[Offences] – [Conspiracy] – [Common Intention] – [Ingredients of] – [How Proved]
ISSUE FOR DETERMINATION:
Whether when a criminal act is done by several persons in furtherance of the common intention of all, each of those persons is liable for that act in the same manner as if it were done by him alone.
FACTS:
In the morning of 14/12/2006, at Adogo in Ajaokuta Local Government Area of Kogi State, a group of five men, led by one Yakubu Ahmed Audu (a.k.a. Tapo), who was Supervisor of Agriculture at the Ajaokuta Local Government Council, came looking for one Ozovehe Yusuf Abdulkareem, at his father’s house there.
When Ozovehe Yusuf Abdulkareem, who worked at the same Council, came out of the nearby house where he lived, the said Tapo, their ringleader, shot him with a sophisticated military assault rifle, which caused his death. The said Tapo and the man that handed the said rifle to Tapo, were tried, convicted and sentenced to death by the Kogi State High Court on 14/4/2010, for causing the death of the said Ozovehe Yusuf Abdulkareem (the deceased).
The Appellant and two other men, were said to be at large. However, the Appellant was arrested almost five years later, on 31/1/2011, and he was also tried, convicted and sentenced to death by the Kogi State High Court on 144/2010. The Court of Appeal affirmed the judgment of the High Court which convicted and sentenced the appellant to death for the offence of culpable homicide punishable with death. The Supreme Court, in a unanimous decision, dismissed the appeal.
HELD:
On Concept of common intention and how proved:
By virtue of section 79 of the Penal Code when a criminal act is done by several persons in furtherance of the common intention of all, each of those persons is liable for that act in the same manner as if it were done by him alone. Thus, once it is established that two or more persons formed the necessary common intention to prosecute an unlawful purpose and in the prosecution of such purpose, an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose is committed, each of them is deemed to have committed the offence. In such circumstance, once the execution of the common intention or design is established, the court would be right to hold that it did not matter which of the accused persons did what.
On Ingredients of offence of conspiracy and how proved:
Conspiracy is often inferred from the facts and circumstances surrounding the commission of an offence, as plans are usually hatched in secret. A person may also involve himself in a conspiracy by his mere assent to and encouragement of the design of the offence even though nothing may have been assigned to him or intended to be executed by him. The actual commission of the offence is the physical manifestation of the agreement to do an illegal act or to do a legal act by illegal means. Where two or more persons act in concert in committing an offence, anyone of them can be convicted of the offence
NIGERIAN CASES REFERRED TO IN THE JUDGMENT:
- Abacha v. State (2002) 11 NWLR (Pt. 779) 437
- Adava v. State (2006) 9 NWLR (Pt. 984) 152
- Aguagua v. State (2017) 10 NWLR (Pt. 1573) 254
- Aiguorewahian v. State (2004) 3 NWLR (Pt. 860) 367
- Akinlemibola v. COP (1979) All NLR 349
- Akinyemi v. State (1999) 6 NWLR (Pt. 607) 449
- Akpa v. State (2007) 2 NWLR (Pt. 1019) 500
- Alarape v. State (2001) 5 NWLR (Pt. 705) 79
- Amadi v. State (1993) 8 NWLR (Pt. 314) 644
- Bature v. State (1994) 1 NWLR (Pt. 300) 267
- Haruna v. State (1972) 8-9 SC 174
- Ikemson v. State (1989) 3 NWLR (Pt. 110) 455
- Kayode v. State (2016) 7 NWLR (Pt. 511) 199
- Michael v. State (2008) 13 NWLR (Pt. 1104) 361
- Musa v. State (2007) 11 NWLR (Pt. 1045) 202
- Njovens v. State (1973) 5 SC 17
- Obiakor v. State (2002) 10 NWLR (Pt. 776) 612
- Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663
- Oduneye v. State (2001) 2 NWLR (Pt. 697) 311
- Okashetu v. State (2016) 14 NWLR (Pt. 1534) 126
- Okeke v. State (1994) 4 NWLR (Pt. 392) 676
- Shurumo v. State (2010) 19 NWLR (Pt.1226) 73
- State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548
- State v. Salawa (2011) 18 NWLR (Pt. 1279) 580
- Uwagboe v. State (2007) 6 NWLR (Pt. 1031) 606
- Zakwakwa v. Queen (1960) SCNLR 36
NIGERIAN STATUTE REFERRED TO IN THE JUDGMENT:
- Penal Code, Cap. 532, Laws of the Federation of Nigeria,1990, Ss. 79, 80, 97(1) and 221(b)
FULLL JUDGMENT
AUGIE, J.S.C. (Delivering the Leading Judgment):
At the Court of Appeal, the Appellant raised three Issues for Determination that questioned whether the charge was defective; whether the trial Court erred in relying on the evidence of PWI, PW2 & PW4 and Exhibit P2 to convict him “in the absence of legally admissible evidence to sustain the Charge against him”; and whether, by the mode of rendering the final Address of his Counsel, “his right to fair hearing was breached and the whole trial consequently a nullity.”
The Court of Appeal, in its judgment delivered on 10/12/2014, resolved all the three Issues in favour of the respondent, and concluded as follows:
“There is clear evidence that the appellant is one of the conspirators that murdered the victim in cold blood. The constitutional right of the appellant was not violated at the trial. The trial was conducted with due observance of the rules of natural justice. He was rightly found guilty and convicted of the heinous offence of culpable homicide. Having resolved all the issues against [him], this appeal is hereby dismissed as totally devoid of any merit.”
The appellant’s position that there is no evidence showing that he conspired with anybody to kill the deceased or showing a common intention resulting from specific design premised on his act, done in concert with others was rejected based on section 79 of the Penal Code. That section provides:
“When a criminal act is done by several persons in furtherance of the common intention of all, each of those persons is liable for that act in the same manner as if it were done by him alone.”
In affirming the decisions of the lower courts and dismissing the appeal, the Supreme Court noted:
“In this case, the appellant stated in Exhibit P2 that he heard that Tapo was having issues with some people over a vehicle that was hit in the night, and the next morning, Tapo asked him to ‘follow him with my gun to ask one boy who wanted to kill him some questions’; and that he ‘did not go with gun’, but he agreed to follow Tapo, who was ‘armed with one English gun, not locally made, while others were with locally made barrel gun each’ and they all trekked to PWI‘s house that morning, where he saw Tapo shoot and kill the deceased.”
PW2 testified that appellant “was armed when he came with the other persons to carry out what they intended”. Even if the Appellant was not armed, what did he think he was doing when he agreed to follow Tapo, who was armed with a lethal weapon, to ask one boy, who wanted to kill Tapo, some questions.
The boy turned out to be the deceased, who was shot and killed by Tapo, and the appellant cannot extricate himself from the consequences of his action. Conspiracy is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means, and it is clear in this case that the moment Tapo asked the appellant to follow him with his gun, and he agreed, the common intention to carry out an unlawful act was formed because a gun is not a plaything; it is a lethal weapon, and the gang were not going for a walk when they got together and trekked, fully armed, to PWI’s house that morning.
As the learned trial Judge put it, “there was no evidence to suggest that that they were going for a game or hunting expedition; rather their mission was to have an encounter with the deceased”. An encounter that proved fatal for the deceased, who was shot and killed by Tapo, right in front of his father. Tapo may have been the one that fired the shot that killed the deceased, but in the eyes of the law, the Appellant, who followed Tapo, knowing that he was armed with a lethal weapon, is as guilty as if he pulled the trigger himself, and he cannot be heard to cry that he did not participate in killing the deceased.
The Court of Appeal was standing on very firm ground when it affirmed the decision of the trial Court, and this Court is not in a position to intervene. This Appeal, therefore lacks merit; it fails and it is hereby dismissed.
LIST OF COUNSEL:
Hassan U. El-Yakub, Esq. – for the Appellant.H. E Yusuf, Esq., (S.G. MOJ, Kogi State), with lye Idama, Esq., (A.D.D.P. MOJ, Kogi State) Maryann Otaru, Esq., (P.L.O. MOJ, Kogi State), M. M. Tseja, Esq., (L.O. MOJ, Kogi state), and O. J. Etubi, Esq., (L. O. MOJ, Kogi State) – for the Respondent.