The appellant was, tried in the High Court of Lagos State on a two count information for the offences of conspiracy and murder and we set out hereunder the charges as framed in the two counts: they read:-

“Statement of Offence - 1st Count Conspiracy to commit a felony to wit: murder, contrary to section 519 of the Criminal Code Law.

Jimoh Ishola (alias Ejigbadero) on or about the 22nd day of August, 1975, at Alimosho Village............... conspired together with other person or persons unknown to commit a felony, to wit: Murder,

Statement of Offence- 2nd Count Murder, contrary to section 319(1) of the Criminal Code Law.

Jimoh Ishola (alias Ejigbadero) (m) on or about the 22nd day of August, 1975, at Alimosho Village.......... murdered one Raji Oba.”

The case for the prosecution may be summarised thus: The appellant (known so as Ejigbadero) who claimed to have purchased a vast area of land in the area 'Alimosho Village, in or about 1970, proceeded sometime in 1975 to clear a large area of the same of the various crops and economic trees thereon in an attempt to develop the same. In the process he was challenged by a number of villagers in Alimosho (of whom the deceased was one) who not only claimed that their crops on the land had been wantonly damaged without reference to them but so that the land being their own the appellant was, in effect, a trespasser. In the event a number of unpleasant incidents occurred between the appellant and the villagers. Complaints to the Police at Agege of assault and malicious damage to op and property were freely made by either side. Investigations of these complaints by the police appeared, in respect of every one of them to be rather slow d in the meantime, the appellant who frequently come to Alimosho Village with number of people - who according to the appellant were his workmen but according to the villagers were his (the appellant’s) thugs - threatened and beat up violently a number of the villagers. In particular, he gave special attention to the ceased, who according to the prosecution witnesses he once stabbed near the eye-brow with a dagger or knife, and on several other occasions was heard to say a he would kill “one day.”

On the 22nd day of August, 1975. Sabitu Raji Oba, the wife of the deceased who testified as P.W.(1) returned to the village in the night from the market. She d the husband sat outside their building at about 8 p.m.; she had just warned r husband of the presence of the appellant and some of “his thugs” in the village. She had seen them on her way back to the house; it was a moonlit night-she was giving the husband (the deceased) this warning there was an explosion from a gun. The deceased groaned and fell down from the chair he sat on; had been fired at and he sustained injury in the region of the head from where blood was seen to ooze. P.W.(1) immediately turned to the direction of the sound the explosion from which the smoke of gun powder was seen to emerge and she saw six people running away towards a nearby bush: she recognised distinctly the appellant who, holding a gun, was in the rear. Although she saw the back of the appellant she was able to recognise him; in particular, apart from the gun held by the appellant, she recognised that the appellant at time and venue “wore English dress a short-sleeved dress ............ over long trousers.” Another witness, Nimota Kelani P.W.(2), a neighbour, on hearing the alarm raised that night by P.W.(1) to the effect that Ejigbadero had killed the deceased came outside. She also saw the appellant running away towards the bush. She was able to do so by the aid of the moonlight. She also called on the appellant telling him that she had seen him and reminded him that he had kept his “promise” to kill the deceased. Another witness, Sumbo Kelani P.W.(3) in her testimony claimed that following the sound of a gun-shot in the village about 8 p.m. that night and the alarm raised by P.W.(1) to the effect that the appellant (Gbadero or Ejigbadero) had killed her hus¬band, she also came outside. She saw the deceased “lying on the ground............. and blood oozing from his head.” According to this witness, the night was moon- lit and the moon so bright that “it was possible to pick a needle if it fell down ........…...” The fourth witness for the prosecution, Mann Elson Ofongo helped in conveying the deceased that night to the hospital at about 8.30 p.m. De-ceased died on the way to the hospital. P.W.(6) Rafiu Latifu in his testimony claimed that as he was returning to the village (Alimosho) on the night of the 22nd August,1975, he saw a white Peugeot 504 station waggon parked by the side of a Mosque a distance within “two minutes run” from the house of the deceased. He also saw the appellant and six other persons (one of whom was a woman) run out of a nearby bush towards the waiting or parked Peugeot 504 station waggon; the time was, according to the witness, “about 9 p.m.” Witness, however, did not ob-serve the registration number of the vehicle. On arrival at the premises of the deceased he met people who said the appellant had killed the deceased, who was still lying on the ground and bleeding from the head. Witness immediately told the people present that he had just seen the appellant and six other persons run out of the bush but did not know at the time that he had already killed the deceased.

The learned trial Judge found the appellant guilty as charged in the information (i.e. guilty of (a) conspiracy with persons un¬known to murder Raji Oba and (b) Murder of Raji Oba).

The Federal Court of Appeal held that P.W. 18 was not an accomplice, and holding that the learned Judge was wrong in law in so regarding him reversed his finding on the issue. That court, however, allowed the appeal from the conviction on the charge of conspiracy to murder.

The appellant further appealed to the Supreme Court.