On 7th October, 1975, at about 9.30 p.m., Lawrence Ndu (PW4) arrived in his car at the front of 69 Owerri Road, Enugu, wherein he resided. He met a motorcycle parked in the usual place he used to park his car. For the purpose of enabling Lawrence Ndu to park the car, his cousin (PW3) and his driver (PW5) heaved the motorcycle which was locked, away from the parking place. The 1st Appellant, a corporal in the Nigerian Army. was in a restaurant opposite the house and saw his motorcycle being moved. He went out of the restaurant to meet PW3 and PW5. He accused PW3 of attempting to steal the motorcycle and slapped the suspected thief. Two other soldiers, the 2nd Appellant and one Isa Mohammed who was at large during the trial of the case, came out of the restaurant and joined the 1st Appellant who, upon being asked by them as to what the matter was informed them that PW3 wanted to steal his motorcycle. Both the 2nd Appellant and Isa Mohammed Joined the 1st Appellant in beating PW3 and PW5. During the encounter PW5 knocked the 2nd Appellant down and in the confusion that ensued thereafter several persons who attempted to stop the fight were beaten up. There was a great commotion which attracted a large crowd to the scene. When the encounter had gone beyond the level of his endurance, PW5 took to his heels and escaped into No. 69 Owerri Road. PW3 followed suit, closed and bolted the door of the house.

In pursuit of the latter, their assailants broke open the door and went into the house wherein they met Dr. Okolo, an innocent visitor to the house; in the corridor. He pleaded with the assailants to stop fighting but they pounced on him and, kicking and beating him with bottles, dragged him out of the corridor to the front-age of the house where they continued beating him until he was dead. The cause of his death was shock, head injuries, ruptured liver and massive haemorrhage and the doctor opined that the head injuries could have been caused by a direct hit with a heavy object and that the deep incised wound at the back of the head could have been caused by a solid sharp instrument, such as a knife.

The evidence of the prosecution witnesses in respect of the part played by the 1st Appellant in causing the death of the doctor was conflicting. On the one hand there is the evidence of PW3 and PW7. Both were inside No. 69 Owerri Road at the crucial moment and testified as to the incident that had occurred in the corridor. According to the two witnesses, the 1st Appellant together with the 2nd Appellant and another man, each armed with a bottle, beat the doctor with the empty bottles and dragged him out. Another witness (PW.12), who had run from the scene of the fight to No. 66 Owerri Road, observed the incident from that house. He testified that he saw three persons break the door of 69 Owerri Road and went inside the house; that later they emerged dragging the doctor whom they conti¬nued to beat so severely that he fell to the ground. He said that one man had a stick while the others had implements he could not determine. He said that when the doctor appeared dead 1st Appellant carried one man on his motorcycle and ran away. He identified both Appellants as being the people that had killed the doctor.

On the contrary, the evidence of Ado Idi, a soldier, (PW.6). shows that the 1st Appellant did not actively participate in the commission of the offence.

The trial Judge in resolving the conflict in the prosecution evidence found from the evidence of P.W.6 which he accepted, that the 2nd appellant took active part in the vicious assault on the deceased and that he urged Isa Mohammed to kill the deceased which he did by inflicting five mortal blows on him with the heavy stick.

Appellants appealed to the Federal Court of Appeal which dismissed the appeal.

They further appealed to the Supreme Court.