ASHIMIYU & ORS. V. THE STATE.

• Pages: 351-357

ASHIMIYU & ORS. V. THE STATE.



351

UWAIS,



I

had the privilege of reading in draft the judgment read by my

learned brother Bello, J.S.C.. I entirely agree with the reasons and conclusions

therein. I too will therefore dismiss the appeal and it is hereby dismissed with N300

costs to the respondents.

5



Appeal dismissed.

ASHIMIYU & ORS. V. THE STATE.

10

ADESHINA ASHIMIYU AND ORS.



APPELLANTS

V

15 THE STATE



RESPONDENT

SUIT NO. SC 8/1981

SUPREME COURT OF NIGERIA

SOWEMIMO,



J.S.C.

BELLO,



J.S.C.

20



IDIGBE,



J.S.C.

OBASEKI,



J.S.C.

ANIAGOLU,



J.S.C.

7th October, 1982

25



Criminal Law and Procedure - Murder - Parties to an offence - Liability for

conviction as principal offender - 3rd appellants presence at and encouragement

of unlawfitl assault on deceased by other appellants - Prosecution witness -

Credibility - Unaffected by immaterial contradictions or inconsistencies -

Provocation not established.

30

ISSUES:

1.

Whether an accused person can be convicted on conflicting evidence of

prosecution witnesses.

2.

Whether a person who is present at the commission of an offence and

35



encourages the principal offenders to commit the offence, is liable for the

commission of the offence, oven though he did not take part in the actual

commission.

FACTS:

The appellants were convicted for the murder of the deceased in the High Court.

40



This decision was upheld by the Federal Court of Appeal. A disagreement had

arisen between the 1st appellant and the deceased over the way in which the 1st

appellant had recklessly driven into the deceased causing him to swerve. It was

contended that the deceased had slapped the 3rd appellant as a result of which

the appellants in the company of others drove to the hotel of PW.2, threatening to

45



kill the deceased, for assaulting the 3rd appellant.

Later in the day, the deceased was seen driving his car with PW.1 and PW.3 in

the market. The appellants forced him to stop and attacked him. There was evi-

dence that the 1st, 2nd and 4th appellants actually inflicted blows on the deceased,

and that the 3rd appellant cheered and encouraged the others to kill him.

50



The appellants appealed to the Supreme Court against the conviction. It was

contended on behalf of the 3rd appellant that there was no evidence from which

to infer, as the trial Judge did, that the 3rd appellant was predetermined to avenge

her assault by collecting the other appellants as re-inforcement; that there were

material contradictions in the evidence of the prosecution witnesses and their state-