⦿ CASE SUMMARY OF:
The State v. Moshood Oladimeji (2003) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Criminal Law
– Raising issue Suo Moto;
– Conspiracy to commit murder;
– Common intention;
(2003) 14 NWLR (Pt.839)57;
(2003) 7 S.C 108;
(2003) 7 S.C 108A;
⦿ LEAD JUDGEMENT DELIVERED BY:
A. I. Katsina-Alu, J.S.C.
* FOR THE APPELLANT
* FOR THE RESPONDENT
– Chief A. A. Aribisala.
⦿ FACT (as relating to the issues)
The facts of the case are these. There had been a protracted land dispute at Dada village near Idi-Ayunre in Ibadan between the deceased’s family (Dada family) and respondent’s family (Lakun family). Because of this feud over land, the respondent’s family held a meeting at which it was agreed that the deceased Agboola Aina should be eliminated so that the Lakun family would take control of the Dada family land. In pursuance of this agreement, on the morning of the day in question i.e. 2 February, 1996, the respondent and others of the Lakun family, waylaid the deceased and his sister (P.W.3) who were on their way to Ibadan. The respondent first accosted the deceased. In a little while the others came out of hiding. The deceased raised alarm which attracted his sons to the scene. In the fight which ensued, the deceased, his sister and his sons were assaulted with cudgels, cutlasses and sticks. The deceased was struck several blows with these weapons thereby causing him multiple injuries from which he died in hospital on 4 February, 1996.
The respondent Moshood Oladimeji and four others were arraigned before the Ibadan High Court, Oyo State on a one count charge of murder of Agboola Aina contrary to section 319(1) of the Criminal Code, Cap. 30, Volume II, Laws of the Oyo State, 1978. At the trial, the prosecution called nine (9) witnesses. The accused persons also gave evidence in their defence.
On 13 October, 1998 the respondent was found guilty and convicted of the lesser offence of manslaughter. The other accused persons were acquitted and discharged. The respondent’s appeal to the Court of Appeal was allowed. The present appeal to this court is by the State.
1. Whether it is right for the Court of Appeal to raise the issue of plea and arraignment under section 25 of the Criminal Code, Cap. 30, Vol. II, Laws of Oyo State of Nigeria, 1978 suo motu without hearing argument from the two parties upon which it relied heavily to quash the respondent’s conviction.
2. Whether, having regard to the circumstances of this case the prosecution must prove that the act of the respondent alone must cause the death of the deceased before the respondent’s conviction could be affirmed.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. It is now trite law that in the determination of disputes between parties, the court should confine itself on the issues raised by the parties. The court is not competent to suo motu, make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. Where, however, the court raises an issue suo motu and the issue goes to the root of the case, the parties must be given an opportunity to address the court on the point.
ii. Learned counsel for the respondent did not make his arraignment in the court of trial an issue. The Court of Appeal in the course of its judgment raised the issue suo motu. It considered the issue it raised suo motu and based its judgment on it without giving the parties an opportunity to address the court on the point. Clearly the court below was in grave error. On the authorities of this court, a few of which were referred to herein, the court below had no business whatsoever to deal with an issue which was not placed before it for adjudication. But if it considered the point important enough to raise it, then it should have called on the parties to address the court on the issue so raised. That was not done. That judgment therefore must not be allowed to stand. It must be set aside.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The evidence before the trial court shows clearly that there was a common intention to cause death or at least to do grievous harm to the deceased Agboola Aina. The doctor’s opinion was that he died from multiple injuries. The main question here is whose acts caused the death of Agboola Aina? The court below was of the view that for the conviction of the respondent to stand, it must be shown that it was his acts that caused the death of the deceased. The court below in my view was in error. This court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its’ commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
ii. Similarly, where a number of persons acting in concert joined in an unlawful assault which resulted in the death of their victim it is not mandatory for the prosecution to establish the precise act of a particular accused person that directly caused the death of the deceased. It is a question of fact in every case whether the death of the person assaulted is a probable consequence of the particular unlawful assault against his person by his attackers. So long as the prosecution is able to establish that the accused persons were acting in concert and that there was a common intention to kill the deceased or at least, to do grievous harm to him and that the killing of the deceased in circumstances amounting to murder was pursuant to or in consequence of the prosecution of that intention, all such persons may be convicted of the offence of murder.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Rex v. Grant and Gilbert 38 Cr. App R. 107 it was held that if several persons embark on an enterprise to commit a felony and have also the preconceived common intention to use violence of any degree, if necessary, for the purpose of overcoming resistance, and death results from such violence, all are guilty of murder.
Rex v. Betts and Ridley 22 Cr. App. R. 148 it was held that in the case of a common design to commit robbery with violence if one prisoner causes death while another is present aiding and abetting the felony, as a principal in the second degree, both are guilty of murder.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
An appeal court may raise points suo motu and where such points are so taken the parties must be given opportunity to address the court before a decision on the point is made by the appeal court. – U. Mohammed. State v. Moshood (2003)
I think the point must also be made that another equally fundamental principle of law in the determination of disputes between parties is that judgment must be confined to the issues raised by the parties. In this regard the law is well established that it is not competent for the court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. – Iguh, JSC. State v. Moshood (2003)
Accordingly the law is well settled that on no account should a court raise a point suo motu, no matter how clear it may appear to be, and then proceed to resolve it one way or the other without inviting the parties to address it on such a point. If it does so, it will be in fragrant breach of the parties’ right to fair hearing. – Iguh, JSC. State v. Moshood (2003)
There can be no doubt that courts of law have the power to raise suo motu relevant issue or issues which are not before the court for the determination of the case. In exercising this power, however, the court must adhere strictly to the principles of natural justice and, in particular, to the audi alteram partem rule. – Iguh, JSC. State v. Moshood (2003)
In the present case, the respondent, as appellant before the Court of Appeal, did not raise the issue of plea or arraignment either in his amended notice and grounds of appeal or in any of the three issues he raised for the determination of his appeal. Although the Court of Appeal had ample opportunity to raise the two issues and to call for further addresses on them at any stage before it concluded the delivery of judgment in the appeal, this it never did. I think, with respect, that the Court of Appeal was quite in error to have raised the issue of plea and arraignment of the respondent before the trial court suo motu without giving an opportunity to the parties to be heard on the points. – Iguh, JSC. State v. Moshood (2003)