In The Supreme Court of Nigeria
On Friday, the 4th day of May, 2018
Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
OGUNDARE OJO PETER –Appellant
THE STATE –Respondent
IBRAHIM TANKO MUHAMMAD, J.S.C.(Delivering the Leading Judgment): The appellant herein, was one of the defendants arraigned before the High Court of Justice, holden at Ado-Ekiti, Ekiti State (trial Court) on a 4 count charge of conspiracy to commit murder, murder (in two instances) and Armed Robbery alleged to have been committed on different dates, contrary to Sections 324, 316 respectively, of the Criminal Code Act, Cap C38 Vol. 14, Laws of the Federal Republic of Nigeria, 2004 and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Vol. 14, Laws of the Federal Republic of Nigeria, 2004. Each of the defendants pleaded not guilty to any of the charges. Full trial was conducted and at the end, the learned trial judge discharged and acquitted the appellant in respect of the offences of armed robbery in counts 1 and 2. He found each of the two other accused/defendants charged along with the appellant, guilty as charged. He sentenced them to death by hanging. The learned trial judge also found the appellant and each of the other two defendants guilty as charged on counts 3 and 4. He sentenced each of them to death by hanging.The appellant appealed to the Court below against his conviction and sentence. After reviewing the proceedings of the trial Court, the Court below affirmed the decision of the trial Court.
Dissatisfied further, the appellant filed his appeal to this Court on seven (7) Grounds of Appeal.
Having filed and exchanged briefs of argument in this Court, issues were set out in each party’s brief of argument.
Learned counsel for the appellant formulated the following issues for determination of the appeal:
i. “Whether the learned Justices of the Court of Appeal were right to have found that the appellant and his co-accused invaded the premises of the deceased with the sole intention to kill and not to rob?
ii. If issue one is answered in the negative, whether in the light of the evidence led before the trial Court, the learned justices of the Court of Appeal rightly affirmed the appellant’s conviction for the offences of murder and conspiracy to murder? Grounds 3, 4, 5, 6 and 7.”
Learned counsel for the respondent formulated two issues for determination. They are as follows:
a) “Whether the learned justices of the Court of Appeal were right to have found that the appellant and his co-accused invaded the premises of the deceased with the sole intention to kill and not to rob.
b) Whether in light of evidence led before the trial Court, the learned justices of Court of Appeal rightly affirmed the appellant’s conviction for the offence of murder and conspiracy to murder.”
My noble lordships, it is my belief that it is always better to have a comprehensive understanding of the facts giving rise to a dispute at the initial stage of the case, thus affording one a clear picture of what really took place in its relationship with the law and evidence applied or to be applied. At the initial stage and on the information sheet, names of four (4) accused persons were presented to the trial Court: (i) Kolade Olajide Fowosere (ii) Owhoorise Blessing (iii) Ogundare Ojo Peter and (iv) Sunkanmi Falaye. On the first day of arraignment, 1st – 3rd accused persons were present in Court. The 4th accused, Sunkanmi Falaye, was absent. Learned counsel for the prosecution Mr. Oluwaseun Fasote (a legal officer for the State) informed the trial Court that the 4th accused was granted bail in the Magistrate Court.
The 1st – 3rd accused were reproduced from the prison custody. Learned counsel for the accused person Mr. Omokhafe then applied for adjournment to enable him to cross-check at the Magistrate Court to know what had become of the 4th accused. The case was adjourned to 10/07/2012 for hearing. On the 10/07/2012, 1st – 3rd accused were in Court. The 4th accused was again absent. The learned prosecuting counsel, Mr. Fasote, applied to withdraw the charge against the 4th accused person so as to allow prosecution to proceed against the 3 accused persons. Application was granted by the trial Court and the name of 4th accused person – Sunkanmi Falaye was struck out from the information sheet.
Trial commenced on the 11th day of February,2013 with PW1 giving her evidence. She gave an eye witness account of what happened on the 20th day of July, 2011. A cursory glimpse at the facts narrated by PW1, is enough to lay the factual foundation of the case. Olufowobe Segun (Mr. Segun for short) was the husband to PW1 Sherifat Oluwofobe. They were living at Moferere, Ado-Ekiti. Mr. Segun was a policeman attached to Okesho Police Station. On the 20th of July, 2011, she was at home cooking in the kitchen. Mr. Segun and the children were in the parlour, waiting for
food to eat. PW1 continued:
“My children said they wanted tea; I went out and poured away the water I used to cook. I didn’t lock the door. I just shut it. I suddenly heard banging on the door. When they entered they asked me to kneel down. I knelt down; there is a door that links our parlour to the kitchen so I opened so that I can see the kitchen.
They asked for my husband, my husband had removed his uniform and was with his children. When they asked me I was shouting in Yoruba: “Segun Kilose” “Segun Kilose” – meaning “Segun? What has he done? “Segun? What has he done?
He must have heard my voice because I heard him trying to cock his gun. When I know he must have prepared, I replied them that he was inside.
Two of them remained with me in the kitchen while one went inside and shot him. He also shot back at his assailant.
Only three people entered into the kitchen that night. The light from the sitting room extended to the kitchen so that I could clearly see.
I knelt down at the door of the kitchen when the two robbers who were with me heard my husband’s gunshot they ran away. The one my husband shot in return also staggered out.
They wore face mask that night. I could only see their eyeballs. I could not recognize them. I could only see their eyes.
There was nobody I could call. I went out and asked my son to stay with his father, I shouted for help, nobody came out but I went to a policeman living nearby, I explained to him and returned home.
I can’t recollect his name but he was a senior to my husband. The name of my first born is Olufowobi Bolanle.
A man offered to help us carry him to hospital; the police parade came and asked that he should be put in their vehicle. He was not dead then, I was with him.
When we got to the State Hospital, they were on strike. He was not breathing well. I was telling the policeman in the front that “Ahmed, he was not breathing well.”
As I was speaking to him he was gesticulating to me. We went to two other different hospitals. I can’t remember their names. They refused. We then came back to State Hospital. When we got there I don’t know if the police knew then that my husband had died. They asked me to get out. I went and plead with those on duty at the hospital that they should help.
I didnt know he had died. The gateman asked us to go the Teaching Hospital, lfe. I kept on begging. The gateman now told us that some people just came now; they brought a man who was alleged to have been shot with a policeman and were asked to go to ldo. I asked how the people looked like. They described that two of them are tall and one short. I then told a policeman behind me that those were the people that shot my husband.
The gateman told me that three people came. The Supol who came when they didn’t want to allow us into the hospital then asked where that other person was shot, the gateman replied that the man was shot in the chest which tallied with what I had already told him earlier on.
The police officer then called his superior. I heard instructions been given that those people should be traced to Teaching Hospital, Ife.
Before that time, the gateman told me that the people who brought the gunshot victim said they had already gone to Ido before. After, I took my children to the house of the policeman living near our house. I can’t remember his name because my husband was always calling him “Oga.”
After we left the State Hospital, the police took me to Ologede Police Station. When we got there it was around 1a.m.
At Ologede, I made a statement the next day they went to my house and looked at everything. They saw blood on the pillow and asked me what happened. I replied that I was the one who collected the gun from my husband. They collected the gun and searched our house. They took me back to Ologede station, newsmen came and Supols came from their headquafters, and again went to the scene of the crime.
At Ologede, they asked me several questions what the people looked like, whether they asked any question from my husband before they shot him. After he was shot, he bled a lot. When I wanted to carry him, he said I should leave him. When my husband shot the robber, he fell down and tried to take my husband’s gun but could not. I later grabbed the gun.
The police took the pictures of the scene of crime. The next day after my husband was buried; the police invited me to Ado having arrested two of the accused. I had heard earlier on that the one my husband shot had died,
I later heard he did not die.
At the police headquarters the Accused admitted that they were the one who killed my husband.
It was the IPO who invited me. I can’t remember his name. I was there when they questioned the accused. The people I saw at the CID that day, I saw the third accused that day.”
After the completion of trial, the learned trial judge delivered his judgment. He found the appellant guilty of the offences charged i.e. conspiracy and murder. He sentenced the appellant to fourteen years imprisonment and death by hanging, respectively. On appeal to the Court below, that Court affirmed the decision of the trial Court. Appellant’s issue No.1 which corresponds with respondent’s issue No.(a) is on whether the Court below was right to have found that the appellant and his co-accused invaded the deceased’s premises with the sole intention to kill and not to rob him.
Learned counsel for the appellant submitted that the Court below was wrong in its conclusion that the sole intention of the appellant and his co-accused was to kill the deceased. This error, he argued further, has serious implication on the eventual decision of the Court to affirm the conviction of the appellant for murder. Learned counsel clarified his submission by the following points:
a) evidence of the prosecution witnesses contradicts the proposition the appellant and his co-accused went to kill and not to rob.
Learned counsel stated further that of the 7PWs, only the testimony of three of those witnesses were relevant. Two of the three stated by learned counsel for the appellant are PW1 Olufowobi Sherifat and PW3 – Corporal John Ebegbuma (page 8 of the appellant’s brief) were unanimous to the characterisation of the appellant and his co-accused robbers. Learned counsel submitted that the totality of the evidence of the above (2) PWs goes to show that in establishing the charges of conspiracy to murder and murder against the appellant and his co-accused, the prosecution proceeded on the premise of a robbery – gone wrong not an assassination. That there is no evidence from the prosecution to establish any other purpose but the commission of an armed robbery. He cited and relied on the case of Abdul Hamid Ojo v. Primate E. O. Adejobi & Ors (1978) LPELR 2381.
b) Exhibits E – G and I relied upon by the trial and Appeal Courts clearly indicate the accused persons’ intention to rob. Learned counsel for the appellant submitted that in convicting the appellant and the other accused persons tried together with him, the learned trial judge relied on the circumstantial evidence and the confessional statement of the accused persons which was affirmed by the Court below. He argued that the circumstantial evidence was weak and the appellant’s statement was not confessional. He invites this Court to examine the statements of the accused persons and see if the conclusion of a pre-determined assassination can be drawn therefrom. Learned counsel analysed all the evidence E – I. He came to the conclusion and did submit that the statements of the accused person (appellant) and his co accused, relied on by the trial Court and affirmed by the Court below, clearly paints a picture of a robbery, not a premeditated/pre-planned murder. The Court below was therefore in grave error to have held otherwise.
c) Court of Appeal made a case for the prosecution/respondent that it did not make at trial. Learned counsel for the appellant submitted that while affirming the conviction of the appellant based on his confessional statement, the Court of Appeal chose to pick only those aspects of the said confessional statement which supported their conclusion while ignoring those aspects of it which negated it. He argued further that it was not open for the Court below to pick and choose which part of the said confessional statement to believe. He urged this Court to resolve issue 1 in favour of the appellant.
Learned counsel for the respondent while responding to issue No.1, relied heavily on the evidence of PW1 from which he quoted extensively. It is his submission that from the evidence of PW1, it is clear that the assailants came for the deceased and no other thing. The evidence of PW1 was unchallenged which the trial Court believed and the Court below rightly, he argued, upheld. On the insinuation of learned counsel for the appellant that the appellant was there to rob, learned counsel for the respondent submits that this is contrary to the evidence of PW1 as contained on page 52 of the Record of Appeal.
d) concurrent findings of the lower Courts, learned counsel for the respondent submitted, that it is not the attitude of this Court to disturb the concurrent findings of the lower Courts when it has not been shown to be perverse. He cited in support, the case of Ebeinwe v. The State (2011) 45 NSCQLR 1206 at 1229.
Appellant’s issue No.1 is on whether the appellant and his co-accused invaded the premises of the deceased with the sole intention to kill (the deceased) and not to rob.
My lords, it has been an old dictum in the English Law that even “the devil himself knoweth not the intention of a man”
(per Bryan C. J. of the Medieval English Courts): Bowen L. J. in 1995, stated further that the state of a man’s mind is much a fact as the state of his digestion. See: Edgington v. Fitzmaurice (1985) 29. Ch.D. 459, at 483. It is simple! lt is correct that no one is capable of seeing into anothers mind and of being able to state with absolute certainty what is his intention. Only when a man himself confesses what it was he intended or foresaw do we come close to being sure of what it was, although even then, we may not be always certain, because we may misunderstand him, or he may consciously deceive us or unconsciously deceive himself as to what his real state of mind was. Be that as it may, we must, on a given situation, infer intention from the facts of any particular situation. Intention is not capable of positive proof, it can only be implied from overt acts: See: Setrena V. R. (1951) 13 WACA 132. An intention to kill, for instance, may be inferable from the severity which a matchet blow is struck, as held in: R. V. Omori (1961) 1 ALL NLR 33. An intention to prevent a document from being used as evidence, can be inferred from the deliberate destruction of the document. See: Okuyemi v. C.O.P. (1946) 12 WACA 3. Thus, it is the job of the Courts to get as close as possible to discovering, by such implication, what the accused himself intended.
My lords, it is only through the facts and evidence laid, that we may come much closer to the real intent of the appellant and his cohorts in killing the deceased. There is a finding by the trial Court that one Olusegun Olufowobi died, gruesomely murdered in the presence of his wife and children. The trial Court made further, the following findings, inter alia:
“From the evidence adduced by the prosecution all the circumstantial evidence points to the guilt of the accused persons. I disbelieve their evidence given in Court.
1st accused & 3rd accused claimed to have heard that someone was shot and they helped to take the victim (their church member – 2nd accused), 1st to police station, then to different hospitals and finally to Teaching Hospital, Ile-Ife where they were eventually arrested while the 2nd accused claimed to have been shot by some cultists.
I believe that their evidence is a carefully, constructed concocted lies which cannot hold water.
Again in the confessional statements of the 1st, 2nd and 3rd accused they clearly stated what happened on the day of the incident.
See Exhibit “E” the Confessional Statement of 1st accused. See also Exhibit “G” and Exhibit “I” Confessional Statements of 2nd and 3rd accused respectively.
I have carefully considered the evidence adduced on this 4th count i.e. murder charge, from the circumstantial evidence adduced and the confessional statements of the 1st, 2nd and 3rd accused, I find and hold 1st, 2nd and 3rd accused guilty of murder as charged.”
In fact, it is the law that in appropriate cases, an accused person can properly be convicted on his or her confessional statement alone. Ojegele v. The State (1988) 1 NSCC 276. Although it is always preferable to have some evidence outside the confession in further proof of the offence, the absence of such additional proof would not necessarily prevent a Court from convicting on the confessional statement alone provided the statement satisfies other conditions such as being positive, direct and unequivocal. Queen v. Obiasa (1962) 1 All NLR 651.
Furthermore, a careful look at the evidence of PW1 , as contained in the Record of Appeal, explicitly portrays an eye witness account of what transpired on the eventful day:
“My children said they wanted tea; (l) went out and pour(ed) away the water I used to cook. I didn’t lock the door. I just shut it. I suddenly heard banging on the door. When they entered the(y) asked for my husband, my husband had removed his uniform and was with his children. When they asked me I was shouting in Yoruba: “Segun Kilose” “Segun Kilose” meaning “Segun, what has he done” what has he done.” He must have heard my voice because I heard him trying to cock his gun. When I know he must have prepared, I replied them that he was inside. Two of them remained with me in the kitchen while one went inside and shot him. He also shot back at his assailant. only three people entered into the kitchen that night. The light from the sitting room extended to the kitchen so that I could clearly see…”
From the above quoted evidence alone, which remains unchallenged, one can easily infer that the only purpose for entering into PW1’s house was no other thing than to kill the deceased. This is what the Court below found as well:
“The evidence of PW1 before the lower Court is simple and straight forward. lt is that three persons, one of them armed with gun (and who the circumstantial evidence before the lower Court have established to be appellant and the other two persons charged along with him; and that it was the 2nd accused person that carried/held the gun) invaded the house wherein she lived with the deceased. These persons who were clearly not at PW1’s house on a social visit asked for her husband, the deceased… PW1 never gave evidence that these persons asked her for anything or took anything away from her
or from her house. The picture created by the evidence of PW1 or irresistible inference from her evidence, in my considered view, is that appellant and the two other accused persons were in her house on that day (i.e. 20/7/2011) to kill the deceased.”
It is clear from the above that the primary aim of the appellant (if there was any hidden aim at all) was to kill and not rob PW1’s husband. I am in total agreement with the Court below when it held, inter alia, that:
“The picture created by the evidence of PW1 or irresistible inference from her evidence, in my considered view, is that appellant and the two other accused persons were in her house on that day (i.e. 20/7/2011) to kill the deceased.”
Issue 1 (one) is decided against the appellant and in favour of the respondent.
This issue is on whether the Court below was right when it affirmed the trial Court’s conviction of the appellant on the offences of conspiracy and murder.
Learned counsel for the appellant submits that there is no evidence indicating that the appellant was in form of agreement with 2nd accused person to achieve the result of the murder of the deceased policeman.
Learned counsel went on to argue that:
“We however, under this issue seek to impress upon your Lordships, the point that the specific intention of the appellant during the events of 20th July, 2011 was to assist in the commission of the offence of armed robbery and not murder.”
Learned counsel pointed out circumstances in highlighting his submissions.
Learned counsel for the appellant argued further that the Court below was wrong to hold that the appellant did not challenge finding of trial Court on circumstantial evidence. The trial Court, he argued, relied on circumstantial evidence in convicting the appellant. A complaint against the evidential basis for the conviction of the appellant is thus a complaint against the trial Court’s reliance on circumstantial evidence. The learned Justices of the Court of Appeal, therefore, misdirected themselves when they held that there was no complaint against the trial judge’s reliance on circumstantial evidence in the conviction of the appellant. The circumstantial evidence relied upon by the trial Court falls short of the standard of the law. He cited the case of Shehu v. The State (2010) LPELR 3041.
Learned counsel argued further that the appellant did not in Exhbit I admit or confess to the ingredients of murder as the appellant made no confessional statement upon which the Courts rely. He cited the cases of Azabada v. State (2014) LPELR 2304; Haruna v. Attorney General of the Federation (2012) LPELR 7821; State v. Enabosi (1966) 2 All NLR 116. Learned counsel urged this Court to resolve this issue in favour of the appellant.
Learned counsel for the respondent submitted on this issue that the Court below was right in holding that the prosecution proved the case of conspiracy against the appellant by adducing sufficient evidence to establish the ingredients of the offence of conspiracy to murder and murder against the appellant. He submitted that the Court below rightly inferred conspiracy from the oral testimony of PW1 about the activities of the appellant and his co-accused persons on how they saw PW1 alone in the kitchen. Further, in conspiracy charges, nobody, except the conspirators themselves, can give direct and positive evidence of the agreement. He cited the case of Aminu Tanko v. The State (2008) 16 NWLR (Pt.1114) 597 at 638.
On the murder charge the learned counsel for the respondent argued that the prosecution proved the ingredients of murder by credible evidence of PWs 1 – 5. Learned counsel set out the ingredients thereof. He made an indepth analysis of the evidence of PW1. He urged the
Court to resolve this issue in favour of the respondent.
The criminal offences of “conspiracy” and “murder” have fully been recognised by our Penal Law systems. Conspiracy, without more, is always taken to be an agreement entered by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act or to do or commit an act which, per se, is legal/lawful through an illegal/unlawful means.
The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commit an unlawful act, or do or commit a lawful act by unlawful/illegal means. In Omotola & Ors v. The State (2009) 8 ACLR 29 at 147, this Court reiterated the point that:
“Where more than one accused persons are accused of jointly commission(sic) of a crime, it is enough to prove that they 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 of the accused persons in the group guilty of the offence.”
Thus, it is immaterial whether the person accused had knowledge of its unlawfulness. The conspirators do not even need to be in direct communication with each other in respect of the offence. A Court can thus, infer, from the criminal acts of the parties including evidence and complicity. See: Bolaji v. The State (2010) All FWLR (Pt.534) 100. All that is required by way of proof is either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. There is a finding by the trial Court that a careful look at the confessional statements of the accused shows that three of the accused persons worked in tandem to pursue a common purpose(s) to commit crime. For instance, the 1st accused in Exhibit “E” (his Confessional Statement) stated:
“The herbalist collected a lot of money about N200,000.00 from me. I was taken into the bush for (money rituals) for 2 days but money didn’t come. It was after that I called Blessing (2nd accused) and he came to Osi in the house of the herbalist. I narrated my ordeal to Blessing and he discouraged me about rituals. He then opined that if we gone (SIC) we will get money”
In Exhibit “G” the 2nd accused stated:
“I and Kolade gang up to be operating as armed robbers about 3 months ago.”
Exhibit I is the Statement of the 3rd accused where in hestated:
“After some days, Kolade and his friend came to me and told me that they are hustlers and wanted me to join them by conveying them to places. They actually opened to me that they do rob.”
So, what else can be more vivid in informing us that the three accused persons were in agreement to pursue an unlawful act? Certainly none. Thus, whatever the learned counsel for the appellant would want to call that motive, whether “common intention” or common object/objective to me, they mean same thing in this case and that is the unison or agreement entered by the three accused persons to commit an illegal act to wit: robbery and murder. I fail to see any extenuating circumstance as the learned counsel for the appellant would want this Court to believe. To make the picture clearer, it was in evidence that the appellant and the 1st accused rushed to the woman in the kitchen and held her hostage and the 2nd accused person rushed into the sitting room and shot the deceased, who later died. The trial Court found this piece of evidence corroborating the oral testimony of PW1.
I am in complete agreement with the two lower Courts that the offence of conspiracy against the appellant was well established.
On the offence of murder, the submission of learned counsel for the appellant is that as far as the event of 20/7/2011, could be related to the appellant and his co-accused, the appellant manifested no intention to commit murder. Indeed the conduct of the appellant shows that he had no intention whatsoever to participate in a murder. Learned counsel for the appellant cited and relied on almost all the exhibit tendered at the trial Court.
Learned counsel for the respondent argued that the appellant was at the centre stage of the scene through out the
commission of the offence of murder of the deceased. He cited the evidence of PW1 which, he said, was not challenged. Learned counsel cited Exhibit “I” where the appellant made some confessions in relation to the murder of the deceased. He cited the case of lkemson v. State (1989) 1 CLRN I at page 22 Paragraph C
The learned trial judge after his evaluation of the evidence placed before his Court, came to the following conclusion:
“I have carefully considered the evidence adduced on this 4th count i.e. murder charge, from the circumstantial evidence adduced and the confessional statements of the 1st, 2nd and 3rd accused, I find and hold 1st, 2nd and 3rd accused persons guilty of murder as charged.”
Reviewing the proceedings of the trial Court, the Court below, in a comprehensive manner throws more light on the whole episode. It observed in the following words:
“The evidence of PW1 before the lower Court is simple and straight forward. lt is that three persons, one of them armed with a gun (and who the circumstantial evidence before the lower Court have established to be appellant and the other two persons charged along with him; and that it was the 2nd accused person that carried/held the gun) invaded the house wherein she lived with the deceased. These persons who were clearly not at PW1’s house on a social visit asked for her husband, this deceased. While appellant and another of the accused persons restrained PW1, 2nd appellant went into the parlour in which the deceased was and shot him. The deceased who PW1 gave some time to cock his gun before pointing to where he was, equally shot the 2nd accused person. PW1 never gave evidence that these persons asked her for anything or took anything away from her or from her house. The picture created by the evidence of PW1 or irresistible inference from her evidence, in my considered view, is that appellant and the two other accused persons were in her house on that day (i.e. 20/7/2011) to kill the deceased. This is the only inference given the fact that appellant and the two other accused persons never asked for any other thing than the whereabouts of the deceased with the 2nd accused person proceeding to the parlour where he was and shooting him right away. The narration of PW1 and particularly the role placed by the 1st and 3rd accused persons respectively, in restraining PW1 and thereby allowing the 2nd accused person unhindered access to the deceased for the purpose of achieving their objective of murdering the deceased, in my considered view made each of them a principal offender turn to shoot the deceased with the same gun or each of them shoots the deceased with his own gun that they become principal offenders. There are no two way to it, but that when a group of persons all armed with guns or one of then being armed with a gun enter into another person’s house and simply guns him down without more, all that they have done is the execution of their set objective or intention to kill the person in question and where the death of the person shot occurs from the gun shot as in the instant case, I simply do not see how any of the persons who set out with the intention to kill can be heard to say he had no intention of killing the person that died or causing him any grievous bodily harm. All that I am saying is that the evidence of PW1 (and indeed the gist of the offence in respect of which she testified) does not go to remotely suggest that the appellant and the two others charged along with him were at her house for some other unlawful purpose apart from killing her husband.”
This Court, stated in the case of Agwuna v. Attorney General of the Federation (1995) LPELR 258, as follows:
“The law is settled that all persons who are participes criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime. Parties, participes criminis to a crime, include inter alia every person who actually does the act or makes the omission which constitutes the offence, person who aid, abet or assist them in the commission of the offence or who counsel or procure others to commit the offence or knowingly give succour or encouragement to the commission of the crime or who knowingly facilitate the commission of the offence. See Section 7 of the Criminal Code.”
Thus, PW1 said it all. The appellant and his co-accused certainly went for the deceased and nothing else! They did not say anything or show anything to suggest anything contrary. Although learned counsel for the appellant was suggesting and coming up with new terminology which he called “robbery gone – wrong not an assassination.” He failed to educate the
Court on what that jargon means. In the first place, there was no charge against the appellant on any “robbery – gone wrong.” And whether a robbery has gone wrong or not it still remains a criminal offence under the laws of this country. Robbery gone – wrong, whatever it means, cannot take the place of murder known to our Penal systems. Luckily, the prosecution kept to its duty of proving the known offences of conspiracy and murder which were both established against the appellant. Both were proved beyond reasonable doubt. The appellant must be prepared to bear the consequences of his acts.
I find no reason to tamper with the concurrent decisions of the two lower Courts which I affirm. The appeal certainly lacks merit and it is hereby dismissed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother I. T. Muhammad, JSC just delivered, I agree entirely with the reasoning and conclusion that the appeal is devoid of any merit and should be dismissed. The appellant was properly convicted as charged and rightly sentenced. In other words, the appellant’s conviction and sentence by the trial Court were correctly affirmed by the Court below and same is hereby affirmed by me.
KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read before now the leading judgment of my learned brother, I. T. Muhammad JSC whereby he dismissed the appeal for lack of merit.
It cannot be a defence or a mitigating factor for learned counsel to argue that the appellant and his co – accused initially set out to rob, armed with guns, but the robbery went wrong and in the process the deceased was shot and killed. No other inference can be drawn, from the accepted facts, that the appellant and the other accused went looking for the deceased and shot him without taking anything from the house, than to conclude that the intention was to murder the deceased. I too find no merit in the appeal and it is hereby dismissed. I further affirm the conviction and death sentence passed on the appellant by the trial Judge and affirmed by the Court below.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment delivered by my learned brother, I. T. Muhammad, JSC, and I agree entirely with his reasoning and conclusions, and find no reason to tamper with the concurrent decisions of the two lower Courts. The appeal totally lacks merit and it is hereby dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother I. T. Muhammad, JSC and I entirely agree that this appeal lacks merit and ought to be dismissed. I accordingly dismiss it.
O. O. Ogundare with him, O. O. Owotumi, O. A. Ademipekun and B. F. Adeyeye. –For Appellant
Kolapo Kolade (A. G. Ekiti State) with him, Justin Omogbemeh, Esq. –For Respondent