MOHAMMED LATEEF v. THE STATE
(2018)LCN/12246(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/194CA/2016
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY
“The gist of this offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy, the acts or omission or omissions in furtherance of the common design may be and very often given in evidence against any other or others of the conspirators. To be deduced from the above, inter alia, is the fact that all conspirators may not have started at the same time and place since a conspiracy started by some people may be joined by others at a later stage; and the fact that conspirators are dissuaded or abandoned the completion of the unlawful purpose half way are of no moment as to the existence of the offence of conspiracy. Again, conspiracy is usually not capable of direct proof resulting in recourse usually made to the acts or omissions of each of the conspirators in furtherance of the conspiracy.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: VOLUNTARY CONFESSIONAL STATEMENT
“I am in total agreement that a trial Court can convict an accused on his confessional statement. ‘A free and voluntary confession, which is direct and positive and properly proved, is sufficient to sustain a conviction without any corroborative evidence, so long as the Court is satisfied with its truth. There is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence.’ SOLOLA V STATE (2005) 11 NWLR (PT. 937) PG. 460, NWAEZE V STATE (1996) 2 NWLR (PT. 428) PG. 1, AKINMOJU V THE STATE (2000) 4 SC (PT. 1) PG. 64.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: TO PROVE BEYOND REASONABLE DOUBT
“It is trite in law that the requirement that the prosecution must prove the commission of an offence beyond reasonable doubt does not mean beyond all iota of doubt. All that is required is proof that will reasonably fix the accused person with the commission of the offence. Such proof must be by compelling and conclusive evidence. See: Adewale Joseph V. The State (2011) 6 SCNJ 222; Rabi Ismail V. The State (2011 7 SCNJ 102; Adebayo V. State (2008) 6 ACLR 372 at 375; State V. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 224.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICE
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
MOHAMMED LATEEFAppellant(s)
AND
THE STATERespondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
The Appellant alongside one other accused person were arraigned on a four count charge on 17/04/2013 by way of an information before the Ondo State High Court sitting at Akure with the following offences:
COUNT I
STATEMENT OF OFFENCE
Procuring or counselling another for the purpose of kidnapping contrary to Section 11 of the Anti-kidnapping and Anti-Abduction Law of Ondo State, 2010.
PARTICULARS OF OFFENCE
Akinlabi Olaoluwa, Mohammed Lateef and others now at large on or about 4th April, 2012 at Omifon in the Ore Judicial Division did give information for the purpose of kidnapping one Alhaja Temilade Adeyinka.
COUNT II
STATEMENT OF OFFENCE
Conspiracy, commit felony contrary to Section 516 of the Criminal Code Law, Cap 37, Vol. l, Laws of Ondo State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Akinlabi Olaoluwa and Mohammed Lateef on or about 10th April, 2012 at Omifon in the Ore Judicial Division did conspire to commit felony to wit: kidnapping.
COUNT III
STATEMENT OF OFFENCE
Aiding and abetting kidnapping contrary to Section 5(1) of the Anti-Kidnapping and Anti Abduction Law of Ondo, State, 2010.
PARTICULARS OF OFFENCE
Mohammed Lateef on or about 10th April, 2012 at Omifon in the Ore Judicial Division did aid the kidnapping of Alhaja Temilade Adeyinka.
COUNT 4
STATEMENT OF OFFENCE
Kidnapping, contrary to Section 3(ii) (b) of the Anti-Kidnapping and Anti Abduction Law of Ondo State, 2010.
PARTICULARS OF OFFENCE
Akinlabi Olaoluwa on or about 10th April, 2012 at Omifon in the Ore Judicial Division did kidnap one Alhaja Temilade Adeyinka.
On his arraignment before the trial Court, the 2nd accused, herein the Appellant pleaded not guilty to all the charges preferred against him. The case proceeded to trial. The prosecution called four (4) witnesses and tendered six (6) exhibits, namely: A, B, B1 C1 C2 and D. The Appellant testified for himself and did not call any other witness.
SUMMARY OF FACTS
The Appellant was arraigned with one Akinlabi Olaoluwa before the Ondo State High Court sitting at Akure on four counts as stated above and they pleaded not guilty to the charge.
They went to trial, wherein the prosecution called four (4) witnesses and tendered six (6) exhibits to establish the case against the Appellant and his co-accused. The Appellant testified for himself and called no other witness. At the end of trial, the learned trial Judge convicted the Appellant of the offence of conspiracy to commit kidnapping, in his judgment delivered on 9/12/2013.
Dissatisfied, the Appellant filed this appeal vide Notice of Appeal dated and filed on 8/5/2016 containing four (4) grounds of appeal.
In compliance with the extant rules of this Court, parties filed and exchanged Briefs of Argument.
Appellants Brief dated 21/2/2017 but filed on 27/2/2017 was settled by D. A. Awosika Esq., while the Respondents Brief was dated and filed 16/3/2018, was settled by Bola Joel-Ogundadegbe Esq. (Deputy Director Library Services). Both processes were deemed properly filed on 19/3/2018. All briefs of Argument were adopted at the hearing of the appeal on 24/10/2018 by parties respective Counsel.
The Appellant raised a lone issue for determination of this appeal, thus:
Was the learned trial Judge right in convicting the Appellant of conspiracy to kidnap one Alhaja Temilade Adeyinka (PW1) having regard to the state of evidence adduced by the prosecution.
The Respondent also distilled a lone issue for resolution of the appeal thus:
Whether the learned trial judge was right in holding that the prosecution had proved its case of conspiracy to commit felony to wit: Kidnapping beyond reasonable doubt after a careful consideration of evidence from prosecution witnesses and statement of Appellant Exhibit B.
The lone issue apiece raised by parties are same in form and substance. I shall resolve the appeal on the lone issue raised by the Appellant, the undisputed owner of the appeal.
ARGUMENT
Learned Counsel for the Appellant submitted that the Respondent failed to discharge the ultimate burden of proof beyond reasonable doubt that the Appellant conspired with any person to kidnap PW1. He relied on Woolmington V. Director of Public Prosecution (1935) AC 462; Oforlete V. The State (2000) FWLR (Pt. 12) 2081; Oseni V. The State (2012) 5 NWLR (Pt. 1293) 351 at 385; Adekoya V. The State (2012) 9 NWLR (Pt. 1306) 539 at 565.
He defined conspiracy as an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means, to argue that the Respondent was required to prove that there was an agreement or confederacy between the Appellant and others to commit the offence and that in furtherance of the agreement, the Appellant took part in the kidnap of PW1.
He pointed out that conspiracy is a matter of inference which is often derived from facts of a particular case as presented by the prosecution, to submit that the inference that there was an agreement between the Appellant and any other person cannot be drawn from the evidence before the trial Court.
He argued that the Appellant retracted his extra-judicial statement admitted as exhibits B B1, during trial and as such, that it was unsafe for the trial Court to have relied solely on the said exhibit B without more to convict the Appellant for conspiracy. Counsel submitted that it is trite that an accused cannot be convicted on a confessional statement of a co-accused unless he has adopted same.
He therefore argued that it was wrong for the trial Court to have convicted the Appellant on exhibit A (confessional statement of co-accused), which the Appellant neither made nor adopted. He posited that it was wrong for the trial Court to have discharged and acquitted the Appellant and 1st accused on the bases of Exhibits A and B for the offence of procuring and aiding kidnapping and at the same time use this same Exhibit A and B to convict the Appellant and 1st accused for the count of conspiracy.
He reproduced the findings of fact and conclusion of the learned trial Judge at pages 121 to 122 of the record of appeal, to argue that there is no where it was shown by the Respondents witnesses that the Appellant conspired with anybody to kidnap PW1. He furthered that it was wrong for the trial Court to have convicted the Appellant on Exhibit B which the Appellant retracted and Exhibit A which was wrongly admitted in this case. He urged that the issue be resolved for the Appellant, allow the appeal and set aside the conviction and sentence of the Appellant.
Reacting, learned Counsel for the Respondent is of the view that the conviction of the Appellant was in order in the light of the evidence of Respondents witnesses and exhibit B Appellants confessional statement that was admitted in evidence without objection by the Appellant. He relied on Ikemson V. The State (1998) 1 ACLR 80 at 92; and Nwachukwu V. State (2004) 17 NWLR (Pt. 902) 273, to submit that once a confessional statement has been tendered and admitted in evidence without objection, its later retraction by the accused person cannot vitiate the proceedings.
He furthered that the Court can rely on a confessional statement which is direct, positive, unequivocal and voluntarily made to ground a conviction as in this case. Counsel reproduced the trial Courts finding of fact at page 122, lines 5 14 of the record, to submit that the evidence of PW1, PW2, PW3 and PW4 were outside exhibits A and B and as such corroborated exhibits A and B. Counsel posited that the retraction of exhibit B by the Appellant in his oral evidence before the Court is an afterthought which cannot prevent the Court from relying on the said exhibit B.
He submitted that exhibit B painted a vivid picture of how the Appellant and the 1st accused, along with others now at large conspired to kidnap PW1. He posited that since conspiracy is hardly capable of direct proof, that recourse is usually made to inferences from the acts or omissions done in furtherance of the common design between the conspirators. That exhibit B when read in conjunction with other pieces of evidence in this matter clearly show that there was an agreement between the Appellant, 1st accused and others at large to kidnap PW1.
Counsel called in aid the case of Njoven V. State (supra) to the effect that in proof of conspiracy, the acts or omissions of any of the conspirators in furtherance of the common design may be and often are given in evidence against any other or others of the conspirators. He furthered that conspiracy to commit an offence is a separate and distinct offence by itself and it is independent of the offence of the actual commission of the offence to which the conspiracy relates, such that a person may be convicted for conspiracy but discharged and acquitted of the actual offence.
He relied on Atano V. The State (2005) 4 SCLR 54 and Oyediran V. The Republic (2003) 3 ACLR 522, to the effect that once conspiracy is proved to exist, evidence admissible against one conspirator is also admissible against the other or others.
Counsel submitted that it is not true that the conviction of the Appellant was solely based on the confessional statement of co-accused Exhibit A; and that Exhibit B was not retracted by the Appellant since no objection was raised on its admissibility. He further reproduced the trial Judges finding of fact at pages 123 124 of the record to submit that other relevant evidence were considered in conjunction with exhibits A and B, before the Appellant was convicted.
Learned Counsel contended that the offence of conspiracy under the criminal code is quite different from the charge of procuring or counseling another to kidnap and Aiding and Abetting Kidnapping under the Anti-Kidnapping and Anti-Abduction Laws of Ondo State 2010; and so are the ingredients required to establish each of them. He urged that this issue be resolved for the Respondent, the appeal dismissed and the conviction and sentence of the Appellant be affirmed.
RESOLUTION
It is trite in law that the requirement that the prosecution must prove the commission of an offence beyond reasonable doubt does not mean beyond all iota of doubt. All that is required is proof that will reasonably fix the accused person with the commission of the offence. Such proof must be by compelling and conclusive evidence. See: Adewale Joseph V. The State (2011) 6 SCNJ 222; Rabi Ismail V. The State (2011 7 SCNJ 102; Adebayo V. State (2008) 6 ACLR 372 at 375; State V. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 224.
For the offence of conspiracy to be established it must be proved beyond reasonable doubt that the accused agreed with another person to prosecute an unlawful act by unlawful means. The Supreme Court had cause to expatiate on the nature of the offence of conspiracy in the case of Njoven V. State (supra) at 257, when it opined, thus:
It is not necessary to prove that the conspirators like those who murdered Julius Caeser, was seen together coming out of the same place at the same time, and indeed, conspirators need not all have started the conspiracy, because conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of this offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy, the acts or omission or omissions in furtherance of the common design may be and very often given in evidence against any other or others of the conspirators.
To be deduced from the above, inter alia, is the fact that all conspirators may not have started at the same time and place since a conspiracy started by some people may be joined by others at a later stage; and the fact that conspirators are dissuaded or abandoned the completion of the unlawful purpose half way are of no moment as to the existence of the offence of conspiracy. Again, conspiracy is usually not capable of direct proof resulting in recourse usually made to the acts or omissions of each of the conspirators in furtherance of the conspiracy.
It is trite in law that once a piece of evidence is tendered and admitted in Court, the Court is at liberty to consider and rely on same in its judgment. In criminal matter, once the confessional statement of the accused is admitted in evidence, it transforms into the evidence of the prosecution who can then employ same in proof of the guilt of the accused.
The law is clear that the time to object to the admission of an exhibit is at the point when it was sought to be tendered in evidence. Once an objection was not raised at that point or raised but over-ruled, any subsequent denial or retraction cannot be sustained. See Nwachukwu V. The State (1998) 1 ACLR 80 at 92.
I have paid a deserved visit to the proceedings of the trial Court on 26/4/2013 domiciled at page 79 of the record and it was glaring that no objection was made to the admissibility of exhibit B when it was sought to be tendered. The implication of this is that exhibit B was duly admitted in evidence and can be relied upon by the Court. A perusal of the said exhibit B, shows clearly, how the Appellant, the 1st accused along with, Taofik, Oyoyo and one other, still at large conspired to kidnap PW1. It is notorious in law that once a confessional statement is direct, positive, unequivocal and voluntarily made, it can ground a conviction. Indeed, once these requirements are satisfied, it is difficult to conceive of any defence that would not be demolished by the confession. See: Adewunmi V. State (2016) 10 NWLR (Pt. 1521) 614; Godsgift V. State (2016) 13 NWLR (Pt. 1530) 444.
It is pertinent to point out that the Appellants submission that Exhibit B ought to have been corroborated before the trial Court can rely on same, cannot be sustained in law since it is trite in law that a positive, unequivocal, direct and voluntary confessional statement is enough to sustain a conviction. The law does not require corroboration to sustain the offence of conspiracy. In any case, a dispassionate perusal of the said exhibit B vis-??-vis all their exhibits i.e. Exhibits A, C, C1 and D together with evidence of PW1, PW2, PW3 and PW4 in this matter would show that exhibit B is most probable.
On this score, the trial Courts findings of fact on this Count is unimpeachable and I so hold.
Having resolved the lone issue in this appeal against the Appellant. The appeal lacks merit and is accordingly dismissed. The conviction and sentence imposed on the Appellant in Charge No. AK/8C/2012, in the judgment delivered on 19th December, 2013 are hereby affirmed.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the lead judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I am in total agreement that a trial Court can convict an accused on his confessional statement.
“A free and voluntary confession, which is direct and positive and properly proved, is sufficient to sustain a conviction without any corroborative evidence, so long as the Court is satisfied with its truth. There is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence.”
SOLOLA V STATE (2005) 11 NWLR (PT. 937) PG. 460, NWAEZE V STATE (1996) 2 NWLR (PT. 428) PG. 1, AKINMOJU V THE STATE (2000) 4 SC (PT. 1) PG. 64.
With this and the more detailed reasoning in the lead judgment, I also dismiss this appeal. I abide by all the orders contained therein and adopt them as mine.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have read in draft the judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA and I agree with him that the appeal lacks merit and should be dismissed.
He dealt extensively with all the issues raised in the appeal and I will only like to say a word or two on the issue of conviction of the Appellant for the offence of conspiracy and his discharge for the substantive offence.
The Appellant alongside one other accused person were arraigned before the High Court of Ondo State, holden at Akure on 17th April, 2013 on a four count charge of conspiracy to commit felony contrary to Section 516 of the Criminal Code Law,Cap 37, Vol. 1, Laws of Ondo State, 2006 procuring or counselling another for the purpose of kidnapping, aiding and abetting kidnapping and kidnapping contrary to Section 11, (5)(1) and 3(ii) (b) of the Anti- Kidnapping and Anti-Abduction Law of Ondo State, 2010.
The prosecution called four witnesses and tendered six (6) Exhibits in proof of its case against the Appellant and his co-accused. The learned trial Judge, having analysed the evidence before him, convicted the Appellant of the offence of conspiracy to commit kidnapping and discharged and acquitted him for the offence of procuring and aiding kidnapping.
Conspiracy is an agreement by two or more persons to do or cause to be done, an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. The offence of conspiracy is rarely proved by direct evidence, but from circumstantial evidence and inferences from certain proved act. See Adeleke vs. State (2013) 7 SC (Pt. Ill) 119, Ayo vs. State (2015) 16 NWLR (Pt. 1486) 531.
On the contention of the Appellant that the trial Court was wrong to have discharged and acquitted the Appellant for the substantive offence and convicted him for the offence of conspiracy, I wish to state clearly that, for the law is settled that in a charge of conspiracy, the actual commission of the offence is not necessary to ground a conviction for the offence of conspiracy. See Salawu vs. State (2015) 2 NWLR (Pt. 1444) 595.
It is not a correct statement of the law to say that where a confessional statement was retracted by the accused person, the Court cannot find conviction on it. A Court of law can out-rightly convict an accused person on his extra judicial confessional statement which is voluntary and real. See Adisa vs. State (2015) 4 NWLR (Pt. 1450) 475.
It is for this and the other reasons in the lead judgment that I also dismiss the appeal and affirm the judgment of the trial Court.
Appearances:
D. A. Awosika, Esq. For Appellant(s)
Bola Joel Ogundadegbe (Deputy Director, Library Services) For Respondent(s)
