SERIKI V. SOLARU

• Pages: 306-309

306

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SERIKI V. SOLARU

cumstances in which the deceased met his death. Instead, they elected to rely

on the first accused's evidence. That evidence being found to be a broken reed,

they can derive little benefit from it."

We consider this comment was justified, and there is nothing in the complaint

that as they did not expressly say they relied on the first accused's evidence they

ought not to have been described as doing so.

There was therefore ample precedent for the process of reasoning which the

trial Judge applied in the present case as regards the second and third appellants.

It was submitted on their behalf in this Court that it is a usual practice in the rural

parts of this country for people to carry cutlasses with them wherever they go, so

that it would be unjustifiable to hold that the second and third appellants ought to

have attached any particular significance to the fact that the first appellant was car-

rying a cutlass, or that as against them his use of the cutlass to kill the deceased

was a probable consequence of the prosecution of their joint purpose. Such rea-

soning has never been accepted in the case of robbers or burglars on land, and

we see no justification for applying it in the present case. It was further submitted

that if the deceased had jumped overboard voluntarily in an attempt to escape and

had then been assaulted by the first appellant with his matchet, the other two ap-

pellants ought net to be held liable for this, but the trial Judge rejected the evidence

that the deceased had jumped overboard, and in any event the test to be applied

under section 8 of the code is not whether the second and third appellants had

counselled or procured the first appellant to use the matchet but whether his use

of the matchet was a probable consequence of their joint purpose.

The Judge held that the three accused had the common intention to extort from

the deceased or to steal his loads, and that "all of the accused must have known

that one of their number was armed with a cutlass, from which it may be inferred

that their common intention extended to achieving their common purpose at least

by the threat of violence if necessary." He then went on to hold that the killing of

the deceased was a probable consequence of the prosecution of the unlawful pur-

pose of stealing by the threat of violence. In our view, the Judge applied the cor-

rect test and applied it in a correct manner. The evidence justified his conclusions

and the appeal of all three appellants must be dismissed.

Appeal dismissed.

SERIKI V. SOLARU

TAIWO OBISANYA SERIKI

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APPELLANT

V

SOYEMI SOLARU

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RESPONDENT

SUIT NO. FSC 279/1962

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

BRETT,

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J.S.C.

TAYLOR,

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J.S.C.

23rd December, 1963.

Civil Actions - Practice and Procedure - Declaration of Title to land.