Adio v. State (1986)

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Adio v. State
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1.
AMUSA OPOOLA ADIO

2.
AMOS AFOLABI

V.

THE STATE

SUPREME COURT OF NIGERIA

SC. 102/1985

KAYODE ESO, J.S.C. (Presided)

MUHAMMADU LAWAL UWAIS, J.S.C.

DAHUNSI OLUGBEMI COKER, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

CHUKWUDIFU AKUNNE OPUTA, J.S.C. (Read the Leading Judgment)

FRIDAY, 18TH APRIL, 1986

APPEAL – Criminal appeal – Compliance with section 31(2)(b) of the Supreme Court Act – Whether notice of appeal given to Prison Authorities within 30 days but filed in court outside 30 days complies with the section.

APPEAL – Distinction between leave to argue additional grounds and leave to argue grounds not raised in the court below.

APPEAL – Grounds of appeal – Complaint against trial court – Unacceptable in Supreme Court.

APPEAL – Grounds of appeal – Complaint against weight of evidence – Inapplicable to criminal trial.

CRIMINAL LAW AND PROCEDURE – Sections 7 and 8 of the Criminal Code – Applicable principles.

CRIMINAL LAW AND PROCEDURE – Several persons charged with crime – Approach trial court adopt thereat.

EVIDENCE – Circumstantial evidence – How it can establish guilt in criminal trial.

EVIDENCE – Proof beyond reasonable doubt – When is it established?

EVIDENCE – Proof – Confession – When it is conclusive of criminal liability.

Issues:

  1. Whether the notices of appeal of murder convicts handed over to the Prison Authorities within statutorily stipulated time but

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filed in court outside the said stipulated time are competent?

OR

When is an appeal filed? Is it the date the notices and grounds of appeal were signed by the appellant or the date such notices and grounds were delivered to the Registrar of the appropriate court, the requisite fee paid and the appeal duly entered in the Registry of the court?

2.
Whether the Supreme Court is competent to hear an appeal from the Court of Appeal when the grounds of appeal are not a complaint against the decision of the Court of Appeal but against the High Court.

3.
Whether the appellants were rightly convicted of murder.

Facts:

The appellants were convicted of murder. The conviction was based on their confessional statements and circumstantial evidence. The facts are clear.

In the early hours of the 24th of June, 1981, some night watchmen rounded up some Ghanaians at Orita Challenge Area Ibadan on the suspicion that they were thieves. The Ghanaians were led by the night watchmen (including the appellants) to the house of the prosecution witness No. 1 who ordered one of the Ghanaians to be released immediately and the rest conveyed to the Orita Challenge Police Station Ibadan by the night watchmen. On the way the Ghanaians were brutally killed. Some of their bodies were later found by the side of the road whilst others were discovered in the bush. The appellants were seen standing by the corpses of the dead Ghanaians. Not only that. The appellants were seen carrying guns and a cutlass soaked with human blood. The first appellant in his confessional statement admitted taking part in killing the Ghanaians and said further:

“The cutlass stained with blood which was seen with me was the one I myself used in cutting one of the five men on the head.”

The 2nd appellant in his written statement also admitted taking part in the killing and further wrote:

“The whole nine of them were from one house before they were killed by us.”

The appellants were charged with the murder of Patrick Mensah one of the Ghanaians killed.

They were convicted in the High Court. Their appeal to the Court of Appeal was dismissed. They appealed to the Supreme Court. Their notices of appeal were handed over to the prison authorities within thirty days but were not filed in the Court of Appeal until after the thirty days period allowed by section 31(2)(b) of the Supreme Court Act.

The additional grounds complained against the trial court’s decision and not against the Court of Appeal decision.

Held (Unanimously dismissing the appeal):

1.
In murder cases, the notice of appeal of a murder convict if handed over to the Prison authorities within 30 days of conviction but filed in the court concerned outside the thirty days allowed by section 31(2)(b) of the Supreme Court Act is competent and

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proper. [Enweliku v. State (1970) 1 All NLR 55; Babale v. Ibrahim (1956) SCNLR 87; State v. Akpwee (1982) 6 SC 1; Kpema v. State (1986)1 . 396 followed.] (Pp. 586-587, paras. H-C)

2.
In murder appeals, interest of justice implies hearing an appeal its merits, the rules regarding entering the appeal should, without undue violence to the words of the relevant statute or rule be so interpreted to keep the appeal alive rather than dead. (P. 586, paras. G-H)

3.
A ground of appeal that ‘the decision is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence’ is not a ground in criminal cases which usually are not decided on the weight of evidence or the balance of probabilities. [Aladesuru v. Queen (1955) 3 WLR 515; (1956) AC 49 applied.] (P. 587, paras. D-E)

4.
The Supreme Court is not competent to hear appeal straight from the High Court. Consequently, grounds of appeal complaining directly against decision of the High Court are not proper. The grounds of appeal must relate first to the decision of the Court of Appeal. (P. 587, paras. F-G)

5.
To argue in the Supreme Court issues and matters which were not argued in the court below, an appellant has to apply specifically for leave to do so. (P. 588, para. A)

6.
Leave to argue additional grounds of appeal is not the same as the leave to argue issues not raised in the court below. (P. 588, para. A)

7.
The rule that an appellant will not be allowed to raise on appeal a question which was not raised or argued in the court below is not an inflexible and rigid rule. It is subject to the demands of Justice. Thus where the question involves substantial points law – either substantive or procedural – the court may entertain the appeal all the same and prevent an obvious miscarriage of justice. [Akpene v. Barclays Bank of Nigeria Ltd. (1977) 1 SC 47; Shonekan v. Smith (1964) 1 All NLR 168; Abinabina v. Enyimadu (1953) 12 WACA 171 applied.] (P. 588, paras. B-C)

8.
Where several persons are charged with and convicted of a crime, complaint against facts of the conviction must involve two questions:

(a)
Is there any finding of fact made by the learned trial Judge against each appellant? if the answer is yes then comes question(b).

(b)
Is there an evidence to support the learned trial Judge’s finding against each appellant.

(P. 589, paras. A-B)

9.
The concept of common purpose and common intention is necessary in cases where the death of the deceased was not caused by an act of omission of the person accused but it is alleged that the accused aided or abetted the commission of the offence. (P. 590, para. H)

10.
To bring a person within section 7(c) of the Criminal Code, there must be clear evidence that either prior to, or at the time of the commission of the act the appellant did something to facilitate the commission of the offence. [Enweonye v. Queen (1955) 15 WACA 1 applied] (P. 591, para. A)

11.
Mere presence (and no more) at the scene of the commission of the offence cannot amount to intentional aid. It would be different

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if the person present held some position of responsibility (as a chief or so) so that his presence may amount to “intentional aid”. (P. 591, paras. A-B)

12.
Common intention as defined by section 8 of the Criminal Code will make the act of one accused the act of the other if the offence committed is in furtherance of the prosecution of their unlawful common purpose.[Ofor v. Queen (1955) 15 WACA 4 followed.] (P. 591, paras. B-C)

13.
On the totality of the evidence including the confession of the appellants there is proof of a common purpose to do away with the nine Ghanaians (including the deceased Mensah). It is irrelevant who struck the fatal blow. Alternatively, on their individual admission in their confessional statements it is clear that both appellants took part in the murder of the deceased Patrick Mensah. (Atanyi v. Queen (1955) 15 WACA 34 and the following cases reported in Volume 10 of Digest of Supreme Court Cases (1956-1984) pages 219-220: [Etok v. State SC 128/65 of 22/ 10/65; Ogunbode v. Queen F.S.C. 294/59 of 18/12/59 and Elerewe v. State SC.531/65 of 25/11/65 followed.] (P. 593, paras. C-E)

14.
A case is said to be proved beyond reasonable doubt either by direct oral evidence or by circumstantial evidence. (P. 593, paras. F-G)

15.
In respect of direct oral evidence, if the testimony of witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. (P. 593, para. F)

16.
Although witnesses can lie but circumstances do not lie. Consequently, and in that sense, circumstantial evidence affords better proof beyond reasonable doubt. (P. 593, para. G)

17.
A free and voluntary confession of guilt by an accused person if it is direct, positive and satisfactorily proved occupies the highest place of authenticity when it comes to proof beyond reasonable doubt; (P. 593, para. H)

18.
Confession (free and voluntary) alone is sufficient without further corroboration to warrant conviction. (P. 593, para. H)

19.
In the instant case apart from their confessional statements, the appellant’s guilt was supported by so many corroborative evidence. [R. v. Omokaro (1941) 7 WACA 146 and R. v. Kanu (1952) 14 WACA 30 applied.] (P. 594, paras. A-B)

Nigerian Cases Referred to in the Judgment:

Abinabina v. Enyimadu (1953) 12 WACA 17

Akpene v. Barclays Bank of Nigeria Ltd. (1977) 1 SC 47

Aladesuru v. Queen (1955) 3 WLR 515, (1956) AC 49

Atanyi v. Queen (1955) 15 WACA 34

Babale v. Ibrahim (1956) SCNLR 87

Elerewe v. State SC. 531/65 delivered 25/11/65 (Vol. 10 Digest Supreme Court Cases 1956-84 pp. 219-220)

Emweliku v. State (1970) 1 All NLR 55 Enweonye v. Queen (1955) 15 WACA 1

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Adio v. State
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Etok v. State SC/128/65 delivered 22/10/65 (Vol. 10 Digest Supreme Court Cases 1956-84 pp. 219-220)

Igho v. State (1978) 3 SC 87

Kpema v. State (1986) 1 . (Pt.17) 396

Ofor v. Queen (1955) 15 WACA 4

Ogundipe v. Queen (1954) 14 WACA45

Ogunbode v. Queen FSC. 294/59 delivered 18/12/59 (Vol. 10 Digest Supreme Court Cases 1956-84 pp. 219-220)

Onubogu v. State (1974) 1 All NLR (Pt. II) 5

R. v. Kanu (1952) 14 WACA 30

R. v. Omokaro (1941) 7 WACA 146

Shonekan v. Smith (1964) 1 All NLR 168 State v. Akpwee (1982) 6 SC 1

Nigerian Statutes Referred to in the Judgment:

Constitution of Nigeria, 1979, S.213(1)

Criminal Code, Ss. 7, 8

Supreme Court Act, 1960, S. 31(2)(b), (4)

Appeal:

This was an appeal against the decision of the Court of Appeal dismissing an appeal against the judgment of the High Court of Oyo State.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Kayode Eso, J.S.C. (Presided); Muhammadu Lawal Uwais, J.S.C.; Dahunsi Olugbemi Coker, J.S.C.; Adolphus Godwin Karibi-Whyte, J. S.C.; Chukwudifu Akunne Oputa, J.S.C. (Read the Leading Judgment)

Appeal No.: SC. 102/1985

Date of Judgment: Friday, 18th April, 1986

Names of Counsel: Chief F. O. Akinrele, SAN (with him, P. A. Igbo Osagie [Mrs.]) – for the Appellants

Dr. G.O. Olateru-Olagbegi [Mrs.], Deputy Director, Public Prosecutions, Oyo State – for the Respondents

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Ibadan

Names of Justices that sat on the appeal: Latif Junaid Dosunmu, J.C.A.; Ephraim Omorose Ibukun Akpata, J.C.A.; Sylvester Umaru Onu, J.C.A.

Appeal No.: CA/I/115/84

Date of Judgment: Thursday, 6th December, 1984

Names of Counsel: G. E. Adeniran – for the Appellant

E.C.A. Lufadeju, Principal State Counsel – for the Respondent

High Court:

Name of the High Court: High Court of Ibadan, Oyo State

Name of Judge: Lekan Lajide, J.

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Date of Decision: Monday, 28th February, 1983

Suit No: I/250/82

Names of Counsel: B. O. Falola, State Counsel – for the Prosecution

A. Kusamotu, Esq. – for the 1st accused

Chief O. Ogunyein (with him, Niyi Akintola, Esq. and O. Sonoiki, Esq.) – for the 3rd accused.

Counsel:

Chief F. O. Akinrele, SAN (with him, P.A. Igho Osagie [Mrs]) – for the Appellants

Dr. G. O. Olateru Olagbegi, [Mrs.], Deputy Director of Public Prosecutions, Oyo State – for the Respondent.

OPUTA, J.S.C. (Delivering the Leading Judgment): When this appeal came up for hearing on the 21st November, 1985, it was discovered that the notice and grounds of Appeal were filed outside the statutory period of 30 days stipulated by section 31 (2)(b) of the Supreme Court Act No. 12 of 1960 and since under section 3 1(4) of the same Act this court has no jurisdiction to extend time “in the case of a conviction involving sentence of death”, the appeal was adjourned to 23rd January, 1986 to enable Chief Akinrele, SAN satisfy the court that the appeal is competent and properly pending before this court. In otherwords and as it concerns this appeal, the question is – When is an appeal filed? Is it the date the notice and grounds of appeal were signed by the appellant or the date such notice and grounds were delivered to the Registrar of the appropriate court; the requisite fee paid and the appeal duly entered in the Registry of the court? Chief Akinrele dealt with this preliminary point in his brief and relied on the case of Monday Enweliku v. The State (1970) 1 All NLR 55. The court unanimously held on this preliminary issue that the present appeal was duly filed and pending. In Babale u Ibrahim (1956) 1 FSC 37 at 38 Abbott Ag. F.J. (with Foster-Sutton, F.C.J. and Jibowu, F.J. concurring) observed:

“I consider that the forwarding of the petition of appeal by registered post, as was done here, was adequate compliance with Order 50 rule 3 the appellant must be taken to have through his counsel, constituted the Post Office as his agent for the purpose of presenting the petition.”

The above statement, though an obiter dictum; definitely showed the way the mind of the court was working namely that in the interest of justice which implies hearing an appeal on its merits, the Rules regarding entering the appeal should, without undue violence to the words of the relevant statute or rule, be so interpreted to keep the appeal alive rather than dead.

Monday Enweliku’s case supra is on all fours with the facts and circumstances of the present case now on appeal. In each the appellant was convicted of the offence of murder and sentenced to death; in each S.31(2)(b) of the Supreme Court Act No.12 of 1960 required the appellant to give his notice of appeal within 30 days from the date of the decision

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appealed against; in each the appellant detained in prison custody handed his notice of appeal duly signed by him to the prison authorities for onward transmission to the Registrar of the court which convicted him; in each the appellant executed his notice of appeal and delivered it to a recognised channel – the prison authorities – within the 30 days’ period required under S.31(2)(b) of the Supreme Court Act No. 12 of 1960. This court held in Enweliku’s case:-

“It appears to us therefore that it would by the same argument for registered posting be injudicious to damnify such an appellant for delay which might have occurred in the course of the transmission of his notice of appeal by the prison authorities.”

As was done in Enweliku’s case supra, we then in the present appeal ruled that in the surrounding circumstances of their incarceration, the present appellants did all that was in their power to appeal within time. Their notices were and are therefore deemed to have been given within the 30 days’ period required by section 3l(2)(b) of the Supreme Court Act No. 12 of 1960. See also State v. Akpan Akpwee (1982) 6 SC 1. Their appeals are competent and should not be dismissed in limine but rather heard on its merits. See also Kpema v. The State (1986) 1 . (Pt. 17) 396 at pp.403/404.

The original ground filed by the appellants at page 142 of the record of proceedings was the omnibus ground. Leave of this court was obtained by Chief Akinrele, SAN to substitute 4 additional grounds. Strictly speaking the original grounds filed by each appellant namely:-

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

is not a ground of appeal in criminal case which are usually not decided on the weight of evidence or the balance of probability, see Samuel Aladesuru & Ors. v. The Queen (1955) 3 WLR 515; (1956) AC 49. One cannot really add something or substitute something for nothing for ex nihilo nihil fit. But this being an appeal involving the lives of the appellants who are under sentences of death, the court was quite prepared to overlook certain irregularities.

I am not sure that the court can easily overlook a point dealing with its jurisdiction. The 4 additional grounds each dealt with either error in law by the learned trial Judge or the failure of the learned trial Judge “to direct himself on the issue of common purpose.” This court is a creature of statute and its constitutional powers to hear appeals as conferred by section 213(i) of the 1979 Constitution is limited to hearing and determining appeals from the Federal Court of Appeal now the Court of Appeal. There is no jurisdiction in this court to hear appeal straight from the High Court. The court below was not mentioned in any ground of appeal at all. In my view, this is a fundamental vice. The judgment appealed against should be that of the court below. Also the grounds that were urged before us in the 4 additional grounds were grounds that were not argued in the court below. In the court below Mr. Aluko for the appellants submitted:-

“I have nothing to urge in favour of the appellants.”

and Mr. Olufadeju for the respondent added:-

“I am in support of what my learned friend said that there is nothing to urge in favour of the appellants.”

Unlike the two learned counsel in the court below, Chief Akinrele, SAN

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for the appellants in this court had a lot to urge. That is very commendable but to argue in this court issues and matters which were not argued in the court below, one has to apply specifically for leave to do so. The application for leave to argue additional grounds is not quite the same as an application for leave to argue and urge issues not raised in the court below. There was no specific application in that respect. The general rule adopted by this court is that an appellant will not be allowed to raise, on appeal, a question which was not raised or argued in the court below. This however, is not an inflexible and rigid rule. It is subject to the demands of justice. Thus where the question involves substantial points of law – either substantive or procedural – the court may entertain the appeal all the same and prevent an obvious miscarriage of justice:- K. Akpene v. Barclay’s Bank of Nigeria Ltd & F. O. Osawaru (1977) 1 SC 47; Shonekan v. Smith (1964) All NLR 168 at 173; Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 WACA 171 at 173 all refer.

For the above reason, I shall now deal with the “additional” grounds one by one. ground 1 complains that:-

“1.
The learned trial Judge erred in law in convicting the appellants of murder by relying principally on their alleged confessional statements when a statement taken in identical circumstances was found by him to be sufficiently unsatisfactory as to lead to the acquittal of the 3rd accused.”

From the facts of this case, it is obvious that the 2 appellants and Dejo Adeniji (the 3rd accused at the trial) who was in fact the ring-leader of the murderous group descended upon the house where some Ghanaians lived, in the early hours of the morning of the 24th June, 1981. They harried these Ghanaians out of their homes and had them brutally murdered on the pretext that they were thieves. One of the Ghanaians thus killed was the deceased Patrick Mensah whose death is the subject of the present proceedings against the appellants. The 3rd accused was in command all through. He made a “confessional” statement to the police tendered as exhibits F and FI. There was abundant circumstantial evidence to support his confessional statement and thus lead to his conviction. But the learned trial Judge discharged the 3rd accused for two reasons:

i.
3rd accused was (unlike the two appellants) neither seen by any prosecution witness nor was he arrested at the scene of crime where the dead bodies of the Ghanaians were found. He reported himself to the Police after the arrest and detention of his wife.

ii.
There was no oral evidence linking him with the crime.

Whether the learned trial Judge was right or wrong in acquitting and discharging the 3rd accused, Dejo Adeniji, will be an issue if there is an appeal by the State against his acquittal. Since there is no such appeal, his (3rd accused) acquittal is now a non-issue. To argue that since the 3rd accused was acquitted the appellants should also have been acquitted will amount to a reductio ad absurdum if there is evidence implicating the appellants. Such argument has an inherent weakness. It implies that if the trial court was wrong in acquitting the 3rd accused the appellate courts should persist in the error. Of course two or even three wrongs do not make one right.

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The right approach will be:

Question No.1 Is there any finding of fact made by the learned trial Judge against each appellant?

If the answer is yes then comes question No. 2:-

Question No.2 Is there any evidence to support the learned trial Judge’s findings against each appellant?

If the answer to Question NO. 2 is also yes, then an appellate court will naturally be very slow in disturbing the concurrent findings of the court of first instance and the Court of Appeal that accepted those findings – the court that “perused the records and agreed that there is nothing to be said in favour of the appellants.”

What then were the trial Judge’s findings of fact? At p. 106 of the record of proceedings, the learned trial Judge found:- “There is evidence before me which I accept:-

1.
That in the early hours of 24th June 1981 some night watchmen based at Orita Challenege Area rounded up some Ghanaians on the suspicion that they were thieves.

2.
鈥︹€�..

3.
鈥︹€�..

4.
That the corpses of some of these Ghanaians were later found by the side of the road while the rest were discovered in the bush.

5.
That the Ghanaians killed were:-

(i)
Mensah

(ii)
Rakson

(iii)
Kofi Bedu and

(iv)
two twins both known as Whyte

6.
That among the night watchmen who took the said Ghanaians to the house of RW. 1 and who were later found standing by the corpses of the deceased Ghanaians were 1st and 2nd accused persons (the appellants in this court).

7.
That at the time they were so found, they were carrying guns and a cutlass which was soaked with human blood.

8.
That both the arrest and death of the deceased Ghanaians occurred in the morning of the question in question.

9.
That one of these Ghanaians namely Patrick Mensah… died according to P.W. 9 the doctor… of head injuries which was consistent with one sustained by being hit on the head by a sharp object.”

The 8th finding above forcibly suggests that the “arrest” and murder of the Ghanaians formed one continuous transaction. This is one short step to saying that the Ghanaians were arrested in order to be killed. Relying on the case of Peter Igho v. The State (1978) 3 SC 87 at p. 90 the learned trial Judge arrived at “the irresistible conclusion” that the two appellant’s took part in killing him (Patrick Mensah) the corpus delicti in this case.

Neither in his brief nor in his oral argument in elaboration did Chief Akinrele challenge the above findings. It was not his case that they were perverse. He readily accepted that the appellants as found by the Judge were found carrying dangerous weapons – a gun and a blood-stained cutlass but argued that as night watchmen, the appellants from the nature of their work usually carry those so-called “dangerous weapons”. This argument ex-fcicie

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looks attractive but it does not and cannot stand any critical and closer scrutiny vis-a-vis the confessional statements of the appellants. It may be quite legitimate and even innocuous for a night watchman to carry a cutlass but carrying a cutlass in the course of one’s duty is one thing and admitting as the 1st appellant did in his statement Ex. D1 at p.125 that:-

“The cutlass stained with blood which was seen with me was the one I myself used in cutting one of the five men on the head.”

puts an entirely different complexion on the reason why he carried the cutlass. As if to leave nothing in doubt the 1st appellant in Ex. D1 continued at p. 125 lines 29-31:-

“I took part in killing one of the five men with my cutlass before Dejo set fire on their corpses.”

So much for the 1st appellant.

Was the 2nd appellant carrying the dane gun in the course of his duty or for some other purpose? His statement to the police tendered as Ex. Cl is at pages 119 to 123. At p. 119 Line 15-26 one finds the following significant admission: –

“I was on duty at about 11.30 23/6/81 … I close from work this morning around 6 a.m. As soon as I close from work, I went straight to our master’s house to sleep.”

If I may just pause here. Is it not clear that the 2nd appellant was not, as was suggested in the appellants’ brief, carrying his dane gun virtute officii or ex officio as a necessary incidental to his duty as night watchman? He was off duty from 6 a.m. He was therefore carrying that gun for another purpose. For what purpose it may now be asked? Ex. Cl at page 122 lines 24 to 34 s

upplied the answer: –

“It was in my presence that these five Ghanaians were killed but I have no hand in their killing. It was after the killing of the first five men that Dejo said he was going to look for the remaining people who escaped from us and I too followed him in the Danfo Bus. We caught the four men in the bush and we use cutlass to kill them… After the killing, we even set their corpses on fire before the corpses were thrown away. I only help in getting the people out of their houses.”

Concluding his Statement at p.123, the 2nd appellant emphasised:-

“The whole nine of them were from one house before they were killed by us.”

If this is not evidence of common purpose or common intention to ferret and kill the 9 Ghanaians including Patrick Mensah, I do not know what else is.

This naturally and logically calls for a consideration of ground 3 of the grounds of appeal which complains that:-

“3.
The learned trial Judge failed to direct himself on the issue of common purpose or common intent and thereby came to a wrong conclusion on the degree of participation of the appellants in arriving at the verdict of guilt.”

The concept of common purpose and common intention is necessary in cases where the death of the deceased was not caused by an act or omission of the person accused but it is alleged that the accused aided or abetted the commission of the offence. In Ufuonye Enweonye & 2 Ors. v. The Queen (1955) 15 WACA 1 at 3 the West African Court of Appeal held that:

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“We are of the opinion that to bring a person within this section (section 7(c) of the Criminal Code) there must be clear evidence that either prior to, or at the time of, the commission of the act, the appellant did something to facilitate Commission of the offence.”

Enweonye’s case supra is also an authority that mere presence (and no more) at the scene of the commission of the offence “cannot amount to intentional aid”. It would be different if the person present held some position of responsibility (as a Chief or so) so that his presence may amount to “intentional aid”.

Also “common intention” as defined by Section 8 of the Criminal Code will

make the act of one accused the act of the other if the offence committed is in furtherance of the prosecution of their unlawful common purpose. The locus classicus here is the case of Ogu Ofor & Ekwuti Ofor v. The Queen (1955) 15 WACA 4. What were the findings of fact in that case’? This is reproduced at p.5 of the report as follows:-

“The learned trial Judge found that the second accused went and got his machete with the intention of causing harm to the deceased and, in fact, caused it but this did not kill him. The brother (the first accused) with the same intention and at the same time hit deceased a blow with a stick which killed him.”

Reacting to the above finding, the West African Court of Appeal commented:-

“But the conviction of the second accused could not be founded upon preconceived intention just as the first accused had. The intention of both accused was the same, each to cause grievous bodily harm, but since the wound inflicted by the second accused was not in fact the cause of death it is necessary in order to sustain a conviction to establish that he was acting in furtherance of a common intention in conjunction with the first accused to cause grievous harm.”

Now what was the situation here? The 1st appellant admitted that he was the owner of the blood-stained cutlass “and it was the one I used to cut one of them on the head before Dejo set their corpses on fire” At p. 125 lines 29-31 of the record (in his statement Ex. Dl) the 1st appellant admitted that he “took part in killing of the five men with my cutlass.” The question now arises – Is there any nexus between the act (admitted act) of the 1st appellant and the death of the deceased Patrick Mensah? In other words, did the deceased Patrick Mensah die of injuries to his head, inflicted, (on his own admission) by the 1st appellant? The medical evidence of Dr. Michael Akinleye Aboderin P.W. 9 was that:-

“There were superficial bums involving the whole of the body surface. Two lacerated wounds were found on the head … The edges of the wounds were clean-cut and straight … The cause of death in my opinion was due to head injury which was consistent with one sustained by being hit on the head by a sharp object.”

On cross-examination, the doctor emphasised that “the injury could not have been self-inflicted.” The “superficial burns involving the whole body surface” found by the doctor on the deceased further connected the death of

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the deceased with the 1st appellant – who admitted in his statement Ex. D1 at p.125 lines 29-31 of the record of proceedings:-

“I took part in killing one of the five men with my cutlass before Dejo set fire on their corpses.”

This accounts for the “bums involving the whole body surface”. This also disposes of ground 2 of the grounds of appeal at least as far as the 1st appellant is concerned.

How was the 2nd appellant involved and connected with the murder of Patrick Mensah, the deceased? This is where section 7(c) and section 8 of the Criminal Code and the concept of common purpose comes in. Were the two appellants acting in furtherance of a common criminal purpose? A careful reading of the Statement of the 2nd appellant tendered as Ex. Cl at pages 119-123 of the record reveals the following pregnant and significant facts:

1.
The 2nd appellant was already off duty and was “Sleeping in his master’s house” when he was invited to come see “the thieves that they had caught.”

What was his reaction? Exhibit Cl answered that question atp. 119 lines 26-27.

“I prepared and I took my dane gun which I had already loaded and followed them.”

The next question is – Why did he follow them with a loaded gun?

2.
The 2nd appellant joined the Danfo Bus “which they want to use to carry the thieves” and 2nd appellant and Deja (3rd accused) drove to where the thieves were residing.

The 2nd appellant and Dejo did not catch the alleged thieves stealing anything from any of the quarters they were guarding. Instead they drove to where the Ghanaians lived and got them out one by one. The 2nd appellant continued:-

“We were able to get five out of them and they were brought to Orita Challenge in Danfo bus.”

3.
There was an appeal made to the 2nd appellant and Dejo not to kill the Ghanaians. Why should there be such an appeal unless it was obvious either from their words or conduct that 2nd appellant and Deja wanted to kill the Ghanaians.

4.
It was after the killing of the five Ghanaians that Dejo gave someone the sum of one naira to go and buy petrol.

The 2nd appellant was present when the 5 Ghanaians were being killed. What did he do or say? Nothing.

5.
“It was in my presence that these five Ghanaians were killed but I had no hand in their killing”

That may well be but that was not the end of the story.

6.
“It was after the killing of the first five men that Dejo said he was going to look for the remaining people who escaped from us and I too followed him in the Danfo Bus.”

Why did he, the 2nd appellant, have to follow Dejo knowing fully well what happened to the first five Ghanaians?

7.
“We caught the four in the bush and we use cutlass to kill them.”

In the other words the four caught in the bush had handed down to them the same sentence as the first five caught in their house.

[1986] 2 .
Adio v. State
(Oputa, J.S.C. )
593

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”8. I only help in getting the people out of their house.”

Just in the same way as the 2nd appellant helped in getting the second set of four out of the bush and unto their deaths t

  1. “The whole nine of them were from one house before they were killed by us.”

Is this not a direct uni vocal and unequivocal admission of complicity in the murder of the nine Ghanaians one of them according to the evidence of Edward Kefi, P.W.5 was Patrick Mensah, the deceased? The learned trial Judge considered the above confessional statement of the 2nd appellant and the further evidence that he (2nd appellant) and the 1st appellant were seen at the scene of crime with the bodies of 5 dead Ghanaians scattered about. What were they doing there? They were also seen – 1st appellant with a blood soaked cutlass, 2nd appellant with a dane gun. What were they doing with those dangerous weapons when they were off-duty and away, far away from the premises they were supposed to be guarding when on duty? All these unanswered questions, to quote the learned trial Judge, “lead to an irresistible conclusion that they took part in the killing.” It is my view that the totality of the evidence including the confessions of the appellants Ex. D1 and Ex. Cl do prove a common purpose to do away with the nine Ghanaians (including the deceased Mensah) suspected of being thieves. Where such is the case, it is irrelevant who struck the fatal blow. Alternatively on their individual admissions in their confessional Statements, it is obvious that both appellants took part in the murder of the deceased Patrick Mensah:- Ighegh Atanyi v.The Queen (1955) 15 WACA 34 at p. 35.

Also see the following unreported decisions of this court.

1.
Etok v. The State SC. 128/65 delivered 22/10/65

2.
Ogunbode v. The Queen F.S.C. 294/59 delivered 18/12/59

3.
Elerewe v. The State SC. 531/65 delivered 25/11/65

(These 3 cases are now reported in Vol. 10 Digest of the Supreme Court cases (1956-1984) pp.219-220.)

The last ground of appeal ground 4 complained:-

“4.
That the learned trial Judge erred in law in convicting the accused of murder when there is no proof beyond reasonable doubt on the murder charge in the information.”

How is a case proved beyond reasonable doubt? A case can be proved by direct oral evidence. If the testimony or witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. Circumstantial evidence can prove a case beyond reasonable doubt. The local case of Joseph Ogunbayode & Ors. v. The Queen (1954) 14 WACA 458 (otherwise known as the Apalara case) is an excellent example of proof beyond reasonable doubt based purely on inferences from circumstantial evidence. It is often said that witness can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt. But far and above, these two methods of proof are the voluntary confession of the accused himself. A free and voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such a conviction unless

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5 May 1986
(Oputa, J.S.C. )

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the trial court is satisfied that the case has been proved beyond reasonable doubt. Here the two appellants made confessional statements Ex. D1 and Ex. Cl. These confessions have not been successfully attacked or even at all in this appeal. But in addition to their confession, there are so many corroborative evidence to support the confessions and to ultimately lead to the conviction of the appellants. Relying on R. v. Omokaro (1941) 7 WACA 146 supported and reinforced by R. v. Kami (1952) 14 WACA 30 one will agree with the learned trial Judge that the totality of the evidence led including the confessions of the appellants Ex. D1 and Ex. Cl irresistibly lead to the conclusion that the appellants killed the deceased, Patrick Mensah. There was therefore in this case on appeal, proof beyond reason able doubt. This ground fails.

In the final result, as all the grounds have failed, the appeal fails with them. For all the reasons given above, i.e.

i.
That no leave of this court was obtained to argue all the 4 grounds of appeal which were not argued before the Court of Appeal.

ii.
That this court has no jurisdiction to entertain an appeal from the High Court (and here all the 4 grounds filed and argued were directed against the learned trial Judge and not against the decision of the Court of Appeal Ibadan Division).

iii.
That on a proper study of the record especially the confessional statements of the appellants and the totality of the evidence led, the court below was right in holding that the appeal was lacking in substance and merit.

the appeals of the two appellants ought to be dismissed. They are hereby dismissed. The conviction and sentence of death passed on the appellants by the trial Judge as well as the appeal judgment of the Court of Appeal are all hereby affirmed.

ESO, J.S.C.: I agree with the judgment just read by my brother, Oputa, JSC a preview of which I had the honour of. The appeal is dismissed. I agree with the orders contained in the judgment.

UWAIS, J.S.C.: I have read in draft the judgment read by my learned brother, Oputa, JSC. I agree with the reasons and conclusion therein and I have nothing to add. I too would, therefore, dismiss the appeal and affirm the conviction and sentences of death passed on the appellants.

COKER, J.S.C.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother, Oputa, JSC and I entirely agree for the reasons copiously stated by him that there is no merit whatsoever in the appeal of each of the two appellants. As there is nothing useful to add to what he has already said, I will dismiss both appeals and affirm the conviction and sentence of death imposed on each of them.

[1986] 2 .
Adio v. State
(Karibi-Whyte, J.S.C. )
595

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KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother, Oputa, JSC in this appeal. I agree entirely that this appeal ought to be dismissed. I wish merely to say a few words on the contention by counsel for the appellants that 3rd accused having been acquitted by the trial Judge, there were no sufficient material to warrant the conviction of the appellants.

The facts of the case have been very clearly and fully stated in the judgment of my learned brother, Oputa, JSC. I adopt them for the purposes of this judgment. The case of the prosecution was that on the 24th June, 1981, the 3rd accused, who was discharged, and appellants were night watchmen in Orita Challenge Area, Odo-Ona, Ibadan, accused of the murder of the deceased. There was evidence before the learned trial Judge that appellants were among the night-watchmen seen standing near the corpse of the deceased and holding dangerous weapons, including a blood-stained cutlass. Although there was evidence that 3rd accused played a prominent role in organising the night watchmen, for the purposes of hounding the Ghanaians resulting in the death of the deceased, he was not at the scene when the Police arrested the appellants. The 3rd accused only surrendered himself on the third day after the incident following the arrest of his sister and his wife.

The learned trial Judge made the following findings of fact –

1.
That some night watchmen on the early hours of 24/6/81 rounded up some Ghanaians at Orita Challenge Area on the suspicion that they were thieves.

2.
The persons so rounded up were led by the night-watchmen to the house of P.W. l.

3.
P.W. 1 ordered that one of the Ghanaians be released immediately and the remaining conveyed to the Orita Challenge, Police Station. Ibadan by the Night-watchmen.

4.
That the bodies of some of these Ghanaians were later found by the side of the road, whilst others were discovered in the bush.

5.
The Ghanaians so killed were (i) Mensah (ii) Rockson (iii) Kofi Bedu and two twins known as Whyte.

6.
The first and second accused persons were among the night watchmen who went to PW. l with the Ghanaians and were also seen standing by. the corpses of the dead Ghanaians.

7.
First and second accused persons were seen carrying guns and a cutlass soaked with human blood.

8.
Both the arrest of the 1st and 2nd accused persons and the death of the Ghanaians occurred in the morning of the 24/6/81.

9.
Patrick Mensah, one of the dead Ghanaians was said to have died from head injury consistent with being hit on the head by a sharp instrument.

There was therefore no finding that 3rd accused was present in any of these places or that he took part in the killing of the deceased.

In respect of 1st and 2nd accused, there was no direct evidence of the commission of the offence. But the learned trial Judge relied on their confessional statements and other circumstantial evidence to hold that they took part in killing the deceased. He said at p. 108 –

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5 May 1986
(Karibi-Whyte, J.S.C. )

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“The law is clear that where there is no direct evidence that an accused commits an offence but there is indirect evidence which irresistibly proves his guilt, the court is entitled to convict him of such an offence.”

The learned trial Judge considered the confessional statements of the appellants and held that they go a long way to show that they took part in the killing of the Ghanaians including Patrick Mensah.

Adverting to the case of the 3rd accused, the learned trial Judge observed that there was no oral evidence linking him with the offence. The trial Judge considered the statement of P.W. 3 exhibit B which implicated the 3rd accused but since PW. 3 had made another statement inconsistent with exhibit B, he regarded exhibit B on the principle of Onubogu & Anor. v. The State (1974) 1 All NLR (Pt. 11) 4 as unreliable. Again the statements of first and 2nd accused persons which implicated 3rd accused are statements of co-accused persons, and attached little weight to them. In his view, apart from the confession of 3rd accused, there was no legal evidence implicating him. The learned trial Judge concluded as follows:-

“There is no evidence, for instance, that the third accused was one of those night watchmen who arrested the Ghanaians in their house. P.W.5 gave evidence that he was one of those Ghanaians who were rounded up and led to PW. l’s house did not identify him as one of the night watchmen who arrested them. PW. 1 did not mention his name either. PW.3 who said in his statement exhibit B, that he released his vehicle to him to convey the victims of the incident resited from this statement in his evidence in court.

… Failure of the prosecution to properly link the third accused with this offence outside his own confession to which I attach little weight creates a reasonable doubt in the mind of the court and he is therefore in law entitled to the benefit thereof.”

It is pertinent to observe that the learned trial Judge did not find the confessional statement of the 3rd accused also sufficient for his conviction. The prosecution did not appeal against the acquittal of the 3rd accused, and his case was not open for consideration both in the court below and before us. The contention that appellants were convicted on identical facts on which the 3rd accused was acquitted is not strictly correct. As the evidence and the above quotation shows, the evidence against the three accused persons were not identical. The evidence of their participation was clearly not the same. I am not saying that there was insufficient evidence before the learned trial Judge to enable him convict the 3rd accused for the same offence because of the nature of his participation. However, to contend that appellants ought to be acquitted because 3rd accused was acquitted rests on the assumption that their participation was identical. In any event merely because the trial Judge erroneously acquitted the 3rd accused is no justification for urging this court to perpetuate the same error in acquitting the appellants.

I think there was overwhelming evidence before the trial Judge in support of the conviction of the appellants. I have already set out the findings of fact made by the learned trial Judge. These findings of fact are not challenged by learned Senior Advocate Chief Akinrele, SAN. It is obvious

[1986] 2 .
Adio v. State
(Karibi-Whyte, J.S.C. )
597

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In the circumstances, the appeal in my opinion lacks merit. The conviction and sentence of death passed on the appellants by the trial Judge, affirmed by the Court of Appeal are hereby affirmed.

Appeal dismissed.

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