt 590) 246; Muonwem v. Queen [1963] 1 SCNLR 172, Akanni v. Queen [1959] SCNLR 183, Ajao v. Queen [1959] SCNLR 197, Alabi v. Queen [1959] SCNLR 269, Digbehin v. Queen [1963] 2 SCNLR 371.
It is further submitted that where a co accused went beyond what was tacitly agreed as the scope of the evil enterprise, the other accused should not be or held liable for the consequences of the extraneous acts. Learned counsel referred to Archbold Criminal Pleading Evidence and Practice 41 Edition P. 1423 and the case of R. v. Morrise [1966] 2 QB 100.
The learned counsel for the respondent on the other hand submitted that in a criminal trial the prosecution has the onus of proving its case against the accused person beyond reasonable doubt. Learned counsel referred to section 138 of the Evidence Act and Woolmington v. DPP [1935] AC 462, Haruna v. COP [1985] NWLR (Pt. 557) 215, Onubogu v. The State [1998] 1 ACLR 141, Morka & others v. The State [1988] ACLR 141; Nwankwo v. The State [1990] 2 NWLR (Pt. 134) 627.
It is further submitted that to establish an offence of culpable homicide under section 221 of the Penal Code the prosecution must establish beyond reasonable doubt that (a) the death of the deceased, (b) that the act or omission of the accused caused the death and (c) that the act or omission that caused the death was intentional or with knowledge that death or grievous bodily harm would be the probable consequence of the act or omission. Learned counsel referred to the cases of Liguru v. The State [2002] 9 NWLR [Pt. 771] 90, Gira v. The State [1996] 4 NWLR (Pt. 443) 375; Akpan v. The State (1994) 9 NWLR (Pt. 338) 347.
It is submitted that the prosecution clearly established by credible evidence and beyond reasonable doubt all the necessary ingredients for the proof of culpable homicide against the appellant. The learned trial judge found all the deceased died on the spot when the injury was inflicted. It is not necessary to prove the cause of death where a person was attacked with a lethal weapon such as a gun and he died on the spot. See Bakuri v. The State [1965] NMLR 163 at 164. It is submitted that the deaths of all the deceased in the instant case were caused by gun shot and fire inflicted by the appellant and his colleagues acting towards a common intention and a common end. It is again stressed that there is a clear nexus between the intention and the act of the appellant and his partners in crime and the deaths of all the six persons. That the learned trial judge rightly found as a fact that the appellant and his partners in crime caused the deaths of all the deceased persons and later shared the booty which they were able to cart away from the scene of the mayhem.
It is submitted that when the 1st accused fired the gun into the bus he did it in furtherance of the common intention already formed with the appellant and the 3rd accused as rightly found by the trial judge. See Alarape v. The State supra at 179 -184. Oyakhire v. The State (supra). Nwankwoala v. The State [2006] 14 NWLR (Pt 1000) 663, (2006) 12 (Pt 2) SCM, 267. It is further submitted that the absence of the bodies is of no moment. See the cases of Dare Kada v. The State [1991] 8 NWLR (Pt 208) 134 at 137, Lori v. The State [1998] 1 ACLR 267.
It is again added that since the appellant and his colleagues had consented to the commission of crime which resulted in the death of the deceased persons, the appellant must be held liable for the acts of each of his colleagues and partners in crime. See the cases of Solomon Ehot v. The State [1993] 5 SCNJ 65 at 77 – 78, Buba v. The State [1994] 7-8 SCNJ 472.
On the offence of mischief by fire, it is common ground that there is no dispute about it, that it was the gun shot that caused the fire and accordingly the appellant even if he was not the one who fired the gun but by his partner in crime, he cannot escape liability for the act of his colleague as he had already a common intention with 1st accused to commit a crime. The appellant both in his evidence and his statement to the police admitted participating in the armed robbery and confessed to the sharing of the loot, he was therefore well aware of the charge and it was of no significance whether it was under section 298 (b) or 298 (c) of the penal Code. There was no miscarriage of justice.
It is submitted further that there is no dispute that the appellant and his partners in crime were prosecuting an unlawful purpose of armed robbery in which process Mamodu Ajawu was shot and some passengers were burnt to death, in that case it did not matter whether the appellant himself fired the gun or not. He is deemed in law to have carried out the act himself. See section 79 of the Penal Code law and the cases of Akinkumi v. The State [1987] 1 NWLR (Pt. 52) 608, Alarape v. The State (supra) Adio v. The State [1986] 2 NWLR (Pt. 24) 581, Okor v. The State (supra) Oyakhire v. The State supra and Nwakwoala v. The State. (supra).
Now, the only issue formulated by the appellant is “whether the offences of culpable homicide punishable with death and setting the vehicle on fire as charged against the appellant were proved beyond reasonable doubt as affirmed by the Court of Appeal.” Thus the complaints of the appellant against his conviction on conspiracy and armed robbery do not form part of the issue and I accordingly discountenance the arguments submitted by counsel on these matters. See Goubadia v. The State [2004] 6 NWLR (Pt. 869) 360. I will say no more about the complaints on the conviction for conspiracy and armed robbery.
In order to establish the offence of culpable homicide punishable with death, the law requires the prosecution to prove essentially the following: (a) that the death of a human being has actually occurred, (b) that such death was caused by the act of the accused act or omission was done with the intention of causing death or grievous bodily harm and (d) that the accused knew that death would be a probable consequence of his act. It is also trite that a basic and essential element of the offence of culpable homicide required to be proved that the cause of death must be linked to the act or omission of the accused. See Dare Kada v. The State [1991] 8 NWLR (Pt. 208) 134, Nwokedi v. The State [1977] 3 SC 35. Where the deceased died on the spot soon after an injury was inflicted by an accused person, the accused person will be guilty of causing the death. See Adamu v. Kano N.A. [1956] SCNLR 65, Bakuri v. The State [1965] NMLR 163.
It is also the law that in a charge of culpable homicide, the nature of the weapon used, its weight and size are in the circumstances of the case essential in determining whether the conviction should be one of culpable homicide punishable with death or not. See Umaru v. Gwandu N. A. [1961J 1 ALL NLR 545. at 546.
The charge of culpable homicide as recited at the beginning of this judgment was contrary to section 221 (a) read along with section 79 of the Penal Code, see the case of Nyam v. The State [1964] ALL NLR 356. Where two or more persons form a common intention to do an unlawful act, such as armed robbery and in furtherance of that unlawful act a person is killed, each of them is guilty of the killing under section 79 of the Penal Code and none of them can claim that it was not his own act or attack that killed the deceased. See Miri v. The State [1968] ALL NLR 55. See also Maijamaa v. The State [1964] 1 ALL NLR 212. In the case of Alarape supra where common intention under section 8 of the Criminal Code of Ogun State was interpreted, Iguh JSC delivering the leading judgment of the Supreme Court stated at page 102 thus:
“xxxxxxxxx I need hardly point out that “common intention” in criminal law may be inferred from circumstances described in the evidence led before the court and need not be provable only by agreement of the accused persons. See Ogu Ofor and Anor. v. The Queen [1955] 15 WACA 4 at 5. The test of liability under section 8 of the Criminal Code Law of Ogun State, 1978 is not whether the other accused person counselled or procured the principal offences to use the lethal weapon that caused the death of the deceased but whether it was a probable consequence of the prosecution of their joint unlawful act or intention.
So, where two or more persons set out to steal, as is the case in the present appeal, and one of them is known by the others to be armed with a lethal weapon, all of them will 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 concerted agreement that he was to use it. See Jide Digbehin & 2 Others v. The Queen [1963] ALL NLR 392.”
See also Gyang & Anor. v. The Queen [1954] 14 WACA 584. The point that needs to be emphasized in these kind of cases is that once it is firmly established that two or more persons form the necessary common intention to prosecute an unlawful purpose and in furtherance of the execution of such an unlawful purpose and offence of such a nature that its commission was a probable consequence of the prosecution of such unlawful purpose is committed, each of them is deemed to have committed the offence. See Atanyi v. Queen [1955] 15 WACA 34.
In the present case the learned trial judge found as a fact see page 99 of the printed record thus:-
“In the main therefore, the three accused persons who by agreement went out on a voyage to search for money decided to commit robbery and in the process of achieving their aim, they all committed culpable homicide by causing the deaths of five human beings. Since there is overwhelming evidence and more particularly, Exhibit 2 that a gun was fired at Mamodu Abdullahi Ajawu, I believe and find as a fact that the probable consequence of firing a gun at a human being is the death of that human being. Secondly, I also believe and find as a fact that the probable consequence of firing a gun into a motor vehicle containing passengers and a jerry-can of petrol is undoubtedly a probable cause of the death of human beings in that vehicle including the destruction of that vehicle.”
The Court of Appeal affirmed these findings of fact. Applying the law therefore each of the accused including the appellant not only participated in the killing of the human beings but also in the destruction of the vehicle by mischief by fire. Needless to say that all the ingredients of the offences were/proved beyond reasonable doubt.
For the avoidance of doubt section 79 of the Penal Code provides:-
“When a criminal act is done by several persons in furtherance of a 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.”
In the instant case all the three elements are present, (a) there was a common intention of the accused persons to commit unlawful act to wit robbery, (b) In furtherance of the offence of robbery a person was killed in circumstances amounting to culpable homicide punishable with death and (c) the deaths of the persons was a probable consequence of the prosecution of the robbery. It did not matter who shot Ajawu or set the bus ablaze see also Fulani v. Bornu N.A. [1966] ALL NLR 260 and Miri v. State [supra]. Garba v. Hadejia N.A. [1961] NNLR 44. All what I have been saying is that the prosecution have proved their case against the appellant beyond any reasonable doubt, consequently the single issue submitted by the appellant for the determination of the appeal is resolved against the appellant. The appeal fails and is dismissed by me. I affirm the decisions of the Courts below.
S.C. 204/2007
