DIGBEHIN & ORS V. THE QUEEN

• Pages: 303-306

NIGERIAN SUPREME COURT CASES [1963] N.S.C.C.

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in the passage which we have quoted, ought logically to have led him to that con-

clusion. In the circumstances, the appeal is dismissed.

Appeal dismissed.

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DIGBEHIN & ORS V. THE QUEEN

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1.

JIDE DIGBEHIN

2.

GODONU ETEMODE

3.

HONFUN KETE NWEH

V

THE QUEEN

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

23rd December, 1963.

APPELLANTS

RESPONDENT

SUIT NO. FSC 219/1963

Legislation - Criminal Code of Western Nigeria, s. 8 (s. 8 of the Federal Criminal

Code).

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Criminal Law - Parties to offences - Murder - Persons out to steal in company

- one armed with cutlass - Common intention to prosecute object by violence.

ISSUES:

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1. Where several persons go out to steal as a company and one is armed with a

lethal weapon to the knowledge of the others, can all of them be convicted of

a murder which occurs in the prosecution of their joint unlawful purpose.

2. What is the test of liability under section 8 of the Criminal Code.

FACTS:

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The defendants stopped a canoe, pretending they were policemen, and alleg-

ing the goods in it were being smuggled in; they had the goods transferred to their

own canoe, and the owner went into it too; and they moved ahead, ostensibly going

to the Customs House. The man paddling the other canoe and following them

heard the owner calling out for help in the distance; he had lost sight of them. Later

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the corpse of the owner was found floating; it had matchet wounds on it. One of

the defendants was visibly armed with a matchet when they accosted the other

canoe. They were all convicted of murder.

Upon an appeal to the Supreme Court against conviction of murder:

HELD:

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1. If two or more men set out to steal and one of them is known by the others to

be armed with a lethal weapon, all of them may be held criminally responsible

for any consequences which result from the use of the weapon by the one who

carried it, even if there is no evidence to show that there was any express pre-

concerted agreement that he was to use it. The test of liability under s. 8 of the

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Code

is not whether the others counselled or procured him to use the weapon

but whether It was a probable consequence of the prosecution of their joint

unlawful purpose.