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BEFORE THEIR LORDSHIPS
MYLES JOHN ABBOTT, F.J. (Presided)
SIR LIONEL BRETT, F.J.
SIR LOUIS NWACHUKWU MBANEFO, F.J. (Read the Judgment of the Court)
CRIMINAL LAW AND PROCEDURE:– Murder and arson – Murder occasioned by striking a match and setting house on fire – liability of persons present at crime scene or part of the mob – Burden of prosecution to tie accused persons to the crime or prove common intention among accused persons to kill the deceased or set the house on fire – Mere presence of a party at scene of murder – Whether enough to raise presumption of fact under Section 8 of Criminal Code
CRIMINAL LAW AND PROCEDURE:- Section 8 of Criminal Code – Connotation and denotation – Conditions for the application of section – Need to prove common intention to commit crime charged – whether nature of the song sung by a mob can be evidence of a common desire to kill
“[Members] of the crowd who stood by and watched the house in which they knew an old woman was locked in being burnt and did nothing behaved disgracefully but that does not bring them within the provisions of section 8 of the Criminal Code as to be regarded as participants in the act of murder.”
ELDERS LAW:- Aged people and Security of life and property – Gruesome murder of aged person – Aged woman locked into a room and burnt to death in her son’s house set on fire by mob – duty of prosecution to secure conviction – effect of failure thereof
ETHICS – PROSECUTION/POLICE: Failure to provide relevant evidence necessary to convict for a horrible crime – Effect
CONSTITUTIONAL LAW AND HUMAN RIGHTS – MOB ACTION/LYNCHING:- Right to life – Limit to Right to Freedom of Assembly and Expression – Lynching and Mob action– Burning of home of village chief as a means of expressing grievance by mob – Murder of aged mother of village Chief who was locked up in a room by mob – Failure of prosecution to prove case –Attitude of court thereto
CHILDREN AND WOMEN LAW:- Women and Security/Human Right/Justice Administration – Right to life – Mob action – Murder of aged mother of village Head by burning – Deceased locked into a room and house set on fire by mob – Need to show relevant evidence tying accused persons to the crime – Duty of prosecution to prove charges – Effect of failure thereto
MBANEFO, F.J. (Delivering the Judgment of the Court):
The evidence against the appellants was that they were part of a crowd of about 80 people who entered Akufo village armed with sticks, guns and matchets, singing songs and saying that if they caught the Alakufo they would kill him. The Alakufo is the head of the village. The crowd went to the house of Karimu Afolabi who it appears was the Alakufo. Some of them entered the house, but Karimu was not in. They saw the deceased, his aged mother; and some of them whose identities are unknown and who are still at large pushed her into a room and locked her in. They then went outside and rejoined the crowd. The house was set on fire by some members of the crowd, but it is not clear who actually did it. In any event, there is no evidence that it was set on fire by any of the appellants. As the house burnt the deceased was heard shouting, indicating that she was suffering pains. After the house had completely burnt down and the Police were sent for, it was discovered that the deceased had been burnt to death in the room where she had been locked in. There is no doubt that she had been killed in circumstances which could without exaggeration be described as revolting and outrageous, and which, provided that those responsible for setting the house on fire could be found, we consider, amounted to murder. The appellants were charged, tried and convicted of the murder of the deceased.
The case against them is that they were seen amongst the crowd but there is no evidence that any of them entered the house or did anything to the house or the deceased or when they individually joined the crowd. In convicting them the learned trial Judge relied on section 8 of the Criminal Code which 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.”
For that section to apply here it must be shown that there was a common intention to kill the deceased or to set the house on fire which latter act would in the circumstances of the present case be both unlawful and likely to endanger human life. There was no evidence of a common intention to kill the deceased or to set the house on fire.
It was submitted by Mr. George, A.D.P.P. that the nature of the song they were singing showed a common desire to kill and that that was enough evidence of a common intention. We do not agree that this is necessarily so here. Where the only evidence is that the appellants were amongst the crowd and there was no evidence that they were seen to do anything which contributed to the death of the deceased we do not consider that their mere presence without more is enough to raise the presumption of fact on which section 8 could be applied in this case. The members of the crowd who stood by and watched the house in which they knew an old woman was locked in being burnt and did nothing behaved disgracefully but that does not bring them within the provisions of section 8 of the Criminal Code as to be regarded as participants in the act of murder.
We are not satisfied that the evidence here is enough to support the conviction of the appellants. We, therefore, allow the appeal, set aside the conviction and sentence of each appellant and order that he be acquitted and discharged.