IN THE SUPREME COURT OF NIGERIA

On Friday, the 15th day of February 1963

FSC 431/1962

Between

PATRICK NWAFOR MUONWEM & 4 OTHERS ................................................. APPELLANTS

And

THE QUEEN ............................................................... RESPONDENT

Appeal by convicted persons.

The appellants in concert assaulted a police officer; they beat him severely, one with a baton and others with their hands; they threw his body, apparently lifeless, into the river. The post mortem showed bruises on head, chest and knee; the trachea was severely bruised and the thyroid cartilage broken; the doctor's opinion was that death was caused by strangling.

The trial Judge applied section 8 of the Criminal Code, which provides that:-

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that 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."

The main argument on appeal was that if one strangled the deceased, the circumstances were not such as to make them all guilty. The evidence was that the 1st appellant called on the others to join him in the attack-which they did.

HELD:

Where a number of persons join in an unlawful assault it is a question of fact in the particular case whether death was a probable consequence; here the circumstances indicated a concerted assault of such violence as to justify the finding that there was a common intention at least to do grievous harm and that death was a probable consequence of the prosecution of that intention.

R. v. Ofor and Ofor (1955) 15 W.A.C.A. 4 distinguished.

Appeals dismissed.

APPEAL from the High Court of Eastern Nigeria.

F. O. Anyaegbunam for the 1st appellant.

N.N. Amnah for the 2nd appellant.

Obi Okoye for the 3rd, 4th and 5th appellants.

F. O. Offiah for the respondent.

Brett, Ag. C.J.F. (delivering the Judgment of the court):-The five appellants were convicted of murdering a police officer named Bamford Amazama at Onitsha on the 2nd June, 1962. In substance, the facts which the judge found proved were as follows. On the night of the 2nd June, the 1st appellant and one Odili engaged a number of labourers, including the 3rd and 5th appellants, to off-load twelve drums of diesel oil from a canoe and load them on to a lorry. A fisherman named Michael Kemefasu, who is nicknamed "Hitler", and who is also a police informant, observed what was going on. He evidently thought there was something significant about it and he went to the house of the deceased and reported what he had seen. The deceased had recently undergone an operation for hernia, and was only fit for light duty, but he put on his uniform, took his baton, and went to the beach accompanied only by "Hitler" and by a special constable named Michael Uzo. On arrival there he asked who the owner of the drums was and was directed to the 1st appellant and Odili, with whom he entered into conversation. Shortly after this the 1st appellant went away. An attempt was made to load the drums on to the lorry but was abandoned when the deceased forbade it. The 1st appellant returned, accompanied by the 2nd and 4th appellants and the drums were loaded on the lorry, but the deceased entered the lorry and sat in the driver's seat, to prevent its being driven away. Later "Hitler" said something to the deceased in Ijaw, and he left the lorry and allowed it to be driven away.

The 1st appellant then said to the deceased-"I have you today; give me back that money. Show me your card", and grasped him by              the neck of his shirt. The deceased merely laughed, but the 1st appellant seized his baton and they started struggling for it. The 1st appellant then called on his labourers to join him in beating the deceased and his men, and the 3rd and 4th appellants at once joined in the attack on the deceased. The 2nd and 5th appellants, assisted one Azubuike Odachi, who gave evidence for the prosecution, gripped "Hitler" and knocked him down; "Hitler" got up and ran away and the 2nd and 5th appellants then joined the other three in attacking the deceased. Michael Uzo, the special constable, jumped into the river and was not seen again that night.

The five appellants beat and "pushed" the deceased in the direction of the river, the 1st appellant using the baton to beat him with and the others their hands. They finally threw his body, apparently lifeless, into the river.

The body of the deceased was not recovered until about 5:45 am. on the 4th June, when it was found floating in the river. A post mortem examination showed bruises indicating a severe beating on the head, upper chest and left knee; the thyroid cartilage was fractured and the uppermost part of the rings of the trachea was severely bruised and swollen. In the doctor's opinion death was caused by asphyxia or suffocation due to manual strangulation; he considered the possibility of death by drowning but was of the opinion that the condition of the lungs and stomach discounted this.

Only one point of substance has been argued in this appeal, and before dealing with it will be convenient to dispose of certain subsidiary matters. Nothing turns on the fact that the witness Azubuike Odachi may have been an accomplice, since his evidence was corroborated both by "Hitler" and by a night-watchman who were not accomplices, but it is submitted that as all the events concerned took place at night the witnesses could not have seen what they said they did. This was essentially a question of fact for the judge and we cannot say that on the evidence it was unreasonable for him to accept their story as a credible one. Then it is said that the witnesses only saw the deceased being beaten and pushed and did not see anyone grasping his throat in order to strangle him. He was a strong swimmer and it is submitted that the evidence does not exclude the possibility that he recovered consciousness after being thrown into the river, and was strangled later by some other person. We agree with the judge in regarding this as so improbable that it need not be considered seriously. Finally, it should be pointed out that no complaint is made because the judge disbelieved the evidence of the appellants and their witnesses and that the argument in this Court has turned solely on the sufficiency of the evidence for the prosecution.