Nwibo Ogbali & Anor V. The State (1983)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

The two appellants, namely, Nwibo Ogbali, who was the 2nd accused at the trial, and Ali Okoro who was the 3rd accused at the trial, were with 5 other accused persons jointly tried for the murder of one Ekuma Elom in the High Court of Anambra State, holden at Abakaliki.

The trial court convicted the two appellants and two others of the offence. The Federal Court of Appeal allowed the appeals of the two others but dismissed the appeals of the two appellants and confirmed their convictions.

We also dismissed the appeals of both appellants and reaffirmed their convictions on 17th February 1983. We indicated that we would give our reasons for doing so today. I now state my reasons.

I think it is pertinent to start with the evidence relating to the cause of death of the deceased. The post mortem examination on the body disclosed a fracture of the neck, fractures of both fore-arms and a rupture of the liver which caused internal bleeding which was the cause of death. The consultant surgeon was of the opinion that the injuries on the body of the deceased could have been caused by blows inflicted with a blunt instrument such as a stick or fist blows.

The learned trial judge found on the evidence before him that a crowd including both appellants lynched the deceased by beating him with sticks but he found no evidence identifying which member or members of the crowd inflicted the fatal blow or blows that caused the death. In convicting the appellants and the two others who, as I have indicated, were acquitted by the Federal Court of Appeal, the learned trial judge adverted his mind to Alagba & Ors. v. The King XIX N.L.R.129 and Muonwem & Ors. v. The Queen (1963) 1 All N.L.R.95 and observed as follows:

”There can be no doubt but that the murder was committed by a gang of whom the 1st, 2nd, 3rd and 6th accused persons were amongst and in such a situation, it does not matter which of the accused persons did what”. (2nd and 3rd accused are the 1stand 2nd appellants respectively in this appeal).”

The only issue worthy of consideration on both appeals, in my view, is the question as to whether the convictions can be sustained under section 8 of the Criminal Code which provides:

“8. 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.”

I may point out straightaway that to render two or more persons liable for a murder by virtue of the provisions of the section, there must be evidence of the three elements that constitute the offence under the section. Firstly, there must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; and thirdly, that the death of that person was a probable consequence of the prosecution of the unlawful purpose.

In the recent case of Yakubu Mohammed and Anor. v. The State (1980) 3-4 S.C. 84 at pp. 96-97, I made these observations on section 8:

”The provisions of the section have been considered in many cases. In Ofor and Another v. The Queen (1955) 15 W.A.C.A. 4 there was a dispute between the appellants on one side and the deceased on the other side. The second appellant went and armed himself with a matchet and cut the deceased on his hand, while the first appellant took a stick and hit the deceased on the base of the head and the deceased died as a result of that hit. The West African Court of Appeal was of the view that on the evidence the intention of each appellant was suddenly formed independently of each other and the second appellant was not liable for the murder of the deceased. The Court went on to observed:-

‘Common intention may be inferred from circumstances disclosed in the evidence and need not be by express agreement, but a presumption of a common intention should not be too readily applied. That proof of common intention is a condition precedent to conviction in this type of case is appreciated when it is remembered that if a combination of this kind is proved, a fatal blow, though given by one of the party, is deemed in the eye of the law to have been given by all those present and aiding. The person actually delivering the blow is no more than the hand by which the others all strike.’

It has been held that where a number of persons join in an unlawful assault it is a question of fact in every case whether the death of the person assaulted is a probable consequence of that particular assault and, if a weapon is used by one of the persons, the test to be applied is whether his use of the weapon was a probable consequence of their joint purpose: Muonwem & 4 Others v. The Queen (1963) 1 All N.L.A. 95 at 98 and Digbehin & 2 Ors. v. The Queen (1963) 1 All N.L.A. 388 at 392.”