Ezekiel Adekunle v. The State

The appellant herein was charged with murder contrary to Section 316(3) and punishable under Section 319 of the Criminal Code Cap. 30 Vol.11 Laws of Ondo State of Nigeria in that on or about the 26th day of January 1987, he murdered one Felicia Ejide. He was tried at the Ikere-Ekiti Judicial Division of the Ondo State High Court, and on 15th April, 1988, Fawehinmi, J. convicted him and sentenced him to death The appellant appealed to the Court of Appeal Benin Judicial Division (Coram Omo, Musdapher and Ejiwanmi JJ.C.A.) which on 21st February, 1989 dismissed his appeal and affirmed the conviction and sentence. The appellant has now appealed to this Court.

The facts of this tragic case have been fully set down in the judgments of the trial Court and the Court of Appeal. I can only set them down briefly here. Felicia Ejide was a woman of about 70 years at the time of her death. For about 8 years prior to her death, she had been very ill and visits to various native doctors or herbalists did not seem to have helped her. She was so sick that she often sobbed. Her illness was in the nature of mental breakdown. Although she lived in a room next to her husband's (D.W.1) room, it was her daughter, Phebean P.W.2, who looked after her and occasionally brought her food. The other members of her husband's family claimed that she cursed them from time to time. They demanded that she, Felicia, be taken away from the compound. At a meeting at the palace of the Ogogo, it was resolved that Ejide be taken away from the compound and P.W.2 agreed to do so. On the 26th July, 1987, P.W.2 accompanied by her aunts, P.W.3 and P.W.4, arrived at about 7 p.m. to take her mother away. She tied her mother on her back in the manner in which mothers tie their children in our land. P.W.2 claimed that as they were leaving the compound the appellant followed them jeering and calling her mother a witch. He was joined by other people. A little further, according to her, the appellant pulled at her cloth making her and her mother to fall to the ground. While on the ground, the appellant threw heavy block pieces on her mother causing her severe injuries. Others joined in throwing the blocks. Later on she carried her badly injured mother to her uncle's home and went to lodge a report to the Police that same night. By the time she came back with the Police, her mother had died. The appellant denied the charge and raised a defence of alibi which was supported by several witnesses including P.W.2's father and deceased's husband, D.W.1.

In the appeal in this Court, the appellant filed 8 grounds of appeal which I do not propose to set down. Both learned Counsel to the appellant, Mr. Olanipekun, and Mrs. Modupe Fasanmi learned Deputy Director of Public Prosecutions of Ondo State for the Respondent, filed copious and well reasoned briefs of argument for which I think I ought to commend them. The issues for determination as identified by both learned counsel are similar, but I shall take those indicated by Mr. Olanipekun as they appear to bring the main issues in this appeal into sharper focus. According to learned counsel to the appellant these issues are as follows:

1. Whether the defence of alibi timeously put forward by the appellant and confirmed by the police upon investigation was properly rejected by the trial and lower courts.

2. Whether it was proper for the learned trial Judge (and the Court of Appeal) to have treated D.W.1 Jacob Komolafe as a suspect or biased witness' thereby rejecting his evidence which strongly favours the appellant.

3. Having regard to the equivocal finding of P.W.1, the medical doctor, as recorded in Exhibit A and his evidence in Court, whether it is still safe to convict the appellant of the offence of murder.

4. Whether all the ingredients of the offence of murder contrary to Section 316(3) of the Criminal Code of Ondo State were proved and/or established against the appellant before the learned trial Judge.

5. Whether it was proper for the learned trial Judge to have convicted the appellant under Section 316(2) of the Criminal Code without amending the charge and taking the appellant's plea.

6. Whether the evidence adduced by the prosecution irresistibly led to the guilt of the appellant and/or whether or not the prosecution proved the case against the appellant beyond reasonable doubt.

Issues Nos. 2 and 5 were fully agitated before the trial court and the Court of Appeal and I find nothing that will justify my reopening them in this Court. I shall only deal with issue No.6 briefly as that issue is dependent on the views I form on issues Nos. 1, 3 and 4. In my view, this appeal turns on these 3 issues and these were infact the issues fully argued in the briefs of argument and expatiated in oral argument.

Before taking on these issues, however, it is essential to mention that there are concurrent findings of facts of both the trial Court and the Court of Appeal in this appeal. Neither in his brief nor in oral argument did Mr. Olanipekun advance any special circumstances why this Court should depart from them.

Most of these findings went to the issue of credibility which would have been more difficult to upset. I shall refer to these findings which must now be regarded as established facts. On page 57 of the record of proceedings, the learned trial Judge asserted that the straight forwardness of the case rested upon the following singular features:

(a) That the accused and Phebean Adedara (P.W.2) are well known to each other and that they both come from the same Osolo Compound in Ikere-Ekiti.

(d) That the deceased's husband, Jacob Komolafe, is a member of his own family in the same compound.

(e) That the deceased husband's house in the compound is only between four and five feet from his own house in the compound.

(f) That for many years and up to 26 January 1987, the deceased was known by him to be resident in the house of her husband.

(g) That the deceased was for many years sick in that house either always sobbing or sorrowing.

(h) That he attended the meeting held by the people of the compound with the Oba, i.e. the Ogogo of Ikere, where the Oba advised that the deceased be taken away from the compound by her daughter, P.W.2.

I shall now deal with the appellant's defence of alibi. Both in his brief and in oral argument, Mr. Olanipekun strenuously argued that both lower courts were wrong in not upholding the defence of alibi. As earlier mentioned in this judgment, the defence of the appellant to the charge was an alibi. He claimed that at the time the offence was alleged to have been committed, he was on duty at the College of Education Ikere-Ekiti about 4^1/2 miles from their home. The defence was timeously set up for he mentioned it in his first statement to the Police - Exhibit D.1. At the trial, he gave evidence to the same effect explaining that at his place of work he is also known as Babatunde Agbanigo. He claimed that he got to his work place by 7:50 p.m. on the fateful day. He identified the College Time Book which was tendered as Exhibit H. This indicates when each staff reports for duty. His testimony on the alibi was supported by D.W.1, D.W.2 Oke Owoyemi, D.W.3 James Olaseinde who, among other things, said that a person who is Group leader of guards on any week writes down the names of guards under him as and when they report for duty. Under cross-examination, this witness said that the appellant reported for duty at about 8:50 p.m. on 26th January, a good 1 hour after the appellant said he had reported.

The learned trial Judge evaluated this evidence on alibi fully picking holes in it. He had already for many other reasons rejected the testimony of D.W.1 who claimed that appellant came to greet him before he left for work that night. From the evidence of the defence on alibi, it was clear that the staff did not sign Exhibit H themselves. The leader entered the time when each staff arrived hence the learned trial Judge referred to Exhibit H as a simulation. The Court of Appeal in agreeing with the learned trial Judge's conclusions on the defence testimony on Exhibit H pointed to more weaknesses. On Exhibit H, there were entries on 27th and 28th January showing that the appellant was on duty when infact he was on those days in the Police Cell. The Court noted the stealthy effort by somebody to add "absent" on top of those entries.

Admittedly, therefore, the appellant's defence of alibi was supported by witnesses but one can see the weight that their evidence had. Furthermore, the police investigated the alibi as they were bound to do (See Fatoymbo V. A. G. of Western Nigeria (1966) W.N.L.R. 4) and P.W.6. Sgt. Timothy Ajua in his testimony confirmed that he went to the College of Education and he was given Exhibits F and H. He saw the name of the appellant on the register. Witness also confirmed that the appellant was on Duty that night. However, in view of the strictures made of Exhibit H, can it be rightly said that the Police did not deserve the disparaging remarks made by the Court of Appeal about their investigation of this part of the case? I think not.

In any case, an alibi means nothing more than "elsewhere". If therefore the prosecution can lead positive evidence which the trial court accepts and which fixes the accused person at the scene of crime, the alibi naturally collapses. See Patrick Njovens & Ors V. The State (1973)1 N.M.L.R. 331; Joseph Okosun and2 Ors vs. Attorney-General ofBendel State (1985)3 N.W.L.R. (Pt.12) 283, 285; State V. Wasari Umani (1988) 2 S.C.N.J. part 1 59; (1988)1 N.W.L.R. (Pt.70) 274; Gachi & Ors V. The State (1965) N.M.L.R. 333; Oriese Yanor & Ors vs. The State (1965) N.M.L.R. 337 In the instant case, the testimony of P.W.2, P.W.3 and P.W.4 which fixed the appellant at the scene of crime and gave details of the appellant's part in the events leading to deceased's death was accepted in toto by the learned trial Judge. He said of their evidence -

I have no doubt in my mind that P.W.2, P.W.3 and P.W.4 witnessed all the events that led to the injuries which the medical doctor found on the body of the deceased when he examined it early in the morning of 27th January, 1987. Their testimonies with regard to all the intermediate stages of the incident up to the time that the deceased was mortally stoned, not far away from the Police Station, were positive, direct and unswerving. I accept them as true ............... I am satisfied that these witnesses made no mistake as to the identity of the accused. ............. So found, the defence of alibi put up by the accused is logically and physically destroyed.

The Court of Appeal agreed with the learned trial Judge "that their evidence coupled with that of D.W.3 does destroy the defence of alibi set up by the appellant which therefore fails".

Before leaving the issue of alibi, I shall briefly deal with the point made by learned Counsel that P.W.2, P.W.3 and P.W.4 were tainted witnesses. It was his contention that the case of Patrick Njovens (Supra) did not apply as P.W.2, P.W.3, P.W.4 were not credible or independent witnesses. He also contended that P.W.2, P.W.3, P.W.4 being tainted witnesses, the learned trial Judge ought to have warned himself and ought not to have convicted the appellant as there was no corroboration. There is no doubt that the deceased was the mother of P.W.2 and the sister of P.W.3 and P.W.4. There was no corroboration of their evidence. In Nathaniel Mbenu and 1 Or. V. The State (1988) 3 N.W.L.R. (Part 84) 515, 625 to which learned Counsel made reference, I did say that -

The court has always held that the evidence of such a witness should be treated with considerable caution and should be examined with a tooth comb. Indeed trial Courts have been advised to be wary in convicting on the evidence of such witnesses without some corroboration

the requirement that a trial Judge should in such circumstances warn himself as one would in the case of accomplices is one dictated by prudence not by law

See also Director of Public Prosecutions vs. Hester (1972) 3 All E.R. 1056, 1072.

Admittedly, in the present case the learned trial Judge did not warn himself, but I never suggested anywhere that such failure in every case must be fatal. The central point is that the learned trial Judge must be wary in such circumstances. In other words, he must be fully satisfied with such evidence before convicting on it. From the passage I set down above, the learned trial Judge had no doubt about the truth of the evidence of P.W.2, P.W.3 and P.W.4.

Besides, it has to be remembered that there was no suggestion to either of P.W.2, P.W.3 or P.W.4 that they had anything against the appellant. Indeed the learned trial Judge found that there was no misundertstanding between the

appellant and those three ladies. The fact of their relationship to the deceased cannot make their evidence inadmissible, or more relevantly, without more, unreliable.

I shall now deal with the question of medical evidence. Both in his brief and in oral argument, Mr. Olanipekun submitted that the appeal must succeed at the prosecution as the trial court failed to establish the cause of death or show that death of the deceased was as a result of the act of the appellant. This submission arose from the evidence of the Doctor, P.W. 1, which appeared to give two "causes" or alternative causes of death of the deceased. Learned Counsel referred to Boy Muka V. State (1976) 9-10 S.C. 305; Bosah V. The State (1980)1 N.C.R. 204 at 211.

The Doctor testified as P.W. 1 in the trial Court. He tendered a medical report which was accepted in evidence as Exhibit A. In Exhibit A, the doctor observed that the body of the deceased was in emaciation state with the following - thin and dry skin, hollow cheeks, sunken eyes, very thin legs and arms. He also saw the multiple injuries. He certified the cause of death to be due to multiple injuries and starvation. In his oral testimony, his findings were:-

In my opinion the corpse may have died of the multiple injuries or starvation. In this particular case the two may be responsible for the deceased's death. The multiple injuries I found on the body of the deceased could not have been self-inflicted. (italics mine)

The first observation one makes is that this is not a case of conflict between the medical report and the doctor's oral testimony although, as has been stated several times, it is not necessary to tender the doctor's report when the doctor is available to give evidence. The second observation is that whichever way one looked at the doctor's evidence, he appeared to be giving two "causes" of death - starvation and/or multiple injuries. In fact to emphasise this, he went on to say that the two may be responsible for the deceased's death. Mr. Olanipekun has seized on this, as indeed he ought to do, to submit that the cause of death has not been established with certainty by the prosecution. If it was starvation, of course the appellant could not be held responsible for that. It is indeed trite now that the prosecution has to establish the cause of death with certainty and show that it was the act of accused person that caused that death. See Frank Onyenankeya V. The State (1964) N.M.L.R. 34; R. v. Owe (1961)1 A.N.L.R. 680; Rex V. Abengowe (1936) 3 W.A.C.A. 85. What then was the situation in the instant case? The learned trial Judge examined the medical evidence and disregarded starvation. According to him,

starvation from common experience, does not break bones, nor lacerate the skull, nor bruise the flesh ............ By referring to starvation, I believe the doctor was only giving a comprehensive expression to what made the deceased to look emaciated, with thin and dry skin, hollow cheeks, sunken eyes, and very thin legs and arms. He then concluded, I am satisfied that the immediate cause of the death of the deceased was the multiple injuries that were inflicted on her

Mr. Olanipekun's complaint to the Court of Appeal that the learned trial Judge rewrote the medical report was not accepted. The Court of Appeal relying on Akpan Isaiah Essien v. The State (1984) 3 S.C. 14 and Kato Dan Adamu v. Kano Native Authority (1956) F.S.C. 25 [1956]S.C.N.L.R. 65 to which I shall make reference shortly, they held that the learned trial Judge came to the right conclusion as to the cause of death by a proper application of the evidence before him.

It is clear that this seeming problem would not have arisen but for what the Court of Appeal called -

lamentable case of crass ineptitude." If the state counsel had re-examined the doctor, he would have been pinned down to the immediate cause of death. As it is, even if starvation weakened the resistance of the deceased such that the multiple injuries killed her, that would not have helped in the quest for the cause of death having regard to the decision in Rex V. Oledinma (1940) 6 W.A.C.A. 202; Rex V. Abengowe (Supra) and Ayan V. The Queen (1954)14 W.A.C.A. 412 all in which appeals were allowed because there were contributory "causes" and you couldn't really say what caused the death.

As it is, Mr. Olanipekun has complained in this Court that what the trial Court did, which was approved by the Court of Appeal, was to pick and choose between two possible causes of death. This he says cannot be done. In Bosah (supra), the Court of Appeal (per Belgore, J.C.A. as he then was) actually allowed an appeal in a murder case in which the trial Judge appeared to have chosen between death by violence (strangulation) and death through massive infestation of the abdominal viscera by bacteria. With respect, I think the problem in that case did not stop with Dr. Ohaeri's giving two possible "causes" of death. The more serious problem, in my view, was that there were 2 doctors both of which gave conflicting opinions as to cause of death. While one said there was no sign of asphyxia, the other said there were signs of strangulation.

In my view, what the learned trial Judge did here which the Court of Appeal accepted, was not picking and choosing cause of death. What he did, which I think he was entitled to do in the face of the inconclusive medical evidence (death due to starvation and/or multiple injuries) was to examine the evidence before him and draw the necessary inferences. In Akpan Isaiah Essien V. The State (Supra) where the same learned trial Judge discounted the medical evidence and deduced the cause of death from the evidence before him, this was approved by this Court (Coram. Irikefe, J.S.C. (as he then was) Bello, J.S.C. (as he then was) Eso, Nnamani, and Uwais, JJ.S.C.). After reviewing the circumstances of that case I opined at page 22 of the record,

It is conceded that the medical evidence did not categorically find the cause of death. Indeed the doctor who examined the body on exhumation said the left hand was severed from the body due to putrefaction In any case it is trite law that medical evidence of the cause of death is not necessary though it may be desirable. One has to look at the circumstances of this case, the statements of the accused and the available evidence which the learned trial Judge accepted. The cause of death could be inferred from the circumstances and I think that the Judge was right to have inferred the cause of death

Admittedly this is a case in which the autopsy could not show the cause of death with certainty as the body had decomposed, but the underlying principles of law are still there. In Kato Dan Adamu (supra) there was no medical evidence at all but it was held that cause of death can be inferred from the circumstances of the case. See Ayo Gabriel V. The State [1989] 5 N.W.L.R. (Pt.122) 457 where it was contended that there was a conflict between the medical report and the doctor's evidence in Court. See also Nwali and Ors. vs. The State (1971)1N.M.L.R. 79. In the instant case, I am of the view that the learned trial Judge drew the correct inferences from the evidence before him which he believed and accepted. Apart from the evidence of starvation, he had accepted evidence of P.W.2 as to how the appellant and others hurled concrete blocks on the deceased shattering the right and left femur or thigh bones, upper arm (left arm) of a woman of 70 years. There was evidence which the Judge accepted that when P.W.2 was removing her uncle's house after the stoning, she was hardly breathing. In fact what she said was that -

the attackers had fractured all her limbs, joints and had injured the flesh of her legs extensively ............. she was virtually dead.

Before P.W.2 returned with the Police that same night her mother had died. There was indeed evidence that the deceased was starved, but there was no evidence that at the time P.W.2 moved her that night she was anywhere near death. She was at least well enough to ask for her evening meal.

I would therefore hold that the appellant's complaint on this head cannot succeed.

I now come to what I consider to be the most important issue in this appeal - i.e. issue No.4 of the issues for determination. Was there common intention to kill between the appellant and those others who P.W.2. testified joined in stoning the deceased? If there was a common intention, the act of one can be taken to be the act of others. The question really arose from that passage of the learned trial Judge's judgment where he said,

I am satisfied that immediate cause of the death ................ was the multiple injuries that were inflicted on her on the night of 26 January, 1987 by the accused and several others that were not before me." (Underline mine)

Did the appellant have a common intention to kill with these several others at large?

Mr. Olanipekun began his argument in his brief by reference to Section 316(3) of the Criminal Code under which the appellant was charged and which reads:-

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say, (3) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life is guilty of murder.

This section can be read together with Section 8 of the Criminal Code which deals with vicarious responsibility and common intention. That section reads as follows:-

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."

The provisions of this section have been the subject of interpretation in several cases. See Mounwem & 4 Ors. V. The Queen (1963)1 All N.L.R. 85 at 98 and Diobehin & 2 Ors. V. The Queen (1963)1 All N.L.R. 388 at 392.

In Offor and Anor V. The Queen (1955)15 W.A.C.A. 4, the West African Court of appeal considering the Section drew the distinction between common object and common intention in a case in which two brothers attacked a visitor but, while one hit him with a matchet, the other hit him at the back of the head with a club. The Court held that the intention of each brother was formed suddenly and independently of the other. Cousey, J.A. writing the judgment of the Court said at page 5,

Common intention may be inferred from circumstances disclosed in the evidence and need not be by express agreement but a presumption of a common intention should not be too readily applied. That proof of common intention is a condition precedent to conviction in this type of case is appreciated when it is remembered that if a combination of this kind is proved, a fatal blow, though given by one of the party, is deemed in the eye of the law to have been given by all those present and aiding. The person actually delivering the blow is no more than the hand by which the others all strike.

This is a profound statement the implications of which for the case in hand will be clearer shortly.

In the meantime, Section 8 came under further scrutiny more recently in Yakubu Mohammed & Anor. V. State (1980)34 S.C. 84. Bello, J.S.C. (as he then was) reviewed all the authorities as well as the evidence accepted by the trial Court in that case. We thought that there "is sufficient evidence to draw the inference that the 1st appellant had formed a common intention with the 2nd appellant and Isa Mohammed to assault those persons they suspected to have attempted to steal the motorcycle and also to assault any other person who tried to prevent them from effecting their common purpose. The question then is,can it be said that the killing of the doctor in circumstances amounting to murder was a probable consequence of the prosecution of that purpose?" He then concluded that -

I do not think that a reasonable man would conclude that death in such a violent manner may be a probable consequence of the simple assault which the appellants and Isa had formed a common intention to prosecute.

The meaning of Section 8 was even more poignantly brought out in the case of Akinkunmi (supra) to which I earlier made reference. In that case, some of the appellants obviously formed a common intention to steal goats and indeed did steal goats. At the Police check point, the deceased policeman got into the appellant's vehicle to inspect it, and suddenly, the 2nd appellant drove off with the Policemen still on board. The policeman's pleas to be dropped were ignored. Instead he was later found at the corner with head injuries from which he died.

The question was, was there a common intention? There was evidence that the 3rd and 4th appellants actually pleaded with the 2nd appellant to stop the vehicle and drop the policeman. Eso, J.S.C., who wrote the lead judgment, identified the ingredients that must be present under section 8 before a conviction is possible. These are: -

(3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another.

(5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose.

In the instant case, there was a common intention to prosecute with one another an act of stealing goats. That satisfied (1) to (3) of the analysis (supra). The offence that was committed, that of murder was not in prosecution of the common intention to steal a goat but to escape lawful arrest. What then was the common intention to escape in the manner of the action of the 2nd appellant. There has been no suggestion that either of the 3rd or 4th appellant knew the 2nd appellant would speed off with a police investigator in the vehicle. There is no evidence to show that either appellant sanctioned the act of the 2nd appellant before, during or after the act. There is no suggestion that the common intention to steal a goat must necessarily include escaping in the manner of the action of the 2nd appellant that resulted in the deceased being found with broken skull I am not satisfied that the murder of the deceased was a probable consequence of stealing a goat. The fifth ingredient has not been met .....................

Now to come to the instant case, there was definitely a common object or desire by the appellant and the members of their family that the deceased be taken out of the compound. There is evidence that all the women in the compound held a meeting and resolved that the deceased by removed. Then there was a meeting at the Palace of the Ogogo of Ikere-Ekiti on the morning of 26th July, 1987, a meeting attended by the appellant and members of the compounds, at which it was resolved that the deceased should be removed by P.W.2. On the face of it, that is as far as the common intent or object or desire can go. Ex facie, it would not have gone as far as the stoning and death. In other words, the stoning and death would not be a probable consequence of that intent or desire that the deceased be moved out of the compound. There is no evidence of any express agreement between the appellant and any other person or persons that the deceased be stoned and killed. But it is well established, as I have shown earlier, that there need be no express agreement before common intention can be shown. It can be inferred from the circumstances. This is what Mrs. Fasanmi referred to as inference from the totality of the evidence. What then were the circumstances of this case?

According to the evidence of P.W.2., the deceased's daughter, which the learned trial Judge accepted and believed, she collected her mother by 7 p.m. on the 26th January, 1987. She tied her with cloth on to her (i.e. P.W.2.) back. Then in her evidence she continued -

I had taken a few steps outside the house when the accused came out of another house nearby. He shouted and mocked at me that I was carrying away the 'witch' - meaning my mother. I continued my journey, despite his mocking and jeering. He too continued to follow me. As he was following me, other people joined him to mock and jeer at me. It was a short distance to get to the house of James Alonge, when the accused pulled my buba garment from behind. Immediately I fell down and so also my mother. As both myself and my mother fell down, the accused unwrapped my loin cloth from my body and pulled my mother out. He immediately reached for a cement block that was nearby and hurled it at her. He reached for another and hit her with it. At this juncture some others who followed him reached individually for more blocks and were hitting my mother with the objects. I was stoned away from the scene." (italics mine)

It is also instructive to note that in the evidence of P.W.8, which was accepted and believed by the learned trial Judge, the appellant was said to be mocking and jeering at P.W.2, P.W.3, and P.W.4, P.W.8 then continued,

He then reached for a cement block hit the woman with it on many of her joints and limbs. He was uttering at the same time the following words 'One kills the witch with stones''Okuta Ia nfi pa aje.' (Underlining mine)

It seems clear to me, therefore, that the appellant, at the time he pulled down P.W.2 and the deceased, reached for cement blocks and threw them at the deceased uttering the words that a witch is killed with stones, intended to kill the deceased or at least caused her grievous bodily harm. What about the others who followed the appellant? These others must include those who had pressed that the deceased be taken away from the compound, they must include those who joined the appellant in jeering at P.W.2 presumably calling her mother a witch. These others heard the appellant shout that a witch is killed with stones as he picked up cement blocks to hurl at the deceased. The crucial question that then arises is this, when they picked up their own cement blocks in these circumstances what other intention could they have had than to kill the "witch" or at least cause or grievous bodily harm?

I am satisfied that from all the circumstances of this case, there was a common intention between the appellant and these others who joined him to kill the deceased who they considered to be a witch. They definitely had a common intention to prosecute the unlawful purpose of eliminating a "witch" by stoning and in the prosecution of that unlawful purpose, the offence of murder was committed. I cannot see any ingredient, as per the analysis of this court in Akinkunmi (supra), that is missing. I would also hold that the appellant has failed on this issue.

The final matter raised in issue 6 is the submission that the guilt of the appellant was not proved beyond reasonable doubt. From all I have said in this judgment, this last matter must receive very brief treatment. The learned trial Judge accepted the testimony of the prosecution witnesses and rejected those of the defence. I have rejected the major complaints of the appellant as regards the defence of alibi, the medical evidence and on Section 8 of the criminal code. It follows that I am satisfied that the case against the appellant was proved by the standard required in a criminal case particularly one involving a capital offence - i.e. beyond all reasonable doubt but of course not beyond every shadow of doubt.

This appeal fails and I hereby dismiss it. The conviction and sentence previously passed on the appellant are further affirmed.

I have read the judgment of my learned brother, Nnamani, J.S.C., just delivered and for the reasons stated therein, I would also dismiss the appeal and affirm the conviction of the appellant for the murder of the old woman, Felicia Ejide.

The facts and the circumstances of the case fall squarely within the provisions of section 8 of the Criminal code of Ondo State. The evidence conclusively shows that the appellant together with a mob had formed a common intention to prosecute an unlawful purpose in conjunction with one another, to wit, to kill a witch by stoning her to death, and in that prosecution of the said purpose, they caused the death of the old woman by stoning her violently with cement blocks under the circumstances that amounted to murder. Her death was obviously the probable consequence of the prosecution of their unlawful purpose. That being the case, the appellant and every member of the mob were responsible for the death of the old woman.

Muonwem & 4 Ors. V. The Queen (1963)1 All N.L.R. 95 at 98; Digbehin & 2 Ors. v. The Queen (1963)1 All N.L.R. 388 at 392; Yakubu Mohammed & Anor. v. The State (1980) 34 S.C. 84 at 97; Ogbali & Anor. v. State (1983) N.S.C.C. 156 and Akinkunmi & Ors. v. The State (1987)1 N.W.L.R. (Pt. 52)

I have had the privilege of a preview of the judgment which has just been delivered by my learned brother, Nnamani, J.5.C., and I agree entirely with the reasoning and the conclusions arrived thereat.

I have nothing to add. The appeal is therefore dismissed and the conviction and sentence of the trial court, affirmed by the Court of Appeal are further confirmed.

I read in advance the lead judgment of my learned brother, Nnamani, J S. C., and I am in full agreement that this appeal is devoid of merit and ought to be dismissed.

The only defence raised by the appellant as accused person at the trial court was alibi. With the greatest respect that was the only defence open to him. The evidence led by the appellant fell far short of establishing alibi. The D.W.1, D.W.2 and D.W.3 testified as to the time the appellant reported for duty as night security guard at Teachers' College on the date of incident. The evidence of these witnesses was to the effect that whoever was the leader of the guards on any given night duty was to record the names of guards on duty and the time each reported in the duty register. It is of importance that none of these witnesses claimed to record the arrival of the appellant on the date in question, but even more remarkable is the evidence of D.W.3, James Olaseinde, who under cross-examination testified that the appellant reported for duty at about 8.30 p.m. and not about 7p.m. as he claimed. This time is about one hour after the sordid incident giving rise to the case now on appeal. Alibi is a rule of practice based on reasonable proposition that a person, not at the scene of a crime requiring for its commission presence of the accused person, cannot be held liable. It is therefore for the accused person to let the prosecutor know of this at the earliest opportunity so as to establish if the alibi is true or false. The over-whelming evidence was before the trial court that the appellant was in locus delicti at the time the deceased was attacked and killed; indeed he it was that alerted the entire neighbourhood that the deceased was being carried away. He did this by perhaps harping on local superstition of believing the deceased was a witch. He shouted "The witch is being carried away"; this attracted a mob that came out to jeer and mock the deceased and her daughter who was carrying her away. The appellant led the first violent attack; he picked a cement block and shouting "Okuta Ia nfi pa aje" threw it at the deceased. He had earlier forcibly wrestled down the deceased from the back of her daughter (P.W.2), who carried her just as a little baby. The others followed; the mob, including the appellant, threw so much of these heavy cement blocks, (I do not think the lightest cement is not a dangerous thing to throw at any person) that all the deceased's limbs from feet to her thigh, from her hand to her arm were fractured. For a normal and fit person this outrageous attack would be fatal. Who was the deceased? The deceased was over seventy years old, ill over many years, and perhaps due to deliriums associated with old age made many to believe, by local superstition that she must be a witch. She certainly was unpopular and this cost her a lot. She was mercilessly starved. What remained of her life was an emaciated frame. Very fragile person she was. This woman was the victim of this brutal attack. She died on that spot resting finally in her own little blood that remained. Surely without medical evidence the conclusion is obvious. She was killed by being stoned with cement blocks resulting in multiple fractures causing her death. (Joseph Ogundipe & Ors. V. R XIV W.A.C.A. 458).

The certainty of identification of the appellant by P.W.2, who had known him all her life and collapse of his alibi was sufficient to convince learned trial Judge, and the Court of Appeal could not disturb the lower court's decision. The principle of alibi should not be over-extended. The onus to raise alibi is on the defendant, the onus then shifts on the prosecution to investigate the alibi so as to establish its veracity (Adedeji V. State (1971)1 All N.L.R. 75). But the appellant must give a lead as to his alibi and should not put the prosecutor on uncertain path. The prosecutor must investigate but it will only do so with a lead (Yanor V. State (1965)1 All N.L.R. 193). The police investigated the alibi in this case and were certainly not convinced by it, a course they were rightly entitled to take; at any rate they carried out their obligation to investigate (Fatoymbo V. A-G., Western Nigeria (1966) W.N.L.R. 4). The prosecution as against the defence led direct and positive evidence of the appellant's presence and active participation in the crime at the scene of the murder that the alibi collapsed like a pack of cards (Okosun & Ors. V. A-G. Bendel State (1985) 3 N.W.L.R. (Pt. 12) 283; State V. Wasari Umani (1988) 2 S.C.N.J. (Pt. 1) 59; (1988)1 N.W.L.R. (Pt. 70) 274.)

The main point that I can now dwell upon is the issue of common intention. This is a point of law that has been pronounced upon in many cases. There is a distinction between common object and common intention. This point was discussed in Ozulonye V. State (1981)1 N.C.R. 38 (A.L.R.). My learned brother in the lead judgment covered this ground admirably that I need not flog it again. Suffice to say however that the appellant provoked the mob on the deceased and her personally led the attack verbally and physically by throwing cement blocks at her.

I find no merit in this appeal and for the fuller reasons contained in the lead judgment of Nnamani, J.S.C., I also dismiss this appeal. I affirm the decision of the Court of Appeal which upheld both the conviction and sentence of the trial court.

I have had the privilege of reading before now, the Judgment of my learned brother, Nnamani, J.S.C., with which I completely agree and I adopt the reasoning and the conclusions arrived thereat as mine. Having nothing more useful to add, I shall for the same reasons dismiss the appeal and confirm the conviction and sentence of the trial court as affirmed by the Court of Appeal.

Counsel

Wole Olanipekun

For the Appellant

Modupe Fasanmi (Mrs)

Deputy Director of Public Prosecution. Ondo State

For the Respondent