ADEBIYI v THE STATE

ADEBIYI v THE STATE


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 17TH MARCH, 2017


Appeal No: CA/L/815C/2013
CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA


BETWEEN

KAYODE ADEBIYI

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. CRIMINAL LAW
1. Plea of Alibi – Details that must be present in a valid plea of alibi

Circumstances where the defence of alibi would not avail an accused person

“The defence of alibi must be precise and specific in terms of the place the accused was and those present with him at the material time of the incident. Until these particulars are supplied to the police by the accused at the earliest opportunity before the duty to investigate the alibi by the police may arise which was not the case with Exhibit 43, the statement of the appellant to the Police at the State C.I.D., Panti Police Station, and the appellant’s evidence in Court in pages 94 – 96 of the record vide Aliyu v. State (2013) 12 NWLR (pt. 1368) 403 at 417 – 418; Victor v. State (2013) 12 NWLR (pt. 1369) 465 at 483, 484,486; Ayan v. The State (2013) 15 NWLR (pt. 1376) 34 following Sowemimo v. State (2004) 11 NWLR (pt.885) 515, Akpan v. State (2002) 12 NWLR (pt.780) 189, Gachi v. State (1965) NMLR 333, Asuquo v. State (2016) 14 NWLR pt.l532) 309 at 316.

Moreover, the evidence of the PW1 (supra) and the evidence of the PW2 positively fixed the appellant at the scene of crime which destroyed any defence of alibi the appellant might have had vide Aliyu v. State (supra) at 418 – 419, Victor v. State (supra), Njovens and Ors. v. State (1973) 1 N.N.L.76 at 93 -94, Ochemaje v. The State (2008) 15 NWLR (pt. 1109) 57, The State v. Adekunle (1989) 5 NWLR (pt. 123) 505.” Per IKYEGH, JCA read in context

2. Common Intention –

Liability for acting in furtherance of common intention to commit crime

“In the instant case, the evidence of PW1 in pages 63 – 64 of the record (supra) showed he unsuccessfully interceded to prevent the appellant and two others from taking away the deceased, his son, whose death ensued proximate to the firing of the gun after he was taken away by the appellant and his cohort.

The PW1’s piece of evidence (supra) established that the deceased died from gunshot inflicted on him by one of the several persons whom the appellant accompanied and assisted at the material time vide Ndike v. State (1994) 8 NWLR (pt.360) 33, see also Dan Adamu v. Kano Native Authority (supra), Eric Uyo (supra), Bakuri (supra), Akpan v. State (1994) 12 SCNJ 140 on the evidence of PW1 supplying the cause of death from gunshot proximate to the shooting at which the appellant participated in concert with the others in the night of the fateful day that the deceased died of the gunshot injury.

It is inescapable to infer from the totality of the evidence and the surrounding circumstances of the case that the appellant and his comrades-in-crime acted in concert in killing the deceased in cold blood and in cases of concerted action, the act of one of the participants is the act of all the participants. Therefore a fatal blow or shot by one of the accused or party in the company of the appellant at the material time of the concerted participation is deemed in the eyes of the law to have been given by all those present and participating as the person who delivered the fatal blow in such a case is no more than the hand by which the others struck vide Joseph Ogundipe and Ors. v. The Queen (1954) 14 WACA 458, Ofor & Anor. v. The Queen (1955) 15 W.A.C.A. 4 at 5, Mbang v. State (2009) 18 NWLR (pt. 1172) 140 at 157 – 158 following Ogbali v. State (1983) NSCC 156.

I am, accordingly, satisfied from the totality of the evidence that the Court below was right in holding that the elements of the offence of murder to wit-that the deceased died; that the death of the deceased resulted from the concerted act of the accused with others; and that the said concerted act of the accused and his companions was intentional with the knowledge that death or grievous bodily harm was its probable consequence which were proved beyond reasonable doubt displaced the presumption of innocence of the appellant vide Akinfe v. State (1988) 3 NWLR (pt.85) 729, Ogba v. State (1992) 2 NWLR (pt.222) 164 and the series of cases (supra) cited by the parties on the point.” Per IKYEGH, JCA read in context

3. Common Intention –
Liability for acting in furtherance of common intention to commit crime

“…I agree that the evidence on record on the basis of which the lower Court convicted the Appellant established the ingredients of the offence of murder, id est, that the deceased died, that the death of the deceased was a result of the act or omission of the Appellant and that the act or omission of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See ILODIGWE vs. THE STATE (2012) LPELR (9342) 1 and UWAGBOE vs. THE STATE (2008) LPELR (3444) 1 at 29. In the instant matter, the Appellant was in cahoots with his cohorts such that the act and action of one is the act of all: MOHAMMED vs. THE STATE (1980) 3-4 SC 84 at 96-97 and OGBALI vs. THE STATE (1983) NSCC 156 at 157-158.” Per OGAKWU, JCA read in context

B. EVIDENCE
4. Evidence of a Single Witness – Power of the court to convict on the evidence of a single credible witness

Whether a court can convict on the evidence of a single witness

“The evidence of the PW1 in pages 64 – 65 of the record established that the deceased was brought by the appellants to the PW1, his father, with his hands tied behind his back and complained to PW1 that the appellants had taken his handset, wrist watch, money and everything before he was taken away alive by the appellants, with one of the appellants, the 2nd appellant, armed with a gun at the material time, only for the deceased to get back in a jiffy to PW1’s house where he slumped dead from a gunshot wound within the same night of 9-02-04. The PW1 was believed by the Court below. In murder cases where corroboration is not required the credible evidence of a witness is enough to prove the case videIgbo v. State (1975) 5 U.I.L.R.(pt.1) 111, Victor v. State (2014) ALL FWLR (pt.719) 1092 or (2013) 12 NWLR (pt.1369) 465 at 1104 following Idiok v. State (2008) 13 NWLR (pt.1104) 225, Eke v. State (2011) 2 SCNJ 57.” Per IKYEGH, JCA read in context

5. Medical Evidence – Circumstances under which medical evidence will be considered dispensable 

Circumstance where medical evidence would not be needed

“And having established by the credible evidence of the PW1 and the PW2 that the deceased died within the same night of 19-02-04, and had since been buried coupled with the evidence of the DW3 in page 84 of the record who confirmed she saw the corpse of the deceased whom she knew as a trouble-maker and the appellant’s evidence in page 90 of the record that –

“I am aware that Lekan is dead. I saw his body at the police station. His body is in the van…. Yes Lekan died”; the respondent proved beyond reasonable doubt the death of the deceased vide Eric Uyo v. Attorney-General, Bendel State (1986) 1 NWLR (pt.17) 418 at 432 following Lori v. State (1980) 8 – 11 S.C.81 at 87, Tonara Bakuri v. The State (1965) NMLR 163, Akpuenya v. State (1976) 11 S.C. 269, Dan Adamu v. Kano Native Authority (1956) 1 FSC 25, Chukwuma (aka Goddy) v. Federal Republic of Nigeria (2011) 5 SCNJ 40 to the effect that medical evidence is dispensable or not essential where cogent circumstantial or eye witness account confirming the death of the deceased was available as in this case through the evidence of PW1.”Per IKYEGH, JCA read in context

6. Calling of Witnesses – When there will be no need to call the person who identified the body of the deceased as a witness

Whether the person that identified the body of a deceased must be called as a witness

“The evidence of the death of the deceased was common ground between the appellant and the respondent as stated (supra), therefore there was no need to call the person that identified his corpse to the pathologist for post-mortem examination to testify in the case vide Afosi v. State (2013) 13 NWLR (pt.1371) 329.”Per IKYEGH, JCA read in context


LEAD JUDGMENT DELIVERED BY IKYEGH, JCA


Consequent upon the conviction and sentence of the appellant to death for the offence of murder contrary to Section 316 of the Criminal Code Law of Lagos State 2003 by High Court of Justice of Lagos State (the Court below) the appellant filed the present appeal.

Stated broadly, the appellant and the other accused charged with him and some of them that were at large were at all material times security employed by the Landlords Association of Balogun Kuku and Ikare Street as night guards covering the street where the deceased used to live. The appellant and the others were said to have caught the deceased in the night of 19-02 04 on the pretext, as alleged by the respondent, that he was a thief. They tied the deceased up before he was shot to death with a locally made gun.

The appellant’s version was that in the night hours of 19-02-04 he heard gunshots at Odogbolu Street and after the gunshots ceased he went in search of the 1st accused, a Mr. Anthony Boyewu, his boss, but unknown to him their place of work was in total blackout and the robbers pounced on him in the dark and dealt matchet cuts on him which caused him to pass out; and that he did not know how the deceased met his death. It was based on these pieces of evidence that the Court below convicted and sentenced the appellant to death for the murder of the deceased, a Mr. Olanikan Hassan.

Dissatisfied with the decision of the Court below the appellant filed an original notice of appeal with two grounds of appeal. The original notice of appeal was, by the order of the Court, amended and replaced with an amended notice of appeal which was further amended containing four grounds of appeal and filed on 13-06-16 but deemed as properly filed on 13-06-16. The appellant’s brief of argument filed on 28-07-16 submitted three issues for determination copied verbatim as follows –

“1.Taking into consideration the failure of the prosecution to lead evidence of common intention, was it proper for the Learned Trial Judge to have convicted the Appellant for the offence of murder? (Ground 2).

2. Has the prosecution proved the offence of murder beyond reasonable doubt against the appellant? (Grounds 1 and 3).

3. Was it not obvious from the totality of evidence adduced before the Honourable Court below more particularly the Appellant herein confessional statements which was tendered by the prosecution as part of their case that the Appellant herein could not have had the opportunity to commit the crime in issue since he was not at the scene of the crime at all-time material to this suit? (Ground 4).”

The appellant relied on the cases of Woolmington v. DPP (1935) AC 462, Oforlette v. State (2000) FWLR (Pt.12) 2081 at 297 – 299, Oseni v. State (2012) 5 NWLR (Pt.1293) 351 at 385, Adekoya v. State (2012) 9 NWLR (Pt.1306) 539 at 565, Al-Hassani v. State (2011) 3 NWLR (Pt.1234) 279, Ofuani v. Nigeria Navy (2007) 8 NWLR (Pt.1037) 486 – 487, Sabi v. State (2011) 14 NWLR ( t.1268) 443, Afolalu v. State (2010) 16 NWLR (Pt.1220) 609-610, State v. Oladotun (2011) 10 NWLR (Pt.1256) 572, Jua v. State (2010) 4 NWLR (Pt.1184) 243, Shande v. State (2005) 12 NWLR (939) 321, Moshood v. State (2004) 14 NWLR (Pt.893) 437 at 438, Nnachi v. Ibom (2004) 16 NWLR (pt.900) 638, Ugwuanyi v. Federal Republic of Nigeria (2010) 14 NWLR (Pt.1213) 409, Yakubu Mohammed and Anor. v. The State (1980) 3 – 4 SC 56 at 62, JAMB v. Orji (2008) 2 NWLR (pt.1072) 557 at 569, Ofor v. The Queen (1955) 15 WACA 4, Akinkunmi v. State (1987) 1 NWLR (Pt.52) 608 at 615 – 616, Oladele v. State (1993) 1 NWLR (pt.269) 294 at 310, Adekunle v. State (1989) 5 NWLR (Pt.123) 505 at 519 to submit that quite apart from the fact that the evidence of PW2 was emotion laden and largely inadmissible hearsay, there was no evidence of common intention on the part of the appellant and the others to murder the deceased; nor was evidence tendered to establish that the appellant fired the fatal shot that killed the deceased, more so the evidence suggested that the deceased’s body had a single gunshot, therefore the appellant did not have the opportunity of committing the offence charged and the said offence was not proved beyond reasonable doubt as to displace the presumption of innocence of the appellant; consequently, the appellant urged that the decision of the Court below convicting and sentencing him to death for the offence of murder should not stand on the state of the evidence in the record.

The appellant referred to his statement to the police, Exhibit A3, made on 16-04-2004, two days after his arrest where the appellant stated therein that he was not present at the scene of crime at the time the deceased was murdered, therefore, the duty was on the police to investigate the defence of alibi contained in Exhibit A3 which they failed to do; accordingly, the appellant urged that the benefit of the doubt should have been given to him by the Court below which should have entitled him to a verdict of not guilty had the Court below dispassionately evaluated the evidence citing in support the cases of Ogudo v. State (2011) 7 NWLR (Pt.1246) 314 at 332, Al-Hassani v. State (2011) 3 NWLR (Pt.1234) 254 at 280, Adekunle v. State (1989) 5 NWLR (Pt.123) 505 at 513, Shande v. State (2005) 12 NWLR (pt.939) 301 at 320 – 321.

The appellant ended his arguments by placing reliance on the case ofClark v. State 3 NWLR (pt.35) 381 at 395 to the effect that the case against the appellant was built on suspicion and was not proved beyond reasonable doubt, therefore the appeal should be allowed and the decision of the Court below set aside and the appellant should be acquitted and discharged.

The statement of the appellant to the State C.I.D. Panti Police Station, Yaba, dated 16.04.2004, Exhibit A3, is in pages 38 – 40 of the record. It was admitted in evidence through the PW3, the recorder of the statement. For clearness, Exhibit A3 reads –

“I Kayode Adebiyi male having been duly cautioned in English language that I am not obliged to say anything unless I wish to do so but whatever I say shall be taken down in writing and may be giving in evidence.

I am a native of Oshogbo town in Osun State. I came to Lagos in the year 1997, I started doing commercial driver. In the year 2001 December, I started work as Night guard at Balogun Kuku/Ikare Street Aguda. I am an OPC member belong to Fasheun faction. I joined the association in the year 2002. My OPC area is Ososanya Zone Aguda. My coordinator name is Mr. Shakiru Adetola. I work under Mr. Anthony Boyenu. My monthly salary through the landlord association is N10,000. We are three men namely (1) myself, Anthony Gomenu, Segun working as night guard at Balogun Kuku/Ikare Str. Aguda. I remember 18/02/2004, I reported for duty at about 9pm and we closed the street gate at about 12m.

Around 1.30pm of 19/02/2004, we started hearing gunshot around Odogbolu Street. We then moved towards the area, as I was trying to climbed the fence, I received matchet cut at my wrist hand and I thereby sustained injury. But I did not go to any hospital at all, because I treated myself. Actually I saw about four armed robbers on that day. I carried one locally made gun owned by Mr. Anthony Gomenu. I did not fired any gun on that day because the said gun was not good. I did not know the time Lekan was arrested and I don’t know how he was killed. During the francas I was unconscious. Actually myself and late Lekan Hassan are friends. He was the person that help me to get accommodation at Maxwell Egeh St., Aguda. After nine month in the house, I decided to parked out from the house.

Before, late Lekan was a known criminal within Aguda area. I don’t know who tight Lekan with rope among the guard. I did not followed them (guard) to Lekan father’s house in the night. I don’t have any problem with Lekan before he died.”

The length and breadth of the statement does not disclose that the appellant was in a particular or specific place with another person at the time of the alleged commission of the offence.

The evidence of the appellant contained in pages 94 – 96 of the record indicated that he was on night guard duty at Balogun Kuku and Ikare Street, the scene of the crime, on the night of 18.02.2004 which was the time the prosecution alleged at the Court below that the incident occurred.There was no evidence that the appellant was elsewhere, or in a named place and with whom on the day in question.

PW1 who knew the appellant testified that the three accused (now appellants), led the deceased with his hands tied behind his back to his house before they led him away after the 2nd appellant, Kayode Adebiyi, cocked the gun. He had threatening to shoot the PW1 before they finally led the deceased away and shortly thereafter the PW1 heard the sound of gun – shot and within a moment the deceased staggered back to the PW1’s house where he slumped dead.

For ease of reference, the evidence of PW1 contained in pages 63 – 64 of the record reads –

“Around 12 midnight I heard some noise and shout from where Olalekan was supposed to enter from. It was the following day that Iyabo Iyanla came to give me the depth of what happened during the night. When I heard the noise I did not come out as noise can be heard at any time.

One Gomenu an OPC security at the gate knocked on my louvers door. I asked him what was happening. He said they have caught a thief. I told him that we have agreed that any thief caught should be taken to the nearest Police Station. And that since the gate have been locked they should keep him in a safe place till the following morning when he will be taken to the Police Station. He came back the second time I repeated myself. About thirty-five minutes later I decided to go out. I tied my wrapper put on my Neighbourhood Watch Uniform and baton. Immediately I stepped outside of my door I heard daddy I am here. I don’t know what I have done to your Security Men. They have taken my wrist watch, handset, money and everything. I saw that he was tied all over and his hands tied to his back. I then saw the three Accused Persons and one other at large and the Gomenu who came to call me. I asked the 1st Accused Person what my son did to warrant the treatment given to him. The 2nd Accused cocked his gun and threatened to shoot me if I came near. I started shouting some men came bundled me and threw me inside my house. I then raised alarm and the neighbours came out. I then told the mother of the deceased that your son is here o. That the Security Men have tied your son. When I wanted to rescue him they threatened to gun me down. Alhaja went out. I was made to understand that she was carried inside too. I was already gone when they carried me inside. All the member of the family started shouting. I was able to look out of my louvers. I saw about ten of them surrounding my son. One of them knelt down and directly shot my son. I heard gbua! I did not do anything. Because the atmosphere was tense. I then noticed that the rope was released. My son ran towards the house and used his head to hit my door and fell and died. In the morning I had to go to Soloki Police station to report the matter. They gave me six policemen with one van. They saw the corpse took the pictures and carried the corpse into the van went to the Police Station.

The DPO on getting there told me I had to make Statement which I did and the corpse was deposited at Ikeja General Hospital. When I noticed that the handling of the case was slow at Aguda. I went to Panti to make another Statement.”

The defence of alibi must be precise and specific in terms of the place the accused was and those present with him at the material time of the incident. Until these particulars are supplied to the police by the accused at the earliest opportunity before the duty to investigate the alibi by the police may arise which was not the case with Exhibit 43, the statement of the appellant to the Police at the State C.I.D., Panti Police Station, and the appellant’s evidence in Court in pages 94 – 96 of the record vide Aliyu v. State (2013) 12 NWLR (pt. 1368) 403 at 417 – 418; Victor v. State (2013) 12 NWLR (pt. 1369) 465 at 483, 484,486; Ayan v. The State (2013) 15 NWLR (pt. 1376) 34 following Sowemimo v. State (2004) 11 NWLR (pt.885) 515, Akpan v. State (2002) 12 NWLR (pt.780) 189, Gachi v. State (1965) NMLR 333, Asuquo v. State (2016) 14 NWLR (pt.l532) 309 at 316.

Moreover, the evidence of the PW1 (supra) and the evidence of the PW2 positively fixed the appellant at the scene of crime which destroyed any defence of alibi the appellant might have had vide Aliyu v. State (supra) at 418 – 419, Victor v. State (supra), Njovens and Ors. v. State (1973) 1 N.N.L.R.76 at 93 -94, Ochemaje v. The State (2008) 15 NWLR (pt. 1109) 57, The State v. Adekunle (1989) 5 NWLR (pt. 123) 505.

So the defence of alibi put forward by the appellant had no factual basis. It is a sham. I hereby reject it.

Contrary to the submission of the appellant that the case at the Court below was not proved beyond reasonable doubt and based on mere suspicion, the evidence of the PW1 in pages 63 – 65 of the record and the evidence of the PW2 in pages 66 – 69 of the record presented part eye witness account and part cogent, unequivocal and complete circumstantial evidence account from which it can properly be inferred that the deceased was killed by gun-shot through the concerted act of the appellant and the others who were with him with the common intention to kill the deceased and did kill the deceased in cold blood at the material time.

For clearness, I copy the evidence of the PW1 in pages 63 – 64 of the record thus –

“Around 12 midnight I heard some noise and shout from where Olalekan was supposed to enter from. It was the following day that Iyabo Iyanla came to give me the death of what happened during the night. When I heard the noise I did not come out as noise can be heard at any time.

One Gomenu an OPC security at the gate knocked on my louvers door. I asked him what was happening. He said they have caught a thief. I told him that we have agreed that any thief caught should be taken to the nearest Police Station. And that since the gate have been locked they should keep him in a safe place till the following morning when he will be taken to the Police Station. He came back the second time I repeated myself. About thirty-five minutes later I decided to go out. I tied my wrapper put on my Neighbourhood Watch Uniform and baton. Immediately I stepped outside of my door I heard daddy I am here. I don’t know what I have done to your Security Men. They have taken my wrist watch, handset, money and everything. I saw that he was tied all over and his hands tied to his back. I then saw the three Accused Persons and one other at large and the Gomenu who came to call me. I asked the 1st Accused Person what my son did to warrant the treatment given to him. The 2nd Accused cocked his gun and threatened to shoot me if I came near. I started shouting some men came bundled me and threw me inside my house. l then raised alarm and the neighbours came out. I then told the mother of the deceased that your son is here O. That the Security Men have tied your son. When I wanted to rescue him they threatened to gun me down. Alhaja went out. I was made to understand that she was carried inside too. I was already gone when they carried me inside. All the member of the family started shouting. I was able to look out of my louvers. I saw about ten of them surrounding my son. One of them knelt down and directly shot my son. I heard gbua! I did not do anything. Because the atmosphere was tense. I then noticed that the rope was released. My son ran towards the house and used his head to hit my door and fell and died. In the morning I had to go to Soloki Police Station to report the matter. They gave me six Policemen with one van. They saw the corpse took the pictures and carried the corpse into the van went to the Police Station.

The DPO on getting there told me I had to make Statement which I did and the corpse was deposited at Ikeja General Hospital. When I noticed that the handling of the case was slow at Aguda. I went to Panti to make another Statement.”

The evidence of the PW1 in pages 64 – 65 of the record established that the deceased was brought by the appellants to the PW1, his father, with his hands tied behind his back and complained to PW1 that the appellants had taken his handset, wrist watch, money and everything before he was taken away alive by the appellants, with one of the appellants, the 2nd appellant, armed with a gun at the material time, only for the deceased to get back in a jiffy to PW1’s house where he slumped dead from a gunshot wound within the same night of 19-02-04. The PW1 was believed by the Court below. In murder cases where corroboration is not required the credible evidence of a witness is enough to prove the case videIgbo v. State (1975) 5 U.I.L.R.(pt.1) 111, Victor v. State (2014) ALL FWLR (pt.719) 1092 or (2013) 12 NWLR (pt.1369) 465 at 1104 following Idiok v. State (2008) 13 NWLR (pt.1104) 225, Eke v. State (2011) 2 SCNJ 57.

And having established by the credible evidence of the PW1 and the PW2 that the deceased died within the same night of 19-02-04, and had since been buried coupled with the evidence of the DW3 in page 84 of the record who confirmed she saw the corpse of the deceased whom she knew as a trouble-maker and the appellant’s evidence in page 90 of the record that –

“I am aware that Lekan is dead. I saw his body at the police station. His body is in the van…. Yes Lekan died”; the respondent proved beyond reasonable doubt the death of the deceased vide Eric Uyo v. Attorney-General, Bendel State (1986) 1 NWLR (pt.17) 418 at 432 following Lori v. State (1980) 8 – 11 S. .81 at 87, Tonara Bakuri v. The State (196 ) NMLR 163, Akpuenya v. State (1976) 11 S.C. 269, Dan Adamu v. Kano Native Authority (1956) 1 FSC 25, Chukwuma (aka Goddy) v. Federal Republic of Nigeria (2011) 5 SCNJ 40 to the effect that medical evidence is dispensable or not essential where cogent circumstantial or eye witness account confirming the death of the deceased was available as in this case through the evidence of PW1.

The fact that the PW4 and PW5 said they saw one gunshot wound on the deceased, while the PW2 stated that the appellant and another person shot the deceased and the PW1 testified that he heard one gunshot is in my considered opinion, a discrepancy as to detail which did not devalue the proof of one of the elements of the offence (the cause of death of the deceased from gunshot injury) and did not, therefore, elevate the discrepancy as to detail to substantial or material contradiction to impugn the evidence for the respondent on the issue vide Jeremiah v. State (2012) 14 NWLR (pt.1320) 248, Jizurumba v. The State (1976) N.S.C.C. 156, Ilodigwe v. State (2012) 18 NWLR, (2012) 18 NWLR (pt.1331) 1, and Ashimiyu and Ors. v. The State (1982) N.S.C.C. 351.

The evidence of the death of the deceased was common ground between the appellant and the respondent as stated (supra), therefore there was no need to call the person that identified his corpse to the pathologist for post-mortem examination to testify in the case vide Afosi v. State (2013) 13 NWLR (pt.1371) 329.

Further, the evidence of the PW1 that he saw only the 2nd accused armed with cocked gun and in the company of the appellant and the 3rd accused intending to cause actual violence with the cocked gun on that day and soon after they left with the deceased and he heard gunshot was unchallenged. It was not the case that the appellant and some of the other accused fired several gunshots at the material time as to require ballistic evidence to prove that the shot that resulted in mortal consequences came from a particular gun.

In the instant case, the evidence of PW1 in pages 63 – 64 of the record (supra) showed he unsuccessfully interceded to prevent the appellant and two others from taking away the deceased, his son, whose death ensued proximate to the firing of the gun after he was taken away by the appellant and his cohort.

The PW1’s piece of evidence (supra) established that the deceased died from gunshot inflicted on him by one of the several persons whom the appellant accompanied and assisted at the material time vide Ndike v. State (1994) 8 NWLR (pt.360) 33, see also Dan Adamu v. Kano Native Authority (supra), Eric Uyo (supra), Bakuri (supra), Akpan v. State (1994) 12 SCNJ 140 on the evidence of PW1 supplying the cause of death from gunshot proximate to the shooting at which the appellant participated in concert with the others in the night of the fateful day that the deceased died of the gunshot injury.

It is inescapable to infer from the totality of the evidence and the surrounding circumstances of the case that the appellant and his comrades-in-crime acted in concert in killing the deceased in cold blood and in cases of concerted action, the act of one of the participants is the act of all the participants. Therefore a fatal blow or shot by one of the accused or party in the company of the appellant at the material time of the concerted participation is deemed in the eyes of the law to have been given by all those present and participating as the person who delivered the fatal blow in such a case is no more than the hand by which the others struck vide Joseph Ogundipe and Ors. v. The Queen (1954) 14 WACA 458, Ofor & Anor. v. The Queen (1955) 15 W.A.C.A. 4 at 5, Mbang v. State (2009) 18 NWLR (pt. 1172) 140 at 157 – 158 following Ogbali v. State (1983) NSCC 156.

I am, accordingly, satisfied from the totality of the evidence that the Court below was right in holding that the elements of the offence of murder to wit-that the deceased died; that the death of the deceased resulted from the concerted act of the accused with others; and that the said concerted act of the accused and his companions was intentional with the knowledge that death or grievous bodily harm was its probable consequence which were proved beyond reasonable doubt displaced the presumption of innocence of the appellant vide Akinfe v. State (1988) 3 NWLR (pt.85) 729, Ogba v. State (1992) 2 NWLR (pt.222) 164 and the series of cases (supra) cited by the parties on the point.

It is for these reasons that I agree with the judgment of the Court below (Nwaka, J.) that the respondent proved the case against the appellant beyond reasonable doubt and find the appeal unmeritorious and hereby dismiss it and affirm the judgment of the Court below.

GARBA, JCA

My learned brother Joseph Shagbaor Ikyegh, JCA has availed me of the draft of the lead judgment delivered in this appeal and after a consideration of the issues raised by the Appellant for decision and reasoning of my learned brother, I agree that the appeal is wanting in merit. I join in dismissing the appeal.

OGAKWU, JCA

The Appellant was convicted and sentenced to death for the murder of one Olamilekan Hassan. I read in draft the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA which has just been delivered and I agree that the evidence on record on the basis of which the lower Court convicted the Appellant established the ingredients of the offence of murder, id est, that the deceased died, that the death of the deceased was a result of the act or omission of the Appellant and that the act or omission of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See ILODIGWE vs. THE STATE (2012) LPELR (9342) 1 and UWAGBOE vs. THE STATE (2008) LPELR (3444) 1 at 29. In the instant matter, the Appellant was in cahoots with his cohorts such that the act and action of one is the act of all: MOHAMMED vs. THE

STATE (1980) 3-4 SC 84 at 96-97 and OGBALI vs. THE STATE (1983) NSCC 156 at 157-158.

Accordingly, the appeal is devoid of merit and I join in dismissing the same. The decision of the High Court of Lagos State in Charge No. LCD/22/2005: THE STATE vs. KAYODE ADEBIYI delivered on 3rd June 2013 is hereby affirmed.