OGUNDARE OJO PETER v. THE STATE
(2015)LCN/7971(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of July, 2015
CA/EK/54C/2014
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHETHER THE OFFENCE OF CONSPIRACY CAN BE ESTABLISHED FROM THE FACT OF THE CONVICTION OF AN ACCUSED PERSON FOR THE SUBSTANTIVE OFFENCE TO WHICH THE CONSPIRACY RELATES
In the unreported judgment of this Court delivered on 15/7/2015 in APPEAL NO: CA/EK/12C/2014 – OKEKE HENRY V. THE STATE, I cited the case of STATE V. SALAWU (2011) LPELR – 8252 (SC) to show that the offence of Conspiracy can eminently be established from the fact of the conviction of an accused person for the substantive offence to which the conspiracy relates. I hereby re-produce what Muhammed, JSC; said in this regard in the case of THE STATE V. SALAWU (supra). His lordship on pages 38 – 39; and 41 – 42 respectively said thus: –
“……… The general definition assigned to the word “Conspiracy”, in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the respondent was charged, Section 96 thereof defines “Conspiracy” as follows: “[1] when two or more persons agree to do or cause to be done – a) An illegal act; or b) An act which is not illegal by illegal means. ……….
………… Although I agree with the learned counsel for the appellant in his submission that conspiracy and armed robbery are two separate and distinct offences and that an accused can be found guilty of one and not guilty of the other or vice versa, I must add that that is wholly dependent on the evidence placed before the trial Court and other surrounding circumstances. There was no evidence to sanction the offence of armed robbery against the respondent. There was also no evidence to establish the ingredients (highlighted above) of the offence of Conspiracy. See the cases of: Lawson & Ors v. The State (1995) 4 SC 115 at 123; ………… The general principle of law enunciated in these cases is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. As there was no direct, cogent, convincing and compelling evidence to warrant the trial court to convict the appellant, the call on the trial court to draw inference from the offence of armed robbery (which was not proved beyond reasonable doubt against the respondent) and to convict him on conspiracy must fail as there is no evidence to prove either of the two offences. There was no nexus connecting the respondent with the two offences charged. So, the charge of conspiracy, as found by the trial court, has no legs to stand. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the court to draw such inferences as to the guilt of the accused. In other words, there must be the criminal intention (actus reus) of two or more persons, ACTUS CONTRA ACTUM which is punishable where it is translated into achieving a criminal objective through a criminal means. See: Njovens v. The State (1973) 5 SC 17; Dabo v. The State (1977) 5 SC 197. A charge of conspiracy in a criminal trial, in my view, is by no means periphery. Commission of grievous offences in most cases lay their eggs on that fertile ground for the offence to germinate. Where that offence is established as required by law, the offender must be ready to accept the punitive result of his nefarious act. ……..”
(Underlining supplied by me). Also in the unreported judgment of this Court (supra), I cited the case of OSETOLA V. THE STATE (2012) LPELR – 9348 (SC) which I considered as most instructive in connection with conspiracy and armed robbery and in which case the Supreme Court also dwelled on many aspects of our criminal jurisprudence including “meaning of proof beyond reasonable doubt”; “proof of conspiracy”; “ingredients of armed robbery”; etc.; etc. In the OSETOLA case, Ariwoola, JSC; at pages 27 – 28 not only reiterated the position of the law regarding the possibility of proving conspiracy by the establishment of the commission of the substantive offence by an accused person, but further stated the proper procedure a court should adopt in an indictment containing conspiracy charge and also charging the substantive offence. His lordship said thus: –
“First and foremost, I must state that the proper approach to an indictment containing conspiracy charge and substantive charges is to deal with the latter, that is, the substantive charges first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. Conspiracy is an agreement between two or more persons to do an unlawful act. Failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence, independent of the actual offence conspired to commit. See; Segun Balogun v. Attorney General Ogun State (2002) 2 SC (pt.11) 89, (2002) 4 SCM 23, (2002) 2 SCNJ 196……..” (Underlining provided by me for emphasis). per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE INGREDIENT OF THE OFFENCE OF ARMED ROBBERY
The law is settled regarding the ingredients of the offence of Armed Robbery which the prosecution must prove beyond reasonable doubt to sustain a conviction for the said offence. They are (1) that there was a robbery or series of robberies; (2) that the robbery or each robbery was an armed robbery; and (3) that the accused was one of those who took part in the robbery. See THE STATE V. SALAWU and OSETOLA case, (both supra). per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY TO MURDER; THE INGREDIENT OF THE OFFENCE OF CONSPIRACY TO MURDER
The ingredient(s) of the offence of Conspiracy to Murder which the prosecution must prove beyond reasonable doubt to sustain a conviction for the said offence is/are not farfetched having regard to the meaning of conspiracy and they are (i) direct or positive evidence of plot between the conspirators which will be deemed a direct proof of the offence, or by inference; and (ii) evidence of criminal acts or inaction of the parties concerned. See AFOLABI V. THE STATE (2013) LPELR-20700 (SC). per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CRIMINAL LAW: THE OFFENCE OF MURDER; THE INGREDIENT OF THE OFFENCE OF MURDER
The ingredients which the prosecution must prove to sustain the offence of Murder are (a) that the deceased died; (b) that it was the unlawful act or omission of the accused person which caused the death of the deceased; and (c) the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See IGABELE V THE STATE (2006) 6 NWLR (Pt. 975) 100. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CRIMINAL LAW: PARTICIPES CRIMINIS; WHETHER ALL PERSONS WHO ARE PARTICIPES CRIMINIS ARE GUITY OF THE OFFENCE AND MAY BE CHARGED AND CONVICTED WITH THE ACTUAL COMMISSION OF THE CRIME
Indeed, in the AGWUNA case (supra), the Supreme Court in dwelling on the provisions of Section 7 of the Criminal Code said per Iguh, JSC; on page 38 thus:-
“The law is settled that all persons who are participes criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime. Parties, participes criminis to a crime, include inter alia every person who actually does the act or makes the omission which constitutes the offence, person who aid, abet or assist them in the commission of the offence or who counsel or procure others to commit the offence or knowingly give succour or encouragement to the commission of the crime or who knowingly facilitate the commission of the offence. See Section 7 of the Criminal Code.” per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICE
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMIJustice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGOJustice of The Court of Appeal of Nigeria
Between
OGUNDARE OJO PETERAppellant(s)
AND
THE STATERespondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 13/3/2014 by the High Court of Ekiti State, Ado-Ekiti Judicial Division presided over by Hon. Justice O.I.O. Ogunyemi (hereafter to be simply referred to as “the Lower Court” and learned trial Judge” respectively) convicting the Appellant and two others for the offence of Conspiracy to Murder and the offence of Murder and sentencing each of them to death by hanging for the said offences.
The Appellant and two others, in an Information dated 17/5/2012 were charged with the offences of Armed Robbery and Murder. The first two Counts relate to armed robberies which Appellant and the two others charged along with him, allegedly committed on different dates in relation to two different persons. The third Count relates to the offence of Conspiracy to Murder one Olufowobi Segun on or about 20/7/2011 by Appellant and the two others charged along with him. The fourth Count relates to the offence of Murder of Olufowobi Segun allegedly committed on or about 20/7/2011 by the Appellant and the two other persons charged along with him. The prosecution adduced oral evidence through witnesses and also tendered documentary evidence in the proof of its case. Each of the accused persons testified in his own behalf and called no other witness. The learned trial Judge, after evaluating the oral and documentary evidence before the Lower Court and having had the benefit of the addresses of the accused persons and the prosecution respectively, discharged and acquitted the Appellant in respect of the offences of Armed Robbery in Counts 1 and 2; while he found each of the two other persons charged along with Appellant guilty as charged and duly sentenced them to death by hanging. The learned trial Judge also found each of the Appellant and the two others charged along with him in Counts 3 and 4, guilty as charged and sentenced each of them to death by hanging.
The Appellant being dissatisfied with his conviction and sentence appealed against same to this Court vide a Notice of Appeal dated 13/3/2014 and filed on 17/3/2014. The Notice of Appeal contained only the omnibus ground of appeal in criminal appeals. An amended Notice of Appeal dated 3/2/2015 was filed on same date pursuant to the order of this Court made on the same date. The amended Notice of Appeal contains three grounds of appeal.
The appeal was entertained on 15/6/2015 parties having filed and exchanged and also regularised the position of their respective briefs of argument. Appellant’s brief of argument is dated 3/2/2015 and filed on 6/3/2015; while Appellant’s reply brief is dated 22/5/2015 and filed on 2/6/2015. The two briefs of argument were settled by Olaotan Ajose-Adeogun. O. Ajose-Adeogun leading B.T. Oluwole Esq. duly adopted and relied on Appellant’s briefs of argument in urging this Court to allow the appeal; set aside the judgment of the Lower Court and discharge and acquit the Appellant.
The brief of argument of the Respondent is dated 5/5/2015 and filed same date but deemed to have been properly filed and served on 7/5/2015. The brief of argument in question settled by the learned Attorney-General of Ekiti State (hereafter simply referred to as “learned A-G”) and four other Law Officers, the Director of Public Prosecutions of Ekiti State, being one of them. Learned A-G duly adopted and relied on the Respondent’s brief of argument in urging this Court to dismiss the appeal.
I consider it expedient to set out the grounds of appeal of the Appellant together with their respective particulars. They read thus: –
“GROUND 1
That the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.
GROUND 2
The learned trial judge misdirected himself and erred in law when he found the Appellant guilty as charged for the offences to wit Conspiracy to Murder contrary to Section 324 of the Criminal Code Act, Cap C38 Vol. 14 Laws of the Federation of Nigeria, and Murder contrary to Section 316 of the Criminal Code Act Cap C38 Vol. 14 Laws of the Federation of Nigeria when both charges were not proved by the prosecution beyond reasonable doubt as envisaged by law.
PARTICULARS
a. There was no evidence that the Appellant was in direct agreement with the co-accused persons to commit the offence of Murder of Olufowobi Segun as alleged by the prosecution as no evidence was led to establish this fact.
b. The finding of the trial judge was not based on any concrete evidence as there was none presented by the prosecution on this point.
c. The finding of the trial judge on this point was based purely on purported circumstantial evidence which was not corroborated, cogent, rational and compelling as required by case law.
d. The prosecution failed to establish beyond reasonable doubt that the Appellant and co-accused persons jointly carried out any act to bring about any common intention.
GROUND 3
The learned trial judge misdirected himself and erred in law when he found that an offence of Murder contrary to Section 316 of the Criminal Code Act Cap C38 Vol. 14 Laws of the Federation of Nigeria had been proved beyond reasonable doubt against the Appellant.
PARTICULARS
The prosecution failed to prove beyond reasonable doubt any evidence linking the Appellant to the commission of the offence of Murder as required by law and by so doing failed to establish that the Appellant was involved in the murder of Olufowobi Segun.”
Two Issues were formulated for the determination of the appeal by the Appellants from the three grounds of appeal re-produced hereinbefore. They read thus: –
“Issue No. 1 – Whether having regard to the totality and quality of the evidence led, both oral and documentary, has the prosecution been able to establish a case of Conspiracy to commit Murder against the Appellant — Ground 2.
Issue No. 2 – Whether having regard to the totality and quality of the evidence led both oral and documentary, has the prosecution been able to establish a case of Murder against the Appellant by proving beyond reasonable doubt all the ingredients for the offence of Murder and his participation in the murder of the late police man Olufowobi Segun — Ground 3”
The Respondent adopted the Issues formulated for the determination of the appeal by the Appellant.
APPELLANT’S ISSUE 1:
Dwelling on this Issue, learned lead counsel cited the case of Oduneye v. State (2001) 2 NWLR (Pt. 697) 311 and others to show the inherent difficulties involved in a conviction for Conspiracy. He said that what the cases chorused simply put, is that for the offence of Conspiracy to be established, there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. This is because as the gist of the offence of Conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof. That it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose.
With specific reference to Count 3, learned lead counsel said that it presupposed that there was a plan hatched by all the accused persons where a specific agreement was reached to carry out the particular murder that was alleged, during the armed robbery operation. It is the stance of learned lead counsel that in the instant appeal and in the Lower Court, the burden on the prosecution is to establish beyond reasonable doubt that there existed clear and convincing evidence that Appellant and the other two persons charged along with him, all agreed to carry out a criminal act, to wit armed robbery and which eventually resulted in murder of the late Olufowobi Segun. That for the purpose of the instant appeal, the Respondent in order to justify the conviction of the Appellant on the count of Conspiracy to Murder as a fall out of the act of armed robbery, it must clearly show that the evidence presented to the trial Court clearly showed the involvement of the Appellant in the plan to firstly carry out the armed robbery operation which was their main intention and the further act of killing anyone in the furtherance of their plan to carry out the armed robbery operation. It is the stance of learned lead counsel that the paramount question in this regard is whether there was enough evidence linking the Appellant to the crime which was presented to the learned trial Judge upon which he could base his decision to convict the Appellant? The answer of learned lead counsel to the poser is that there was no evidence involving Appellant in the offence of Armed Robbery as found by the trial Court and by extension in the offence of Conspiracy to Murder. Having stressed that PW1 did not identify anybody as shooting her husband, i.e. the deceased, learned counsel said that the Lower Court was therefore left with the written statements of the accused persons. Having quoted copiously from the decision in the case of Alarape v. State (2001) 5 NWLR (Pt. 705) 79 at 108-109, it is the stance of learned lead counsel that the entire confessional statements of the two other persons charged along with Appellant cannot and should not have been used as clear and convincing evidence upon which Appellant could be convicted. That as these confessional statements are undoubtedly the basis for the conviction of Appellant, learned lead counsel submitted that the guilt of the Appellant cannot be said to have been proved beyond reasonable doubt as it was based on “illegally used evidence (confessional statements)” by the Lower Court.
In dwelling on this Issue, learned A-G said to the effect that proof of conspiracy is generally a matter of inference deduced from certain criminal acts or of fact of doing things by the conspirators in pursuance of an apparent criminal purpose in common between them. This is because it is generally recognized that in a charge of Conspiracy, proof of the actual agreement or formation of scheme which is an essential ingredient of the crime is not always easy to come by because it is agreement done in secrecy. That the fact that there was no positive evidence of any agreement or that the prosecution was not able to adduce actual evidence of agreement or formation of scheme between the conspirators to commit the offence, is not enough to hold that the prosecution had not established the charge of Conspiracy. The case of Tanko v. The State (2008) 16 NWLR (Pt. 1114) 597 at 638 amongst others was cited in aid. It is the stance of learned A-G that the Lower Court rightly inferred conspiracy from the oral evidence of PW1 and the confession of the Appellant and the two other persons charged along with him. He further submitted that it is settled law that a Court can infer Conspiracy and convict for it, if it is satisfied from the evidence that the accused persons by their act pursued the same objective; one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. That it is settled law that in most charges of Conspiracy, nobody except the conspirators themselves can give direct and positive evidence of the agreement. That it is clear from Exhibit “I” that it was in pursuance of an agreement to rob that Appellant and the two other persons charged along with him, were at Moferere on 20/7/2011, and the fall out of which resulted in the killing of the deceased. Having stated that it is settled law that a confessional statement forms part of the evidence of the prosecution once it is admitted (and citing the cases of Nwangbomu v. The State (1994) 2 NWLR (Pt. 327) 380; and Akpan v. State (2001) FWLR (Pt. 75) 425 in aid), learned A-G submitted that the finding of the Lower Court that Appellant is guilty of the offence of Conspiracy was prope1r.
Learned lead counsel for Appellant said nothing new in relation to this Issue in Appellant’s reply brief of argument. All that learned lead counsel set out to achieve in Appellant’s reply brief regarding this Issue was to demonstrate the fact that certain submissions in Respondent’s brief of argument have no basis going by the evidence on record.
APPELLANT’S ISSUE 2:
Dwelling on the Issue, learned lead counsel having set out what the Respondent required to prove beyond reasonable doubt, to sustain a conviction for murder and citing the case of Akpan v. The State (1994) 9 NWLR (Pt. 368) 349 at 359 in aid, and having also said that he was not dwelling on the death of the deceased, submitted that there was no evidence before the Lower Court establishing the act or omission of Appellant that caused the death of the deceased and that the said act was done intentionally in the knowledge that death or grievous bodily harm was its probable consequence. In elaborating on the submission, learned lead counsel said that as it was obvious from the evidence of PW1 that the deceased shot the person responsible for his death and as Appellant had no gunshot wound, he cannot be said to be the one responsible for the death of the deceased. That Appellant should not have been charged directly with Murder as he certainly did not fire the fatal shot. That the charge of Murder should have been reserved for the person who fired the shot and no one else. Learned lead counsel further submitted that if Appellant did not fire the shot as has been clearly demonstrated, he could not have had the desired intention to kill the deceased or to cause grievous harm of any kind. That intention could only be formed by the person who actually fired the shot. That as two of the three ingredients necessary to prove murder have failed, the consequence is that Appellant cannot be found guilty of murder as the prosecution has failed to prove beyond reasonable doubt the two requirements in contention, against him. The case of Amayo v. State (2001) 18 NWLR (Pt. 745) 251 was cited in aid. Learned lead counsel said that the peculiar thing about the instant appeal is that the murder of the deceased police man was linked to an armed robbery incident. That it was a shot fired during the commission of that crime that killed the police man. That if it is borne in mind that Appellant was not found guilty of the crime of armed robbery as contained in Counts 1 and 2 of the charge, and PW1 the only witness, was incapable of identifying Appellant, then it is legally impossible to find him guilty of murder. This is because it is clear that the murder of the policeman emanated from the armed robbery incident for which Appellant has been found not guilty.
Dwelling on this Issue, learned A-G having set out the ingredients of the offence of Murder and citing the case of Ubani v. State (2003) 18 NWLR (Pt. 851) 224 in aid, submitted to the effect that the death of the deceased was sufficiently proved by the evidence of PW1 – the wife of the deceased who narrated how the deceased was shot and died shortly after. In respect of the second ingredient – that the death of the deceased resulted from the act of the Appellant, learned A-G equally submitted to the effect that this was proved beyond reasonable doubt by the eyewitness account of PW1 as to the number of persons that invaded her house. That the position of the law is that where a person is attacked with a lethal weapon and he died on the spot or shortly afterwards, it is reasonable to infer that the injury inflicted on him caused the death. In respect of the third ingredient, i.e. that the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence, learned A-G submitted that the Respondent proved this, having regard to the overwhelming and uncontroverted evidence it placed before the Lower Court particularly the evidence of PW1, and Exhibit “I”. That in the instant case, Appellant confessed to the commission of the crime in his statement – Exhibit “I”. It is the stance of learned A-G that confession is in law stronger than the evidence of an eyewitness because it comes from the horse’s mouth i.e. the accused person and that an accused person can be convicted on his confession alone once the confession is positive, direct and properly proved. The cases of Amoshima v. State (2009) 32 WRN 47 and Ajayi v. State (2014) 10 SCM 24 were cited in aid. Learned A-G submitted to the effect that Appellant cannot be absolved from having had the requisite intention to kill the deceased or to cause grievous harm of any kind even if he were not the actual shooter as it were, as all the accused persons (including the Appellant) had common intention to commit the dastardly act of killing the deceased or at least causing him grievous harm on 20/7/2011. He further submitted that the position of the law is that where more than one person are accused of the joint commission of a crime, it is enough to prove that they participated in the crime and that what each did in furtherance of the commission of the crime is immaterial. That the mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence and the cases of Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 and Ala v. State (2006) 7 SCNJ 566 were cited in aid.
Learned lead counsel for Appellant said nothing new in relation to this Issue in Appellant’s reply brief of argument. In any event, I have earlier observed in the course of reviewing the submissions of learned lead counsel for Appellant under Issue 1 that all Appellant’s reply brief of argument set out to achieve was to demonstrate the fact that certain submissions in Respondent’s brief of argument have no basis going by the evidence on record.
In the unreported judgment of this Court delivered on 15/7/2015 in APPEAL NO: CA/EK/12C/2014 – OKEKE HENRY V. THE STATE, I cited the case of STATE V. SALAWU (2011) LPELR – 8252 (SC) to show that the offence of Conspiracy can eminently be established from the fact of the conviction of an accused person for the substantive offence to which the conspiracy relates. I hereby re-produce what Muhammed, JSC; said in this regard in the case of THE STATE V. SALAWU (supra). His lordship on pages 38 – 39; and 41 – 42 respectively said thus: –
“……… The general definition assigned to the word “Conspiracy”, in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the respondent was charged, Section 96 thereof defines “Conspiracy” as follows: “[1] when two or more persons agree to do or cause to be done – a) An illegal act; or b) An act which is not illegal by illegal means. ……….
………… Although I agree with the learned counsel for the appellant in his submission that conspiracy and armed robbery are two separate and distinct offences and that an accused can be found guilty of one and not guilty of the other or vice versa, I must add that that is wholly dependent on the evidence placed before the trial Court and other surrounding circumstances. There was no evidence to sanction the offence of armed robbery against the respondent. There was also no evidence to establish the ingredients (highlighted above) of the offence of Conspiracy. See the cases of: Lawson & Ors v. The State (1995) 4 SC 115 at 123; ………… The general principle of law enunciated in these cases is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. As there was no direct, cogent, convincing and compelling evidence to warrant the trial court to convict the appellant, the call on the trial court to draw inference from the offence of armed robbery (which was not proved beyond reasonable doubt against the respondent) and to convict him on conspiracy must fail as there is no evidence to prove either of the two offences. There was no nexus connecting the respondent with the two offences charged. So, the charge of conspiracy, as found by the trial court, has no legs to stand. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the court to draw such inferences as to the guilt of the accused. In other words, there must be the criminal intention (actus reus) of two or more persons, ACTUS CONTRA ACTUM which is punishable where it is translated into achieving a criminal objective through a criminal means. See: Njovens v. The State (1973) 5 SC 17; Dabo v. The State (1977) 5 SC 197. A charge of conspiracy in a criminal trial, in my view, is by no means periphery. Commission of grievous offences in most cases lay their eggs on that fertile ground for the offence to germinate. Where that offence is established as required by law, the offender must be ready to accept the punitive result of his nefarious act. ……..”
(Underlining supplied by me).
Also in the unreported judgment of this Court (supra), I cited the case of OSETOLA V. THE STATE (2012) LPELR – 9348 (SC) which I considered as most instructive in connection with conspiracy and armed robbery and in which case the Supreme Court also dwelled on many aspects of our criminal jurisprudence including “meaning of proof beyond reasonable doubt”; “proof of conspiracy”; “ingredients of armed robbery”; etc.; etc. In the OSETOLA case, Ariwoola, JSC; at pages 27 – 28 not only reiterated the position of the law regarding the possibility of proving conspiracy by the establishment of the commission of the substantive offence by an accused person, but further stated the proper procedure a court should adopt in an indictment containing conspiracy charge and also charging the substantive offence. His lordship said thus: –
“First and foremost, I must state that the proper approach to an indictment containing conspiracy charge and substantive charges is to deal with the latter, that is, the substantive charges first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. Conspiracy is an agreement between two or more persons to do an unlawful act. Failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence, independent of the actual offence conspired to commit. See; Segun Balogun v. Attorney General Ogun State (2002) 2 SC (pt.11) 89, (2002) 4 SCM 23, (2002) 2 SCNJ 196……..”
(Underlining provided by me for emphasis).
It is clear from the wording of Counts 3 and 4 in respect of which Appellant and the other two persons charged along with him, were respectively found guilty, that the charge of Conspiracy in Count 3 is in relation to the substantive offence of Murder in Count 4. This being the case, I intend to first consider Appellant’s Issue 2 which questions the correctness of the conviction of the Appellant for the substantive offence of Murder and in the light of whatever conclusion I reach, to proceed to determine how the count of Conspiracy i.e. Count 3 (which is the subject of Appellant’s Issue 1) has been made in answer to the said charge of Conspiracy.
The review of the facts of the instant case that has been carried out hereinbefore, in my considered view, sufficiently shows that the Information upon which Appellant and the two other persons charged along with him were prosecuted, contains an admixture or combination of distinct offences, namely Armed Robbery, Conspiracy to Murder; and Murder. Even though Counts 3 and 4 which relate to the offence of Conspiracy to commit Murder and Murder respectively, bear some correlation, they still remain distinct offences. Counts 1 and 2 even though they both relate to the same offence to wit: Armed Robbery, in my considered view, still remain separate offences inasmuch as the armed robberies in question are alleged to have occurred on different dates and in relation to different persons.
The law is settled regarding the ingredients of the offence of Armed Robbery which the prosecution must prove beyond reasonable doubt to sustain a conviction for the said offence. They are (1) that there was a robbery or series of robberies; (2) that the robbery or each robbery was an armed robbery; and (3) that the accused was one of those who took part in the robbery. See THE STATE V. SALAWU and OSETOLA case, (both supra).
The ingredient(s) of the offence of Conspiracy to Murder which the prosecution must prove beyond reasonable doubt to sustain a conviction for the said offence is/are not farfetched having regard to the meaning of conspiracy and they are (i) direct or positive evidence of plot between the conspirators which will be deemed a direct proof of the offence, or by inference; and (ii) evidence of criminal acts or inaction of the parties concerned. See AFOLABI V. THE STATE (2013) LPELR-20700 (SC).
The ingredients which the prosecution must prove to sustain the offence of Murder are (a) that the deceased died; (b) that it was the unlawful act or omission of the accused person which caused the death of the deceased; and (c) the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See IGABELE V THE STATE (2006) 6 NWLR (Pt. 975) 100. It is, in my considered view, obvious from the ingredients of the respective offences of Armed Robbery, Conspiracy to commit Murder and Murder as set out above, that the offences of Armed Robbery and Conspiracy to commit Murder and Murder respectively, cannot possibly be established by the same kind of evidence. I must however not be taken as saying that a witness cannot give evidence relating to the different offences that the prosecution in its wisdom decided to charge together in the instant case. What would appear to be necessary is that the learned trial Judge must scrupulously or meticulously apply evidence that relates to a particular offence to that offence only. It is, in my considered view, apparent from a perusal of the judgment of the Lower Court relating to Counts 3 and 4 which are in respect of the offences of Conspiracy to Murder and Murder respectively, (and which charges made no reference to the offence of Armed Robbery at all), that the learned trial Judge had no business in pronouncing on the guilt or otherwise of Appellant for the offence of Armed Robbery in those two Counts, and that after he had evaluated relevant evidence in relation to the said Counts, he actually never found Appellant not guilty of Armed Robbery in relation or in connection with the offences charged in the said Counts. It is my considered view that it is because learned lead counsel for Appellant totally missed the fact that armed robbery was not in issue at all in Counts 3 and 4, and that the learned trial Judge in any event couldn’t have found Appellant not guilty of armed robbery in Counts 3 and 4, that he has argued extensively in Appellant’s briefs of argument to the effect that Appellant having been found not guilty of the offence of Armed Robbery cannot be found guilty of murder committed in the course of the commission of the armed robbery. The prosecution never depicted in any manner that an armed robbery or attempted armed robbery occurred in the house of the deceased and that it was in the course of the incidents that the deceased was shot; and PW1 who was the only witness fielded by the Respondent to testify to what happened in her house on 20/7/2011, never testified that there was any robbery or attempted robbery therein.
In other words, the situation regarding Counts 3 and 4 is not one where the evidence that resulted in the discharge and acquittal of Appellant for the offence of Robbery in Counts 1 and 2, was relied upon in convicting him for the offences of Conspiracy to commit Murder and Murder.
The learned trial Judge as it can be seen from a perusal of pages 162 – 166 of the record averted his mind to the elements of the offence of Murder which the Respondent must prove beyond reasonable doubt in order to sustain the murder allegation in Count 4. It is glaring therefrom that the learned trial Judge having found the evidence of PW1 – wife of the deceased Olufowobi Olusegun, to have established his death beyond reasonable doubt, relied on the circumstantial evidence adduced by the Respondent and confessional statements of Appellant and the other two persons charged along with him, as sufficiently proving the question as to “who is or are responsible for the murder” which he posed on page 162 of the record. He catalogued the circumstantial evidence relied heavily upon by the prosecution to show that no other person than the accused persons committed the murder on page 163 of the record and they read thus: –
“(1) That the 2nd Accused was shot on the same day and time the deceased Olusegun Olufowobi was shot.
(2) That the 2nd accused was shot on the upper left chest area where Olusegun Olufowobi allegedly shot his assailant.
(3) That though 2nd Accused claimed to have been shot by cultists, he failed to provide a police report.
(4) 2nd Accused failed to call the alleged D.P.O. who assisted them to go to the hospital.”
And as if to leave no one in doubt as to what he relied upon in finding the accused persons (Appellant inclusive) guilty as charged for the offence of Murder, the learned trial Judge said on pages 165 – 166 of the record thus: –
“I have carefully considered the evidence adduced on this 4th Count i.e. murder charge, from the circumstantial evidence adduced and the confessional statements of the 1st, 2nd and 3rd Accused, I find and hold 1st, 2nd, and 3rd accused persons are guilty of murder as charged”.
I have hereinbefore re-produced the grounds of appeal as contained in the amended Notice of Appeal filed in the instant appeal. I do not see any ground therein specifically challenging any aspect or piece of the circumstantial evidence relied on by the learned trial Judge in finding Appellant and the two other persons charged with him, guilty of murder. Likewise, there is no challenge regarding the confessional statement of the Appellant and the apparent value which the learned trial Judge ascribed to it by relying on it in finding him guilty of murder as charged.
Learned lead counsel for Appellant clearly does not question the correctness of the finding of the learned trial Judge to the effect that the death of the deceased was proved beyond reasonable doubt. Indeed having stated the elements of the offence of Murder which the prosecution has to prove beyond reasonable doubt, and (a) thereof being – “the deceased is dead”, learned lead counsel said that “for the purpose of this appeal, we will concern ourselves with items (b) and (c)”. The submissions of learned lead counsel in relation to items (b) and (c) have been highlighted hereinbefore. In the main, the stance of learned lead counsel thereunder is that as it is obvious from the evidence of PW1 that it was the 2nd accused that sustained gunshot wound; the murder charge should have been reserved for the 2nd accused only. And taking the submission further in relation to item (c), learned lead counsel submitted that inasmuch as Appellant was not the actual shooter he could not have had the desired intention to kill the deceased or to cause him grievous bodily harm of any kind. In paragraph 4.4 of Appellant’s brief of argument, learned lead counsel exposed his reasoning for the stance as stated before now. The paragraph reads: –
“The peculiar thing about his appeal is that the murder of the police man is linked to an armed robbery incident. It was a shot fired during the commission of that crime that killed the police man. We must remember that the Appellant was not found guilty of this crime of armed robbery as contained in counts 1 and 2 of the charge. It is our submission that if the Appellant was not guilty of the counts of armed robbery and PW1 the only witness is incapable of identifying him, then it is legally impossible to find him guilty of murder when the consequence of the High Court Judgment is that he is not guilty. It is clear that the murder of the policemen emanated from the armed robbery incident for which the Appellant has been found not guilty”.
I believe that it has been sufficiently demonstrated before now that the position or situation in the instant appeal as portrayed by learned lead counsel above, have no basis given the facts established by the evidence adduced before the Lower Court. Aside from this, I cannot but observe that learned lead counsel by submitting that the Murder charge ought to have been reserved for 2nd accused person, being the actual shooter and relying on the evidence of PW1 in this regard, has admitted the credibility of her evidence and in my considered view, proper inferences made therefrom. Circumstantial evidence, it should be noted is nothing more than evidence that irresistibly flows from established facts.
The evidence of PW1 before the Lower Court is simple and straight forward. It is that three persons, one of them armed with a gun (and who the circumstantial evidence before the Lower Court have established to be Appellant and the other two persons charged along with him; and that it was the 2nd accused person that carried/held the gun), invaded the house wherein she lived with the deceased. These persons who were clearly not at PW1’s house on a social visit asked for her husband, the deceased. While Appellant and another of the accused persons restrained PW1, 2nd Appellant went into the parlour in which the deceased was and shot him. The deceased who PW1 gave some time to cock his gun before pointing to where he was, equally shot the 2nd accused person. PW1 never gave evidence that these persons asked her for anything or took anything away from her or from her house. The picture created by the evidence of PW1 or irresistible inference from her evidence, in my considered view, is that Appellant and the two other accused persons were in her house on that day (i.e. 20/7/2011) to kill the deceased. This is the only inference given the fact that Appellant and the two other accused persons never asked for any other thing than the whereabouts of the deceased with the 2nd accused person proceeding to the parlour where he was and shooting him right away. The narration of PW1 and particularly the role placed by the 1st and 3rd accused persons respectively, in restraining PW1 and thereby allowing the 2nd accused person unhindered access to the deceased for the purpose of achieving their objective of murdering the deceased, in my considered view made each of them a principal offender pursuant to the provisions of Section 7 of the Criminal Code. It is not until they each take turn to shoot the deceased with the same gun or each of them shoots the deceased with his own gun that they become principal offenders. There are no two ways to it, but that when a group of persons all armed with guns or one of them being armed with a gun enter into another person’s house and simply guns him down without more, all that they have done is the execution of their set objective or intention to kill the person in question, and where the death of the person shot occurs from the gun shot as in the instant case, I simply do not see how any of the persons who set out with the intention to kill can be heard to say he had no intention of killing the person that died or causing him any grievous bodily harm. All that I am saying is that the evidence of PW1 (and indeed the gist of the offence in respect of which she testified) does not go to remotely suggest that the Appellant and the two others charged along with him were at her house for some other unlawful purpose apart from killing her husband. See the cases of IYARO V. THE STATE (1988) LPELR – 1575 (SC); and AGWUNA V. THE ATTORNEY-GENERAL OF THE FEDERATION (1995) LPELR – 258 (SC) regarding the application of Section 7 of the Criminal Code.
Indeed, in the AGWUNA case (supra), the Supreme Court in dwelling on the provisions of Section 7 of the Criminal Code said per Iguh, JSC; on page 38 thus:-
“The law is settled that all persons who are participes criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime. Parties, participes criminis to a crime, include inter alia every person who actually does the act or makes the omission which constitutes the offence, person who aid, abet or assist them in the commission of the offence or who counsel or procure others to commit the offence or knowingly give succour or encouragement to the commission of the crime or who knowingly facilitate the commission of the offence. See Section 7 of the Criminal Code.”
It is therefore my considered view that the invocation of the principle of law as put in place by Section 8 of the Criminal Code to wit: offences committed in the prosecution of common purpose” by learned A-G to justify the conviction of the Appellant and the two others charged along with him, has no basis having regard to the evidence of PW1. I am of the considered view that the learned trial Judge found Appellant and the two others charged along with him, guilty of murder on the basis of their being principal offenders. The fact that Appellant and the two others charged along with him, committed the murder of the deceased in the cause of a common intention to prosecute a common purpose with one another to wit: armed robbery, would appear to have arisen in the instant case from the confessional statements of the said Appellant and the two others charged with him. I however don’t think Appellant and the two others charged along with him, can, by their confessional statement which they retracted at the trial of the instant case, introduce into the case what the Respondent never built into its case against them in Counts 3 and 4.
Flowing from all that has been said, Appellant’s Issue 2 which questions the correctness of the conviction of Appellant on the basis that he was not the actual shooter of the deceased and thereby could not have intended the death of the deceased or caused him grievous bodily harm, must be and is hereby resolved against him.
APPELLANT’S ISSUE 1:
Learned lead counsel devoted much of his submissions to this Issue. The Lower Court likewise did. I am however of the considered view that if the learned trial Judge had adopted the proper manner of approaching an Information containing a Conspiracy charge and a charge in respect of the substantive offence, as put in place in the OSETOLA case (supra) this would not have been necessary.
It is clear from all that has been said in respect of Appellant’s Issue 2, that the Lower Court had oral evidence placed before it by the prosecution through PW1 that the three persons who invaded the house of PW1 simply came for the purpose of killing the deceased husband of PW1 and not for any other purpose. The Respondent having regard to the evidence adduced before the Lower Court and which the Court accepted as credible, clearly established that Appellant and the two other accused persons charged along with him, are the persons who actually came to PW1’s house whereat the 2nd accused shot the deceased. The essential element of Conspiracy as enunciated in all the cases cited in relation thereto in the briefs of argument of the parties, is agreement and which agreement can be inferred from the circumstances of the case. I am of the considered view that the very finding that the Respondent established the murder of the deceased in the circumstances of the instant case, also sufficiently established the offence of Conspiracy to commit Murder as charged in Count 3.
Flowing from the foregoing is that Appellant’s Issue 1 is also resolved against him.
In the final analysis, and the two Issues formulated for the determination of the instant appeal having been resolved against the Appellant, I find the appeal to be lacking in merit and hereby dismiss same. The judgment of the Lower Court finding the Appellant guilty of the offences of Conspiracy to commit Murder and Murder respectively as well as the sentence of death by hanging passed on the Appellant in respect of his conviction for the offence of Murder are affirmed.
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
In my considered view, his Lordship has dealt as appropriate with the issues that call for determination in the appeal, and I am in complete agreement with the reasoning and conclusions reached thereat. However, I wish to add a few words of mine for the purpose of emphasis.
This appeal is against the judgment of the High Court of Justice Ekiti State, sitting at Ado-Ekiti Judicial Division, Ado-Ekiti delivered on the 13th of March, 2014, wherein the learned trial judge, Hon. Justice O.I.O. Ogunyemi convicted the Appellant and two others for the offence of Conspiracy to Murder and the offence of Murder, and sentenced each of them to death by hanging for the said offences.
The Appellant, being dissatisfied with his conviction and sentence, appealed against the same to this Court. The Appellant raised two issues for determination of the appeal as follows:
(1). Whether having regard to the totality and quality of the evidence led, both oral and documentary, has the prosecution been able to establish a case of conspiracy to commit murder against the Appellant. (Ground 2)
(2). Whether having regard to the totality and quality of the evidence led, both oral and documentary, has the prosecution been able to establish a case of murder against the Appellant by proving beyond reasonable doubt all the ingredients for the offence of murder and his participation in the murder of the late policeman Olufowobi Segun. (Ground 3)
The Respondent adopted the Appellant’s issues for the determination of the appeal.
On a careful perusal of the evidence on record before the trial Court, it sufficiently revealed that the Appellant and his co-accused engaged in criminal activities at the time of the commission of the offence resulting in the death of policeman Olufowobi Segun. See – MUSTAPHA MOHAMMED V. THE STATE (2007) 11 NWLR (PT.1045) 303 PARA A-B; 327-328, PARA H-B; 329 PARA C-E; UBANI V. STATE (2003) 18 NWLR (PT.851) 224.
I agree with the learned D.P.P. that the Lower Court also properly reviewed and evaluated the defence raised by the Appellant and rightly rejected same in view of the overwhelming evidence adduced by the prosecution.
The learned trial Judge, in my view, properly evaluated the evidence adduced against the Appellant, as well as evidence he adduced in his defence before finding the case against him was proved beyond reasonable doubt by the prosecution.
For the above reasons, and the fuller ones contained in the lead judgment, I also feel the appeal is unmeritorious and same fails, and should be dismissed.
I also affirm the conviction, and sentenced passed on the Appellant by Ogunyemi J. of the High Court, of Ekiti State sitting at Ado-Ekiti on 13th day of March, 2014 in Suit No:HAD/26C/2012.
BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft the lead judgment delivered by my learned brother Lokulo-Sodipe, J.C.A. I agree with my brother’s reasoning and conclusions and do not have anything worthwhile to add. I hold that the appeal is flippant and/or devoid of any merit; I hereby dismiss it too.
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Appearances
O.O. Ajose-Adeogun with B.T. OluwoleFor Appellant
AND
O. Ajayi (Attorney-General of Ekiti State) with A.O. Familoni (DPP) and F.O. Awoniyi (PLO), A.E. Arogundade (PLO), O. Akintayo (Mrs.) (PLO), T. Ogundipe (SLO), I. Babatunde (Miss) (SLO), A. Agbebunmi (Miss) (SLO) and A. Fajuyi (SLO)For Respondent
