Coussey, J.A. These were applications by the first and second appellants for leave to appeal on the facts against their convictions for murder and, as to the third appellant, who was charged and convicted with them, an appeal against conviction on a point of law, and an application for leave to appeal against conviction on facts.
When the hearing of the applications, which were treated as an appeal were concluded, the Court dismissed the appeals of the first and second appellants, but allowed the appeal of the third appellant and intimated that reasons for the decisions would be filed.
The appellants were convicted by Hurley J. in the Supreme Court of Nigeria, Onitsha Judicial Division, of the murder of Ejike Dibo. The trial was without a jury. The Court, in a lengthy judgment, examined critically the evidence of the principal witnesses, which was not without discrepancies and contradictions, and found that the story told by the eye witnesses was true. It was submitted to us that although there was evidence that the deceased and his brother while fishing on the Ibu River were shot at by the first and second appellants who then carried their bodies ashore, where others of the appellants' clan or tribe took the bodies away, it was not proved by the Crown that the shots fired by the two appellants in fact were the cause of death. It was suggested that the deceased and his brother although inert may have been unwounded and certainly that they were not dead when carried ashore; and that they may have been killed later in the bush by some persons unknown and not before the Court.
It was further submitted that the post mortem examination of the two headless bodies which were later exhumed by the Police did not conclusively establish (1) that the deaths of the deceased and his brother were caused by gun shot and (2) that the bodies were not and could not conclusively be identified as that of the deceased and his brother Anago owing to the condition in which they were found on exhumation.
We observe at the outset that the highest degree of probability at which a Court of Justice can under ordinary circumstances arrive, is the result to be inferred from a witness or a set of witnesses testifying to facts which they say they saw and which the Court believes to be the truth.
In the case of Regina v. Onufrejczyk (1955) 2 W.L.R. 273 at page 275, Lord Goddard C.J. commenting on and approving the headnote in Rex v. Horry 1952, N.Z.L.R. 111 said he would have stated the law as follows “at the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of .the body has been found and that the accused has made no confession of any participation in the crime. Before he can be convicted, the fact of death should be proved by such circum- stances as render the commission of the crime certain (omitting the word “morally” (certain)) and leave no ground for reasonable doubt".
The question here is simply whether the guilt of the first and second appellants was proved beyond reasonable doubt and whether it was prudent to convict the appellants although the deceased's body, for certain reasons, could not be identified. Unlike Onufrejczyk's case where there was no trace of the body and the evidence was circumstantial, in the instant case there was direct evidence of the killing.
On the day charged, according to the eye witnesses, the deceased was in a canoe with his brother fishing. The first and second appellants put guns into a canoe, put off from the bank of the river and intercepted the deceased on the river. There was a struggle over a fishing net of the deceased. The first appellant was seen to shoot at deceased. Without a cry the latter fell over into the water. The two appellants jumped into the river, retrieved the bodies of deceased and his brother who was also shot, put them in their canoe and paddled ashore where a crowd of their clansmen or friends surrounded them and carried the bodies into the bush. The deceased has never been seen or heard of alive again, but a body beyond identification was exhumed some time later in the bush. In our opinion the only reasonable finding, consistent with the facts proved, is that arrived at by the learned trial Judge, namely; that the first appellant who fired the shot is guilty of murder and that the second appellant who also set out with him armed with a gun “thus manifesting a determination to effect a common purpose murderously” and which he carried out by shooting the deceased's brother at the same time, is also guilty of murder.
Both these appellants deny that they were near the Ibu River at the time charged. They did not call any witness. The facts proved are inconsistent with the suggestion now put forward on appeal that the bodies of the deceased and his brother may have been taken ashore unhurt and that they were later killed by persons other than the two appellants.
Owing to the condition in which it was found identification of the deceased's body was not possible. It was presumed to be his body because it had been buried with that of his brother Anago which was identified by the seventh Prosecution Witness. There was no means of telling from the post mortem examination how death had occurred as the body had been disarticulated limb from limb and both forearms and hands, right leg and the head were missing.
These matters were all considered by the learned trial Judge. On the evidence it was established that murder had been committed, that the deceased had met a violent death at the hands of the first appellant actively aided by the second appellant and it is unnecessary to go any further.
We were unable to find any misdirection on the part of the learned Judge or any other matter which in law would warrant an interference with the convictions of the first and second appellants and accordingly their appeals were dismissed.
The third appellant was convicted of murder under section 7 (c) of the Criminal Code which provides that where an offence is committed every person who aids another person in committing the offence is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it. The learned trial Judge found that the third appellant was, in fact, present with others of the appellants clan or people on their bank of the Ibu River at the time of the struggle over the fishing net and before the shooting and that the evidence about a call to him to pursue the deceased's brother, seventh Prosecution Witness, is evidence that the third appellant was there by the river to support the other appellants. Learned Counsel for the Crown informed the Court that he could not wholly support the conviction.
We are of the opinion that to bring a person within this section there must be clear evidence that either prior to, or at the time of, the commission of the act the appellant did something to facilitate the commission of the offence.
It was not proved that the third appellant held some position of rank or influence which, in itself, might be held to be direct encouragement. In the absence of such proof it seems to us that his presence on the bank at the commission of a crime cannot amount to intentional aid.
The evidence as to the “call to pursue” is contradictory; the fourth Prosecution Witness says it was to one Nnoba Diebu who was not charged, while the seventh Prosecution Witness says the call was to Obadiegwu the 3rd appellant. In our view however this cannot be held against the appellant to amount to aiding and abetting for there is no evidence that the third appellant responded to the call or attempted to head off the seventh Prosecution Witness or fourth Prosecution Witness from going to the assistance of the deceased in the struggle.
Apart from failure to prove the necessary intention to give assistance, this appellant while he remained on the bank of the river was not sufficiently near to give assistance in the strt1ggle on the water. The fact that he assisted after the shooting to bring a body ashore does not, in our opinion, supply the requisite proof which as stated above must be of aid prior to or at the time of the offence. The appeal of the third appellant was therefore allowed and his conviction quashed.
First and second appellants' appeal dismissed.
Third appellant's appeal allowed and conviction quashed.