LEGAL PRINCIPLE: CRIMINAL LAW – Common Intention – Recovery of Stolen Goods Armed with Gun – Whether Murder Probable Consequence
PRINCIPLE STATEMENT
Where all appellants after their meeting went out together at midnight for an unlawful purpose in conjunction with one another, and in order to foster or achieve their common intention, one of them carried a lethal weapon, a dane gun, which the 1st appellant successfully used to facilitate or aid their escape and avoid being caught or arrested when they were disturbed and hotly chased by the deceased and the other night guards, the gun, though fired by the 1st appellant at all material times, is deemed in the eyes of the law to have been fired by the rest of his gang. The 1st appellant was no more than the hand by which the other appellants struck and all are liable to be convicted of the murder of the deceased.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Alarape & Ors v. State (2001) NLC-872000(SC) at p. 26; Paras A–D.
"Where all appellants after their meeting went out together at midnight for an unlawful purpose in conjunction with one another, and in order to foster or achieve their common intention, one of them carried a lethal weapon, a dane gun, which the 1st appellant successfully used to facilitate or aid their escape and avoid being caught or arrested when they were disturbed and hotly chased by the deceased and the other night guards, the gun, though fired by the 1st appellant at all material times, is deemed in the eyes of the law to have been fired by the rest of his gang. The 1st appellant was no more than the hand by which the other appellants struck and all are liable to be convicted of the murder of the deceased."
EXPLANATION / SCOPE
When a gang sets out at night for an unlawful purpose (e.g., stealing) and one member carries a lethal weapon known to others, all are liable for murder when that weapon is used to facilitate escape. The gun is deemed fired by all. The actual shooter is merely “the hand by which the others strike.” The use of force to avoid arrest is a probable consequence of the joint unlawful enterprise. All participants foresaw or should have foreseen that lethal force might be used. This principle ensures that armed gangs cannot avoid liability by claiming only one member fired. Constructive liability applies to all participants in the common unlawful purpose.