Omoha Nwali & Ors. V. The State (1971)
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Parties
- OMOHA NWALI
2. THOMAS ONWUZULIGBO
3. TIGER OBASI
4. IDA IKA
5. NWOKPORO UGWU – Appellant(s)
AND
THE STATE – Respondent(s)
COKER, J.S.C.
We dismissed this appeal at the hearing on the 28th January, 1971, and now give our reasons for doing so. The five appellants were charged with the murder on the 30th April, 1966, of one Ubele Odo at Agu Oje Okposi Eshi Ngbo bush in Abakaliki in the East-Central State. They were tried by Allagoa, J. (High Court, Abakaliki) convicted as charged and sentenced to death. They had all appealed to this Court against their conviction. At the hearing of the appeal the learned counsel assigned to them was unable to find anything which he could usefully urge in favour of the 1st appellant (Omoha Nwali) , the 2nd appellant (Thomas Onwuzuligbo) and the 3rd appellant (Tiger Obasi). He however contended before us with regard to the 4th appellant (Ida Ika) and the 5th appellant (Nwokporo Ugwu) that there was not sufficient evidence to identify them with the killing of Ubele Odo.
The case for the prosecution was that on the day of his murder, Ubele Odo was working in his farm when some twelve men, among whom were the appellants, emerged, some of them armed with lethal weapons, rushed at and surrounded him and slaughtered him with a matchet. The 1st prosecution witness and son of the deceased (Akpu Obele) described the incident as follows:
“Before they took the food Thomas and Omoha who I knew before (witness points to 2nd and 1st accused respectively) rushed in with others. Thomas was shouting hold him! hold him! They chased the deceased. Thomas over ran the deceased and caught him from the front. They dragged the deceased and threw him on the ground. Thomas shouted Omoha kill him. Omoha then cut the deceased on the throat with a matchet. They killed him and dispersed. Omoha set his farm hut on fire.”
Other prosecution witnesses gave evidence identifying the 1st, 2nd and 3rd appellants as being some of those who killed Ubele Odo and all were at one in saying that there were many men in the gang and that of those charged before the Court only the 1st, 2nd and 3rd appellants were known to them by name whilst the others, i.e. the 4th and the 5th appellants, only lived in the farm but then were not habitually so resident. There was evidence however from the 5th prosecution witness, Okpoto Imama, a farmer living near the farm of the deceased, to the following effect:
“I have known all the accused before. I live by the farm where this incident took place. One would pass my house as one goes to that farm. I saw Omoha (1st accused) Thomas (2nd accused) Tiger (3rd accused) Ida (4th accused) Nwokporo (5th accused) in company of others not in Court pass in front of my house facing the direction of the incident. 1st accused carried a gun and a matchet. 2nd accused had a stick. 3rd accused had a gun and a matchet. Not long after they passed I heard a boy shout and raise alarm. I ran to see what was the matter.”
Then there was as well the evidence of the 6th prosecution witness, Oge Adagba, another farmer and neighbour of the deceased to the effect that he saw all the appellants in the farm of Ubele Odo on the day of the murder including the “4th and 5th accused whose names I do not know.”
There was of course no evidence of the actual thing done or forborne to be done by the 4th and 5th appellants but we were of the view that the evidence fully established that they were in the gang of men who had attacked the deceased in his farm on the 30th April, 1966 in the dastardly way described by the prosecution witnesses and slaughtered him. They all went there with the same and common intent ion. They were all there and watched the one or the other of them perform the exercise for which they were all prepared. If that is so, then it would not matter which of them did what if the result of the action of those who acted was criminal. (See Akpankere Apishe & Ors. v. The State. S.C. 97/70 of the 12th February, 1971).
In other words, the act of one executed in pursuance of the common intention was the act of all. (See the observations of this Court in Eyo Okon Eyo & Ors. v. The State. SC. 288/69 dated the 25th September, 1970).
We are of the view that the evidence established the complicity of the 4th and 5th appellants in the crime with which they were charged and of which they were convicted. They were at the scene of the crime and had indeed got there in company of their confederates some of whom actually killed the deceased. For these reasons we dismissed their appeals at the hearing.
Appeal dismissed.
SC.209/1970
