THE STATE v. BENEDICT ARO & ORS (2014)

THE STATE v. BENEDICT ARO & ORS

(2014)LCN/7425(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of September, 2014

CA/E/318/2010

RATIO

PRACTICE AND PROCEDURE: A SUBMISSION OF NO FACIE CASE; THE DUTY OF THE COURT WHEN A NO CASE SUBMISSION IS MADE AND WHEN A NO CASE SUBMISSION FAILS

In DABOH & ANOR v. THE STATE (1977) 5 SC 122, the Supreme Court per the legendary Udo Udoma JSC held that “when a submission of no facie case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.” See also the Supreme Court decisions in UBANATU v. C.O.P (2000) 1 SC 31 AND IN TONGO & ANOR V. C.O.P (2007) 4 SC (PT 111) 1 following its above decision. per. EMMANUEL AKOMAYE AGIM, J.C.A.

CRIMINAL LAW: THE OFFENCE OF MURDER; THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF MURDER

CRIMINAL LAW: COMMON INTENTION TO COMMIT AN OFFENCE; THE PRECONDITIONS THAT MUST BE ESTABLISHED BEFORE A CONVICTION BASED ON COMMON INTENTION TO PROSECUTE AN UNLAWFUL PURPOSE WITH EACH OTHER MAY BE SUSTAINED
S. 8 of the Criminal Code Law relied on by Learned Counsel for the appellants to argue that the respondents should be held equally responsible for causing the death of Mrs. Elizabeth Aja provides that “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 a purpose an offence is committed of such a nature that is commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” In ALARAPE & ORS V. THE STATE (2001) 2 SC 114, the Supreme Court held that “A close analysis of the above section of the law discloses the following requirements or preconditions that must be established before a conviction based there under may be sustained. These requirements are as follows-
1) There must be two or more persons
2) They must be form a common intention
3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another
4) An offence must be committed in the process
5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose. per. EMMANUEL AKOMAYE AGIM, J.C.A.

CRIMINAL LAW: COMMON INTENTION TO COMMIT A CRIME; WHAT THE COURT CONSIDERS IN DETERMINING WHETHER AN OFFENCE COMMITTED IN THE PROCESS OF PROSECUTING AN UNLAWFUL PURPOSE IS OF SUCH A NATURE THAT ITS COMMISSION IS A LIKELY CONSEQUENCE OF THE PROSECUTION OF THE UNLAWFUL PURPOSE

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

THE STATE Appellant(s)

AND

1. BENEDICT ARO
2. CHUKWU AGHARANDU
3. IFEANYI NWAFOR
4. UKPAI NGA
5. FREDRICK CHUKWU
6. CHUKWU ABIA
7. PHILIP ANYERU Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): The respondents herein were in charge NO HAB/7C/2008 in the Ebonyi State High Court sitting at Abakaliki on 28 – 07 – 2008 arraigned upon an information containing a charge with one count of murder. Following the not guilty plea of each respondent, trial commenced.
The appellant elicited evidence through five witnesses (PW1, PW2, PW3, PW5) to prove the counts of murder against the respondents. Following the close of evidence by the appellant, the learned SAN for the respondents made a no case submission urging the trial court to dismiss the charge against them. The appellant replied to the no case submission, urging that the evidence it elicited disclosed a prima facie case against the respondents which they were bound to defend.

On the 29 – 07 – 2010, the trial court ruled upholding the 2nd to 8th accuseds’ no case submission and dismissing that of the 1st accused holding that he has a case to answer. The trial court discharged the said 2nd to 8th accuseds. Dissatisfied with this decision of the trial court, the appellant on 4 – 8 – 2010 commenced this appeal No. CA/E/318/2010 by filing a notice of appeal containing two grounds of appeal. The amended notice of appeal containing the same number of grounds is dated 10 – 05 – 2013 and filed on 13 – 05 – 2013. The 2nd to 8th accuseds are the respondents herein.

The parties to this appeal have filed their briefs of argument as follows-amended appellant’s brief of argument respondent’s brief of argument and appellant’s reply brief of argument.

The appellant in its brief of argument raised one issue for determination as follows – “Whether in view of the evidence adduced by the prosecution before the lower court, the learned trial judge was justified in holding that a prima facie case of murder was not made out against the respondents to warrant their entering into defence.”

The respondents adopted the sole issue for determination raised by the appellant.

The Learned SAN for the respondents’ opened the argument in the respondents brief by contending by way of preliminary objection that Ground 1 of this appeal is incompetent and should be struck out because what it complained against is not what the trial court decided in its ruling.
According to the Learned SAN, the trial court decided that the prosecution having led evidence to show that the respondents disobeyed an order to shoot at the deceased, they cannot be held responsible for the same act which they refused to carry out” and that “it is not the decision of the lower court that a case of common intention was not made out against the respondents. He then argued that since the lone issue raised by the appellant for determination in this appeal is based on the two grounds of this appeal, and one of them is incompetent, the issue is thereby rendered incompetent as an issue derived from an incompetent ground of appeal is itself incompetent.

The Learned SAN relying on the decisions in NWANWUNA V. NWAEBILI (2011) 4 NWLR (Pt. 1237) 290 AT 309, APGA V OHAKIM (2009) NWLR (pt 1130) 116 AND INEC V ACTION CONGRESS (2009) 2 NWLR (PT 1126) 524 AT 584 emphasized that where an appellant argues his appeal on the basis of an issue couched from incompetent and competent grounds of appeal, it is not the business of the Court of Appeal to sift through the argument to identify and sever the part that touches on the competent ground from the part that touches on the incompetent ground, as such an issue is deemed incompetent. He then argued that since the single issue for determination in the appellant’s brief of argument is incompetent, it will be right to say that the brief is not supported by issues for determination and is therefore incompetent and should be struck out.

Learned Counsel for the appellant replied to this preliminary objection in the appellant’s reply brief. He argued that there was no reason or basis for the objection and juxtaposed the exact wordings of parts of the ruling of the trial court and ground 1 of this appeal to show that the complain in ground 1 is against what the ruling of the trial court decided. He urged that the preliminary objection be dismissed.

Let me now find out if the complain in ground 1 of this appeal is against what was decided in the ruling of the trial court. Ground 1 of this appeal states that –
“The Learned trial judge erred in law when he held that a case of common intention was not made out in the facts and circumstances of this case against the Accused/Respondents as a result of the failure of the prosecution to lead evidence stating the a specific role played by each of them during the attack in the compound of the deceased that caused her death
PARTICULARS OF ERROR IN LAW
(a) There was evidence before the trial court that the Accused/Respondents were seen in two buses chanting war songs and armed with guns and other dangerous weapons on the date of the incident.
(b) There was evidence before the trial court that the Accused/Respondents came to the compound of the deceased at the same time in the company of the Accused and heralded their invasion with gun shots.
(c) There was evidence before the trial court that the Accused/Respondents were all present in the house of the deceased in the company of the Accused when the PW1 was cut with machete and fired with gun shot.
(d) There was evidence before the trial court that it was in the course of the attack in the compound of the deceased by the accused/respondents and their confederates that properties were burnt, destroyed and removed.
(e) Common intention is not always amenable to definite and specific proof but ought to have been inferred by the trial court from the companionship of the accused/respondents and accused persons in the compound of the deceased to effect an unlawful purpose.
(f) The prosecution is not bound in law to lead evidence as to the particular acts perpetrated by the accused/respondents in the course of an unlawful purpose which contributed to the death of the deceased.”

Learned Counsel for the appellant reproduced the parts of the ruling of the trial court that ground 1 of this appeal complained against in the appellant’s reply brief thus –
“In the instant case, the testimonies of the PW1 and PW3 directly linked the 1st accused person Christian to the act that killed the deceased though all the other accused persons except the 3rd accused person Chukwu Agharandu were all seen and identified as being present at the scene of the incident on that day but nothing more was said concerning the part they played that resulted to the death of the deceased.
There was no evidence of a common intention to prosecute an unlawful act against the other accused persons apart from the 1st accused who killed the deceased.
In fact I agree entirely with the submission of the learned SAN for the accused persons when the (sic) he said that the evidence showed lack of common intention”. (Underlining mine for emphasis)

“I think that the striking difference or distinguishing factor between the instant case and the cases of Oladimeji vs. State supra; and Oyakhire v. State supra, is that on (sic) in the instant case there is no evidence of any common intention by the prosecution against the other accused persons apart from their being identified at the scene of the incident unlike in the cases of Oladimeji v. State supra; and Oyakhire vs. State supra where the common intention of all the accused persons were established by evidence before the court”.

“I am therefore of the view that the submission of no case as made by the learned SAN for all the accused persons succeed partly on the ground that the essential ingredients as required under the second limit (limb) as above stated by this court, which is that the death of the deceased has been as a result of the act or action of the accused person(s) has not linked all the accused persons to the death of the deceased.”

It is glaring from the record of this appeal that the Learned Counsel for the appellant correctly quoted the above portions of the trial court’s ruling.

It is obvious that the trial court did decide that there was no evidence of a common intention by the respondents to prosecute an unlawful act. The argument of the Learned SAN that the trial court did not decide that common intention of the respondents was not established is not correct. It is obvious also that ground 1 of this appeal complains that the trial court erred in law in holding that a case of common intention was not made out on the facts and circumstances of this case against the respondents. I therefore hold that the complain in ground 1 of this appeal is against what was decided by the trial court’s ruling. The relationship between this ground of appeal and the above reproduced portions of the trial court’s ruling is so patently obvious that it becomes vain and pedantic to argue that the ground is not derived from any decision in the ruling. Even a perfunctory reading of the said ground and the ruling of the trial court would have easily exposed this relationship. Because of the palpable lack of basis for this preliminary objection and its frivolity, I hold that it is an abuse of the process of this court. It is hereby overruled and dismissed.

Ground 1 of this appeal and the issue for determination in this appeal and the arguments based on it are valid and competent. I will now proceed to consider the merit of the sole issue for determination in this appeal.

After the prosecution announced that it has concluded eliciting evidence in proof of the allegation of commission of crime by an accused, the evidence it has adduced must prove the commission of the crime by the accused beyond reasonable doubt. This is so by virtue of S.135 (1) and (2) of the Evidence Act. Subsection (3) of the same S.135 provides that “if the prosecution proves the commission of the offence beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant.” It is therefore implicit in the provisions of this subsection that if the commission of the offence is not proved beyond reasonable doubt by the prosecution, no burden will shift to the accused to prove reasonable doubt as there will be no case for the accused to defend. In considering a no case submission particular attention must be paid to the provisions of S. 135(3) of the 2011 Evidence Act so as to be properly guided on the standard of proof the prosecution’s evidence must attain before the duty of the accused to answer the case of the prosecution would arise. It is the most relevant provision in the determination of a no case submission in a Criminal Case. By virtue of this provision the prosecution at the close of its evidence can be said to have made out a case for the accused to answer only if the evidence adduced by it proves the commission of the offence by the accused beyond reasonable doubt. In other words the evidence adduced must be such that can support the conviction of the accused.

S.286 of the Criminal Procedure Law enables the accused to invite the court to consider if the prosecution has proved the allegation of commission of crime against him beyond reasonable doubt and thereby placed the burden on him to prove reasonable doubt on a balance of probabilities. The accused invites the trial court by arguing that the evidence adduced by the prosecution has not made out a case requiring him to defend. As held by the Supreme Court in OHUKA & ORS V. THE STATE (1988)7 SC (PT. 11) 25, such a submission “means that there is no evidence on which the court could convict even if the court believed the evidence given.”

In inviting the trial court to consider if the evidence adduced by the prosecution has proved beyond reasonable doubt that he has committed the offence with which he is charged, the accused has the option of notifying the trial court orally in open court that he shall not adduce evidence to prove reasonable doubt and therefore shall rely completely on the evidence adduced by the prosecution, or to simply address the trial court without indicating that he intends or does not intend to call evidence in defence. Although it is desirable to so indicate, but if the accused addresses without so indicating, he is still entitled to elicit evidence in defence if the no case submission fails.

The generally held view is that the importance of such an early indication or notice, at the commencement of the no case address, is that it guides the court on the approach and extent of its consideration of the evidence and the kind of conclusion it can reach on the basis of such consideration of the evidence.
If the accused decides not to call evidence in defence and rely on the evidence of the prosecution then the court would have to be painstakingly meticulous and detailed in analyzing the evidence of the prosecution with final findings of facts and law and conclusions, deciding the innocence or guilt of the accused finally. If the accused simply makes a no case submission or indicates that he intends to defend if it fails, then the court will not be detailed in its consideration of the evidence and will only confine itself to finding out if the evidence shows that the accused committed the offence without making any findings of facts especially those touching on the credibility of witnesses and final pronouncements on the innocence or guilt of the accused.

In our present case, the Learned SAN, following the closure of the prosecution’s case, proceeded to make a no case submission on behalf of all the accused persons without indicating to the court that he intends or does not intend to call evidence in defence if the no case submission fails.
The accused were therefore entitled to lead evidence in defence to the case of the prosecution if their no case submission fails. It was therefore clear from this situation that the trial court was supposed to be restrained in its consideration of the evidence and its pronouncement on the evidence in the manner prescribed by the Supreme Court in DABOH V. STATE (SUPRA), UBANATU V. COP (SUPRA) AND TONGO & ANOR V. COP (supra).
The trial court in our present case recapped the evidence of the prosecution and the arguments of both sides on the no case submission, relying on the decisions in STATE v. NICOLAS UZUAGWU & 3 ORS (1972)2 ECSLR 429 AT 432, REGINA V. COKER (1952) 20 NLR 62, THE QUEENS BENCH DIVISION PRACTICE DIRECTION (1962) 1 WLR 227 AND MOHAMMED V STATE (2007) 7 NWLR (pt 1032) 152 AT 154, reminded itself that at this stage it is not called upon to reach a decision as to the guilt or innocence of the accused as this can only be done when the evidence of both sides is placed before it and that its power is limited to finding out if the evidence adduced by the prosecution proved all the essential ingredients of the offence with which they were charged or that it is so patently or manifestly discredited or unreliable that no reasonable tribunal can safely convict on it.

The trial court then proceeded to restate the essential ingredients of the offence of murder as follows-
(a) That the deceased has died.
(b) That the death of the deceased has been as a result of the act or action of the accused person(s); and
(c) That the act or action of the accused person(s) was intentional with knowledge that death or grievous bodily harm was its probable consequences.
It held that the evidence proved the first ingredient that Mrs. Elizabeth Aja had died. This is not contested in this appeal. It also held that the evidence proved the second ingredient that the death of Mrs. Elizabeth Aja was as a result of the act of the 1st accused. It held that the evidence did not prove that her death resulted from the act of any of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th accuseds because-
(i) there is nothing in the evidence identifying the 3rd accused as being among the persons present at the crime scene.
(ii) The mere presence of the 2nd, 4th to 8th accused persons at the scene of crime when the 1st accused shot and killed Elizabeth Aja did not cause her death.
(iii) When the 1st accused ordered the said respondents herein to shoot Mrs. Elizabeth Ajah, they refused to do so and he had to do it himself.
(iv) There was no common intention of all the respondents with the 1st accused to prosecute an unlawful act.
The trial court after stating that “I do not intend to further consider the third limb of the essential ingredients,” on the basis of the above reasons, upheld the no case submission on behalf of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th accused persons and overruled and dismissed the no case submission of the 1st accused person. It discharged the 2nd to 8th accuseds and ordered the 1st accused to enter his defence.

In this appeal against the above decision of the trial court upholding the no case submission of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th accused persons (respondents herein), Learned Counsel for the appellant submitted that the premise upon which the trial court’s consideration of the no case submission proceeded was that the mere presence of an accused at the scene of crime without evidence of his actual committal of the offence cannot amount to proof of the fact that he caused the death of the deceased. Learned Counsel argued that the premise was wrong and prejudicial to the case presented by the prosecution because it assumes or prejudges that the respondents were merely present at the scene of crime without more and disregards the evidence that they, on the 17 – 6 – 2006 came together to the crime scene in a bus, armed with guns, matchets and other weapons, singing war songs, that they heralded their arrival with gun shots, that they fired gun shots in the compound after shooting the deceased, that the respondents burnt vehicles, destroyed properties in the compound and removed some properties from the house of the deceased and that the respondents together physically assaulted PW1, inflicting matchet cuts on his legs and shooting one of his legs with a gun. Learned Counsel then submitted that if the trial court had considered the above pieces of evidence, it would have peremptorily dismissed the no case submission and that the said evidence proved conclusively that the respondents were on a joint mission to effect a common unlawful purpose in the compound of the deceased on 17 – 06 – 2006, in the course of which she was killed.

Learned Counsel further submitted that it is in the light of the said pieces of evidence that the provision of S. 8 of the Criminal Code becomes pertinent for an effectual determination of this issue and that S. 8 of the Criminal code which statutorily provide for the doctrine of common intention envisages that where two or more people gather to effect an unlawful purpose and in the course of effecting the same, an offence of the kind which is a reasonable consequence of prosecuting the unlawful purpose is committed, each and every participant in the unlawful purpose is deemed to have committed the offence and that it is absolutely unnecessary to prove who did what in the course of perpetuating the unlawful purpose as a result of which the offence was committed. Relying on MBANG v STATE (2009) 18 NWLR (pt. 1172) 140, he stated the required facts that need to be established by evidence to found liability under the said S. 8 of the Criminal and submitted that the evidence elicited by the prosecution established the said required facts.

Learned Counsel for the appellant also submitted that from the evidence that in the course of the invasion of the deceased compound by the respondents and their confederates, they freely used the guns, matchets and other weapons they were holding to shoot the deceased, burn and destroy the properties in the compound and inflict multiple injuries on PW1, it can be safely concluded that the shooting of the deceased with a gun was not accidental and that the respondents had a common intention to carry out the invasion.

Relying on DIGBEHIN V. QUEEN (1963) 3 NSCC 303 AT 305, Learned Counsel also argued that where two or more persons set out to steal and one of them is known by the others to be armed with a lethal weapon, all of them may be criminally responsible for any consequence resulting from the use of the weapon by the one who carried it, even if there is no evidence that there was any express pre-concerted agreement that he was to use it. According to Learned Counsel, the test for liability for common intention under S. 8 of the Criminal Code is not that the accused persons caused or procured the person holding the lethal weapon to use it in causing the death of the deceased, but, it is that the death was a probable consequence of their joint unlawful act. He relied on OGU OFOR & ANOR v. THE QUEEN (1955) 15 WACA 4 AND BUJE V STATE (1991) 4 NWLR (PT. 185) AT 287 for this submission. He then submitted that in the light of the foregoing, it was wrongful for the trial court to have found that only the 1st respondent had a case to answer and discharged and acquitted the 2nd to 8th respondents on the ground that the death of the deceased is not cause by any act of the 2nd to 8th respondents. He relied on ADEKUNLE V STATE (1989) 5 NWLR (PT. 123) 505

He also submitted that the failure of the other respondents to comply with the order of the 1st respondent that they shoot the deceased is not inconsistent with the existence of a common intention amongst them, but that the order and the refusal to obey it is conclusive evidence that the respondents were indeed armed with guns and were there together for a common purpose. He also submitted relying on NWANKWOALA V. THE STATE (2006) 14 NWLR (PT 100) 663 AND OGBU V. THE STATE (2007) 5 WLR (PT 1028) 635 that in practical terms, common intention is incapable of positive proof but its existence can be inferred from the facts and circumstances of the case and that the common intention of the respondents can be inferred from their joint invasion of the deceased compound, destruction of the properties in the compound, after the 1st accused had shot and killed the deceased and the multiple injury and shooting of PW1.

Another submission of Learned Counsel for the appellant is that the view of the trial court that none of the prosecution witnesses identified the 3rd respondent as being present at the crime scene is not supportable having regard to Exhibit C wherein the 3rd respondent was clearly identified by the prosecution witness, Christopher Aja as one of the assailants, he knew very well and saw at the scene of the crime on 17 – 6 – 2006.

Learned Counsel finally submitted that the evidence elicited by the prosecution established a prima facie case of murder against all the respondents and that it became incumbent on them to enter their defence to explain their presence and companionship during their armed attack in the compound of the deceased in the course of which she was killed. He then urged this court to resolve the lone issue in favour of the appellant.

Learned SAN in his argument replicando, first restated the circumstances when an accused can make a no case submission in a criminal trial under S. 286 of the Criminal Procedure Law relying on the decisions in IBEZIAKO V COP (1963) 1 ALL NLR 61 AND MOHAMMED V STATE (2007) 7 NWLR (PT 1032) 152 AT 161. He then submitted that-
1. It is important to appreciate that the charge against the respondent is specific and that is, that they murdered Elizabeth Ajah. Their innocence or guilt therefore should be determined according to what they did or failed to do that led to the death of Mrs. Elizabeth Ajah.
2. A summary of the evidence of the prosecution against the respondents is that they were part of rioters who visited the home of the deceased on the day she was killed. We may add that it was also alleged, that some of them were armed with weapons ranging from guns to matchets.
3. Interestingly, the prosecution also led evidence to show that when one Christian Okereke ordered the respondents to shoot at the deceased woman, the respondents disobeyed the older.
4. It was on the above state of evidence that the no-case submission was made for the respondents on the charge of murder.
5. The all-important question is whether the trial judge was wrong to have upheld the no-case submission as it affects the respondents.

In response to the appellant’s reliance on the doctrine of common intention as statutorily prescribed in S. 8 of the Criminal Code Law, the Learned SAN argued that-
1. It is clear from the submissions of the appellant that he is confusing common intention with common object. The distinction between both concepts was made explicit by the West African Court of Appeal in Offor & ors v. The Queen (15) WACA 4 at page 5 where Coussey J.A held as follows “common intention is to be distinguished from common object”
2. While all the rioters may have had the common object of going to the house of the deceased to cause havoc, they did not have the common intention of causing grievous harm to the deceased person. That is why the respondents refused to obey the older to shoot at the deceased.
3. The reference to PW1 or any other person as having suffered any injury in the hands of the respondents is unhelpful because the respondents were not charged for causing any bodily injury to the PW1.
4. The trial court is to confine himself to the charge against the respondents and no more.
5. Common intention as a factor in determining guilt must be related to a common intention to commit the offence eventually committed. That is why it was held by the supreme court in Odigiji v. State (1976) 7 SC 141 at page 154-15 that where there is established a concerted effort or common intention to commit an offence which offence was eventually committed, any of those who had the common intention is criminally liable for the offence and it is immaterial whether they all eventually did it or not.
6. What the above means is that the common intention is not at large. The available evidence from the prosecution is clear that there was no common intention to assault or cause grievous bodily harm on the deceased.
7. Without any such common intention there is no way the respondents can be held accountable for the death of the deceased. The view above is supported by the case of Queen v. Onuegbe (1955) 2 FSC 10 at page 11 where the Federal supreme court held that “if members of a gang expressly disassociate themselves from the acts of a fellow member, such members cannot be guilty of common intention to commit such act even if common intention to commit other acts arc proved”
8. In the light of the above principle of law, it is unhelpful to hold as the appellant has insisted that there was a common intention. At best what existed was a common object and that must be distinguished from a common intention.

On the effect of the refusal of the other respondents to comply with the order of the 1st respondent to shoot the deceased and the evidence that 1st respondent shot the deceased on the existence of common intention of the respondents, the Learned SAN argued that-
1. If as the PW1 and PW3 insisted, Christian Okereke ordered the respondents to shoot at the deceased and they refused to do that, that negatives a common intention. If one of them had shot at the deceased and missed but Christian Okereke decided to do that job himself, the story would have been different. Again, if there had been no order to shoot which was disobeyed, a shot fired by one of the rioters would have been deemed the act of the others,
It remains to point out that Section 8 of the Criminal Code is only applicable where it cannot be shown by whose hand the murder was committed. See Brett and Macleans “The Criminal Law and procedure of the Six, Southern States of Nigeria” 2nd Edition page 713 paragraph 1855, where it was stated that “killing by several persons in circumstances where it cannot be shown by whose hand life was actually extinguished is murder on the part of each of the persons in carrying out the common act of all.” The prosecution itself in this case produced evidence to show that one Christian Okereke pulled the trigger when his order to the others was disobeyed.
2. Your Lordships, it will be a great disservice to our Criminal jurisprudence for the persons who clearly refused an order to kill to be held responsible for the same death which they refused to be part of. The appellant is pushing for the above consequence and must therefore be resisted.
3. In the light of the above, the position of the trial court can not be faulted.

The Learned SAN relied on YAKUBU MOHAMMED & ANOR V THE STATE (1980) 3 – 4 SC 84 for his submission that the doctrine of common intention should not be treated lightly and should not be readily applied and relied on MBANG V. THE STATE (Supra.) for his submission that where there is undisputed evidence as to how the deceased met his death, the necessity to draw any inference as to how he died would be irrelevant and unnecessary.

The Learned SAN also argued that the use of the word “may” by the Supreme Court in DIGBEHIN v. THE QUEEN (1963) 3 NSCC 303 AT 305 in restating the principle of law on joint criminal responsibility for the act of one member of a group of persons carrying out a joint criminal enterprise, means that it is not in every case that common intention would be ascribed to two or more persons who set out to steal and one of them is known by the rest to be armed. He submitted that “one such case is where one of the gang forbade the use of knife or matchet. It will be a great injustice if such a person that expressly forbade the use of the weapon is caught by the principle of common intention. That is exactly the position in this case. The respondents having allegedly refused to carry out the order on them to shoot cannot be held responsible for the same shooting which they said No to. The above settles this controversy.”

He submitted finally that the trial court was therefore right to have upheld the No-case submission and urged that the single issue in this appeal be resolved in favour of the respondents.

In the appellants reply brief of argument, Learned Counsel for the appellant in response to the respondents’ argument that since the respondents were specifically charged with the murder of Mrs. Elizabeth Ajah, their innocence or guilt will therefore be determined based on their acts or omissions that led to her death, argued that since the respondents did not rely completely on the no case submission, the guilt or innocence of the accused is not yet in issue at that stage and that what is in issue is whether the evidence led by the prosecution links the respondents to the commission of the offence in issue as to warrant some explanations for the said link. He relied for this submission on UBANATU V. COP (2000) 2 NWLR (PT 643) 115 AND TONGO V. COP (2007) 12 NWLR (PT 1049) S. 25 AT 544. He then submitted that it is erroneous to suggest that the guilt or innocence of the respondents was in issue at this stage and that the trial court also fell into this same error causing it to hold as it did.

The Learned Counsel further submitted that this error caused the trial court to delve into a detailed consideration of the applicability of the doctrine of common intention with a view to determining the culpability of each respondent in the act of the shooting that killed the deceased and that this detailed consideration of the doctrine at this stage is legally offensive as it can only be fittingly done during consideration of the guilt or innocence of the respondents. Relying on AITUMA v. STATE (2006)10 NWLR (pt. 989) 452, F.R.N. V. EKWENUGO (2007) 3 NWLR (PT. 1021) 209 AND AITUMA v. STATE (2007) 5 NWLR (pt 1028) 466, he further submitted that at the stage of a no case submission the trial court ought to be mindful not to say too much to avoid prejudging the merit of the case by determining the guilt or innocence of the accused.

The Learned Counsel for the appellant also submitted that the respondents’ wrongly relied on MBANG V. STATE (supra) and Brett and Macleans. In response to the Learned SAN’s distinction between common object and common intention, he argued that it is a distinction between six and half a dozen and that if as Learned SAN conceded that the respondents “had the common object of going to the house of the deceased to cause havoc (which included shooting the PW1 with a gun and cutting his legs with matchets), they should enter their defence to explain that the shooting of the deceased was not included in their common object of causing havoc.
According to him, having consorted with each other to grievously assault and wound PW1, they cannot deny their responsibility for the killing of the deceased at the scene of the havoc that day.

Another submission of Learned Counsel for the appellants is that there was no evidence that the 2nd to 3rd respondents dissociated themselves from the shooting of the deceased by the 1st respondent and that their refusal to comply with the order to shoot cannot amount to dissociating themselves from that shooting considering the circumstances of the invasion. He then submitted that the reliance by the respondent on QUEEN v. ONUEGBE was wrong.

Let me now consider the merits of the above arguments on behalf of each party to this appeal. I start with the complaint against the decision of the trial court that there is no evidence identifying the 3rd respondent as one of the persons who invaded and attacked the compound of the deceased on the fateful day, 17-6-2006. It is clear from the record of this appeal that the trial court held that the PW1, PW3 and the evidence of the late Aja Christopher in exhibit C in identifying the persons in company of the 1st accused and present at the scene of crime on that day did not mention the 3rd respondent. It is correct that PW1 and PW3 in their evidence did not mention the name of the 3rd accused or directly and specifically identify him by any other means as one of the persons present at the scene of crime in company of the 1st accused, engaged in the invasion and attack of the compound of the deceased. Therefore, the trial court was right in holding that PW1 and PW3 did not identify him as one of those persons they saw as present on the crime scene. Exhibit C contains the testimony of Aja Christopher O. The part of the testimony identifying the persons he saw at the scene of crime on the 17-6-2006 involved in the attack of their compound is at pages 2 and 3 of exhibit C. as follows- “while in the same room I saw Christian Okereke, Benedict Aro, Philip Anyenu, Chukwu Aja, Philemon Onu, Justice Iroabuchi Ivoke and some of them here who I don’t know their names but I know their villages and what they do. I saw Justice Iroabuchi Ivoke, dragging my uncle from my father’s house.”
(page 2).
“I had known the people I mentioned before the date of the incident. I also been seeing the people I did not know their name before the date of incident. He points and identifies the 5th accused who he says is from Ihie Ishiagu, he helps the mother in the Restaurant business, the 6th accused, says he is from Amaezee Ishiagu, he is an Agboro or tout at Crushed Rock, the 7th accused person who he says he is from Okue Ishiagu, deals on gas, the 3rd accused, says he is from Amagu Ishiagu and that he is an Okada man i.e. commercial motorcyclist, the 4th accused person, says he is from Okue and that he is an Okada man too, as being the people he saw on that day. Christian Okereke is from Amaeze Ishiagu, says he deals on stone in Crushed Rock, Philip Anyeru, says he is a politician and the former vice chairman Ivo L.G.A, he is from Ngwogwo Ishiagu, Benedict Aro, says he is from Ogwor Ishiagu and also a contractor at Crushed Rock. There were others that I don’t know their names who were also at the scene of incident that are not charged here.” (page 3).

Therefore the trial court was wrong when it held that “In the said exhibit C the following accused persons were also identified as being present at scene of the incident namely Christian Okereke, the 1st accused person, Benedict Aro, the 2nd accused person and Philip Anyeru, the 8th accused person” without stating that the 3rd accused was identified by name, place of origin and occupation in the said evidence in exhibit C. I hold that there was evidence in exhibit C identifying the 3rd accused as one of the persons present at the scene of crime in company of the 1st accused and involved with others in attacking the compound of the deceased.

I will now consider whether the trial court was right to have held that the evidence adduced by the prosecution did not show that the accuseds had a common intention to execute an unlawful purpose and that the respondents herein cannot be held jointly answerable for the 1st accused’s shooting and killing of Mrs. Elizabeth Aja by virtue of their mere presence at the scene of crime.

Let me start with a brief restatement of the relevant facts established by the evidence in the record of this appeal to facilitate the understanding of the treatment of this issue.

On the 17-6-2006, two buses filled with men armed with guns and matchets, with some of them hanging on the buses, were seen in Amokwe Ishiagu driving past. The men in the buses were singing war songs. Aja Christopher O identified some of the men hanging on the bus as Justice Iroabuchi Ivoke, Hon. Philip Anyeru and Christian Okereke. When they passed, shop owners in that area started closing their shops.

The men seen hanging on the said two buses that drove past, were later that day seen in company of the accuseds and other persons invading and attacking the compound of PW3 and his wife, the deceased, where Aja Christopher has his own house. They arrived the said compound shooting guns. People in the compound ran into their houses and locked themselves in. The invaders were fully armed with guns, matchets, axes, clubs and other weapons. They attacked the house of PW3 while PW1, PW3 and his wife Mrs. Elizabeth Aja were inside, PW1 and PW3, through the transparent glass windows saw them approaching the house fully armed. When PW3 opened the back door to go out, he was ordered to go back in or he would be shot by Justice Iroabuchi Ivoke who was pointing a gun at him. Ivoke was accompanied by 3rd, 4th and 7th accuseds and other named persons who are not parties herein. PW3 ran back into the house. The three of them were in the living room and watching some of the invaders in the front of the house. They saw the 1st accused order the respondents and other persons in his company to shoot at them. They failed to do so.
The 1st accused himself then shot and killed the said Mrs. Elizabeth Aja. PW1 and PW3 then hid themselves in some rooms in the house.
Meanwhile those with 1st accused were shooting sporadically in the compound. The invaders gained access into the house by destroying the burglary proof of one window. They ransacked the whole house and made away with some of PW3’s belongings. They found PW1 where he was hiding and dragged him out of the house, through the back. Justice Ivoke Iroabuchi Ivoke ordered him to lie down and while PW3 was doing so, the said Iroabuchi Ivoke shot him on the right leg.
They dragged him up again and at that point he saw 3rd, 4th, 5th, 6th and 7th accused persons and others. 5th accused who had a gun and a matchet used the matchet to cut PW3 on the back, the 4th accused used a matchet to cut PW3’s left hand and two legs. They said to each other and agreed that they should take PW3 somewhere and kill him. As they were taking him away, the 7th accused and others destroyed the vehicle PW1 uses in selling bread. They took him along Amagu Road and when they got to a road junction called Rock Junction, PW3 fell down and lost consciousness as he had bled too much. They abandoned him there thinking he was dead. They set ablaze PW3’s Mercedes Benz car and a bus which were parked at the back of PW3’s house. It was PW3’s son, Christopher Aja who took PW1 to the hospital for treatment and identified the corpse of Elizabeth Aja to PW5 for post mortem examination.

The trial court opened the determination of whether the second of the ingredient of the offence of murder it had restated was proved by the evidence with the question thus – “would the mere presence of an accused at the scene of a crime without evidence of actual committal of an offence amount to a proof of the second limb of the ingredient of the charge of murder as above stated.” The said second limb is that the death of the deceased resulted from the act of the accuseds. The trial court answered the question by holding that “although an the other accused persons except the 3rd accused person Chukwu Agharandu were all seen and identified as being present at the scene of the incident on that day but nothing more was said concerning the part they played that resulted to the death of the deceased.
There was no evidence of common intention to prosecute an unlawful act against the other accused persons apart from the 1st accused who killed the deceased. In fact I agree entirely with the submission of the Learned SAN for the accused persons when the said that the evidence showed lack of common intention… In the absence of any evidence against other accused persons I hold that the prosecution having therefore failed to prove the essential ingredients of the charge of murder against those other persons, concerning the death of the deceased as the result of the act or action of these accused persons, have only established that it was the 1st accused person that is linked to the death of the deceased. My view is buttressed by the evidence of PW1 when he said that when Christian Okereke ordered his members to shoot, they failed to obey him, he then shot the deceased from a distance of about 18 feet.”

In the light of the above restated facts I do not think that the trial court was right to have described the presence of the respondents at the scene of crime as mere presence. The phrase “mere presence” suggests that they were passively present in that they just happened to have been present when the crime was committed and that their presence had no nexus with what happened at the scene of crime.
Such a notion is not supported by the evidence. As is clear from the facts restated above, all the accused persons and other persons not parties to this case drove in two buses armed with guns, matchets, axes and clubs, chanting war songs and arrived the deceased compound shooting guns, attacked the house of PW3 and the deceased, burnt PW3 cars and PW1’s car, searched PW3’s house and took away PW3’s properties, shot PW1 and gave him several matchet cuts, and took him away, and the 1st accused shot and killed the deceased in the process of the attack. They were not passively present but actively participated as members of a group in the joint invasion and attack of the compound of PW3 and the deceased.

The question that arises at this juncture and which is the question the trial court should have considered having regard to the evidence before it, is whether the respondents herein should, along with 1st accused, be held responsible for causing the death of Mrs. Elizabeth Aja because of their active participation as members of a group in the joint invasion and attack of the compound of PW3 and the deceased, even though they refused to obey the 1st accused’s order to shoot the persons in the house and the 1st accused had to do it himself, causing the death of the deceased.

The determination of this question one way or the other will depend on whether the members of the group of invaders had or did not have the common intention to carry out the invasion and attack of PW3’s compound and whether the death of Mrs. Elizabeth Aja which obviously occurred in the process of the invasion, can reasonably be said to be the probable consequence of the execution of the said invasion and attack.

In the circumstances of this case, the only grounds upon which the respondents can be held as equally responsible for causing the death of the deceased who was shot by the accused in their presence during their group’s joint attack of the house of PW3 and the deceased are-
(i) If the respondents and 1st accused and others formed a common intention to prosecute an unlawful purpose in conjunction with one another, and
(ii) In the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of such purpose.
S. 8 of the Criminal Code Law relied on by Learned Counsel for the appellants to argue that the respondents should be held equally responsible for causing the death of Mrs. Elizabeth Aja provides that “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 a purpose an offence is committed of such a nature that is commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” In ALARAPE & ORS V. THE STATE (2001) 2 SC 114, the Supreme Court held that “A close analysis of the above section of the law discloses the following requirements or preconditions that must be established before a conviction based there under may be sustained. These requirements are as follows-
1) There must be two or more persons
2) They must be form a common intention
3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another
4) An offence must be committed in the process
5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose.

The arguments in this appeal are focused on whether the evidence adduced by the prosecution established that the accused persons formed a common intention to prosecute an unlawful purpose together, that Mrs. Elizabeth Aja was murdered in the prosecution of the said unlawful purpose and that her murder is a probable or likely consequence of the execution of that purpose. The formation of a common intention by two or more persons to prosecute an unlawful purpose can be expressed by the parties. Where it is not so expressed, it can be inferred from the activities of the accused persons. So it is for the prosecution to elicit evidence of the expressed intention, where it is alleged that they expressed such intention or elicit evidence from which such a common intention can be inferred. In ALARAPE & ORS V. STATE (supra) the Supreme Court held that “common intention in criminal law may be inferred from circumstances described in the evidence led before the court and need not be provable only by the agreement of the accuseds. The common intention is usually inferred from the active participation of each of the accuseds in the joint execution of the unlawful purpose. In most cases requiring proof of common intention by two or more person to commit an unlawful act, their common intention is inferred from evidence of the activities of the parties showing joint participation in the prosecution of the unlawful purpose. The preponderance of such cases may have caused the Supreme Court to hold in NWANKWOALA & ANOR V. THE STATE (2006) 14 NWLR (PT 1000) 663 per Tabai JSC that “common intention is incapable of positive proof. Its proof is a matter of inference from the facts and circumstance of every given case.”
It can be inferred from the fact that the accuseds persons were driven together in two buses, armed with guns, matchets, axes and clubs and chanting war songs, together arrived the compound of PW3 and the deceased shooting their guns sporadically and actively participated as a group in the joint invasion, and attack of PW3’s house, removing his properties there form, burning his two vehicles, shooting and killing the deceased, burning PW1’s vehicles, shooting PW1 with a gun, inflicting matchet cuts on him and dumping him on a road unconscious that they had a common intention to prosecute the unlawful purpose of invading and attacking PW3’s compound and all they did therein in conjunction with one another. In NWANKWOALA & ANOR V. THE STATE (supra) the Supreme Court held that “where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime.
“See also ALARAPE & ORS V. THE STATE (supra), ALAO V. THE STATE (2011) LPELR 3700 (CA) ADIELE & ORS V. THE STATE (2011) LPELR 8835 (CA).

There is no doubt the invasion and attack of the compound of the PW3 and the deceased is an unlawful purpose.
Several offences were committed in the process as follows-
1. Unpermitted entry into PW3’s compound and shooting guns sporadically.
2. The shooting and killing of Mrs. Elizabeth Aja by 1st accused.
3. The destruction of the window burglary proof and entry of the house through that window
4. The ransacking of his house and removal of his properties therefrom
5. The shooting of PW1’s leg, inflicting matchet cuts on his hand and legs and dumping him unconscious on the road
6. The burning of PW3’s two vehicles
7. The burning of PW1’s vehicle

The respondents together with the 1st accused are charged with the murder of Mrs. Elizabeth Aja. The question that arises at this juncture is whether the murder of Mrs. Elizabeth Aja was of such a nature that its commission was a probable consequence of the invasion and attack of the compound of PW3 and the deceased, the attack of persons therein and the destruction of vehicles and removal of properties therefrom.

The fact that all the accused persons armed themselves with guns, matchets, axes and club before embarking on the invasion and attack of the compound of PW3 show that they intended to use the weapons in the attack and the fact that they freely used these weapons during the attack like shooting their guns sporadically on arrival in the compound, shooting the PW1 on the leg, inflicting multiple matchet cuts on his hand and legs and the shooting of Mrs. Elizabeth Aja confirmed their premeditated plan to use the weapons in the invasion and attack of the compound. In any case, it is obvious that shooting and killing a person in the compound is likely to result from invading the compound armed with guns, shooting the guns sporadically and shooting persons with the guns. For this reason I hold that the murder of Mrs. Elizabeth Aja by shooting her with the gun they came with, is an offence of such a nature that its commission was a probable consequence of the attack and invasion of the compound of PW3 and the deceased.

The offence with which the accused persons were charged, need not be the offence they formed a common intention to commit. It is clear from express words of S. 8 of the Criminal Code Law that the unlawful purpose they formed an intention to commit can be different from the offence with which the accuseds are charged. What the evidence of the prosecution needs to prove is that the offence with which the accuseds are charged was committed in the process of the prosecution of the unlawful purpose they formed a common intention to prosecute, and that the offence is of such a nature that its commission was a probable consequence of the prosecution of such purpose. See ALARAPE & ORS V. THE STATE (supra) and MUONWEM V. THE QUEEN (1963) 1 ALL NLR 95 (FSC). In the present case, the evidence of the prosecution show that the 1st accused shot and killed Mrs. Elizabeth Aja in the actual process of the invasion and attack of the compound of the deceased and her husband, PW3. As I had held herein, the invasion and attack of that compound was the unlawful purpose, the accuseds formed a common intention to prosecute. The murder of Mrs. Elizabeth Aja by shooting her is an offence of such a nature that was likely to result from invading the compound armed with guns, freely shooting the guns and even shooting directly at persons.

In determining whether an offence committed in the process of prosecuting an unlawful purpose is of such a nature that its commission is a likely consequence of the prosecution of the unlawful purpose, courts consider the fact that any of the accused persons was armed or not armed when they set out to prosecute the unlawful purpose. In ATANYI v. THE QUEEN (1955) 15 WACA 34, the appellant and another person formed a common intention to steal. When they set out to prosecute their unlawful purpose the appellant knew that his companion was armed with a knife. They were disturbed in carrying out their common purpose to steal by the deceased, who was stabbed to death by the appellant’s companion. The West African Court of Appeal held that “on his own showing, the appellant went out to rob with a companion whom he knew to be armed. In such circumstances it can fairly be assumed that they intended, if necessary, to use force in effect the common purpose, and in the case of a common design to commit robbery with violence, if one prisoner causes death while another is present aiding and abetting the felony as a principal in the second degree, both are guilty of murder although the latter had not specifically consented to such degree of violence as was in fact used.” In our present case all the invaders were to the knowledge of each other armed with guns, matchets, axes and clubs, and chanting war songs when they set out to invade the compound.
It is obvious that when they initially set out to attack the said compound, they may not have had it in their mind, as a settled intention, that they were certainly going to kill Mrs. Elizabeth Aja. But it is obvious from the fact that they were all armed with guns and the fact that they shot the guns sporadically and readily shot the deceased and PW1 that they intended to ab initio to use the guns to shoot anybody in the compound. If they had no intention to use the guns, they would not have come armed with the guns. Shooting a person with any of the guns is clearly a probable consequence of invading the compound armed with guns. For the above reasons, I do not agree with the submission of the Learned SAN for the respondents that because their common intention was to cause havoc in that compound and not to murder Elizabeth Aja they cannot be equally held responsible for causing her death which occurred in the process of their wreaking the planned havoc in the compound, an event they knew could occur from their intended use of the guns they were armed with.

The fact that it was the 1st accused that shot the deceased cannot absolve them from being jointly responsible for the murder of Elizabeth Aja for the reasons stated above. As the Supreme Court held in NWANKWOALA & ANOR V. THE STATE (supra) “where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each accused persons in the group guilty of the offence. See PATRICK IKEMSON & ORS V. THE STATE (1989) 3 NWLR (PT 110) 455 AT 466 where common intention is established, a fatal blow or gunshot though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating. The person who actually delivered the fatal blow is, in such a case, no more than the hand by which others also struck.”
See also ALARAPE & ORS V. THE STATE (supra).

The refusal of the other respondents to carry out the order of 1st accused to shoot Mrs. Elizabeth Aja did not absolve them from joint responsibility for the 1st accused’s shooting of the Mrs. Elizabeth Aja. The basis of their joint responsibility is that they actively participated in the joint attack of the compound of the deceased and in all activities carried out by the group in pursuance of the invasion and attack even after the shooting of Mrs. Elizabeth Aja. It is in evidence that after she was shot, they broke the burglary proof of a window and entered the house through that window, they ransacked the whole house and removed PW3’s properties, dragged out the PW1, one of the members of the group shot PW1 on the leg with a gun, the 4th and 5th accused inflicted matchet cuts on his back, left hand and two legs, they jointly took him away and dumped him unconscious on a road, they burnt PW3’s two vehicles and PW1’s vehicle. There is no evidence that the respondents expressly dissociated themselves from the joint attack. The respondents would have dissociated themselves from responsibility for the death of the deceased, if they had refused to continue participating in the attack and went away from the compound immediately the deceased was shot and giving as their reason for discontinuing their participation that it was not their intention or plan to kill or shot anybody. They did not do so. Their active participation in all these activities after Mrs. Elizabeth Aja was shot and killed in their presence show clearly that even though they failed to shoot the deceased as ordered by 1st accused, they did not dissociate themselves from the prosecution of the unlawful purpose, in the process of which the killing occurred. So I do not think that the decision of the Federal Supreme Court in QUEEN v. ONUEGBE (PT.55) 2 FSC 10 AT 11 cited by the Learned SAN is applicable in this case.

In the light of the foregoing, I hold that the evidence adduced by the appellant proved beyond reasonable doubt that the respondents herein together with the 1st accused (Christian Okereke) murdered Mrs. Elizabeth Aja. Therefore the burden of proving reasonable doubt shifted to the respondents and the 1st accused by virtue of S. 135(3) of the 2011 Evidence Act. The trial court was therefore wrong to have held that the evidence adduced by the prosecution did not link the respondents with the murder of Mrs. Elizabeth Aja. The sole issue for determination in this appeal is resolved in favour of the appellant.

This appeal succeeds and is allowed. Accordingly the decision of the High Court of Ebonyi State at Abakaliki delivered on 29-7-2010 in charge No. HAB/7C/2008 holding that the prosecution failed to establish the essential ingredients of the charge of murder against 2nd, 3rd, 4th, 5th, 6th, 7th and 8th accused persons, finding that they have no link to the death of the deceased, upholding their no case submission and ordering that they are discharged is hereby set aside. It is hereby ordered that proceedings in charge No. HAB/7C/2008 be continued against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th accused persons before a Judge of Ebonyi State High Court, other than H.A. Njoku J.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in advance the comprehensive and elucidating judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in entire agreement with the reasoning therein and the conclusions arrived thereat. Without any equivocation whatsoever, I also adopt the said lead judgment as mine. I abide by all the consequential orders made therein.

SAIDU TANKO HUSAINI, J.C.A.: I have had the advantage of reading the draft copy of the well articulated judgment just delivered by my learned brother, Emmanuel Akomaye Agim JCA. I agree with his reasoning and conclusions. I also agree with the orders made therein.

Appearances

EMEKA UWAKWE ESQ WITH D. A. AJADI ESQFor Appellant

AND

CHIEF EZE DURU IHEOMA SAN WITH J.N.E. ONYENAKAZI ESQFor Respondent