DAVID OYEDELE v. THE STATE (2019)

DAVID OYEDELE v. THE STATE

(2019) LCN/4829(SC)

In The Supreme Court of Nigeria

On Friday, the 18th day of January, 2019

SC.296/2016

RATIO

HOW THE OFFENCE OF CONSPIRACY MAY BE ESTABLISHED

In respect to the offence of conspiracy, it is a matter of fact inferable from the circumstances of each case since the meeting of the minds towards a common purpose for an illegal act between two or more persons are usually a secret mission only known to the participants in the agreement. Also the agreement must be express in furtherance of the agreement. See Kaza v The State (2008) 7 NWLR (Pt.1085) 125; Upahar v The State (2003) 6 NWLR (Pt.681) 230 at 230 at 239; Shodiya v The State (2013) 12 SCM 175 at 185. PER MARY UKAEGO PETER-ODILI, J.S.C.
POSITION OF THE LAW ON THE INTENTION OF THE OFFENDER THAT MUST BE ESTABLISHED WITH THE INGREDIENTS OF THE OFFENCE OF MURDER
In regard to the ingredients of the offence of murder, the Supreme Court had in the case of Ibikunle v The State (2007) 2 NWLR (Pt.1019) 546 at 582 per Onnoghen JSC (as he then was) held thus:- “(1) If the offender intends to cause the death of the person killed, or that of some other person; (2) If the offender intends to do to the person killed or to some other person grievous harm…, is guilty of murder”. PER MARY UKAEGO PETER-ODILI, J.S.C.

WHERE AN ACCUSED IS CHARGED WITH A SUBSTANTIVE OFFENCE AND CONSPIRACY TO COMMIT THE SUBSTANTIVE OFFENCE, WHETHER IF HE’S FOUND GUILTY OF THE SUBSTANTIVE OFFENCE WITH WHICH HE IS CHARGED, HE WILL ALSO BE GUILTY OF THE OFFENCE CONSPIRACY TO COMMIT THE SUBSTANTIVE OFFENCE

Conversely therefore, where an appellant has been found guilty of the substantive offence (in this case murder), he cannot be found to be not guilty of conspiracy to commit the offence. The basis for this legal position was explained in Njovens v The State (1973) All NLR 371 and it is that the overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspiracy must be referable and is very often the only proof of the criminal agreement call conspiracy. In other words, the act of murder (actus reus) is the proof of the conspiracy (criminal agreement) to commit murder. PER MARY UKAEGO PETER-ODILI, J.S.C.

WHETHER THE SUPREME COURT CAN INTERFERE WITH A CONCURRENT FINDINGS OF FACT

… it is stated the now obvious position of the law that the Supreme Court will not reverse the concurrent findings of fact unless the appellant has established exceptional or special circumstances which impels the Court to act. PER MARY UKAEGO PETER-ODILI, J.S.C.

CONDITIONS A JUDGE MUST ADHERE TO WHEN WRITING A JUDGMENT

This Court has had occasion to lay down what is required of a judge when writing a judgment and I shall have recourse to the case of Ishola & Ors V Folorunsho & Anor (2010) 13 NWLR (Pt. 1210) 169 at 195 per Muhammad JSC, thus:- “… the fundamentals in writing a good judgment which a trial Court is enjoined to adhere to comprising of among other requirements, such as: (a) making a brief statement of the type of action/office being adjudicated upon; (b) setting out the claim/offence in full or in part; (c) a review of the evidence led; (d) appraisal/evaluation of such evidence; (e) making findings of fact therefrom; (f) consideration of the legal submission made and/or arising, and findings of law on them and (g) conclusion, that is verdict/final decision/order(s). Yet, it is not infrequent that you find different judges with different styles of writing judgment. Some are so brief in nature, other are (verbose) and some may decide to take a middle course. Whichever style a judge adopts, what is important is clarity in the language in which the judgment is written and delivered and that justice should be seen by all to have been done to the parties in dispute. A retired Justice of this Court had an opportunity to observe, while he was sitting as a Court of Appeal Judge, that a succinct or concise judgment in this con must not be too brief. It should certainly not be long. It should be of average length and this involves covering all the required contents of a good judgment in summary.” PER MARY UKAEGO PETER-ODILI, J.S.C.

JUSTICES

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

Between

DAVID OYEDELE Appellant(s)

AND

THE STATE Respondent(s)

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): The appellant with one Seyi Oyeneye were before the Ogun State High Court Per A. A. Akinyemi J. sitting at Abeokuta Judicial Division, charged with the offences of conspiracy to commit murder contrary to and punishable under Section 324 of the Criminal Code Law, Vol.1, Laws of Ogun State of Nigeria 2006 and murder contrary to and punishable under Section 319 (1) of the Criminal Code Law Vol.1, Laws of Ogun State of Nigeria, 2006. The learned trial judge convicted the accused now appellant who appealed to the Court of Appeal, Ibadan Division or Court below or Lower Court, Coram: A. A. B. Gumel. H. S. Tsammani and O. Daniel-Kalio JJCA which Court below dismissed the appellant’s appeal and affirmed the conviction and sentences including that of death by hanging hence the current recourse to the Supreme Court on appeal.

FACTS RELEVANT TO THE APPEAL:
By an application dated 11th September 2008, the respondent sought consent to prefer Criminal Proceedings pursuant to Section 340 Criminal Procedure Law of Ogun State, 2006 against one Seyi Oyeneye and David Oyedele (the present appellant).

The Honourable Chief Judge of Ogun State further to Section 4 (2) Criminal Procedure Law of Ogun State, 2006 gave the requisite consent sought on 21st November, 2008 pursuant to which the respondent by information laid on 11th February, 2009 pursuant to Section 340 (2)(b) Criminal Procedure Law of Ogun State, 2006 indicted one Seyi Oyeneye (as 1st Accused) and the appellant (as 2nd Accused) on a two (2) count charge of conspiracy to commit murder and murder contrary to the combined effect of Sections 316 (2) and 324 Criminal Code Law of Ogun State, 2006 and punishable under Section 319 (1) thereof.

Both accused persons, i.e. Seyi Oyeneye (the 1st Accused) together with the present appellant were subsequently arraigned on 29th July, 2009 before the Honourable Justice E. O. Osinuga sitting at the High Court of Ogun State sitting at Abeokuta when the following was recorded to have transpired:
“Mr. O. T. Olaotan – Director Law Development appearing with Mr. A. O. Lapite – State Counsel for the State.
Mr. O.O. Ogah – Principal Legal Aid Officer for the 2nd accused person.
Mr. Olaotan – The plea of the accused persons

are yet to be taken.
Mr. Ogah – We are prepared for the plea to be taken now sir.
Charge is read and explained to each of the accused persons in Yoruba language.
Each of the accused persons says he understands the charge.
Plea: 1st Count: 1st Accused – Not Guilty
2nd Accused – not Guilty
2nd Count: 1st Accused – Not Guilty
2nd Accused – Not Guilty”.

Trial in Plenary took place before the Honourable Justice A. A. Akinyemi on 20th July, 2010; 20th February, 15th May, 28th June, 4th July, 18th October and 12th December, 2012; 14th January, 15th May, 6th and 7th June and 31st July, 2013. In the course of trial, the following transpired at the proceedings of 15th May, 2012.
“Accused persons present.
Mrs. F. O. Shittu… SC for the State.
O. B. Odeyale for the 2nd accused person.
R. Kolade CPD for the 1st accused person.
Odeyale: I have just been briefed. I need time to study the case.
COURT: Take the plea of the accused persons again. Registrar: Do you understand English or Yoruba Each accused persons: We understand Yoruba.
Registrar: Reads Count 1 to

accused persons in English. Interprets it in Yoruba.
1st Accused: I understand it. PLEA: Not guilty.
2nd Accused: I understand the charge. PLEA: I am not guilty.
Registrar: Reads Count 2 and interprets it in Yoruba, 1st Accused: I understand the charge.
PLEA: I am not guilty.
COURT: The case is fixed for hearing on the 28th June, 2012.
Accused persons shall continue to be remanded at Ibara Prison, Abeokuta.
Sgd.
A.A. AKINYEMI JUDGE
15/05/2012”.

Furthermore, in the course of the trial, the respondent (as Prosecution) called five (5) witnesses between 28th June, 2012 and 15th May, 2013 namely: Nofiu Onifade (PW1), Inspector Adeolu Mojeed (PW2), Saheed Babatunde (PW3), CSP (Rtd.) Babatunde Alli (PW4) and Dr. Ogunsina Gbenga Sikiru (PW5) while each of Seyi Oyeneye (1st Accused person) and the present appellant, David Oyedele (2nd Accused person) testified in their own respective behalves, and defence as DW1 and DW2 on 6th and 7th June and 31st June 2013. The following items were also variously tendered and admitted in evidence:
(a) The statements to the police of the 1st Accused person

in Yoruba and English language marked Exhibits A and A1 respectively through PW2.
(b) The statements to the police of the 2nd Accused person (present appellant) in Yoruba and English languages marked Exhibits B and B1 respectively through PW2.
(c) The statements to the police of the 1st Accused person in Yoruba and English languages marked Exhibits C and C1 respectively through PW4.
(d) The statement to the police of the 2nd Accused person marked Exhibit D through PW4.
(e) Two Dane Guns marked Exhibits E and F through PW4.
(f) 1 Local Double Barrel (Gun) marked Exhibit G through PW4.
(g) 2 Cutlasses marked Exhibit H and H1 through PW4.
(h) One Walking Stick marked Exhibit through PW4.
(i) Brown Bag with 10 Cartridges inside including 1 unexpended marked Exhibit K through PW4.
(j) A Yellow Rope marked Exhibit L through PW4.
(k) Four Photographs marked Exhibits.
(I) Medical Report dated 18/06/2006 marked Exhibit N through PW4 and identified issued by PW5.

At the end of the trial on 31st July, 2013, the following was recorded to have transpired:

“Odeyale: That is the case for the 2nd Accused.
COURT: The Accused persons shall file and serve their Written Addresses within 21 days from today, prosecutor shall file and serve theirs within 21 days.
Therefore, all the accused persons shall file their Reply on law within 7 days thereafter.
The case is adjourned to 8th October 2013 for adoption of final Address(es).
Sgd.
A. A. AKINYEMI
JUDGE
31/7/2013”.

At the close of the trial and adoption of final addresses, the Court fixed a date of judgment and on the 7th January 2014 delivered his judgment, convicting the accused and sentenced him to two terms of death by hanging. The Court of Appeal affirmed the conviction and sentences.

The appellant aggrieved has now come before this Court vide Notice of Appeal of four grounds.

On the 25th day of October, 2018 date of hearing, learned counsel for the appellant, Kolawole Esan Esq. adopted the brief of argument filed on 2416/2016,
1) Whether Exhibit B and B1 relied upon the Court of Appeal in affirming the judgment of the trial Court passed the test required and therefore qualified as a confessional statement to justify and sustain the conviction of the

appellant. (Ground 1).
2) Whether Exhibit B and B1 held to be a confessional statement by the Court of Appeal in affirming the trial Court’s judgment were corroborated by other pieces of evidence outside the confession. (Ground 2).
3) Whether the Court of Appeal did not err in law and thereby occasioned a miscarriage of justice when in its consideration of Issues 1, 2 and 3 formulated by the appellant, it failed to consider Issue 2 which touched on the germane issue of fair hearing. (Ground 3).
4) Whether the Court of Appeal did not err in law in its failure to consider the issue of conspiracy separate but rather tied it to the guilt of the appellant to the count of murder. (Ground 4).

Learned Attorney General of Ogun State, Dr. Olumide Ayeni adopted the brief of argument of the respondent, filed on the 19/9/16 and formulated two issues for determination which are thus:-
i) Whether the respondent as prosecution proved the commission of the offences with which the appellant was charged, tried, convicted and sentenced on a standard of proof beyond reasonable doubt having regard to the entire circumstances of the case and with

particular reference to corroboration of Exhibits B, B1 and D being confessional statements ex abundanti cautela. (Culled from Grounds 1 and 2 of the Notice of Appeal).
(ii) Whether appellant’s constitutional right to fair hearing and/or natural justice was in any way violated by reason of the judgment of the Court of Appeal of Nigeria affirming his conviction and sentence by the trial High Court of Ogun State. (Culled from Grounds 3 and 4 of the Notice of Appeal).

I shall utilise the two issues as identified by the respondent in the determination of this appeal.

ISSUE 1:
Whether the respondent as prosecution proved the commission of the offences with which the appellant was charged, tried, convicted and sentenced on a standard of proof beyond reasonable doubt having regard to entire circumstances of the case and with particular reference to corroboration of Exhibits B, B1 and D being confessional statements ex abundanti cautela.

Learned counsel for the appellant contended that the Court of Appeal in coming to its conclusion completely misread and misapplied the contents of Exhibits B and B1 and was in error in affirming the decision

of the trial Court and so an instance for the intervention of the Supreme Court to disturb the concurrent findings of the two lower Courts. He cited Mbenu v The State (1988) NWLR (Pt,84) 615 at 626; Ogoala v The State (1991) 12 NWLR (Pt.175) 509 at 528; Ikem v State (1985) 1 NWLR (Pt.2) 378 at 385; Oshoboja v Amida (2009) 18 NWLR (Pt.1172) 188 at 202-203; Okhuarobo v Aigbe (2002) 9 NWLR (Pt.771) 29 at 85.

That there is nothing on record to show that Exhibits B and B1 were corroborated as the Court below found. He relied on Ubierho v The State (2005) 5 NWLR (Pt.919) 644 at 656; Alake v The State (1992) 9 NWLR (Pt.265) 260 at 273.

In response, learned counsel for the respondent submitted that the position of the law is that in proving a charge of conspiracy, it is a matter of fact inferable from the circumstances of each case, which on the strength and material in this appeal is clearly established which offence may be express or implied. He cited Kaza v The State (2008) 7 NWLR (Pt.1085) 125 at 154; Upahar v The State (2003) 6 NWLR (Pt. 816)230 at 239;

Shodiya v The State (2013) 12 Sal 175 at 187 etc.

That the facts, material and evidence at the trial are sufficient to satisfy the ingredients of the two counts offences with which the appellant was charged and convicted and the Court of Appeal right to affirm the earlier decision of the trial Court. He relied on Shehu v State (2010) 8 NWLR (Pt.1195) 112 at 135; Eholor v Osayande (1992) 6 NWLR (Pt.249) 524 at 548; Igbi v The State (2000) 3 NWLR (Pt.649) 169; Theophilus v The State (1996) 1 NWLR (Pt.423) 139; Enang v Adu (1981) 11-12 SC 25; Oshodi v Eyifunmi (2000) 13 NWLR (Pt.684) 298 a6 332.

The stance of the appellant is that in nowhere in the extra – judicial statements of the appellant, B1 and B2 did he admit that the deceased was shot in the mouth though appellant admitted shooting into the air that hit the deceased on his mouth. That the situation was such that there needed proper proof from the prosecution that the deceased was shot in the mouth and by the appellant.

The respondent taking the opposite stand stated that the facts, material and evidence at the trial are

sufficient to satisfy the ingredients of the two counts of the offences viz, conspiracy and murder which the accused was charged and convicted. Also that the angle put forward by the appellant does not represent what is borne out of the record.

The findings and conclusion of the learned trial judge which the Court below agreed with thereby producing the concurrent findings before the Supreme Court which while the appellant is asking the Court to interfere and upset those findings as perverse, the respondent urges non – action by the Supreme Court on the ground that nothing happened in the face of those findings of the two Courts that could persuade this Court’s disturbing them and the conclusion that was arrived at.

The need to go into the recesses of earlier decisions comes to play. In respect to the offence of conspiracy, it is a matter of fact inferable from the circumstances of each case since the meeting of the minds towards a common purpose for an illegal act between two or more persons are usually a secret mission only known to the participants in the agreement. Also the agreement must be express in furtherance of the agreement.

See Kaza v The State (2008) 7 NWLR (Pt.1085) 125; Upahar v The State (2003) 6 NWLR (Pt.681) 230 at 230 at 239; Shodiya v The State (2013) 12 SCM 175 at 185.

In regard to the ingredients of the offence of murder, the Supreme Court had in the case of Ibikunle v The State (2007) 2 NWLR (Pt.1019) 546 at 582 per Onnoghen JSC (as he then was) held thus:-
“(1) If the offender intends to cause the death of the person killed, or that of some other person;
(2) If the offender intends to do to the person killed or to some other person grievous harm…, is guilty of murder”.

Those ingredients of the two offences charged in view alongside the prevailing legal principles a glimpse of what the learned trial judge and judgment delivered on 7th January, 2014 the trial High Court of Ogun State sitting at Abeokuta would lend some insight thus:-
“From the evidence before this Court, the deceased was not attacking or about to attack the 1st accused rather he was going about his business when the 1st accused challenged him. It was actually the deceased who was trying to defend himself from the attack of the 1st accused.
I am absolutely in no doubt, considering the

totality of the evidence before the Court that the 1st accused person, and indeed, both accused persons, were not acting in self-defence that night. The evidence of the 1st accused in this regard was nothing but a desperate after-thought, the effort of a drowning man trying to claw at a straw. I disbelieve and reject it completely as a blatant lie. Assuming but without conceding that they were actually acting in self-defence, the mode of their response and the amount of harm done to the deceased grossly out-weighed whatever danger if any, that the deceased may have posed to them”.

On appeal, the Court of Appeal went to great length to evaluate what the trial High Court had done in my humble view out of abundance of caution and for effect I shall quote that Court extensively for clarity per Daniel-Kalio JCA, thus:-
“A keen examination of the above statement reveals that it is confessional being one that clearly states or suggests the inference that the appellant committed the offence he was charged with, to wit, murder. In the statement, the appellant admitted that Semiu Babatunde was killed; he admitted that he was at the scene of the crime; he

admitted that he carried a gun which he fired; he admitted that no one else fired a gun; and he admitted that the deceased was shot in the mouth. His statement that he did not know whether the shot to the mouth of the deceased was as a result of the shot he fired is a copout. Having admitted that no one else fired a shot that night, it does not require a genius to conclude that the shot was fired by the appellant. There was nothing in the statement that was exculpatory of the appellant.
Although the confessional statement is clear, it is the law that it is desirable that it should be corroborated by some other evidence outside the statement no matter how slight. The learned trial Judge referred in his judgment to evidence he considered to be corroborative of the confessional statement. The learned trial judge considered the evidence of PW3 the evidence of PW2. the evidence of PW1 the evidence of PW4 the Divisional Crime Officer of Ibara Police Station who led a team of policemen to the scene of the crime, and came to the conclusion at page(s) 135-136 of the Record of Appeal.
I agree that the evidence of the witnesses

referred to by the learned trial judge corroborate the confessional statement. I go further to say that the pieces of evidence were not merely corroborative of the confessional statement of the appellant but reinforce it strongly.
Perhaps I should make a comment or two about the evidence of PW5, the Medical Doctor that the appellant’s learned counsel tried to discredit. The witness testified that upon a post-mortem examination of the deceased, he found that the deceased had a gunshot wound on the right side of the mouth (See at page 74 of the Record of Appeal). Appellant’s learned counsel submitted that the evidence of the Doctor was not based on any scientific finding but on mere observation. I dare say that observation is important in any scientific examination and more especially in a medical examination. In any case, the observation of a gunshot wound to the mouth corroborates the confessional statement of the appellant who said there was a gunshot wound to the mouth of the deceased but eerily tried to refuse to accept blame for it, forgetting that he had stated that he was the only one that fired a gunshot on the

day of the incident.
At any event, it is the law that although medical evidence as to the cause of death is desirable, it is not essential in all cases as in the absence of a medical report the Court can infer the cause of death from other evidence adduced. My view is that the evidence of PW5 (the medical doctor) also corroborates the confessional statement and that even if it is taken off the table, that is to say, disregarded, the confessional statement massively corroborated by other pieces of evidence already mentioned, provide evidence beyond reasonable doubt that the appellant is guilty of the offences for which he was charged”.

The learned appellate Justice went on to state as follows:
“Issue 4 as will be recalled is concerned with whether the learned trial Judge was correct in holding that outside the confessional statement of the appellant there were other pieces of evidence proving beyond reasonable doubt that the acts of the appellant caused the death of the deceased. It should be clear from my consideration of issues 1, 2 and 3 above that issue 4 was also treated and resolved. It is

therefore unnecessary to consider issue 4 separately. Issue 4 is also resolved against the appellant.
It will appear that the appellant skipped issue 5 and went on to consider issue 6. By so doing, I take it that the appellant has abandoned his issue 5.
Issue 6 has to do with whether the offence of conspiracy was proved. Learned counsel submitted that the conspiracy to be established, there must be an agreement between the accused persons to execute an agreed act and that the agreed act must be unlawful…
Conversely therefore, where an appellant has been found guilty of the substantive offence (in this case murder), he cannot be found to be not guilty of conspiracy to commit the offence. The basis for this legal position was explained in
Njovens v The State (1973) All NLR 371 and it is that the overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspiracy must be referable and is very often the only proof of the criminal agreement call conspiracy. In other words, the act of murder (actus reus) is the proof of the conspiracy (criminal agreement) to commit murder. Issue 6 is resolved

against the appellant.
Evidence before the trial Court showed that the appellant took part in the merciless killing of the deceased. It was murder most unspeakable. The learned trial Judge rightly found the appellant guilty as charged. The appeal has no redeeming feature. It lacks merit and it is dismissed. The judgment of the lower Court is affirmed”.

The two offences in issue are conspiracy and murder and the relevant statutory provisions are hereunder quoted thus:-
“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
(2) if the offender intends to do to the person killed or to some other person some grievous harm; is guilty of murder.
In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.
319 (1) Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death.
324. Any person who conspires with any other person to kill any person, whether such person is in Nigeria or elsewhere, is guilty of a felony, and is liable to imprisonment

for fourteen years”.

What has been portrayed above are the concurrent findings of the two Courts below and it is stated the now obvious position of the law that the Supreme Court will not reverse the concurrent findings of fact unless the appellant has established exceptional or special circumstances which impels the Court to act. In the case at hand such compulsion to change the course of events as placed on record by the two Courts below are clearly absent thus making it imperative for this Court to hold its peace and not embark on a hunting expedition or fishing manoeuvres just to prove an empty intellectual point especially in this instance where the Court’s below found that Exhibits B and B1, the confessional statement put forward the inference that appellant committed the offences and the manner of execution. Also there were other pieces of evidence lending corroboration to the confessional statement including the medical report as tendered by the medical doctor and so all the requirements upon which a Court particularly that of trial should utilise in acting on a confessional statement to support a conviction are clearly on display. The situation

on ground in this case at hand goes along the route pathway already trod by this Court faced with concurrent findings of fact of two or more lower Court’s upon which this Court has no business interfering or intervening or upsetting what had earlier been done. I place reliance on Ibikunle v The State (2007) 2 NWLR (Pt.1019) 546, 582, 571, 567, 575, 579 and 584-585; Shehu v The State (2010) 8 NWLR (Pt.1195) 112 at 135; Okonkwo & 4 Ors v Okonkwo & 5 Ors (2010) 14 NWLR (Pt.1213) 228 at 246; Agbi & Ors v Ogbeh (2006) 11 NWLR (Pt.990) 65.

The long and short of the poser before Court as found by the two Courts below and which I have no difficulty agreeing with is that appellant and his co-accused were not acting in self-defence that night of incident and the admission of the appellant was to the effect that he was at the scene of crime at the material time and shot the deceased in the mouth and no one else by his admission shot a gun that night which caused the death of the deceased. Therefore those concurrent findings of the two Courts below are upheld.

ISSUE 2:
Whether appellant’s constitutional right to fair hearing and/or natural

justice was in any way violated by reason of the judgment of the Court of Appeal of Nigeria affirming his conviction and sentence by the trial High Court of Ogun State.
For the appellant it was advanced that the trial Court failed to consider one of the statements of the appellant, Exhibit D on the ground that it was admitted without an English translation but the correct position was that it was actually the English version that was admitted in evidence without the Yoruba translation. That the trial Court had a duty to have the Yoruba version translated to English. He cited Damina v The State (1995) 8 NWLR (Pt.415) 513 at 539; Olayinka v The State (2007) 9 NWLR (Pt.1040) 561 at 579.

That the failure of the Court of Appeal to pronounce upon the crucial matter of the statement, Exhibit D lead to a miscarriage of justice. He cited Irolo v Uka (2002) 14 NWLR (Pt.786) 195 at 225; Onochie v Odogwu (2006) 6 NWLR (Pt.975) 65 at 904.

Learned counsel for the appellant contended further that there are instances when an accused person can be discharged on a charge of conspiracy but convicted on the substantive offence

and in this case at hand the offence of conspiracy was not made out. He cited Stile v The State (2009) 17 NWLR (Pt.1169) 33 at 63-64; Mumuni v The State (1975) All NLR 295 at 308; Nwosu v The State (1986) 4 NWLR (Pt.35) 348 at 359.

Learned counsel for the respondent stated that there is no merit in the position of the appellant on this issue which should be discountenanced and the cases cited by the appellant were not helpful.

What I see in this Issue has to do with the failure of the trial Court making a pronouncement on the prosecution failing to produce both the English and Yoruba version of Exhibit D since that Court made the mistake of thinking that it was the Yoruba version of Exhibit D that was admitted even though in reality it was the English version. The appellant posits that the error produced a miscarriage of justice for which the Court should look favourably on the matter and resolve the situation advantage of the appellant.

The respondent taking the contrary view on the ground that the mistake was too minor and would not tilt the balance of justice as substantially the prosecution had effectively discharged the burden of proof laid

upon it beyond reasonable doubt.

Indeed, I am inclined to the slant placed forward by the learned Attorney-General for the respondent that all that was expected of the prosecution in proof of the offences of conspiracy and murder was done and the learned trial judge had carried out his duty when rendering the judgment with all the necessary requirements in place and so this minute technical point that appellant is harping on has no effect on the substantiality of the proceedings conviction and sentence. This Court has had occasion to lay down what is required of a judge when writing a judgment and I shall have recourse to the case of Ishola & Ors V Folorunsho & Anor (2010) 13 NWLR (Pt. 1210) 169 at 195 per Muhammad JSC, thus:-
“… the fundamentals in writing a good judgment which a trial Court is enjoined to adhere to comprising of among other requirements, such as:
(a) making a brief statement of the type of action/office being adjudicated upon;
(b) setting out the claim/offence in full or in part;
(c) a review of the evidence led;
(d) appraisal/evaluation of such evidence;
(e) making findings of fact therefrom;

(f) consideration of the legal submission made and/or arising, and findings of law on them and
(g) conclusion, that is verdict/final decision/order(s).
Yet, it is not infrequent that you find different judges with different styles of writing judgment. Some are so brief in nature, other are (verbose) and some may decide to take a middle course. Whichever style a judge adopts, what is important is clarity in the language in which the judgment is written and delivered and that justice should be seen by all to have been done to the parties in dispute. A retired Justice of this Court had an opportunity to observe, while he was sitting as a Court of Appeal Judge, that a succinct or concise judgment in this con must not be too brief. It should certainly not be long. It should be of average length and this involves covering all the required contents of a good judgment in summary.”
Clearly the two Courts below acted within the expectations of a good judgment and what the appellant is pointing at would not change the course of events and really is of no moment since the prosecution discharged its duty of proof beyond reasonable doubt of

the offences charged.

The issues raised on either side having been resolved in favour of the Respondent and against the Appellant, I must say, there is no basis for this Court’s interference with what the two Courts below have done.

The appeal lacks merits and I dismiss it as I affirm the judgment of the Court of Appeal which had in turn upheld the conviction and sentences of the accused/appellant.
Appeal Dismissed.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the privilege of reading before now the judgment of my learned brother Odili, JSC. His lordship has ably and painstakingly addressed all the issues canvassed by learned counsel for the respective parties in the appeal before arriving at the conclusion that this appeal lacks substance. I adopt both the reasoning and conclusion arrived at in the leading judgment as mine. The appeal lacks merit and ought to be dismissed. I too, hereby, dismiss the appeal.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft, the judgment of my learned brother MARY PETER-ODILI, JSC, just delivered. I agree with the

reasoning and conclusion that the appeal lacks merit and should be dismissed.

This appeal is against concurrent findings of fact by the two lower Courts. An appellant who seeks to persuade this Court to interfere with such findings must show that the findings are perverse and that there are special and exceptional circumstances to warrant such interference.
In the instant case, the appellant made a confessional statement positively and unequivocally admitting the role he played in the death of the deceased. The trial Court and the Court below examined the statement (Exhibit B and B1) against the backdrop of other evidence adduced by the prosecution, in accordance with the test laid down inR Vs Sykes (1913) 8 Cr. App. Reports 233, and found that the evidence led corroborated the facts contained in the statement.
The findings are fully borne out by the record and are in no way perverse. Both Courts did a thorough job in evaluating the evidence. The Court below rightly affirmed the judgment of the trial Court. I am not persuaded to interfere.

For the more comprehensive and ably marshalled reasons advanced in the lead judgment, I also dismiss

the appeal as lacking in merit. I affirm the judgment of the lower Court.

AMIRU SANUSI, J.S.C.: My noble lord Mary Ukaego Peter-Odili JSC obliged me with a copy of the Judgment just delivered in this appeal. She has ably and painstakingly addressed all the issues canvassed by learned counsel for the parties in the appeal before arriving at the conclusion that this instant appeal lacks substance. Both the reason given and conclusion arrived at in the Judgment being very sound, are agreeable to me. I adopt them as mine and also dismiss it for being meritless. The Judgment of the Court below as sound as it is, is also affirmed by me. Appeal dismissed.

EJEMBI EKO, J.S.C.: The Appellant (the 2nd accused person) and the 1st accused person, at the trial High Court, were members of a Local Vigilante group. The Appellant, on the fateful date was armed with a double barrel gun. Other members of the Vigilante Group were also armed – some with machetes, clubs, etc.

The deceased, a herbalist (dressed as such) was carrying a sword crafted into a walking stick. He was accompanied by his younger

brother, the PW.1. Both were stopped by the Vigilantees at a roadblock. The 1st accused person, in particular, was the person who stopped them. The vigilantes enquired to know where the deceased and the PW.1 were going at about 9.00 o’Clock that night. Both tried to explain. Suddenly, the 1st accused and the other vigilantes descended on the duo; beating them and alleging that they were armed robbers. The deceased was struck on the head with a machete. He was shot at the mouth. He had been terribly and brutally injured. The PW.1 ran home to inform his father. The PW.1 and his father, when they arrived at the scene, were accosted, tied and asked to sit on the bench.

The Appellant, the 2nd accused person, boasted to the PW.1 and his father (PW.2) that if they did not take their time they, too, would be sent to where the deceased was sent. The deceased had obviously died at the material time.

The Appellant, the 2nd accused and other vigilantes were subsequently arrested by the Police and charged for the unlawful killing of the deceased. The Appellant made statements, Exhibits B and B1, to the Police investigators wherein he stated, inter alia, that when

he heard his fellow vigilantes shout – thief, thief; he loaded his gun and ran to the scene. In the statement made on 11th January, 2006, affirmed subsequently on 18th January, 2006, the Appellant narrated that he met the 1st accused person at the scene; that at the scene he noticed that the deceased was on the ground in a pool of blood with injuries on the head; and further that people had gathered, He claimed that he fired his gun to scare away the people; that the bullet from the gun hit the deceased on the mouth; and that thereafter the family of the deceased came to the scene.

In another statement, made on 19th January, 2006, the Appellant admitted that he fired the gun, and the deceased was hit on his mouth with the pellet, and that he did not know, initially, that the bullet from the gun he fired had hit the deceased lying on the ground on his mouth. He further admitted therein that the person, who came to the scene with a gun, did not fire his gun. He could not convince both the trial Court and the Lower Court with the illogical; and very preposterous argument that the bullet fired into the air could possibly hit the person (the deceased) already

lying on the ground. The PW.5, Dr. Ogunsina Gbenga Sikiru, who issued the medical report, Exhibit N, testified. In his testimony, in tandem with Exhibit N, he averred that he observed the corpse of the deceased to have gunshot injury at the right handside of the mouth. He attributed the cause of death to the gunshot injury at the mouth.

This further appeal complains that the concurrent judgments of the Courts below were wrong, and consequently should be disturbed with a verdict of acquittal thereafter. Appellant’s effort at establishing alibi was dismissed.

There is a presumption that, on facts, the decision of the trial Judge is right and that for the Appellant to succeed, he must displace the findings of fact against him: WILLIAMS v. JOHNSON (1937) 2 W.A.C.A 253. This Court, being the apex Court, will not lightly interfere with concurrent findings of fact made by the Courts below unless upon special circumstances shown by the Appellant:OMETA v. NUMA (1934) 11 N.L.R. 18; SERBEH v. KARIKARI (1939) 5 W.A.C.A. 34; DAWODU v. DUNMOLE (1962) 1 ALL N.L.R. 702.
Generally, concurrent findings of fact by the two Courts below entitle the Respondent, in

the further appeal, to a judgment or verdict dismissing the appeal: ADANSI v. BRENASE, P.C. No. 23 of 1953. The Privy Council, the predecessor of this Court, as the apex Court, had espoused the principle that it would not review, for the third time, the evidence unless there are some special circumstances, including miscarriage of justice, which would justify the departure from that practice. By Order 2 Rule 32 of the Rules of this Court read together with Section 233 (3) of the Constitution this rule of practice now appears to have statutory sanctity.

The Appellant herein has submitted four (4) issues for the determination of this further appeal. Issues 1 & 2 are complaints of pure facts. That is whether Exhibits B and B1 are confessional and whether other pieces of evidence in the printed record corroborate the confession. The Courts below in their concurrent findings answered the questions in affirmative. Before us the Appellant has not shown that the concurrent findings of fact are perverse and/or that they occasion to him any miscarriage of justice. I will not, in absence of any special circumstances,

undertake a third review of these facts on which the two Courts below sustained the conviction of the Appellant. I have read the judgment of the Lower Court, particularly pages 264 267 thereof. The findings are unassailable. Accordingly, issues 1 and 2 are hereby resolved for the Respondent against the Appellant.

The Appellant, in the Appellant’s Brief at pages 9 and 10 thereof, made general complaints that the Lower Court misread Exhibits B and B1, and misapplied their content without any specificity. In the similar generalised complaint the Appellant complains that the two Courts below did not properly evaluate the totality of evidence before them in relation to Exhibits B and B1. He did not show how and in what ways or manners the two Courts below were in any error of proper evaluation. Sections 131 and 132 of the Evidence Act, 2011 are clear: the burden of proving every assertion, in order to be entitled to judgment on the facts asserted, lies on the party who asserts the same.
It is not enough for the Appellant to submit that the evidence of PW.1, PW.2 and PW.5 should be wishfully disregarded.

The witnesses testified truthfully. The trial Court, who had the opportunity of hearing and watching them testify, found them credible, and it believed them. Neither this Court nor the Lower Court had that opportunity. Once the appellate Court finds nothing perverse or capable of occasioning miscarriage of justice to the Appellant in the judgment of the trial Court on facts it has nothing else to do than to affirm the said judgment. The Lower Court did just that upon undertaking re-evaluation of the same evidence on which the conviction of the Appellant was premised by the trial Court.

Issue 3 raises the complaint that the Lower Court did not distinctly consider and make any pronouncement on the issue: whether the failure of the trial Court to consider all statements made to the Police by the Appellant did not amount to denial of fair hearing The Appellant, however, failed to state how material the three statements, especially Exhibit D1, were to his defence. Accordingly, he did not discharge the burden cast in him by Sections 131 and 132 of the Evidence Act. This failure of his basic burden in the appeal is fatal, particularly as, by Section 168 (1) of the

Evidence Act, the judgment appealed enjoys presumption of regularity which though is rebuttable. Once the Appellant failed to satisfactorily establish the error in the judgment appealed the Respondent is entitled to a judgment affirming the said judgment. In any case, not every error in the judgment appealed would enure in favour of allowing the appeal. Only such error, as occasioning miscarriage of justice, entitles the Appellant to a judgment annulling the judgment appealed. I repeat, the Appellant did not demonstrate that Exhibit D1 was material to his cause.

The essence of issue 6, argued at the Lower Court, is that conspiracy for which the Appellant was convicted was not proved. This is a question of fact. Appellant in this appeal raised the issue under his issue 4. At page 271 the Lower Court held that
In IKEM v. STATE (supra) it was held that an Appellant found guilty of the substantive offence cannot be guilty of conspiracy to commit the offence for which he has been acquitted.. Conversely, therefore, where an Appellant has been found guilty of the substantive offence (in this case murder), he cannot be found to be guilty of

conspiracy to commit the offence.
The basis for this legal position was explained in the case of NJOVENS v. THE STATE (1973) ALL NLR P. 371 and it is that the overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspiracy must be referable and it is very often the only proof of the criminal agreement called conspiracy. In other words, the act of murder (actus reus) is the proof of conspiracy (Criminal agreement) to commit murder.

The dictum appears favourable to the Appellant. The question then is: can he appeal a holding very favourable to him He cannot. Doing so will be an abuse of Court’s process.

The Lower Court found, as a fact, “that the Appellant took part in the merciless killing of the deceased”. Available evidence, both in quantum and quality, establish beyond doubt that the Appellant took part in the unlawful killing of the deceased in furtherance of the conspiracy to kill him. The concurrent findings of fact are unassailable in view of the evidence in the printed record. I have no cause to disturb those concurrent findings of facts, just as my learned brother MARY UKAEGO

PETER-ODILI, JSC, did in the lead judgment which I hereby endorse.

The appeal lacking in substance is hereby dismissed. The decision of the Court of Appeal (Lower Court) contained in the judgment in the appeal No. CA/I/124C/2014 is hereby affirmed. Appeal dismissed.

I find the Respondent’s Brief, settled by Dr. Olumide Ayeni, the learned Attorney-General, Ogun State, very well written and very elucidating. I commend him and his counter-part, Kolawole Esan, Esq., of Counsel for the Appellant for the resourcefulness in their erudite presentations.

Appearances:

Kolawole Esan, Esq. For Appellant(s)

Dr. Olumide Ayeni (Hon. Attorney-General, Ogun State) with him, Adekunle Manwa (Principal State Counsel), Olatunde Abegunde, Esq. and Abdulbasit Abdulmalik, Esq. For Respondent(s)

Appearances

Kolawole Esan, Esq. For Appellant

AND

Dr. Olumide Ayeni (Hon. Attorney-General, Ogun State) with him, Adekunle Manwa (Principal State Counsel), Olatunde Abegunde, Esq. and Abdulbasit Abdulmalik, Esq. For Respondent