BOYEWU V THE STATE

BOYEWU 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/815A/2013

CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA


BETWEEN

ANTHONY BOYEWU
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. CRIMINAL LAW AND PROCEDURE
1. Common Intention – The elements of common intention in murder cases
Instances when intention can be inferred in murder cases

Had the Appellant and his cohort intended only to humiliate the deceased, their taking the deceased to PW1, his father, at the time in question should have ended by handing the deceased over to the PW1 or proceeding with him to the police station if he had committed an offence; not to have led the deceased away in the dark at gunpoint with his hands tied behind him from which it was inescapable to infer their concerted disposition to kill the deceased at the material time; moreso, their collective evidence suggested that the deceased was a thorn in the flesh in the neighbourhood and the gun in the hands of one of them was already cocked for actual violence. In my modest view, the fatal gunshot by one of the accused or party in the company of the Appellant at the material time that killed the deceased in cold blood within the vicinity of the scene of crime in the night of the same day is deemed in the eyes of the law to have been shot by the Appellant and all those present and participating in the events that led to the death of the deceased at the material time vide Sule v. State (2009) 17 NWLR (Pt. 1169) 33 at 38, Ofor and Anor. v. The Queen (1955) 15 W.A.C.A. 4 at 5, Joseph Ogundipe and Ors. v. The Queen (1954) 14 WACA 458, Mbang v. State (2009) 18 NWLR (Pt. 1172) at 157 – 158 following Ogbali v. State (1983) NSCC 156, Atiku and Ors. v. State (2010) 9 NWLR (Pt.1199) 241 at 294 per the lead judgment of his lordship, Garba, J.C.A., following Emeka v. State (2001) 14 NWLR (Pt. 734) 660, Idiok v. State (2006) 12 NWLR (Pt. 993) 1 and Nwakwoala v. The State (2006) 2 NWLR (Pt. 1000) 663.

I am, accordingly, satisfied from the totality of the evidence and the surrounding circumstances of the case 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 his comrades-in-crime; and that the said collective act of the accused and his cohort was intentional with 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

B. EVIDENCE
2. Tendering of Weapon of Crime – How failure to tender a weapon of crime cannot destroy the case of a party
Whether weapon of offence must be tendered before the guilt of an accused can be established

I do not see force in the contention by the Appellant that the failure of the prosecution to tender the gun in evidence as an Exhibit destroyed the case of the Respondent against the Appellant when the tendering in evidence of the gun is not compulsory in this case where the PW1 supplied evidence of the proximate events that led to the death of the deceased and the ballistician, PW5, gave evidence supported by expert report, Exhibit E, that the gun recovered by the PW3, the investigating police officer, from the Appellant through his wife, the DW3, with expended cartridge were forensically examined and confirmed to have been fired as stated in Exhibit E to wit –

“It is, therefore, proved without doubt that the expended shell is fired from the locally made single barrel shot gun.”

which was examined by the PW5 with the expended shell. Therefore the tendering in evidence of the gun was of no moment in the presence of the said cogent and reliable evidence vide Attah v. State (2009) 15 NWLR (pt.1164) 284 at 303, Garba v. State (2000) 6 NWLR (Pt. 661) 378, Babarinde v. State (2014) ALL FWLR (Pt.717) 606 at 632 – 633 following Alor v. State (1996) 4 NWLR (Pt.445) 762, Dibie v. The State (2004) 14 NWLR (Pt.893) 257 at 280 – 281. So the accusation that the Respondent withheld unfavourable evidence (the single barrel shot gun) is neither here nor there. Per IKYEGH, JCA. read in context

3. Admissibility of Evidence – How the Court cannot elevate documentary materials not tendered as exhibits to such status
Position of the law on documents admitted for identification purpose only

The Court below relied on the postmortem report marked for identification as ID2 and the photographs of the corpse of the deceased marked for identification as ID3, 4 and 5, to hold that the death of the deceased was established by the Respondent. These pieces of documentary materials were not tendered and admitted as Exhibits, therefore the Court below was wrong in relying on them as evidence in the case, as it is settled that any object or material marked for identification cannot be elevated to the status of an Exhibit and should not be considered as evidence in the case vide Barde Egwa v. Moses Ciroma Egwa (2007) 1 NWLR (Pt.1014) 71 at 94 thus –

“A document tendered for ID purposes has no probative value whatsoever, it is as if nothing was tendered.”

See also Commercial Bank (Credit Lyonnais) Nig. Ltd. supra) cited by the Appellant, Makurdi Local Administration v. Yakubu Billa (1973) N.N.L.R. 101 at 104, Alhaji Yahaya Mohammadu v. Oturkpo Local Administration (1973) N.N.L.R. 112 at 144 and Sunday Ani and Anor. v. State (2009) 16 NWLR (Pt. 3) at 456 (letter H). The Court below therefore erred in relying of the postmortem report, ID2, and the photographs of the deceased ID3, 4 and 5, as evidence of the death of the deceased. Per IKYEGH, JCA. read in context

4. Wrongful Admission of Evidence – The provision of the law on circumstances that wrongful admission of evidence cannot be a ground for the reversal of any decision
Whether a wrongfully admitted evidence could constitute a ground for reversing a decision on appeal

By virtue of Section 251(1) of the Evidence Act 2011 (formerly Section 226(1) of the Evidence Act 2004) wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the Court on appeal that the evidence so admitted cannot affect the decision and that such decision would have been the same if such evidence had not been admitted.

Also, it is not enough for the purpose of seeking a reversal of a decision, merely to show that evidence was wrongly admitted. An Appellant making such complaint must show that without such evidence the decision would have been otherwise, which was not the case here. Further an appellate Court has the duty to exclude inadmissible evidence wrongly admitted at the trial ourt and to deal with the case on the basis of the legally admissible evidence. For the above propositions see Akpan v. The State (1994) 9 NWLR (Pt.368) 347 at 361 following Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22, Idundun v. Okumagba (1976) 9- 10 S.C. 227. Per IKYEGH, JCA. read in context

5. Evidence of a Single Witness – The sufficiency of the credible evidence of a single witness in murder cases
Whether a court can convict on the evidence of a single witness

…And in murder cases where corroboration is not required, the credible evidence of a single witness suffices to prove the case vide Igbo v. State (19 5) 5 U.I.L.R. (Pt.1) 111, Victor v. State (2014) ALL FWLR (Pt.7 9) 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

6. Medical Evidence – Circumstantial proof that can sustain murder case without medical evidence
Circumstance where medical evidence would not be needed

There was also 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. The Appellant also referred to the dead person as the deceased he knew very well vide page 89 of the record of whom the Appellant also said 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.”

These pieces of evidence taken together 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 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 credible evidence from the PW1 and the complete circumstantial evidence surrounding the case therefore sustained the case in the absence of the medical evidence vide Godwin Chukwuma (aka Goddy) v. Federal Republic of Nigeria (2011) 13 NWLR (Pt.264) 491 at 419 following Olayinka v. State (2007) 9 NWLR (Pt.1040) 392. Per IKYEGH, JCA. read in context

7. Calling of Witnesses – Circumstance that the person that identified the corpse does not need to testify
Whether the person that identified the body of a deceased must be called as a witness

The evidence of the death of the deceased having been common ground between the Appellant and the Respondent as stated (supra), 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, Ndike v. State (1994) 8 NWLR (Pt.360) at 43 and 46. Per IKYEGH, JCA. read in context

8. Expert Evidence – The procedure of tendering expert report
How to tender expert opinion/evidence

Since PW5, the ballistician, was the maker of Exhibit 4, it was appropriate to tender the expert report made by PW5 through him vide Ogiale v. S.P.D.C. Ltd. (1997) 1 NWLR (Pt.480) 148 at 168 quoting with approval Shell Development Co. Nigeria Ltd. v. Forah (1995) 5 NWLR (Pt.382) 148 to the effect that the report made by an expert or group of experts could be tendered through one of the experts or the expert that made it in the case the report is made by one expert. Per IKYEGH, JCA. read in context


LEAD JUDGMENT DELIVERED BY IKYEGH, JCA


The appeal is from the judgment of the High Court of Justice of Lagos State (the Court below) whereby it convicted the Appellant of murder and sentenced him to death by hanging under Section 316 of the Criminal Code Law Cap. C.17 Vol.2 of the Laws of Lagos State 2003.

The thrust of the case upon which the Appellant was convicted and sentenced to death was that the Appellant and two other accused persons who at all material times were security guards around Balogun Kuku Street, Aguda, Surulere, Lagos taking the deceased, a Mr. Olamilejun Hassan, to be a robber, were said to have caught him, tied him up and shot him to death in the night of the fateful day along the street where the deceased lived and under the security watch of the Appellant and the others charged with him.

Aggrieved by the conviction and sentence the Appellant filed a notice of appeal which was, by the order of the Court, amended. The amended notice of appeal with three (3) grounds of appeal was filed on 05-02-15, but deemed as properly filed on 10-02-15. The Appellant’s brief of argument filed on 07-11-16, but deemed properly filed on 09-11-16, submitted these issues for determination on the appeal –

a. Whether the learned trial Judge was right to have relied on documents furnished the Court by the prosecution and tagged identification (IDS 1, 2, 3, 4 and 5) to ground a conviction of murder against the Appellant?

b. Was the learned trial Judge right in law to have convicted the Appellant for the offence of murder having regard to the evidence led by the prosecution and testimonies of prosecution witnesses?”

The Appellant argued the two issues (supra) in his brief of argument by stating as preliminary point that in criminal trials the accused is presumed innocent of the offence(s) charged until proved guilty beyond reasonable doubt by the prosecution upon whom the ultimate burden to proof lies on the elementary pedestal that he who asserts must prove citing in support Criminal Evidence 2nd Edition by Professors Paul Roberts and Adrain Zuckerman, Woolmington v. Director of Public Prosecution (1935) AC 462, Offorlite V. The State (2000) FWLR (Pt.12) 2081 at 2097, Oseni v. The State (2012) 5 NWLR (Pt.1293) 351 at 385, Adekoya v. The State (2012) 9 NWLR (Pt.1306) 539 at 565.

The Appellant also argued that the ingredients of the offence of murder which must co-exist before an accused can be convicted comprise the fact that the deceased died by the act or omission of the accused which act was intentional with the knowledge that death or grievous bodily harm was its probable cause vide Section 316 of the Criminal Code Law of Nigeria 2003, Onah v. The State (1985) 3 NWLR (Pt.12) 236, Idemudia v. The State (2001) FWLR (Pt.55) 549 at 564.

The Appellant’s brief of argument referred to page 164 of the record of appeal (the record) containing a portion of the judgment of the Court below where the Court below relied on a medical report and some photographs of the deceased marked for identification (ID) as ID2, 3, 4 and 5 to hold that the death of the deceased was proved beyond reasonable doubt to contend that the said documents had no probative value citing in aid the case of Commercial Bank (Credit Lyonnais) Nigeria Ltd. And Anor. v. Joke Ishola and Anor. (2014) LPELR -24070 (CA).

The Appellant’s brief of argument further stated that putting aside the documents tendered for identification, the only evidence left was from the bare testimonies of PW1, PW2 and PW3 and Exhibit E, the ballistician’s report, which was wrongly admitted in evidence through the maker, PW5, and should be expunged on the strength of the cases of Agbenyi v. The State (1966) NSCC Vol.4 336, Ifenado v. The State (1966) NSCC Vol.4 331, Adie v. The State (1980) NSCC Vol.12 51, Ozoemenam v. The State (1998) 10 NWLR (Pt.571) 632 and Ehort v. The State (1993) 4 NWLR (Pt.290) 656; nor did the Appellant testify as DW4 in page 86 of the record that the deceased was tied in order to stop him from running away as wrongly held by the Court below in part of its judgment in pages 167 – 168 of the record, so submitted the Appellant.

The Appellant elaborated his submission that the pellet extracted from the body of the deceased was not forensically examined by the PW5, the ballistician, to ascertain whether it was fired from the gun examined by him, therefore the ballistician’s evidence was wrongly accorded probative value by the Court below; nor was the pathologist and the person that identified the corpse of the deceased called to give evidence, which according to the Appellant amounted to the withholding of evidence, therefore it should be presumed that if the evidence was produced it would have worked against the prosecution, likewise the failure to tender the locally made gun in evidence citing in support Aiguoreghian v. The State (2004) 1 SC (Pt.1) 65 at 79.

The Appellant’s brief of argument emphasised that the evidence of the PW1 did not indicate that he saw the Appellant shoot the deceased with a gun; also that whereas the evidence of PW1 stated that he heard one gunshot, as well as the evidence of PW4 that he saw one gunshot wound on the deceased, the PW2 stated on the other hand that the Appellant and the 3rd accused shot the deceased, which according to the Appellant amounted to materially contradictory evidence that disparaged the case of the prosecution that the Appellant caused the death of the deceased citing in aidIgbo v. The State (1975) 11 SC 129, State v. Emine and Ors. (1992) NWLR (pt.256) 628, Ononuju v. The State (2013) 6 SCNJ 458.

The Appellant also argued in his brief that the PW1 and the PW2 failed to give the name of the Appellant to the police at the earliest opportunity so it was unsafe to rely on their evidence to convict the Appellant on their evidence citing in aid Usan v. The State (2008) 4 – 5 SC (pt.1) 176 at 184, Abudu v. The State (1985) NWLR (Pt.1) 55, Eyisi v. The State (2000) 12 SC (pt.1) 24.

The Appellant further argued that the PW1 and the PW2 quite apart from not mentioning the name of the Appellant to the police at Aguda police station at the earliest opportunity, did not report the Appellant to the Landlords Association as the killer of the deceased when the matter was taken to the Landlords Association, nor did the PW1 and the PW2 report the Appellant to the police vide the evidence of PW3 to the effect that one Mrs. Remi Hassan wrote a petition to the State C.I.D Panti Yaba which triggered the arrest of the Appellant, therefore the Court below should have been slow in acting on the evidence of PW1 and PW2 to convict the Appellant.

It was also submitted that common intention was not proved in that the PW4 and PW5 testified that they saw a single gunshot wound on the deceased; that the Appellant and those charged with him were on legitimate duty of watchman safeguarding the property and lives of their employers at the material time, nor did they leave their houses on a mission to kill at the material time showing that the prosecution failed to establish premeditated action and intention to kill the deceased; it was finally argued, the vital condition out of the five conditions laid down in Akinkunmi v. The State (1987) 1 NWLR (Pt.52) 608 at 615 – 616 for common intention to be established to the effect that the offence must be of such a nature that its commission was the prosecution of an unlawful purpose was not made out as there was no evidence to show that the deceased was shot with words of encouragement from the others; therefore on the doctrine of common intention which was not established in the case, the prosecution should have been held not to have proved the case beyond reasonable doubt and the appeal should be allowed and the conviction and sentence of the Appellant quashed and the Appellant be acquitted and discharged in consequence.

The Respondent failed to file brief of argument after the statutory period for doing so was spent. The hearing notice for the appeal was served on the Respondent who neglected to be present at the hearing of the appeal. The appeal was, accordingly, heard on the Appellant’s brief of argument under Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016 (the Rules of the Court).

The impression created by the Appellant that the PW1 did not report the case to the police is not correct. The record which binds the party and the Court is clear that the PW1 reported the case at Soloki Police Station and then at Aguda Police Station and when action on it was slow he reported it to Panti Police Station followed by a petition from the deceased’s sister to the State C.I.D. Panti Yaba who took over the investigation of the case on the strength of the petition.

The evidence of the W1 in pages 64 – 65 of the record established that the deceased was brought by the 1st – 3rd Appellants – (Anthony Iboyewu, Lawrence Akhigbe and Kayode Adebiyi) with his hands tied behind his back and complained that the Appellants had taken his handset, wrist watch, money and everything whom the Appellants led away alive at gunpoint for him to shortly thereafter stagger back to PW1’s house where he slumped dead from a gunshot wound on the same night of 19-02-04. The PW1 was believed by the Court below.

The Court below relied on the postmortem report marked for identification as ID2 and the photographs of the corpse of the deceased marked for identification as ID3, 4 and 5, to hold that the death of the deceased was established by the Respondent. These pieces of documentary materials were not tendered and admitted as Exhibits, therefore the Court below was wrong in relying on them as evidence in the case, as it is settled that any object or material marked for identification cannot be elevated to the status of an Exhibit and should not be considered as evidence in the case vide Barde Egwa v. Moses Ciroma Egwa (2007) 1 NWLR (Pt.1014) 71 at 94 thus –

“A document tendered for ID purposes has no probative value whatsoever, it is as if nothing was tendered.”

See also Commercial Bank (Credit Lyonnais) Nig. Ltd. (supra) cited by the Appellant, Makurdi Local Administration v. Yakubu Billa (1973) N.N.L.R. 101 at 104, Alhaji Yahaya Mohammadu v. Oturkpo Local Administration (1973) N.N.L.R. 112 at 144 and Sunday Ani and Anor. v. State (2009) 16 NWLR (Pt.443) at 456 (letter H). The Court below therefore erred in relying of the postmortem report, ID2, and the photographs of the deceased ID3, 4 and 5, as evidence of the death of the deceased.

By virtue of Section 251(1) of the Evidence Act 2011 (formerly Section 226(1) of the Evidence Act 2004) wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the Court on appeal that the evidence so admitted cannot affect the decision and that such decision would have been the same if such evidence had not been admitted.

Also, it is not enough for the purpose of seeking a reversal of a decision, merely to show that evidence was wrongly admitted. An Appellant making such complaint must show that without such evidence the decision would have been otherwise, which was not the case here. Further an appellate Court has the duty to exclude inadmissible evidence wrongly admitted at the trial Court and to deal with the case on the basis of the legally admissible evidence. For the above propositions see Akpan v. The State (1994) 9 NWLR (Pt.368) 347 at 361 following Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22, Idundun v. Okumagba (1976) 9- 10 S.C. 227.

Having established by the credible evidence of the PW1 that the deceased died within the same vicinity of the same night of 19-02-04, proof of the death of the deceased was made out by the Respondent, therefore discarding the medical evidence and the photographs which were admitted for identification (ID2, 3, 4 and 5) the oral evidence of the PW1 in pages 64 – 65 of the record showed the deceased died within the same day the PW1 had seen him alive and proved beyond reasonable doubt the death of the deceased coupled with the evidence of the death of the deceased given in the case by the PW1 under cross-examination in page 65 of the record that the deceased had since been buried.

And in murder cases where corroboration is not required, the credible evidence of a single witness suffices to prove the case vide Igbo 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.

There was also 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. The Appellant also referred to the dead person as the deceased he knew very well vide page 89 of the record of whom the Appellant also said 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”.

These pieces of evidence taken together 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 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 credible evidence from the PW1 and the complete circumstantial evidence surrounding the case therefore sustained the case in the absence of the medical evidence vide Godwin Chukwuma (aka Goddy) v. Federal Republic of Nigeria (2011) 13 NWLR (Pt.264) 491 at 419 following Olayinka v. State (2007) 9 NWLR (Pt.1040) 392.

The evidence of the death of the deceased having been common ground between the Appellant and the Respondent as stated (supra), 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, Ndike v. State (1994) 8 NWLR (Pt.360) at 43 and 46.

The contention of the Appellant that the PW1 and the PW2 knew the Appellant before the incident but did not mention or give his name to the police at the earliest opportunity as the culprit is ill-founded in that the statement to the police of the PW1 and the PW2 were not tendered in evidence as Exhibit to establish the contention. Even the statement to the police of the PW1 that was tendered was only for identification purpose and cannot be evidence at the trial vide Ani and Anor. v. State (supra) at 456 per the lead judgment of Ogebe, J.S.C. –

“…It was in the complainant’s statement to the police which was marked I.D. but was not formally admitted in evidence that the mentioned recognizing the Appellants by their voices. The Court of Appeal had no business treating that piece of evidence as proved when the statement was never admitted as evidence in the trial Court”. (My emphasis).

Nor did the PW1 and the PW2 admit in their evidence that they did not supply the name of the Appellant to the police as the culprit at the earliest opportunity.

I do not see force in the contention by the Appellant that the failure of the prosecution to tender the gun in evidence as an Exhibit destroyed the case of the Respondent against the Appellant when the tendering in evidence of the gun is not compulsory in this case where the PW1 supplied evidence of the proximate events that led to the death of the deceased and the ballistician, PW5, gave evidence supported by expert report, Exhibit E, that the gun recovered by the PW3, the investigating police officer, from the Appellant through his wife, the DW3, with expended cartridge were forensically examined and confirmed to have been fired as stated in Exhibit E to wit –

“It is, therefore, proved without doubt that the expended shell is fired from the locally made single barrel shot gun” which was examined by the PW5 with the expended shell. Therefore the tendering in evidence of the gun was of no moment in the presence of the said cogent and reliable evidence vide Attah v. State (2009) 15 NWLR (pt.1164) 284 at 303, Garba v. State (2000) 6 NWLR (Pt. 661) 378, Babarinde v. State (2014) ALL FWLR (Pt.717) 606 at 632 – 633 following Alor v. State (1996) 4 NWLR (Pt.445) 762, Dibie v. The State (2004) 14 NWLR (Pt.893) 257 at 280 – 281. So the accusation that the Respondent withheld unfavourable evidence (the single barrel shot gun) is neither here nor there.

The fact that the PW4 and PW5 stated that they saw one gunshot wound on the deceased, while the PW2 stated that the Appellant and the 3rd accused 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 detract from the fact that the cause of the injury on the deceased was gunshot and did not, therefore, measure to substantial or material contradiction to disparage the evidence for the Respondent on that 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.

Moreover, the evidence of the PW1 was that he saw only the 2nd accused armed with a gun and in the company of the Appellant and the 3rd accused on that day and soon after they left with the deceased he heard gunshot and the deceased seen dead at his doorstep. It was not the case that several Appellants or some of the other accused were armed with guns at the material time and fired several shots at the same time in the night of that day at the scene of crime as to require ballistic evidence to prove the shot that resulted in mortal consequences came from a particular gun.

In the instant case, the evidence of the PW1 in pages 63 – 64 of the record showed he tried unsuccessfully to prevent the Appellant and 2nd and 3rd accused 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, which contemporaneously resulted in the deceased’s death from gunshot wound. To quote the PW1 in page 64 of the record-

“I saw that he (the deceased) was tied all over and his hands tied to his back. I then saw the three accused persons (the Appellant as the 1st accused; one Lawrence as the 2nd accused; and one Kayode Adebiyi as the 3rd accused) and one other at large and the Gomenu who come to call me. I asked the 1st accused person what my son did to warrant the treatment given to him. The 2nd accused cocked hid(?) gun and threatened to shoot me if I came near. I started shouting some people came bundled me and threw me inside my house. I then raised alarm and the neighbours came out… 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!… 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…..”

The piece of evidence (supra) established that the deceased died from gunshot injury inflicted on him by one of the several persons whom the Appellant accompanied and acted in concert with at the material time, so there was no need for an expert to testify that the bullet was from a particular gun as only one gun was used at the material time to kill the deceased videDan Adamu v. Kano Native Authority (supra), Eric Uyo (supra), Akpan v. State (1994) 4 NWLR (Pt.368) 347 at 362, Bakuri (supra) on the cogent, compelling and unequivocal evidence of PW1 supplying the cause of death from gunshot proximate to the shooting of the deceased at the scene of crime where the Appellant and that others acting together held the deceased at the material time which resulted in the death of the deceased from the gunshot from one of them in the night of the same day.

Since PW5, the ballistician, was the maker of Exhibit 4, it was appropriate to tender the expert report made by PW5 through him videOgiale v. S.P.D.C. Ltd. (1997) 1 NWLR (Pt.480) 148 at 168 quoting with approval Shell Development Co. Nigeria Ltd. v. Forah (1995) 5 NWLR (Pt.382) 148 to the effect that the report made by an expert or group of experts could be tendered through one of the experts or the expert that made it in the case the report is made by one expert.

Had the Appellant and his cohort intended only to humiliate the deceased, their taking the deceased to PW1, his father, at the time in question should have ended by handing the deceased over to the PW1 or proceeding with him to the police station if he had committed an offence; not to have led the deceased away in the dark at gunpoint with his hands tied behind him from which it was inescapable to infer their concerted disposition to kill the deceased at the material time; moreso, their collective evidence suggested that the deceased was a thorn in the flesh in the neighbourhood and the gun in the hands of one of them was already cocked for actual violence.

In my modest view, the fatal gunshot by one of the accused or party in the company of the Appellant at the material time that killed the deceased in cold blood within the vicinity of the scene of crime in the night of the same day is deemed in the eyes of the law to have been shot by the Appellant and all those present and participating in the events that led to the death of the deceased at the material time vide Sule v. State (2009) 17 NWLR (Pt. 1169) 33 at 38, Ofor and Anor. v. The Queen (1955) 15 W.A.C.A. 4 at 5, Joseph Ogundipe and Ors. v. The Queen (1954) 14 WACA 458, Mbang v. State (2009) 18 NWLR (Pt. 1172) at 157 – 158 following Ogbali v. State (1983) NSCC 156, Atiku and Ors. v. State (2010) 9 NWLR (Pt.1199) 241 at 294 per the lead judgment of his lordship, Garba, J.C.A., following Emeka v. State (2001) 14 NWLR (Pt. 734) 660, Idiok v. State (2006) 12 NWLR (Pt. 993) 1 and Nwakwoala v. The State (2006) 2 NWLR (Pt. 1000) 663.

I am, accordingly, satisfied from the totality of the evidence and the surrounding circumstances of the case 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 his comrades-in-crime; and that the said collective act of the accused and his cohort was intentional with 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) 7 9, Ogba v. State (1992) 2 NWLR (Pt.222) 164 and the series of cases (supra) cited by the parties on the point.

On the whole, I find the appeal unmeritorious and hereby dismiss it and affirm the decision of the Court below (Nwaka, J. ) convicting and sentencing the Appellant to death for the murder of the deceased, a Mr. Olamilejun Hassan.

GARBA, JCA

After a reading of the draft of the lead judgment delivered by my learned brother Joseph Shagbaor Ikyegh, JCA, I agree that the appeal is lacking in merit for the reasons set out therein. I too dismiss the appeal in terms of the lead judgment.

OGAKWU, JCA

I am in entire agreement with, and do not desire to add to, the reasons and conclusions expressed by my learned brother, Joseph Shagbaor Ikyegh JCA.

For those reasons I concur in holding that the appeal lacks merit and ought to be dismissed. The decision of the High Court of Lagos State in charge No. LCD/22/2005: The State vs. Anthony Boyewu delivered on 3rd June 2005 embodying the conviction and sentence of death imposed on the Appellant is hereby affirmed.

Appeal dismissed