CHRISTOPHER OKOSI & ANOR v. THE STATE
In The Supreme Court of Nigeria
On Friday, the 17th day of February, 1989
SC.175/1988
JUSTICES
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
Between
Christopher Okosi and Anor Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE BEST IDENTIFICATION OF AN ACCUSED PERSON IN AN IDENTIFICATION PARADE
The best identification of an accused person is by the victim of the crime or a witness to the crime and once there was a proper identification parade conducted by selecting persons of similar physical stature of the accused lined up with the accused before the victim of the crime or witness of the crime is brought out to identify the criminal and there is no evidence of the accused ever being shown before hand physically or by photograph or any visual means, that identification parade is proper and evidence based on it is admissible. PER BELGORE, J.S.C.
WHETHER OR NOT AN ACCOMPLICE IS A COMPETENT WITNESS
In law, an accomplice is a competent witness against an accused person and a conviction based on the evidence of such accomplice is not illegal, even where such evidence is uncorroborated, but by virtue of S.177(1) Evidence Act, there is a proviso that where such a trial is with a jury, the Judge shall warn the jury of the danger of convicting on the uncorroborated evidence of an accomplice. This provision has great influence on decisions of this Court on this type of evidence as there is no more jury trial in this country. It is up to the trial Judge to make sure that he weighs seriously such uncorroborated evidence of an accomplice before convicting on it. Some say the Judge must warn himself! The evidence of an accomplice is different in law from that of a co-accused whose evidence, though on his own behalf, incriminates another co-accused, does not render him an accomplice. Such evidence will be considered in the special circumstance in which it is given (S.177(2) Evidence Act). The P.W.5 was not only robbed violently by the appellants, but under the nozzle of a gun and with second appellant holding him by his shirt collar, was directed to lead the appellants to the room of P.W.1, who was to be equally robbed by them. A person shall not be criminally responsible for his act or omission if the act or omission is direct and reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence so far as he does not himself commit a crime against anybody. It is the old principle of self preservation. PER BELGORE, J.S.C.
BELGORE, J.S.C. (Delivering The Leading Judgment): On 29th July, 1983, at about 2200 hours, at Onitsha, one Raymond Okonkwo was in his patent medicine shop along New Cemetery Road, just closing for the day. He had his lights on and he heard a knock on his door. He never opened but spoke to whoever the visitor was. The visitor asked for a medicine which he (Raymond Okonkwo, alias Boy-Boy and P.W.5 at the trial court) said he never had, but offered a substitute which the enquirer seemed to like. He then opened his door. It was the first appellant that came in with a rush. He ordered P. W.5 to lie down and not to get up. He requested him for money and on his replying that he had no money on him, he slapped him twice on the face, and warned him not to cry otherwise he would be shot. The first appellant then ransacked his drawer and found N30.00 and asked if that was all his takings for the day. P. W.5 was in the process of answering when the second appellant walked in and produced a gun from his pocket and showed it to P. W.5, asking in the process if he knew what he held was. He then ordered P. W.5 to show him where the bulk of the money was or else he would be killed. This threat by the second appellant was immediately followed by first appellant’s hitting P.W.5 on the head with an iron rod and blood gushed out. From this moment, P.W.5 obeyed the two assailants, for he seemed to be at their mercy. He was frightened and he quickly produced N50.00 he had in his pocket. They (appellants) then asked P.W.5 to open a door that appeared to lead to another room. He convinced them it was not his room but that a woman selling cigarettes was occupying it and that the entry into it was at the back. The second appellant then held P.W.5 by his shirt collar and dragged him out, warning him that he would shoot him at the slightest alarm he raised. He was ordered to hail the occupier of the room, who obviously opened her door on recognizing the voice of P.W.5. She is Mrs. Ocheze Ikwueme (P. W.1). To her astonishment she saw P. W.5 was a captive and the second appellant pointing a gun at her. She raised an alarm but the appellants warned her to stop raising an alarm otherwise she and P.W.5 would be shot. The first appellant then entered the room of P. W.1 and ransacked it. At this stage, Sylvester Offiah, a neighbour, perhaps due to the alarm raised or innocent venturing out, walked towards the scene and was tying a wrapper round his waist. The second appellant aimed and shot at him. Offiah fell and died on the spot after shouting “you have come to my house to shoot me” twice. The two appellants there and then ran to a motorcycle and escaped into the darkness. They were both charged with the murder of Sylvester Offiah, tried and convicted. The Court of Appeal, sitting at Enugu, affirmed both the conviction and sentence passed on the two appellants, giving rise to the present appeal.
The two appellants filed separate Notices of Appeal. But much as the two notices contained various grounds of appeal which in many cases are not overlapping, the issues canvassed in the briefs could be summarized as follows:
1. Whether the identification of the appellants by P. W.5 was convincing, in view of the fact that the incident took place at night and in the absence of cogent evidence of there being light in the two rooms.
2. Whether the identification parade by the police was fixed and thus improper and lead to injustice.
3. Whether P.W.5 was an accomplice and as such his uncorroborated evidence ought to be received with caution by the trial Judge warning himself of the danger of relying on such evidence.
4. Whether in respect of the first appellant the alibi put up by him was properly assessed and acted upon.
5. Whether the trial Judge by asking some questions unwittingly descended into the arena and thus a miscarriage of justice was occasioned which the Court of Appeal failed to rectify.
6. Whether upon all the evidence before the trial court, the Court of Appeal was right in upholding the conviction and sentence passed on the appellants.
There was, however, another issue that arose from the grounds and the issues summarized above, to wit:
Whether the first appellant was guilty of murder when all he went out to do was to commit the offence of robbery which was in fact committed and it was after this completion of the offence of robbery that the second appellant on his own shot at and killed the deceased.
Oral argument were proffered by Chief N. N. Anah and Mrs. Ajayi-Obe, of counsel, for the first and second appellants respectively, to highlight their briefs. The emphasis on behalf of the first appellant centered on the last issue summarized above.
The issue of identification of the appellants is not as complicated as it was made to look in the grounds of appeal. There was evidence of light in the two rooms where the robbery took place. P. W.5 and P. W.1 saw the two persons, that is, the appellants. Each identified the second appellant as the person with the gun and the first appellant as the one ransacking for money in the two rooms. Each identified by evidence in court the first appellant on each occasion in each room as the first to enter. By the time identification parade was conducted at the police station, P. W.5 had no difficulty in identifying the two appellants. There was never a suggestion at the trial court that the police fixed any identification; even if that was suggested, the onus of proving such a blatant disregard for truth and justice would be on the appellants and this onus was never discharged. I have nothing to fault in the decision of the Court of Appeal in upholding the finding of the trial court on this issue. The best identification of an accused person is by the victim of the crime or a witness to the crime and once there was a proper identification parade conducted by selecting persons of similar physical stature of the accused lined up with the accused before the victim of the crime or witness of the crime is brought out to identify the criminal and there is no evidence of the accused ever being shown before hand physically or by photograph or any visual means, that identification parade is proper and evidence based on it is admissible. Identification parade is helpful even though not always necessary in that in many instances question of identity may not be in issue. P.W.5, who first saw the first appellant and was attacked and injured by him, also threatened with a gun by the second appellant and later dragged by him to the door of P. W.1 and spoke to both appellants, even though in fear, well identified the two. Similarly P. W.1 who was equally threatened identified the two. What is remarkable in this case is that P.W.5 was not cross-examined by all the counsel for the appellants and P. W.1 was only crossexamined as follows:
“Cross-examined by Ibekwe A. for 1st accused ‘When I was in the P.W.1’s room before hearing gun shot, P.W.2 and another person were in that room.
“Cross-examined by Mr. Aghadiuno for 2nd accused ‘I made my statement to police on 30th July, 1988.
Put: You were inside the room of P.W.1 when the gun was fired
Ans: I saw 2nd accused from my position by the door of room of P.W.1 when he fired at the deceased person”.
“When the two accused rushed out of the room, P. W.1 urged me to close the door that armed robbers would kill her. I heard the gun shot fired by the 2nd accused and the 1st accused rushed out of the room and the door of P.W.1 was closed by me”.
The serious and incriminating testimonies of the P.W.1 and P.W.2 were thus left substantially unchallenged. In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, admissible in the sense that it is not hearsay or opinion and not that of an expert, and an accused person wants to dispute it,
the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even far an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this Court. The fact in this case is that the question of identification was settled very early and that was during the evidence of P.W.1 and P.W.5. That the police fixed the identification, with respect, an invention for this Court but there are no materials on record to support the appellants’ contention. It may be safe to say that the object of an identification parade is to make sure that a witness can identify the criminal he saw and such identity shall be tested fairly and adequately during the trial. Such identification should be fair and be seen to be fair, so that it would not be seen that the attention is being directed to the suspected person instead of equally to all persons paraded. It is for this purpose that witnesses are not allowed beforehand to see the suspected person before the parade. But in some not unusual cases where the witness saw the suspected person and calls police to arrest him, identification parade is not only unnecessary, but a superfluous formality.
The next question is as to the role of P. W.5, whether he could be regarded as an accomplice. An accomplice is certainly a person that participates in a crime for which the accused now in Court are being tried and if tried with them on the same evidence would equally be guilty with the accused being tried. In essence, an accomplice is not tried but if brought to trial along with other participes criminis, would become a co-accused person. In law, an accomplice is a competent witness against an accused person and a conviction based on the evidence of such accomplice is not illegal, even where such evidence is uncorroborated, but by virtue of S.177(1) Evidence Act, there is a proviso that where such a trial is with a jury, the Judge shall warn the jury of the danger of convicting on the uncorroborated evidence of an accomplice. This provision has great influence on decisions of this Court on this type of evidence as there is no more jury trial in this country. It is up to the trial Judge to make sure that he weighs seriously such uncorroborated evidence of an accomplice before convicting on it. Some say the Judge must warn himself! The evidence of an accomplice is different in law from that of a co-accused whose evidence, though on his own behalf, incriminates another co-accused, does not render him an accomplice. Such evidence will be considered in the special circumstance in which it is given (S.177(2) Evidence Act). The P.W.5 was not only robbed violently by the appellants, but under the nozzle of a gun and with second appellant holding him by his shirt collar, was directed to lead the appellants to the room of P.W.1, who was to be equally robbed by them. A person shall not be criminally responsible for his act or omission if the act or omission is direct and reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence so far as he does not himself commit a crime against anybody. It is the old principle of self preservation. If the P. W.5 failed to take the appellants to the room of PW.1 perhaps he would have been shot; the threat against him looked real, for he was already bashed on the head with blood coming out. It would have been different if he was given a weapon to attack the P. W.1. It may be observed that the shooting of the deceased had nothing to do with the P. W.5. This ground of appeal by first appellant has no substance. (See S.32(3) Criminal Code.)
The trial of the appellants is misconstrued by learned Counsel for the appellants by the submission that the trial Judge descended into the arena by asking many questions. This is not so. The question asked by the trial Judge stopped at the paragraph immediately after the question in the witness’ answer. Thereafter, it was the cross-examination by the counsel. The inverted commas left no doubts as to where the trial Judge stopped and where defence counsel continued. The question asked and the answer given hardly touched the thrust of the prosecution’s case, only misconceptions might have been cleared. This issue hardly touches on the merit of the appeal.
As to whether the first appellant, being involved in robbery only, could be held guilty of murder when he neither fired the shot that killed the deceased nor held any weapon, is a question of law. A person who unlawfully kills another in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger life, or to cause grievous harm to some person for the purpose of facilitating either the commission of a crime or the flight of an offender who has committed or attempted to commit any such offence, is guilty of murder. (See S.316(3) and (4) Criminal Code.) In the instant case, the dividing line between armed robber and murder is very thin, if there is a dividing line at all. The P.W.5., P.W.2, (Ngozi Ikwueme, who was with P.W.1 in the room) and P.W.1 were under serious threat of violence and P.W.5, having been already robbed of his money, P.W.1 was to surrender more to the appellants when the deceased intervened by manifesting at the scene and was instantly and fatally shot by the second appellant so that the first appellant joined him in jumping on a motor-cycle for their escape from the scene.
“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” – S.8 Criminal Code.
Thus the appellants on the fateful night had a common purpose, to wit, to commit robbery with violence. For the prosecution of this common purpose, the second appellant bore firearm, a handgun. At the shop where P.W.5 was, it was also clear the first appellant carried a weapon, an iron rod with which he injured P.W.5 on the head. The two appellants knew each was dangerously armed, as each weapon was capable of causing grievous harm. While the first appellant hit P.W.5 with iron rod on the head, causing blood to gush out, the second appellant never hid his determination to use his gun if necessary by threatening both P. W.5 and P. W.1 physically and verbally with it. The common purpose of the appellants was to commit robbery with actual violence of firearm and iron rod, an offence they committed. Nobody who goes out to commit robbery and holding a gun is said to be joking, the more so if the robbery is in fact committed. Both appellants knew the other was carrying a weapon capable of causing grievous harm when they embarked upon the robbery venture and they are liable for all consequences of their act. (Alagba and Ors. v. R (1950) 19 N.L.R. 129; Gyang & Nafam v. R. (1954) XIV W.A.C.A.584; Atanyi v. R. (1955) XV W.A.C.A. 34; Garba v. Hadejia N. A.(1961)N. R. N. L. R. 44; Muonwem and Ors v. R. (1963)1 All N.L.R. 95. ) But for second appellant shooting the deceased perhaps escape from the robbery scene by the appellants would have been foiled for the deceased was going towards the scene. (Gyang and Nafam, supra.) The first appellant knew the second appellant was armed with a gun and by the evidence the second appellant provided the cover while the first appellant did the searching and ransacking. At the slightest threat of interference at the scene by the deceased he shot at him and he fell thus facilitating the escape of the appellants from the scene. Gyang and Nafam v. R. (supra). The fact that the first appellant knew that the second appellant bore firearms was enough for the common purpose to make him equally guilty of murder. Digbehin and Ors. v. R (1963)All N.L.R. 388 and S.8 Criminal Code Law (Laws of E. Nigeria 1963). There was thus a common intention right from the outset to apply force that was capable of causing grievous harm in prosecuting the robbery and each knew or ought to reasonably know that death was a probable consequence of such an act. The result would have been different if the first appellant did not know that the second appellant had a gun on him. (Yakubu Mohammed and Telekrini v. The State (1980) N .C.R. 140 A.L.R.
The first appellant denied being ever present at the scene of crime. He denied at first ever knowing or going out with the second appellant. He merely raised this alibi without more. He never gave particulars of where he was and who was there with him. If an accused raises unequivocally the issue of alibi, that is to say, that he was somewhere else other than the locus delicti at the time of the commission of the offence for which he was charged, and gives some facts and circumstances of his whereabouts, the prosecution must investigate that alibi to verify its truthfulness or otherwise. The failure of the prosecution to investigate renders the alibi unrebutted and it may vitiate the proof beyond reasonable doubt against the accused raising the alibi. The issue of alibi is not part of the law of evidence but a rule of practice that has its own peculiarities. An instance is that no burden is placed on the accused to prove his alibi once he has given particulars of his whereabouts clearly. He must give some lead that will reasonably lead the prosecution in their investigation. Yanor & Another v. The State (1965) 1 All N .L.R. 193. But the accused should not merely state that he was not at the locus delicti without giving any lead, for by failing to give particulars of his whereabouts, the prosecution will have no lead to their investigation. (Ozulonye & Ors. v. The State (1981) N.C.R. 38,50 and 51) A.L.R.
It is for the foregoing reasons that I find no merit in this appeal by the two appellants. I therefore dismiss this appeal and uphold the decision of the Court of Appeal which affirmed the conviction and sentence of the High Court on the appellants.
OBASEKI, J.S.C.: I have had the advantage of reading in advance, the draft of the judgment just delivered by my learned brother, Belgore, J.S.C. I find the opinions expressed therein to be in accordance with my opinions on all the issues for determination in these appeals. I hereby accept them as my own and I will, for the said reasons, dismiss the appeals and I hereby dismiss the appeals and affirm the decision of the Court of Appeal.
The two appellants, 1st and 2nd appellants, were tried on information for the offence of the murder of Mr. Offiah convicted and sentenced to death by the High Court.
Being dissatisfied, they appealed to the Court of Appeal. They were unsuccessful as their appeals were dismissed in a very well considered judgment. Still dissatisfied, the appellants have further appealed to this Court, each appealing on several grounds.
Although several issues for determination were set out in the appellants’ brief, the major issue for determination is whether the prosecution established the case of murder against each appellant beyond reasonable doubt.
The appellants’ counsel exploited their skill in advocacy to the fullest in their effort to spot areas of doubt in the evidence of identification of the appellants by the victim of the armed robbery carried out by the appellants in the course of which 2nd appellant fired the shots that killed Offiah as he approached the scene of robbery from his house. Out of these facts arose the issue whether the two appellants had completed their mission to rob with violence when the 2nd appellant fired the gun shots that kill Mr. Offiah or whether it was in the course of the armed robbery that the killing was done.
That the two appellants were on the same mission is borne out by the evidence of their joint activities in the shop of P.W.5 and in the premises of P.W.1. They arrived together at the scene of crime, operated at the shop of P. W.5 together, operated at the premises of P. W.1 together and left together on the same motor cycle in their escape from the scene of crime. They were therefore not operating independently but for a common purpose the one complementing the other. The common purpose was to rob.
It was not a coincidence that they were together at the shop of P. W.5 armed with offensive weapons and firearms, demanding and extracting money from P. W.5 by threat and application of violence. Neither was it a mere coincidence that they were together in the premises of P. W.1 demanding money with threat of violence.
If two persons set out to commit a crime, in this case, robbery and in the prosecution of that purpose, another crime is committed through the act of one of them, it is my opinion that the other co-accused cannot escape liability by saying that he did not fire the gun particularly when the evidence shows that the two of them escaped from the scene of crime by the same means of transport. Section 8 of the criminal Code Cap.30 Laws of Eastern Nigeria,1963 applicable in Imo State is very clear on the role the law assigns to each. The provision of the section is as follows:
“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.”
Had the technicality of the law created an escape route for the 1st appellant in this charge, he could not have escaped prosecution for armed robbery having regard to the finding of fact by the learned trial Judge.
I therefore find no merit in the appeals and I hereby dismiss them.
OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Belgore, J.S.C.. and I am in complete agreement with him that the appeals of the 1st as well as the 2nd appellants should be dismissed.
The two appellants were charged along with one Amaechi Onwuzurike Drango with the murder of one Sylvester Offiah on the 29th day of July, 1983 at Onitsha. They were arraigned before Nwokedi, J. After due trial the 3rd accused, Drango, was found not guilty and then acquitted and discharged; while the appellants were found guilty of the offence of murder, convicted and sentenced to death. Their appeals to the Court of Appeal Enugu Division, were dismissed. They have now appealed to this court on 14 grounds of appeal.
The facts of this case are not in the least complicated and the real issues in controversy are not more than four, the multiplicity and prolixity of grounds of appeal notwithstanding. The star witness for the prosecution’s case was Raymond Okonkwo called as P.W.5. To be able to tackle the real issues in this case objectively, it may be necessary to set down the facts as deposed to by P.W.5 on whose veracity the entire case rests.
I will therefore hereunder highlight some very important landmarks in the evidence of P.W.5 and see how the defence dealt with these, and then, ultimately, what the learned trial judge made of them:
1. There was a raid on the shop of P.W.5 at about 10.30 p.m. of 29/7/83.
2. 1st appellant entered the shop first and ordered P. W.5 to lie down face downwards, he (1st appellant) then asked P.W.5 to surrender all the money he had on him.
3. When P.W.5 said he had no money the 1st appellant slapped him twice across the face.
4. When P. W.5 wanted to cry the 1st appellant threatened to shoot him if he dared.
5. Obviously frightened P. W.5 asked 1st appellant “to look in the drawer for money.” 1st appellant found only N30 in the drawer.
6. At this stage the 2nd appellant entered the store dipped his hands into his pocket and brought out a gun.
7. In the presence and to the hearing of the 1st appellant, the 2nd appellant “ordered me to show him where the bulk of money was and that if I failed to do so he would kill me”.
8. Thereupon 1st appellant “picked a rod by the door and hit me on the head with it, and blood gushed out.”
9. P. W.5 terrified and frightened brought out all the money he had in his pocket. The amount was N50. The two appellants were not satisfied.
10. Thereupon the 2nd appellant held P. W.5 by the collar of his shirt, dragged him out and forced him to call upon and beguile P. W.1 Ocheze Ikwueme, the occupier of the adjacent room into opening her room. She opened her room.
11. When P. W.1 opened her room the 2nd appellant pointed a gun at her. When P. W.1 shouted both appellants threatened to kill her if she continued her shouts.
12. The 1st appellant then entered the room of P. W.1 and ransacked it.
13. At this time Sylvester Offiah (the deceased) came out of his room and 2nd appellant shot him.
14. A third person came out on a 195 Honda Motorcycle and all three rode away.
15. P. W.5 recognized the 1st appellant because of a scar wound on his face which had earlier been treated with iodine.
16. The 2nd appellant wore a Safari suit on the night of the incident.
This is the summary, and the sting of the evidence of P. W.1.
How did learned counsel for each of the appellants deal with the evidence of this most important witness Mr. Ibekwe for the 1st appellant asked only one feeble and irrelevant question which did not address itself to any of the serious allegations made against his client. One wonders whether Mr. Ibekwe really understood the gravity of the charge against his client and the seriousness of each allegation of fact made by P. W.5 against the 1st appellant. There was not even as much as a suggestion of mistaken identity. It is rather unfortunate that a serious case of murder was handled with such levity.
By this failure to cross-examine P. W.5 one is allowed to assume that 1st appellant was not disputing the facts the P. W.5 deposed to In that event it will be pointless for counsel during the closing addresses or now on appeal to dispute the facts which were not challenged at all by cross-examination. In that event also the learned trial Judge will have no option but to believe the P. W.5 whose story had not been challenged let alone contradicted. One will only wish that counsel defending a man on the gravest of all charges – murder – will take their assignment more seriously, realizing that the very life of their clients may well depend on their performance.
Did Mr. Aghadiuno of counsel for the 2nd appellant fare any better The answer is no. But his case may be due to the fact that his client made a clean breast of it in his confessional statement Ex. 5. But even then he still had a duty to test the accuracy and veracity of the evidence of P. W.5. This he did not do.
How did the learned trial Judge, Nwokedi, J. deal with the evidence of P.W.5 At p. 45 of the record the learned trial Judge who saw the witnesses, listened to them, watched their demeanor, and was thus able to decide on their credibility, without any equivocation believed, in its entirety, the story told by P.W.5 and then at p. 46 of the record of proceedings he found as follows:
1.”I find as a fact from the evidence that both 1st and 2nd accused jumped from the shop of P. W.5 into the room of 1st prosecution witness and that they also with threat demanded money from P. W .1
2. I accept the evidence of P.W.5 that the 1st and 2nd accused persons ransacked the room of P.W.1 for money and threatened to kill her if she raised an alarm.
3. I have no doubt that 2nd accused positioned himself at the door of P.W.1’s room armed with a shot gun determined to kill anyone who dared to challenge them in their nefarious (sic) mission.”
And at p. 48 of the record the learned trial Judge continued:
4. “I have no doubt that the positioning of the 2nd accused with a gun in his hand was done with the knowledge and approval of the 1st accused. The firing of the gun at the deceased by the 2nd accused was in my view a common design by the accused persons.”Having believed P.W.5 and having found as above, Nwokedi, J. then found both appellants guilty of the murder of Sylvester Offiah, convicted them and sentenced them to death, a conviction and sentence affirmed and confirmed by the Court of Appeal, Enugu Division.
Senator Anah for the 1st appellant in his Brief of Argument formulated 6 Issues for Determination. I shall deal with these Issues or Questions one by one.Issue No. 1. Were the Justices of the Court of Appeal right or wrong in not treating the evidence of P. W.5 as that of an accomplice or at least as that of a tainted witness
The term accomplice is inelegant when used to describe parties to an offence. It has no statutory relevance and signification in deciding the question of guilt of parties to an offence against our Criminal Code. In our law Parties to Offences are adequately dealt with and fully described in Sections 7,8,9 and 10 of the Criminal Code Cap.42 of 1958. Ordinarily the word accomplice is from the Latin “complex” which means “bound up with” one, usually in a bad sense as in a commission of a crime. Even if one takes this ordinary sense of the word, can it really be said that P. W.5 – whose shop was raided, who was ordered to lie down, who was slapped twice across the face, who was threatened with a gun if he shouted, who was robbed of N80 (N30 from the drawers and N50 from his pocket), who was hit on the head with iron rod and blood gushed out, who was seized by the collar of his shirt and at gun point forced to shout on P. W.1 to open her room for the robbers to ransack – “was bound up” with those robbers It will be a serious affront to common sense, in the prevailing circumstances of this case, to regard the P. W.5 as an accomplice. If therefore P.W.5. (who was believed by the learned trial Judge), does not qualify as an accomplice, then also, his evidence will not qualify as the evidence of an accomplice and then again there will be no need for the trial Judge to look for corroboration of that evidence or to warn himself in the absence of such corroboration:- R. v. Phillips (1925) 18 CR. App. R. 115; R. v. Baskerville (1917) 86 L.J.K.B. 28.
This court in Jimoh Ishola (Alias Ejigbadero) v. The State (1978)8 – 10 SC. 81 at pp. 92 – 100 dealt fully with what seems to be the complaint of Senator Anah of counsel for the 1st appellant that P. W.5 was either an accomplice or a tainted witness. P.W.5 whose story was believed was himself obviously a victim of the armed robbery of the 29th July, 1983 which ended in the murder of Sylvester Offiah – the subject-matter of this case. He cannot therefore be regarded as an accomplice either to the robbery or to the resultant murder. Was he a tainted witness A subsidiary question arises- tainted with what If P. W.5 is tainted at all, it has to be with the crime of robbery or murder. From the facts accepted by the trial court no taint of criminality or even involvement in what the learned trial Judge described as “the nefarious mission” of the appellants could ever attach to P.W.5.
In Garba Mailak J & Anor. v. The State (1968) 1 ALL N .L.R. 116 at p. 123 this court (per Coker J.S.C.) observed:
“Recently there has been a tendency among criminal lawyers to create a category of “tainted” witnesses. . . . We however observe that the expression “tainted” is very loose and if its application is not kept within proper bounds a great deal of confusion will be unleashed into an area of evidence which even now is fraught with difficulties.”
In Jimoh Ishola supra Idigbe, J .S.C. at p. 100 observed:
“We think it is proper to confine that category of witness(i.e tainted) to one who is either an accomplice ” or by the evidence he gives (whether as witness for the prosecution or defence) may and could be regarded as having some purpose of his own to serve …”
In his Brief. Senator Anah referred to the evidence of PW 1 and PW 2 which he said “did not corroborate PW 5’s evidence that robbers ever entered his shop; rather they suspected him of attracting armed robbers to the compound…”
The learned trial Judge was not bound to prefer the mere suspicion of P. W.1 and P. W.2 who had no opportunity of knowing what happened in the shop of P. W.5 to the positive evidence of P. W.5.
I concede that to be credible, the facts deposed to by a witness will, first of all, appear probable when considered in relation to all the surrounding circumstances of the case, and secondly, induce belief. In the trial Court learned Counsel for the 1st appellant did not dispute any of the facts deposed to by P.W.5 in or by cross-examination. If the 1st appellant himself thus accepted those facts, why should he now blame the learned trial Judge for believing what he himself tacitly admitted My answer to Question for Determination No. 1 is that the two courts below were definitely right in not treating the evidence of P.W.5 as the evidence of an accomplice or of a tainted witness. P. W.5 was neither an accomplice nor was he a tainted witness. All the grounds of appeal comprised in Issue No.1 therefore fail.
The second Issue was: whether the Justices of the Court of Appeal were right to uphold the conviction of the first appellant on the evidence of identification by P.W.5.
Identification evidence has been a thorn in the flesh of many a judicial system as there is always that lurking danger of mistaken identity. Evidence of identification may be quite honest but still mistaken. Also if, as in this case, the witness P. W.5 is identifying someone he never met before the date of the offence charged, then his identification of the appellants will be largely a question of reconstruction. In such a process there may exist the possibility of error either of observation or recollection or both. It is here that counsel for the appellants had a duty to effectively cross-examine to establish facts, probabilities and possibilities of mistake. As mathematical and absolute certainty is seldom to be attained in human affairs, reason and public utility both require that Judges (infact all mankind) in forming their opinion of the truth of facts should be governed and regulated by the superior number of probabilities,. on one side or the other. In this case P. W.5 had quite an encounter with the 1st appellant. It was 1st appellant who ordered him to lie down. It was 1st appellant who slapped him twice. It was 1st appellant whom P.W.5 directed to the drawer where he 1st appellant removed N30. It was 1st appellant “who picked a rod by the door and hit me (P. W.5) on the head.” It was again the 1st appellant who ransacked the room of P. W.1 in the presence of P. W.5. There was therefore enough and ample opportunity for P. W.5 to observe the 1st appellant. To crown it all P. W.5 testified that he recognised the 1st appellant “because of a scar wound on his face which had earlier been treated with iodine.” There was not one question in cross-examination to discredit this witness, P. W.5. There was not as much as a suggestion that the person he saw on that fateful night of 29/7/83 was not the 1st appellant. There was no suggestion that P.W.5 was either lying or else mistaken. What is a Judge confronted with this type of situation to do Disbelieve the uncontradicted evidence of P.W.5 The judicial system is not operated that way. Also Sunday Edgar, Divisional Crime Officer, called as P.W.7 conducted an Identification parade. There were 12 men on parade including the appellants.
The evidence then continued:
“1st and 2nd accused were picked by Raymond Okonkwo, P.W.5 ”
xxcd by Ibekwe J .A. for 1st accused: Nil”.
There was thus no challenge at all to the identification of the 1st appellant. If there is thus no dispute at all about the identity and the identification of the 1st appellant by the P.W.5 there will also be no reason why his evidence alone if believed (as it was believed) cannot ground and sustain a conviction of the 1st appellant even on a charge of murder. One solitary witness if believed can establish a criminal case, be it even murder:
Joshua Alonge v. I. G. of Police (1959) F.S.C. 203:
Onafowokan v. The State (1987) 3 N.W.L.R. (Pt.61) 538 at 552.
The Justices of the Court of Appeal were perfectly justified in upholding the conviction of the 1st appellant based primarily on the direct evidence of P. W.5 and circumstantially on the evidence of P.W.1 and P.W.2. The appeal on this Issue fails.
I will now consider the Issue No.3 dealing with the alibi set up by the 1st appellant. Alibi is the commonest of all defenses R. v. Liddle (1930) 21 Cr. App. R.3 at p. 13 per Hewart R. C.J. It does not require ingenuity but ordinary common sense to conceive that a person charged might say – I was not at the scene and at the time the alleged offence was committed. I was somewhere else, therefore I was not the one who committed the offence. This is what alibi means. Where alibi is set up the primary onus of establishing the guilt of the appellant is still on the prosecution but the evidential or secondary burden is on the appellant to adduce some evidence of where he was at the material time. That evidence may convince the jury or trial Court in which case he wins or it may cause-the jury to doubt in which case again he also wins:- R. v. Lobell (1957) 41 Cr. App. R.100 at p. 104. But if the court prefers the prosecution’s evidence to the appellants’ evidence then the alibi fails. In this case the trial
court believed in its minutest details the evidence of P.W.5, which means that the court believed that the 1st appellant was at the scene of crime on the 29th July, 1983 and at the time the robberies took place and the deceased was killed. This again means a tacit disbelief of the alibi of the 1st appellant. It again means that the trial Court considered the evidence of the presence of the 1st appellant at the scene and his participation in the crime stronger than the evidence of his absence and non participation. Yanor v. The State (1965) N.M.L.R. 337. R. v. Chadwick & Ors. (1917) 12 Cr. App. R.247. This is the conclusion one gathers from the whole evidence. The trial Court will normally come to a decision of the totality of the evidence.
Senator Anah made heavy weather of the duty on the prosecution (Police) to investigate any alibi set up. It is correct that there is that duty. The Police are however not expected to go on a wild goose chase, in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give to the Police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was. Akile Gachi and Ors. v. The State (1956) N. M. L. R. 333 at p.335: R. v. Patrick Moran (1910) 3 CR. App. R.25. The 1st appellant made his first statement to the Police on 2/9/83 one month and 5 days after the murder. That statement was tendered as Ex. 1. All that the 1st appellant said in EX.1 was:
“Between 27th and 30th July, 1983, I was at home, that is 13 Old Hospital Road, Onitsha.”
He never gave details of his movements on 29/7/83. He did not give the names of the persons with whom he was to enable the Police check. What exactly was the Police expected to investigate in EX.1 This appeal of 1st appellant again fails on Issue No.3.
Issue No.4:Issue No. 4: deals with the trial Judge “descending as it were into the arena to take over the cross-examination of the 1st appellant. The answer here is simple. The trial Judge did no such thing.
The case of the 2nd appellant does not present any difficulty at all. In addition to the evidence of P. W.5 there is his confessional statement EX.5 which agrees in every detail with the account of the robberies – as given by P.W.5. With regard to the murder EX.5 has this to say:
“There was much noise inside the room of the old woman. At that time I stay for doorway, I saw a man with wrapper coming towards me. Christopher Onyeachonam Okosi was coming out of the room. I told him that somebody was coming – The man wants to grip Onyeachonam Okosi, I have to fire him with a pistol when I fired him he cried out. I and Christopher Onyeachonam, Okosi and Barrywhite ran to where Honda 195 there ”
The 2nd appellant is a self confessed murderer. His appeal lacks merit. I have no difficulty at all in dismissing the appeal of the 2nd appellant.
The case of the 1st appellant is not as easy as that of the 2nd appellant. For one thing, anything said by the 2nd appellant in his statement EX.5 concerning the participation of 1st appellant in this unfortunate and senseless murder is of course not evidence against the 1st appellant. Secondly it was not the hand of the 1st appellant that fired the shot which killed the deceased, Sylvester Offiah. The learned trial Judge realized this when he held at p. 48 lines 8 to 14 as follows:
“The firing of the gun at the deceased by the 2nd accused was in my view a common design by the accused persons. I am satisfied that 1st accused under section 7(d) of the Criminal Code is as guilty as the 2nd accused who actually fired the gun which killed the deceased.”
The Court of Appeal seems to have endorsed the above statement of the law. Now section 7(d) of the Criminal Code deals with counseling or procuring another person to commit an offence. The facts of this case cannot, without undue violence to the words of section 7( d) of the Criminal Code, be brought under the heading Counseling and Procuring. The two courts below therefore, with respect, wrongfully invoked the aid of section 7( d) in convicting the 2nd appellant. This leads to a consideration of two Issues for Determination, one formulated in the Brief of the 2nd appellant to wit:
“6. Did the trial Judge whose judgment the Court of Appeal upheld consider all the evidence before him adequately before he convicted the 2nd appellant and the other formulated in the Brief of the Respondent to wit:
“6. Whether the Court of Appeal was right in upholding the judgment of the learned trial Judge which convicted the two appellants.”
The clear evidence of P.W.5 the star witness for the prosecution was that it was the 2nd accused (now 2nd appellant) who shot the deceased. EX.5 which sought to link the 1st appellant with that shooting is no evidence against him being an extra judicial confession of the 2nd appellant. The 1st appellant is not roped in by section 7 of the Criminal Code. Is he then to go Scot free The answer will appear to be: Not if he is brought in by section 8 of the Criminal Code. This section 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 that 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.” (Italics mine) ”
In this case the obvious common object of the two appellants was armed robbery. But section 8 above is predicated not on common object but rather on common intention. Therefore for section 8 of the Criminal Code to apply here, there should be proof of a common intention or common design or as it is also sometimes called common purpose. It is this common purpose that matters.
Two people may have a common object and yet different intentions. In Garba v. Hadejia Native Authority (1961) N.R.N.L.R. 44 at p. 46.
The Federal Supreme Court, per Brett FJ., held:
“We are satisfied that the appellant’s acts made him guilty of murder under the Criminal Code. He was a party to what he himself in the Moslem Court of Appeal called “a joint decision to follow Amina into the woods and rob her of her bracelets.” He did not personally strike Amina but both men were carrying sticks and we have no doubt that it was the intention of them both that actual violence should be used. . . . .. Amina was struck on the head from behind. It seems to us a highly probable consequence of the use of violence in these circumstances that the violence used should go beyond what is necessary for the purpose of overcoming resistance and should cause the death of the victim. If that happens the killing is murder and for the murder in this case Garba is equally liable under the Criminal Code with Sha’aibu.”
Garba’s case supra very much resembles the case now on appeal. In both, two persons were involved; in both the common object was robbery with violence; in both someone was killed; in both only one struck the fatal blow. What now remains here to complete the circuit is evidence of common knowledge.
Common intention is not always provable by direct evidence of express agreement. It may be inferred from circumstances disclosed in evidence. In this case although the fatal shot was not fired by the 1st appellant there was evidence that:
(i) He threatened to shoot P. W.5 if he dared shout or cry.
(ii) He slapped P.W.5 twice across the face. This suggests an intention to use violence.
(iii) The 2nd appellant in the presence of the 1st appellant actually pulled out a gun from his pocket as if to demonstrate to P. W.5 that when the 1st appellant threatened to shoot him they both meant business. They were not joking at all.
(iv) In the presence of the 1st appellant the 2nd appellant ordered P. W.5 to show them (1st & 2nd appellant) where the bulk of takings for the day was and that if he failed “he (2nd appellant) would kill me.”
It is here significant to note that both appellants used the words “shoot” and “kill” freely. If this is not evidence of a common intention to use violence which may even result in death, then I do not know what it is.
(v) It was the 1st appellant again who used greater violence (after the initial slapping) on the P.W.5. He hit him (P.W.5) on the head with an iron rod and blood gushed out.
I am satisfied that from the word go, both appellants formed a common intention to use violence even such violence as would result in, or cause death in order to achieve their common object. In fide Digbehin and 2 Ors. v. The Queen (1963) 1 All N.L.R. 388 at p. 392 it was submitted that “it is a usual practice in the rural parts of this country for people to carry a cutlass with them wherever they go, so that it would be unjustifiable to hold that the 2nd and 3rd appellants ought to have attached any particular significance to the fact that the 1st 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” .
If cutlasses may be regarded as “walking sticks” , guns cannot be so regarded. In Garba, supra, what was used was a stick. It cannot therefore be submitted here that robbers carry guns for fun. No. They do not. Even in Digbehin’s case supra that submission made regarding cutlass was rejected and the court held that:
“when three men set out to steal and they all know that one of them is carrying a cutlass the justifiable inference is that their common intention extended to achieving their common purpose at least by the threat of violence if necessary. . . . . . . . . ”
In this case the 1st appellant knew that the 2nd appellant was carrying a gun. He also knew that 2nd appellant threatened to use that gun on the P.W.5. If 2nd appellant ultimately used that same gun to kill the deceased, Sylvester Offiah in and during the same operation both appellants will be equally guilty of murder. Here the robbery operation started when the appellants robbed the P.W.5, continued when they ransacked the room of P.W.1 and ended only when “a third person came out on a waiting Honda Motorcycle and all three rode away.”
Now the law is that if several persons embark on an enterprise to commit a crime and have also a preconceived common intention or common purpose to use violence of any degree if necessary, for the purpose of overcoming resistance and death results from such violence all are guilty of murder even though the felony be one that does not in itself involve violence like mere stealing: R v. Grant and Gilbert (1954) 38 Cr. App. R. 107. In this case the original enterprise was armed robbery a felony of violence. In such a case and for a greater reason, given a common purpose, the act of one becomes the act of each and the act of all: Igyegh Atanyi v. The Queen (1955) XV W.A.C.A. 34: Abot Gyang and Pam Nafam v. The Queen (1954) 14 W.A.C.A. 584: Sunday Kala Alagba & Ors. v. The King (1950) 19 N.L.R. 129 (Privy Council) per Lord Tucker at p. 131: Rex v. Betts & Ridley (1930) 29 Cox c.c. 259; 22 Cr. App. R. 148: R. v. Raymond R v. Charles (1962) 4 W.L.R. 436 at p. 438: R. v. William Appleby (1943) 28 Cr. App. R.1.
There is again the finding of the learned trial Judge that “the 2nd accused positioned himself at the door of P. W.1’s room armed with a shot gun determined to kill anyone who dared to challenge them in their nefarious mission.”
There was no appeal to the Court of Appeal or to this Court against the finding that the “positioning of the 2nd accused with a gun in his hand was done with the knowledge and approval of the 1st accused.” If a finding of fact is not challenged in an appeal, that finding whether it was right or wrong, stands:Nwabueze v. Obi Okoye (1988) 10-11 S.C.N.J. 60; (1988) 4 N.W.L.R. (Pt.91) 664. Now the deceased dared to disturb them and he was shot dead by the 2nd appellant. From what ever angle one may wish to look at the facts – either that 2nd appellant posted himself at the door to prevent any interference from without, or that 2nd appellant shot the deceased to facilitate their common escape – still both appellants will be equally guilty of the murder of the deceased, Sylvester Offiah.
In the final result and for all the reasons given above, and also, for the fuller reasons in the lead Judgment of my learned brother Belgore, J .S.C. which I now adopt as mine, I too will dismiss the appeals of both appellants and confirm the conviction and sentence of the trial Court on each appellant. The appeal Judgment of the Court of Appeal is also hereby upheld.
AGBAJE, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother Belgore, J .S.C. I entirely agree with him that the appellants’ appeals both of them lack substance and must fail. It is only to emphasize the latter that I propose to make the following contribution to the lead Judgment.
It was the case for the prosecution that after the appellants had robbed P. W.5 Raymond Okonkwo of his money and even assaulted him in the course of doing so at his premises at New Cemetery Road, Onitsha at about 10 p.m. on 29th July, 1983, they forced him on pain of physical injury to him and at gun point to make it easy for them to rob the other occupants of the premises.
Consequently at the behest of the appellants P. W.5 knocked on the door of P.W.1 Ocheze Ikwueme, a woman, his next door neighbor, who realizing, pursuant to her injury, that it was P. W.5 who had knocked at her door, and that he wanted to buy cigarettes from her, opened the door, P.W.5 and three others entered the room in an alarming manner. The room of P. W.1 was then ransacked. P. W.1 raised an alarm but was told, under the threat of a gun pointed at her to keep quiet. Nothing was taken from her room when they, all the four intruders, left it. P.W.1 in her evidence narrating the incident could only identify P.W.5 among the intruders. P.W.2 Ngozi Ikwueme, a grand daughter of P. W.1 living with her at the time also testified about the occurrence. She too could not recognize any of the intruders, besides P.W.5.
It appeared from the evidence that at the tail end of the operation carried out by the appellants in the room of P. W.1 with the 2nd appellant holding a gun in his hand at the ready, another occupier of the premises came out of his room with only a loincloth on and was walking in the direction of the room of P. W.1 away from his own room when the 2nd appellant saw him and there and then shot him dead with the gun the 2nd appellant was holding.
The deceased was Sylvester Offiah and the appellants and another were charged with his murder. The prosecution relied on the identification evidence of P. W.5 against the appellants. The 2nd appellant made a confessional statement Exh.5 which evidently was not evidence against the 1st appellant who denied being involved in or connected with the robbery or killing.There was an identification parade conducted by the police.
In the course of its investigation into the case in hand and at that parade P.W.5 identified the appellants as the culprits.
The learned trial Judge accepted the evidence of P.W.1, P.W.2 and P.W.5. On the evidence adduced by the prosecution on the conduct of the identification parade the learned trial Judge held as follows:
“I am satisfied that all the rules for identification parade were properly observed by the Police, and that 1st and 2nd accused were properly identified by the P.W.5 who had ample opportunity of observing the two men when they were with him in his shop ransacking his shop and the room of P. W.1. I do not believe the 1st and 2nd accused persons that the police fixed their identification by P. W.5. ”
The learned trial Judge convicted both appellants of the murder of the deceased.The Court of Appeal, Enugu Division dismissed their appeals to it against their convictions and sentences, that court confirming all the findings of fact of the trial Court.
This is a further appeal by the appellants to this court.
Briefs of arguments were filed for each of the appellants and the Respondent, The State. The issue as to whether the lower court, the Court of Appeal was right in not treating the evidence of P. W.5 as the evidence of an accomplice or a tainted witness was raised in the briefs of arguments for both appellants. I will now address my mind to this issue.
Foster Sutton P. delivering the judgment of the old West African Court of Appeal in Nweke v. The Queen 15 W.A.C.A. 29 at 30 said as follows on the question as to who ought to be treated as an accomplice:
“The question who ought to be regarded as an accomplice was fully discussed by Lord Simonds, L.c. in his judgment in the recent case of Michael John Davies (1954) Vol. 38 C.A.R. 11. He points out that there is no formal definition of the term “accomplice”, and that courts are forced to deduce a meaning for the word from the cases in which X, Y and Z have been held to be, or held liable to be treated as accomplices, and that the following persons, if called as witness for the prosecution, have been treated as accomplices:
(i) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term “accomplice”. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule, viz.,
(ii) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny (Jennings [1912] 7 Cr. App. R. 242; Dixon [1927] 19 Cr. App. R. 36);
(iii) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident: in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration”.
The arguments of counsel for the appellants on the point at issue were to the effect that on the evidence in the present case P.W.5 was a participant in the offence charged. In other words, it was the submission of both counsel that P. W.5 was participes criminis in respect of the actual offence charged and that being so he fell squarely within class (i) of the three categories of accomplices spotlighted by Simonds, L.c. in Michael John Davies’ case. That being so, Counsel continued, P.W.5’s evidence should not have been acted upon with corroboration, reliance being placed on the case of The Queen v. Ezechi (1962) 1 All N .L.R. 113 among many others. It was the submission of counsel too that corroborative evidence of that of P. W.5 was not present in this. Reference was made to the case of R. v. Whitehead (1929) 1 K.B. 99 at 102 as to what would be regarded as corroborative evidence.
There can be no dispute that P.W.5 participated on the side of the appellants in the events leading up to the offence charged in this case. On that view it is inescapable that he was a participant in the offence and thereby qualified to be described as an accomplice in this case. But it is equally indisputable that P.W.5 allied with the appelants not willingly, but under duress.However,the defence of duress is not open to any one in the case of murder or one charging an offence of which grievious harm to the person of another or an intention to cause such harm is an element.In this regard, I refer to Sec.32(4) of the Criminal Code which says
“32.A person is not responsible for an act or omission if he does or omits to do the act under any of the following circumstances.
1.not relevant.
2.not relevant.
3.not relevant.
4 when he does or omits to do the act in order to save himself from immediate death or grievous harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats
into execution:
But this protection does not extend to an act or omission which would constitute an offence punishable with death, or an offence of which grievous harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.”
The offence charged in the instant case is murder. So on the state of the law P. W.5 could not have been properly treated as an innocent accomplice because he acted all the time under duress. In my judgment therefore, P.W.5 should have been treated as an accomplice. In my judgment the two lower Courts should have treated P. W.5 as an accomplice and the Court of Appeal was wrong in refusing to do so. The upshot of what I have just said is that there should have been corroborative evidence of the evidence of P.W.5 before it was acted upon. As it was pointed out in R. v. Whitehead (supra) corroborative evidence must be extraneous to that of the witness who is to be corroborated. And this court has said in
R. v. Omisade (1964) N. M. L. R. 67 that corroborative evidence is evidence which renders it probable that the evidence of the accomplice was true in that the offence charged was committed and that it was committed by the appellants. In the case of the 2nd appellant his confessional statement afforded ample corroboration of the evidence of P. W.5.
As regards the 1st appellant, P.W.5 testified as follows as to the first appellant’s distinguishing facial mark as a result of which he was able to identify him at the identification parade:
“I recognized the 1st accused from the scar-wound on his face which had earlier been treated with iodine. He entered my store with the fresh wound on his face and also freshly treated with iodine. I did not know any of the accused before this incident.”
It appears to be common ground in this case that at all times material to this case 1st appellant had this distinguishing mark. That much is evident from ground 3 of the 1st appellant’s grounds of appeal in this court. Ground 3 reads thus:
“Ground 3:
The learned Justices of the Court of Appeal erred in law by holding that the 1st accused/appellant could be convicted without warning on the evidence of visual identification by the 5th P. W. who was a complete stranger to him and for whom the police had created an opportunity to be identified contrary to the decision in Idahosa v. R. (1965) N. M. L. R. 85, 88.
PARTICULARS
(a) There is evidence by P.W.5 that 1st accused/appellant was a complete stranger to him.
(b) There is evidence that P. W.5 had seen the 1st accused/appellant in the office of P.W.9 when he invited him to see him and he must have observed there the “fresh scar-wound treated with iodine”.
(c) The description by the P.W.5 in this case is on all fours with the description in Idahosa v. R. supra – Where the accused was described as “a man with fat belly” .
(d) The trial judge did not warn himself on the weakness of the evidence.”
The learned trial Judge in the passage from his judgment containing his finding on the identification parade which I have reproduced earlier on in this case, rejected the contention of the 1st appellant that the police fixed the identification parade. In effect there is no factual basis, for the contention on behalf of the 1st appellant that P. W.5 must have seen the distinguishing mark which undoubtedly was on the face of the 1st appellant at all times material to this case when P. W. 9 invited both of them together to his office before the identification parade. This identification mark of the 1st appellant rendered it probable that story of P. W.5 that the 1st appellant was involved in the incident of that fateful night was true. So it was corroborative evidence of the evidence of P.W.5.
The conclusion I have just reached has taken care of the arguments of Counsel for both appellants about the dangers of miscarriage of justice occurring in relying on the visual identification evidence of P.W.5 without caution or corroboration of the said evidence. For the latter proposition Counsel relied on the case of R. v. Turnbull (1976) 3 W.L.R. 445 at p. 447 cited with approval by this court in Zekeri Abudu v. The State (1985) 1 N .W.L.R. (Pt.1)55. I have held that the evidence of P.W.5 should be corroborated before it can be acted upon in convicting the appellant. However, I have found that there is corroboration of the evidence on the totality of the evidence available in this case.
The last point I like to address my mind to is whether on the facts of this case both appellants could be rightly convicted of the murder of the deceased seeing that they set out on an expedition of armed robbery and that it was the 2nd appellant alone who fired the shot that killed the deceased. There is no doubt about the correctness of the finding of the learned trial Judge that both appellants set out to commit robbery together. It was equally clear on the evidence presented in this case that to the knowledge of the 1st appellant the 2nd appellant held a gun, a lethal weapon to be used in the prosecution of the armed robbery.
The 2nd appellant saw the unexpected arrival of the deceased at the scene of the crime as an inconvenience or embarrassment which would spell disaster for them either by foiling their plans or by leading to their apprehension for the crime being connected. So he had to decide to deal with this trouble in his own interest and those of his confederates. So with the gun in his hand which was intended to the knowledge of his accomplices to be used in the robbery operation he shot dead the deceased and thereby silenced him for ever and consequently removed a veritable source of danger to them. In the circumstances I am satisfied that the killing of the deceased by the 2nd appellant was a probable consequence of the prosecution of the unlawful purpose, namely armed robbery which the 1st and 2nd appellants had formed a common intention to prosecute in conjunction with each other. The killing of the deceased by the 2nd appellant occurred in the prosecution of this unlawful purpose. So the provisions of Section 8 of the Criminal Code which says:
“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.”
Will make both the 1st and 2nd appellants liable for the killing of the deceased by the 2nd appellant alone.
For the above reasons and the fuller reasons given in the lead judgment of my learned brother Belgore, J.S.C. I too dismiss the appeal of each of the appellants. I affirm their conviction and sentence.
WALI, J.S.C.: This is an appeal against the Judgment of the Court of Appeal Enugu, in which it affirmed the sentence of death passed on the appellants by the High Court, Onitsha, Anambra State. The facts involved in the case have been adequately stated by my learned brother, Belgore, J.S.C. in his lead judgment and I entirely agree with the reasons he gave for dismissing the appeal.
The evidence showed clearly that at the time the two appellants entered and attacked P. W.5 in his store there was light, thus enabling P. W.5 to see them physically and identify them. It was in the evidence of P. W.5 that the 2nd appellant produced a gun, showed it to him and threatened him with it. This happened when the 1st appellant was already inside the shop. P.W.5 could only see the gun if there was light at the time. The same P. W.5 also gave evidence that on the appellant’s order and threat, he led them to the room of P. W.1 for the purpose of committing robbery under the threat of violence. The 2nd appellant holding a gun, stood by the door of the room of P. W.1 while the 1st appellant went inside ransacking it. It was then P. W.1 raised an alarm, but was warned by the 1st and 2nd appellants to shut up otherwise she would be killed. The alarm raised by P. W.1 attracted Sylvester Offiah to the scene of the incident and was shot dead by the 2nd appellant. This is how P. W.5 narrated the episode in his evidence:
“On the day of the incident as rain was falling as I was in my shop at about 10.30 p.m., I had closed the shop and sitting on a chair. I heard a knock on my door from outside and someone asked for tetracycline tablet and I told the person that I did not have it, but that I had stomaching. The person wanted to have it, I then opened the door and 1st accused rushed into my shop. He ordered me to lie down face downwards on the floor and not to get up. He requested for money. I told him that there was no money. He then slapped my face twice. I wanted to cry and he warned me that if I cried he would shoot. At this stage, I told the 1st accused to look into the drawer for money and he opened the drawer and found only N30.00. He told me if it was only 30 that I realized for the whole day. At that stage the 2nd accused came into the store and dipped his hand in his pocket and produced a gun and asked me if I knew what it was and I said yes. He ordered me to show him where the bulk of the money was and that if I failed to do so he would kill me as I was still a boy. 1st accused who was still searching the store on hearing the 2nd accused threatened me with a gun unless I showed him where my money was, in-tempted (sic) the search came out, picked a rod by the door and hit me on the head with it, and blood gushed out. I got frightened and asked them to come and I would show them where I kept the money. I dipped my hand in my pocket and produced 50 but the accused were not satisfied. They then asked me to open the door of another room in the house but I told them that one old woman selling cigarettes was occupying the room and that she locked the door from inside. The 2nd accused then held me by the collar of my shirt and dragged me outside and warned me that if I made any noise they would kill me. They forced me to shout for the occupier of the room to open the door. I then knocked at the door of the old woman’s room and when she opened the door 2nd accused pointed the gun at her. The old woman raised alarm but they warned her that if she shouted again they would kill her and me. P. W. 1 was the old woman who opened the door of her room. 1st accused then entered the room and ransacked it. At that time, Sylvester Offiah came out from his room. He was tying loin cloth, and the 2nd accused shot at him with a gun. 1st accused came out from the house. There was a third person outside on a 195 Honda Motorcycle. 1st and 2nd accused jumped on the motorcycle and they quickly moved away.”
From the foregoing, it was very clear that both the 1st and 2nd appellants visited the room of P .W.1 to commit robbery. The 1st appellant entered the room while the 2nd appellant holding a gun stood outside by the door to give the 1st appellant a cover and to prevent anybody coming to disturb the operation. It was then that the deceased who was coming to the rescue of P. W .1 as a result of the alarm she raised that the 2nd appellant shot and killed him. This facilitated the escape of both the 1st and 2nd appellants from the scene of the crime. It was also not in doubt that the 1st appellant knew all along that the 2nd appellant was carrying a gun for the purpose of the robbery. The evidence of P. W.5 on the facts stated supra was not discredited. He was not even cross-examined on the material facts of identity, common design or shooting. It is sufficient if the murder was committed in the cause of prosecuting an unlawful purpose and which needs not necessarily be a felony, but must be of such a nature as likely to endanger human life. The 1st appellant in my view, was caught by the provision of Section 316(3) and (4) of the Criminal Code, which section provides:
“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
(1) XXX XXX
(2)xxxxxxxxxxxx
(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;
(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence; is guilty of murder. ”
The learned trial judge adequately considered the whole evidence before him and in my view rightly rejected the defenses put up by the appellants. P. W.5 is neither an accomplice nor a tainted witness, but a victim. I see no reason to disturb the concurrent findings of fact made by the courts below. See Sobakin v. The State (1981) 5 S.C. 75.
It is for these and other more detailed reasons in the lead judgment of my learned brother Belgore, J.S.C., which I also adopt as mine that I find the appeal lacking in merit. It is therefore dismissed. The conviction and sentence are affirmed.
Appearances
Chief (Senator) N. N. Anah (with him, V. I.Aganeku) for the 1st Appellant
Chief (Mrs.) Ajayi-Obe (with her, G. A. Oyibo) for the 2nd Appellant For Appellant
AND
Mr D.N Aguadi (D.P.P) Anambra State Ministry of Justice For Respondent