Samuel Onwe & Ors V. The State(1972)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

In the High Court, Akure Judicial Division of the Western State, four accused persons, Samuel Onwe, John Odaha, Sunday Ogeyin and Sunday Omirewe, were charged with the murder Gabriel Ezemah on June 5, 1969, at Jemikin Camp near Isho in Akure, and all except the second accused were found guilty of the offence by Fakayode, J., on June 15, 1970.

The learned trial Judge found that the accused persons and Sunday Abo (a soldier who had escaped prosecution because his whereabouts became unknown soon after the incident) had guns with them on June 5, 1969, that they were looking for Ibos, and that the deceased, an Ibo, was one of those given gun-shot wounds by the gangs of the accused on the day in question. Thereupon, he held as follows:

“At least the 1st, 3rd and 4th accused persons and Sunday Abo went out that day with the purpose of killing or causing grievous bodily harm to Ibos. They held guns. I hold therefore that the shooting at the deceased by the 1st accused was an act done in the prosecution of their unlawful purpose and since the death of the deceased was the natural and probable consequence of such an act of shooting, I hold that the 1st, 3rd and 4th accused are guilty of the murder of the deceased.”

He explained that this reason for discharging and acquitting the second accused was that “there is no evidence before me that the second accused held any deadly weapon or that he did any violent act” and, a little later on, the learned trial Judge added, “I have my doubts if the second accused was ever present when the deceased was shot, and if present, whether he had the intention with the others of killing or causing grievous bodily harm” His conviction of the remaining three accused persons was based upon his interpretation of Section 8 of the Criminal Code, Cap. 42, which reads:

“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.”

On appeal to the Western State Court of Appeal, all three convicted persons filed the following grounds of appeal:

“1.    That admissible evidence has been rejected or inadmissible evidence has been admitted by the Judge and that in the latter case there is not sufficient admissible evidence to sustain the decision after rejecting such inadmissible evidence.

2.     That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.

3.     That the sentence passed on conviction is excessive or inadequate unless the sentence is one fixed by law.

4.     The learned trial Judge misdirected himself and erred in law in relying on the contents of the statement Exhibit R in convicting the 1st and  2nd appellants when the said statement could not be used as legal evidence against the 1st and 2nd appellants.

5.     The learned trial Judge misdirected himself when he wrongfully invoked the provision of Section 8 of the Criminal Code, Cap. 42, Laws of the West to convict the appellants and thereby came to a wrong decision.

6.     The learned trial Judge misdirected himself in convicting the appellants when the evidence of the prosecution was unsatisfactory and full of inconsistencies and thereby came to a wrong decision.

7.     That the learned trial Judge erred in law in convicting the appellants when the prosecution failed to discharge the onus cast upon it to establish the case of each of the appellants beyond a reasonable doubt.
8.     The decision of the learned trial Judge is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.”

Mrs. Solanke, learned counsel for the appellants, submitted that there was no evidence that the second appellant held a gun on the day in question, although there was evidence that he was merely present, taking no part in the incident. Learned counsel further submitted that the learned trial Judge himself had found that the evidence of the identification parade was unreliable; she argued that the application by the learned trial Judge of the provision of Section 8 of the Criminal Code to the case of the second appellant (3rd accused) was wrong in law, as there was no evidence of anything done by him on which it could be held that he shared a common purpose with the soldier to kill the deceased. As the learned trial Judge tried to consider the case of the second appellant separately, he fell into the error of lumping him together with the other accused persons by saying that he held a gun.

Mr. F.O. Akinrele, learned counsel for the appellants asked for and was granted leave to argue the following grounds of appeal in substitution for those originally filed:

“1.    That the Court of Appeal erred in law in upholding the conviction of the appellants which was based on a common intention under Section 8 of the Criminal Code, a decision which is inconsistent with the acquittal of the second and third accused in the original charge.

2.     That the decision of the Court of Appeal is wrong in law in the absence of the findings by the learned trial Judge as to whether the second appellant in this case (or 4th accused in the original charge) shot the deceased or fired a gun on the day of the incident.
3.     That the decision of the Court of Appeal is wrong in law as the charge has not been proved beyond a reasonable doubt.

4.     That the decision of the Court of Appeal is unwarranted unreasonable and cannot be supported having regard to the evidence.”

Learned Counsel chose to argue the four grounds of appeal together and submitted that there was not sufficient evidence of a common intention as required by Section 8 of the Criminal Code, in view of the acquittal of the second and third accused in the original charge. Mr. Delano, Senior State Counsel for the Western State, conceded that the identity of the second appellant was not proved beyond reasonable doubt especially in view of the learned trial Judge’s rejection of the evidence of the identification parade. Mr. Delano submitted, however, that there was sufficient evidence of common intention and unlawful purpose between the soldier on the one hand and the first and third appellants on the other. He argued that it was the third appellant who shot the deceased, while the first accused was the one who brought the deceased out of the camp. In these circumstances, the Western State Court of Appeal, in a somewhat cryptic judgment, upheld the submission “that the conviction of the second appellant cannot be sustained because the learned trial Judge misdirected himself in his application of Section 8 of the Criminal Code as to common intention vis-a-vis the other appellant and the soldier who was not on trial”. The Court accordingly allowed the appeal of the second appellant, but dismissed those of the first and third appellants as being without substance.

From this decision of the Western State Court of Appeal, first and third appellants have appealed to this Court on a number of grounds.
While it is true that the learned trial Judge gave a reason for discharging the second accused which is different from that given by the Western State Court of Appeal for discharging the third accused, we agree with Mr. M. E. Ogundare, counsel for the respondent, that the acquittal of the second and third accused, even if wrongly declared by the lower courts, could not be a sufficient ground for also discharging the first and third appellants (first and fourth accused) against whom there was abundant evidence, which was believed by the learned trial Judge, of a common purpose as well as of execution in effecting the death of the deceased.

We accordingly upheld the convictions of Samuel Onwe and Sunday Omirewe of the murder of Gabriel Ezemah on June 5, 1969, at Jemikin Camp in the Akure Judicial Division of the Western State of Nigeria as confirmed by the Western State Court of Appeal in its judgment of February 8, 1971. Their appeals are accordingly dismissed.

SC.45/1971