1. (1983) NSCC 152


In The Supreme Court of Nigeria

On Thursday, the 24th day of March, 1983

Suit No: SC.54/1982


Before Their Lordships


GEORGE SODEINDE SOWEMIMO              – Justice of the Supreme Court

MOHAMMED BELLO                                       – Justice of the Supreme Court

KAYODE ESO                                                      -Justice of the Supreme Court

ANTHONY NNAEMEZIE ANIAGOLU          – Justice of the Supreme Court

MUHAMMADU LAWAL UWAIS                  – Justice of the Supreme Court





SELE EYOROKOROMO & ANOR                   Appellants




THE STATE                                                           Respondent



V.C.O . ACHIKEH D.D. Legal Aid Coucil     -For Appellants

G.E. Edokpayi d.s.g. Bendel state              -For Respondent




ESO, J.S.C.: (Delivering the leading judgment ): This appeal came before this Court on 24th February, 1983. After taking the submissions of the learned counsel for the appellants, we did not consider it necessary to call on the learned counsel for the State, Mr. Edokpayi, the Deputy Solicitor-General of Bendel State.

We dismissed the appeal and adjourned till today to give our reasons for our decision. I now give my reasons for agreeing that the appeal be dismissed.

The case was first tried in the Warri High Court. In an appeal to the Federal Court of Appeal, that Court ordered a retrial and that retrial was confirmed by this Court on 12th April, 1979. The present appeal therefore, is an appeal following that retrial.

It was a tragic incident. One Obiogbo had a fight with one Solmon Ebikeme as a result of which the latter died. Jibunor Anigho, the deceased in this case, was master of Obiogbo and he, Anigho, went to the police station to report the matter.

An investigation party, including the only two witnesses for the prosecution in this case, set out for the scene of incident. In so far as the evidence goes against the two appellants, there are two distinct scenes to the Act in this unsavoury drama.

Evidence of Scene 1 which gave the picture of the first attack on the deceased was given by the first prosecution witness, Josiah Mokena an inspector of police.

This witness, after Anigho had 'made a report to him of the fight between his boy John and Ebikeme, took two other police constables with him and led a party of about fifty people to Bolou-Ndoro where the corpse of Ebikeme was expected to be. On their arrival, the villagers had gathered at the waterside and the first appellant who was with the villagers said

''This is Jibunor. The deceased John is his own boy and now that Jibunor himself is here, he Jibunor should be killed."

The villagers attacked the police party at this exhortation by the first appellant despite pleas from the witness not to harm Jibunor or any other member of the party. In this attack, the second appellant attempted to strike both Jibunor and the witness with an axe, Jibunor had by this time been so beaten that he became unconscious. At a subsequent attack, the witness himself became unconscious and could not give evidence of the second scene.

The second scene was at the river bank after the villagers had beaten up Jibunor.

When at the river bank 1st appellant noticed Jibunor was still alive he ordered the mob to kill him. The canoe was then dragged mid stream and there the 2nd appellant and others killed Jibunor.

The learned trial judge carefully sifted the evidence, gave detailed consideration to the defence of the appellants, the issue of accomplices vel non, the absence of the corpus delicti, whether or not there was common purpose, provocation and self defence even when most of these defences were not raised either by the appellants or their learned counsel. The learned trial judge found the appellants guilty of murder, and sentenced them to death.

The appellants appealed to the Federal Court of Appeal, which I would hereinafter, in this judgment, refer to as the Court of Appeal, and in a judgment delivered by Omo Eboh J.C.A. to which Ete and Okagbue JJ.C.A. concurred, the Court of Appeal after a most careful examination of the points raised in the appeal dismissed the appeal of the appellants and confirmed the decision of the trial court.

The appellants have now appealed to this Court relying on six grounds of appeal.

The complaints are in the main -

a. admission of inadmissible evidence;

b. lack of assessment of relevant evidence;

c. inadequate investigation of the defence of alibi;

d. provocation and

e. lack of evidence of a common purpose.

Mr. V.C.O. Achikeh, learned counsel for the appellants, filed a copious brief where he highlighted the issues to be determined following the complaints stated above. He also made oral submissions before us. Indeed Mr. Achikeh made a heavy weather of what he referred to as the inadequate consideration of the defence of provocation.

I would wish to dispose of this issue first. From the facts of this case it seems to me that a more calculated murder could hardly be found. Following the tragic death of Solmon Ebikeme, the action of the appellants in concert with the other villagers showed a grim decision to retaliate by killing the master of the alleged murderer of Ebikeme. The deceased in this case, therefore met his death as a result of a deliberate action on the part of the villagers to kill him. The nature of the two attacks would confirm beyond any shadow of doubt that the killing was not as a result of an action done in the heat of passion caused by sudden provocation. Assuming the tragic death of Ebikeme led the appellants to commit the act, there was sufficient time for passion to cool. There were two separate attacks on the deceased.

After the first attack, passion ought to have cooled down. But, on the contrary, the failure of the appellants and others to kill the deceased in the first attack only led to a more deliberate and calculated effort to see to his end in the second attack.

With respect the submission of learned counsel that 'the news of the killing of Solmon Ebikeme by Jibunor Anigho and his men was good enough to cause provocation in law to his relations …. who gathered at the river bank" is inept. In any event, neither of the two appellants raised the defence of provocation at the trial.

Their defence was a complete denial and a plea of alibi.

In regard to "common purpose" the short answer to the submissions of learned counsel on this point is that the first appellant exhorted the others to kill the deceased and as a result of this exhortation, those others attacked and killed the deceased.

At the scene of the first attack the first appellant had said -

''This is Jibunor. The deceased John is 'his own boy and now that Jibunor himself is here, he Jibunor should be killed."

As a result of this, the evidence was that very many of the natives rushed into the boat. During the second attack, and following a plea by the first prosecution witness that the first appellant should help spare the life of the deceased, his retort was-

"No Mokena. A man who kills should be killed."

And from the evidence it was as a result of this "call to battle" that many of the natives again rushed into the boat and killed the deceased. Section 8 of the Criminal Code Law of Bendel State provides -

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

Following the exhortation of first appellant, each and everyone of the persons who attacked the deceased Jibunor in the manner the evidence showed had but one common intention to prosecute an unlawful purpose. It is as a result of this joint attack in which the two appellants were principal actors that Jibunor died. In a concerted attack to prosecute an unlawful purpose, it is not the law to look for the person who struck the lethal blow. Every one there who partakes in the attack is equally guilty.

As regards the evidence against the appellants, there was ample evidence before the trial court of the involvement of the two appellants. The evidence of the 1st and 2nd prosecution witnesses is ample.

The two appellants were present, played leading roles in this brutal assault on the deceased. Their presence and invidious acts were well proved, they had no legal justification or excuse for their disgraceful action. They were rightly convicted and their conviction rightly confirmed by the Court of Appeal.

It was for all these reasons that I dismissed the appeal of the appellants without calling on the respondent on 24th February, 1983, for lack of total merit.



SOWEMIMO, J.S.C.: The facts are well set out in the judgment of my learned brother Kayode Eso, J.S.C. There is no redeeming feature in this dastardly killing of the deceased. I agree with the reasons as given by my learned brother Kayode Eso, J.S.C. which I adopt.



BELLO, J.S.C.: I had a preview of the reasons for judgment delivered by my learned brother, Eso J.S.C. I entirely agree.



ANIAGOLU, J.S.C.: I have read the reasons for judgment given by my learned brother, Kayode Eso, J.S.C. I adopt those reasons for my dismissal of this appeal on 24th February 1983 and have nothing further to add.



UWAIS, J.S.C.: I have read in draft the reasons for judgment just given by my learned brother Kayode Eso, J.S.C. It was for the same reasons that on February, 1983 I agreed that the appeal be dismissed. I have nothing to add.

Appeal dismissed.