MICHAEL OKWUWA V. THE STATE

• Pages: 274-279

274

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

The language of section 108 differs from that of section 79; it does not speak

of 'a criminal act done by several persons in

furtherance of the common intention

of them all', but of an offence 'committed by any member of an unlawful assem-

bly in

prosecution of the common object

of the assembly'; presumably section 108

differs in intent and contemplates other circumstances. These are, as section 108

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indicates, that there is an unlawful assembly, and that a member of it commits an

offence in prosecution of the common object of that assembly-that is an offence

in following up the common object: in such circumstances every person who is a

member of that assembly at the time of committing that offence is guilty of that of-

fence. The common object is some one of those specified in section 100; and its

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existence may be inferred from the circumstances.

In this case we have an armed mob who went into the compound in which

Dominic lived and beat him up badly; it was Awua Horn's intervention which saved

him from further violence, which might have caused his death. The second ap-

pellant was there; the common object of trespass and extreme violence to persons

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disliked by the mob was clear to him. A number went no further; others went on

from there to Dzaria's place, and the second appellant was with those who went.

He admits in his statement that he was one of those who chased and caught Dza-

ria's wife, but she saved herself by pleading with a relative. Others murdered Dza-

ria in the pursuit of the common object of the mob, which he obviously shared.

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The second appellant was plainly liable for the murder by operation of section

108.

For those reasons the appeal of second appellant was also dismissed at the

hearing along with the appeals of the first and fourth appellants.

Appeal dismissed.

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MICHAEL OKWUWA V. THE

STATE

30

MICHAEL OKWUWA

V

THE STATE

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

BAIRAMIAN,

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J.S.C.

COKER,

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J.S.C.

23rd November, 1964

APPELLANT

RESPONDENT

SUIT NO. SC 506/1964

35

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Legislation - Northern Nigeria - Penal Code s.115 and s.119 - Criminal Procedure

Code s.218(1) - Criminal Law and Procedure - Lesser offence, conviction of -

Test whether ingredients of lesser offence can be carved out of the particulars

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of offence charged - Obiter - High Court powers of conviction on appeal

from magistrate - Autrefois and issue estoppel.

ISSUE:

1.

Can a defendant be convicted of a lesser offence than the one with which he

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is charged, and if so, under what circumstances.

2.

Whether sections 115 and 119 of the Penal Code cover the same field.