Sufficiency of Common Intention in Determining Joint Criminal Liability

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 21st day of February, 2025

Before Their Lordships

Adamu Jauro

Moore Aseimo Abraham Adumein

Habeeb Adewale Olumuyiwa Abiru 

Jamilu Yammama Tukur

 Abubakar Sadiq Umar.

Justices, Supreme Court

SC.969/2017

Between

MURPHY EGBA                        APPELLANT

                                                                       And

THE STATE                                          RESPONDENT

(Lead Judgement delivered by Honourable Jamilu Yammama Tukur, JSC)

Facts

The Appellant was arrested by the Nigeria Police during an investigation into the death of one Preye Agbagidi, on the suspicion that it was the Appellant, who as part of a gang of boys, had identified the deceased as their target, which led to the killing of the deceased by another member of their gang sometime in February 2003. The Appellant and two others were subsequently arraigned before the High Court of Bayelsa State, on a one-count charge of murder contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria, as applicable to Bayelsa State. After the conclusion of trial, the trial court convicted the Appellant as charged, and sentenced him to death by hanging. Dissatisfied, the Appellant appealed to the Court of Appeal. In a judgement delivered on 5th June, 2015, the Court of Appeal dismissed the appeal and affirmed the decision of the trial court. Thereafter, the Appellant filed a further appeal to the Supreme Court.

Issue for Determination 

The Supreme Court considered the sole issue distilled by the Appellant as follows: 

Whether the lower Court was correct, when it held that the Appellant is guilty of the offence of murder by virtue of the provisions of the Criminal Code, Cap 30 Vol 11, Laws of Eastern Nigeria, 1963.

Arguments

The Appellant’s Counsel argued that the prosecution failed to prove that the Appellant was the one who inflicted the fatal stab wounds that caused the death of the deceased, thus, the Respondent failed to establish the key element of murder against the Appellant beyond the required standard of proof. Counsel cited Section 316 of the Criminal Code, Cap 30 Vol 11, Laws of Eastern Nigeria, 1963; Section 135 of the Evidence Act, 2011; OSUAGWU v STATE (2013) NWLR PART 1347 at PAGE 360; OKEREKE v STATE (2016) LPELR-26059(SC), among other judicial authorities, to support his argument. 

The Appellant’s Counsel argued further that, the Court of Appeal erred when it relied on the extrajudicial statement of one Junior Eradiri to affirm the trial court’s decision, especially since the trial court had found that the extrajudicial statements of the accused persons, including that of the 3rd accused, were wrongly admitted as they did not pass the voluntariness test,  in line with the settled position of the law that once a document is rejected in evidence and so marked rejected, it cannot be used by the court in making a decision, or drawing any inference therefrom. Counsel relied on the cases of IFARAMOYE v STATE (2017) LPELR-42031(SC); WASSAH v KARA 4 NWLR (PT. 1449) 374 AT 395, PARA. G.

Counsel argued that both the trial Court and the Court of Appeal erred in relying on the testimony of PW3 to indict the Appellant under Sections 7(b) and 8 of the Criminal Code, Cap 30 Vol 11, Laws of Eastern Nigeria, 1963, and submitted that the testimony did not demonstrate that the Appellant pointed out the deceased in order to assist or enable the 3rd accused to commit the offence. Counsel submitted that the doubt created, should have been resolved in favour of the Appellant. Counsel contended that for an accused to be criminally liable under Sections 7 and 8 of the Criminal Code, the accused must have aided, abetted, or formed a criminal intention with another prior to or at the time of the offence. The Appellant’s Counsel submitted that merely pursuing PW3 from the crime scene after the offence was committed, does not satisfy these requirements or make the Appellant guilty.

On the other hand, the Respondent’s Counsel contended that once criminal liability is established based on the doctrine of common intention, as affirmed by the concurrent findings of both the trial and appellate courts, the issue of whether the Appellant personally inflicted the fatal stab wounds is no longer material. Counsel argued that what matters is that the group shared a common intention to perpetrate an unlawful purpose, and all parties involved are liable for the consequences of actions taken in furtherance of that common intention.  

The Respondent’s Counsel submitted that it was established beyond reasonable doubt that the Appellant and others were more than two persons acting together, they had a common intention, as could be inferred from their actions, the common intention was for an unlawful purpose, as could be inferred from the fact that they were armed and an offence – the murder of the deceased, was committed; and the offence was a probable result of the stabbing of the deceased with a dagger. Thus, the courts below were right in their concurrent findings, that the Appellant was involved in committing the murder of the deceased. Counsel submitted further that once common intention is proven, individual participation in the physical act causing death is immaterial, and supported his submissions with AKINLOLU v STATE (2017) LPELR-42670(SC), ALAO v STATE (2015) LPELR-24686 (SC), and ALI v STATE (2019) LPELR-47405(SC).

On the Appellant’s argument regarding the Court of Appeal’s reliance on the Appellant’s extrajudicial statement, which had been rejected by the trial court, Counsel submitted that the Court of Appeal’s reliance on the said extrajudicial statement did not occasion any miscarriage of justice, because the trial court did not rely on the extrajudicial statement to convict the Appellant, but, instead, grounded the conviction principally on the principle of common intention. Counsel relied on Section 251(1) of the Evidence Act 2011 and the decisions in OLUDE v STATE (2018) LPELR-44070(SC), ITU v STATE (2016) LPELR-26063(SC), OLAOYE v STATE (2018) LPELR-43601(SC), and KRAUS THOMPSON ORGANISATION LTD v UNIVERSITY OF CALABAR (2004) LPELR-1715(SC).

Court’s Judgement and Rationale

In resolving the sole issue, the Supreme Court expatiated the essential elements required to establish a charge of murder under Sections 316, Criminal Code, Laws of Eastern Nigeria 1963 as applicable in Bayelsa State. Relying on its earlier decision in EGBERTAMU v STATE (2022) LPELR-58933 (SC) (PP 19-19 PARAS A-E), the Apex Court held that for a prosecution to succeed in a murder charge under Section 319(1) of the Criminal Code, it must prove beyond reasonable doubt that: (a) There was a killing; (b) the killing was unlawful as defined under Section 316; (c) it was the accused’s act or omission that caused the death of the deceased; and (d) the accused intended to cause the death of the deceased.

Applying the foregoing principles to the facts of the appeal, the Supreme Court held that that the offence of murder was clearly established against the Appellant, because there was uncontroverted evidence before the trial court that he shared a common intention with Junior Eradiri who stabbed the deceased, to attack the deceased. The Apex Court held that there was cogent evidence showing that the Appellant was with a gang of boys, including the said Junior Eradiri, who were all armed with knives, and the Appellant was the one who pointed out the deceased as the target, which led to the deceased being stabbed to death by the said Junior Eradiri.  The Court held that the conviction of the Appellant by the trial court for the offence of murder, and the affirmation of the conviction by the Court of Appeal were valid, sound and a product of a proper application of the law to the facts and evidence before the trial court, because of the principle of common intention and joint prosecution of offence as ensconced in Section 7 and Section 8 of the Criminal Code. The Apex Court relied on its decision in ALAO v STATE (Supra) (PP 35 – 35 PARAS B – F) in which it held that where common intention among several participants in a crime is established against those who are jointly charged of committing such crime, it is enough to prove that they all participated in the crime; what each did in furtherance of the commission of the crime, is immaterial. The Court held further that the mere fact of the existence of the common intention manifesting in the execution of the common object, is enough to render each of the members of the group of the accused person guilty of the offence. The Supreme Court also relied on STATE v EGWU (2021) LPELR-56609(SC); STATE v CHUKWU (2021) LPELR-56610(SC); ISONGUYO v STATE (2022) LPELR-60912(SC); AND NWIKO v STATE (2022) LPELR-57747(SC).

The Apex Court found that common intention was clearly established against the Appellant through the evidence adduced before the trial court, and concluded that even if the basis of the Court of Appeal’s decision was wrong, it would not be enough to overturn the decision, because the decision is correct, ensures justice and can be upheld on another basis. 

Appeal Dismissed. 

Representation

Collins C. Chikere for the Appellant. 

Preye Agedeh with the fiat of the Hon. Attorney-General of Bayelsa State for the Respondent. 

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