HON. EFFIOM J. ABAI v. THE STATE
(2018)LCN/12136(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of November, 2018
CA/C/450C/2017
RATIO
CRIMINAL LAW: THE CHARGE OF CONSPIRACY
“The law is settled that in a charge of conspiracy direct positive evidence of plot or design or agreement between the co-conspirators is hardly capable of proof. Thus the conduct of the accused and or his co-conspirators often go a long way to suggest or establish that there had been implied or express agreement amongst them to commit a criminal offence. See AKWUOBI V STATE (2017) 2 NWLR (pt 155V) 421.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
HON. EFFIOM J. ABAI
(A.K.A. EFFIOM JACOB ABAI) – Appellant(s)
AND
THE STATE – Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Uyo, Akwa Ibom State delivered on 10th August, 2017.
The appellant and three others were jointly charged with offences of conspiracy, murder and causing grievous harm contrary to and punishable under Sections 331, 326 (1) and 344 of the Criminal Code Vol. 2 Laws of Akwa Ibom State of Nigeria, 2000. The appellant and the Co-accuseds pleaded not guilty to the charge.
The gist of the case as briefly presented by the prosecution before the trial Court is as follows:
Sometimes on 18th March, 2015, the appellant, a serving Vice Chairman of Ukanafun Local Government Council, had directed Akaninyene Abai and Eyak Okon Udo via a telephone call to return to the venue of the political campaign organized for the deceased at PWIs family compound in Nkek Ukanafun Local Government Area of Akwa Ibom State and ensured the deceased did not leave Nkek.
At the trial, the prosecution called five (5) witnesses and tendered exhibits which included the statements of the accused persons made to the police as well as a Samsung Galaxy phone belonging to the appellant herein. Each of the accused persons testified and called four (4) additional witnesses. At the conclusion of the trial, learned trial judge Okon A. Okon J, discharged and acquitted the accused persons on the offences of murder and causing grievous harm but found each guilty for the offence of conspiracy to murder at page 320 of the record of appeal thus:
The accused persons, namely Hon. Effiom Abai, Simon Daniel Udoekpe, Godwin Moses Udo and Akaninyene Benson Brown, are each sentenced to 7 years imprisonment each without option of fine in count I only.”
Miffed with the above judgment, appellant appealed to this Court upon eleven (11) grounds of appeal. Distilled from the said eleven grounds of appeal, the appellant formulated two issues for the determination of this appeal as follows:
1. Whether the trial Court upon the discharge of the appellant on the substantive offence of murder, was right to convict him for conspiracy to murder and on the same set of facts and pieces of evidence in the peculiar circumstances of this case. (Distilled from grounds 1 and 2).
2. Whether the decision of the trial Court in convicting the appellant in the overall circumstances of this case especially the legally admissible evidence and appraisal thereof, was reasonable and in consonance with established principle of law requiring the prosecution to lead cogent convincing and credible evidence in proof of the charge against the appellant beyond reasonable doubt (Distilled from grounds 3 – 11).
On issue No 1, learned appellants counsel, Ekpenyong Ntekim Esq, submitted that the general principle of law is that an accused person may not be convicted of conspiracy if, he has been acquitted of the substantive offence for which he has been accused of conspiring to commit except where the accused has admitted or confessed the conspiracy, or there are other evidence to sustain the conspiracy charge.
Still in argument, learned counsel submitted that where an accused person has been charged for committing the offence of conspiracy simpliciter along with other substantive offence he may still be convicted, of the conspiracy even when the substantive offence is not proved.
But where he is charged for conspiracy to commit the substantive offence and for committing the substantive offence, he cannot be convicted of the conspiracy to commit the substantive offence if he is acquitted of the substantive offence. He referred to IDOWU V THE STATE (2011) LPELR – 3597 OGISUGO V STATE (2015) LPELR 24544 TEMITOPE V THE STATE (2010) LPELR – 41403 and AMACHREE V NIGERIAN ARMY (2002) LPELR 5833 to the effect that the pieces of evidence in the instant case are clearly interwoven and joined together like Siamese twins and therefore a legal fatality in one affects the other.
On issue No.2, learned counsel contended, that the Court has a duty to consider what evidence has been led and draw the necessary inference from acts or omission or commission attributable to the accused and must be of such quality that irresistibly compels the Court to draw such inferences as to the guilt of the accused. He thus submitted that since there was no link connecting the appellant with the two substantive offences charged, the charge of conspiracy as found by the trial Court has no legs to stand.
In aid, he relied on the authority in the case of EROMOSELE V F. R. N. (2017)1 NWLR (pt 1545) 55 at 103.
In further argument, learned counsel contended that when an identification, inclusive of voice recognition is made which give rise to a possible likelihood of error, the trial Court should first determine its suitability, credibility, reliability and evidential worthiness before acting on it. He consequently submitted that a trial Court is to warn itself and meticulously examine the evidence adduced to see whether there are any weaknesses capable of endangering or rendering worthless any allegation that the accused was sufficiently identified or recognized, which was not the case here. He referred R-V- TURNBULL & ANOR (1977) 43 224, ABUDU V THE STATE (1985) 1 NWLR (pt. 1) 55, and EYISI V THE STATE (2000) 15 NWLR (pt 691) 555.
He finally urged this Court to resolve the two issues in favour of the appellant and to allow the appeal.
Learned Attorney General of Akwa Ibom, Uwemedimo Nwoko, Esq., on behalf of the respondent also formulated two issues for the determination of this appeal and these are:
1. Whether the prosecution had proved the charge of conspiracy to murder at the trial Court beyond reasonable doubt against the appellant.
2. Whether the trial Court was right to convict the appellant for conspiracy to murder having discharged him of the substantive offence of murder.
Learned counsel for the respondent made copious references to the evidence of PW1, PW3 and PW5 as well as Exhibit C, a Samsung Galaxy mega phone in submitting that the prosecution had proved the charge of conspiracy against the appellant beyond reasonable doubt. He referred to AGUGUA V THE STATE (2017) LPELR 42021 (SC).
On the contention that having discharged the appellant of the substantive charge of murder, the trial Court was wrong to convict the appellant for conspiracy to murder, learned counsel submitted that the criminal code Cap 38, Vol. 2, Laws of Akwa Ibom State of Nigeria 2000 neither define the word, Conspiracy nor differentiate between conspiracy to commit felony and conspiracy to commit specific offence but prescribes punishment, for conspiracy. He submitted further that being in itself a separate and distinct offence which is independent of the actual offence conspired to commit, the failure to prove a substantive offence does not make conviction for conspiracy inappropriate.
He referred to ALUFOHAI V THE STATE (2014) LPELR 24215 (SC) and BALOGUN V A.G. OGUN STATE (2017) LPELR 42546 (CA) to the effect that there were ample evidence before the trial Court to prove the charge of conspiracy to murder, as distinct, from the evidence led in support of the substantive charge of murder. He urged this Court to dismiss the appeal.
Replying on point of law, learned appellants counsel argued that the peculiar circumstances of the facts in BALOGUN V A.G, OGUN STATE being relied by the respondent are different from those in the instant case because there was no unity of facts and evidence in proof of both the substantive offence and the offence of conspiracy.
I have examined carefully the issues formulated by both parties and the two sets of issues are seemingly the same even though couched differently. I have therefore decided to utilize the two issues formulated by the appellant for being concise and quite apposite to the just determination of this appeal.
Issue No. 1 questions the rational of the appellants conviction for the offence of conspiracy to commit the substantive offence of murder having dismissed the offence of murder itself by the trial Court.
I have stated right from the onset that the appellant and his co-accuseds were charged and trial for conspiracy to murder, murder and causing grievous harm. Both the appellant and the co-accuseds were discharged and acquitted for the offences of murder and causing grievous harm but each found guilty for offence of conspiracy to murder as contained in count 1 of the information at page 4 of the record of this appeal. Where the counts of conspiracy and the substantive offence charged against an accused are based on the same set of facts, the Court should first consider the substantive offence and thereafter see if circumstances exist upon which the alleged count of conspiracy could be inferred.
See AMACHREE V NIGERIAN ARMY (2003) 3 NWLR (Pt 807) 256, and KACHI V THE STATE (2015) 9 NWLR (pt 1464) 213 and NJOVENS V THE STATE (1973) 5 SC 17.
Learned appellants counsel has made a heavy weather on the interdependent nature of the evidence led by the prosecution in prove of both the substantive offence of murder and that of conspiracy to murder and submitted that in the absence of any confession of the offence of conspiracy or other evidence to sustain the conspiracy charge, the appellant was inappropriately convicted. In AMACHREE V NIGERIAN NAVY (supra) this Court has held the view that it was improper for the prosecution to rely on the evidence in prove of the commission of the substantive offence by an accused person and others to infer conspiracy. Suffice it to say that in the instant case, the appellant and other co-accuseds were discharged and acquitted for the charge of murder for failure of the prosecution to sufficiently link the cause of death of the deceased to the acts of the accused persons. At page 308, of the record of this appeal, the learned Judge found as follows:
Given the view of this Court that the cause of death of the deceased in this case has not been sufficiently ascertained and linked to the act of the Accused persons herein against the background of the callous and casual approach to the investigation of the cause of death even when the police had information that the deceased was beaten by one Ubong Okokon, I come to the inescapable conclusive that the prosecution has failed to prove count II of the information beyond reasonable doubt.”
In contrast, and in their quest to establish the charge of conspiracy against the appellant and the co-accuseds, the prosecution paraded, PW1, PW2, PW3 and PW5 through whom a Samsung Galaxy Mega phone, Exh. C was tendered. In his evidence in chief at page 203 lines 26 -30 of the record of appeal, PW5 said:-
“In the course of investigation activities the phone belonging to the 1st accused was retrieved and the phone was searched in the presence of the ACP state CID and the calls the 1st accused person made to the other accused persons and others still at large were shown. The calls were made on 18/3/2015 between 17:00 hours and 18:30 hours (that is between 5pm and 6:30 pm).”
He went further and stated at page 204 lines 1 -7 thus:
“The 1st accused person did not deny making those calls and could not explain why he had to make the calls within that period. We also found out during investigation that the accused persons and others at large went to the venue of the door-to-door campaign to attack the deceased because Nkek village was considered a territory where PDP, and not APC held sway. At the conclusion of our investigation, we conducted interview and the accused persons were later charged to Court for the murder of the deceased.”
The law is settled that in a charge of conspiracy direct positive evidence of plot or design or agreement between the co-conspirators is hardly capable of proof. Thus the conduct of the accused and or his co-conspirators often go a long way to suggest or establish that there had been implied or express agreement amongst them to commit a criminal offence. See AKWUOBI V STATE (2017) 2 NWLR (pt 155V) 421.
In the instant case, the trial Court considered the evidence of PW1, PW2, PW3 and PW5 as well as the appellants own statement to the police Exhibit D in drawing the inference that the appellant and his co-conspirators committed the offence of conspiracy to murder the deceased. At page 314 lines 7 -19 of the record of appeal, learned trial judge found as follows:
I believe the evidence of PW1, that the 1st accused called Akaninyene Abai and gave clear directive that the deceased should be prevented from leaving Nkek village alive. I believe PW1 that he was familiar with the voice of the 1st accused and could identify same when he heard the 1st accused as he spoke on phone with Akaninyene Peter Abai. I also believe that Akaninyene Peter Abai mobilized members of his group including the 2nd, 3rd and 4th accused persons to carry out the order given to them not to allow the deceased leave Nkek village alive. I also believe the evidence of PW3 that the 3rd accused told him in the face that he would also not be allowed to leave Nkek village. By the directive to stop the deceased to leave Nkek village alive, my understanding is that the 1st accused gave directive to Akaninyene Peter Abai to ensure that the deceased was killed. The directive of the 1st accused was carried out through the agency of 2nd, 3rd and 4th accused persons who were seen by, PW1 and PW2 in particular as they attacked the deceased who subsequently died on the same date.”
It is clear from the above that the evidence relied upon in discharging and acquitting the appellant and his co-accuseds are not intertwine, or interwoven with the evidence being relied on in convicting them for the charge of conspiracy. At any rate; an offence of conspiracy can be committed where persons have acted either by agreement or in concert. Therefore, bare agreement to commit an offence is sufficient and the actual commission of the offence is not necessary. Likewise, failure to prove a substantive offence as in the instant case does not make conviction for conspiracy inappropriate as it is a separate and distinct offence in itself, independent of the actual offence said to have been conspired to commit. See IKEMSON V STATE (1989) 6 SC (pt) 114 at 132, OSETOLA V STATE (2012) 17 NWLR (pt 1329) 251 and OKANLAWON V STATE (2015) 17 NWLR (pt 1489) 445 at 477.
Issue No. 2 on the other hand queries the evaluation of evidence by the trial Court, contending that there is nothing in the evidence adduced by the prosecution from which an inference may be drawn of a meeting of the minds and or existence of a common design or mutual agreement by the appellant and his co-conspirators.
Conspiracy is generally defined as an agreement between two or more persons to do an unlawful act or doing a lawful act in an unlawful manner. Thus, there can be no conspiracy unless at least two persons conspire. I have held elsewhere in this judgment that bare agreement to commit an offence is sufficient as the actual commission of the offence is unnecessary. Consequently, conspiracy is an offence that is often deduced or inferred from the acts, omissions or commissions of the parties. To establish the offence of conspiracy, the prosecution must prove beyond reasonable doubt that
1. The agreement to commit an offence that is, an illegal act is between two or more persons.
2. That the said act apart from the agreement itself must be express in furtherance of the agreement.
In the instant case, the evidence of PW1, PW2, PW3 and PW5 becomes very crucial. Firstly, PW1 at page 170 lines 23-27 of the record of appeal said:-
As we were in my house deliberating, a group of 10 people led by Usen Peter Udo, Utip Moses Udoisip, Simeon Daniel Udoikpe, Benson Udong, Akaninyene Peter Abai, Ekikere Abai and others came into my compound. I did not invite them to the consultation meeting as they were not members of APC.
Also at page 171 lines 18-29 he stated further that:-
As we were reviewing the incident the 1st accused made a phone call to Akaninyene Peter Abai and instructed him not to allow the deceased to leave Nkeke village. Akaninyene Peter Abai then called on his group members to reassemble as he had received instructions from the 1st accused not to allow the deceased to leave. I heard the phone discussion between the 1st accused person and Akaninyene Peter Abai as the phone was on speaker and I was with Akaninyene Peter Abai at the material time still pleading with him not to make trouble with the deceased who was their inlaw. I heard the unique voice of the 1st accused person as he spoke on phone to Akaninyene Peter Abai on his earlier instructions not to allow the deceased leave Nkek village. The 1st accused person at the material time was the vice chairman of Ukanafun Local Government Council under PDP. The 1st accused spoke in Efik language as he was born and raised up in Calabar, Cross River State.”
As for PW2, at page 184 of the record of appeal said:-
I later found out that the deceased escaped from the meeting place through the backyard. When I went after the deceased, I saw him being surrounded by a group of 4 persons including the 2nd to 4th accused persons. The 2nd accused person used metal rod to beat the deceased on the head. The 3rd accused person who was holding a locally made pistol fought with me when I tried to rescue the deceased and inflicted injury to my eyes. The 4th accused person used axe and was hitting the deceased on the chest.”
At page 193 of the record of appeal PW3 said:-
The deceased drew my attention to what was happening outside, I saw few young men holding the posters of Emmanuel Udoette. I expressed my surprise at the development as we were in Nkek in the house of PW 1 as APC members. The deceased reacted by stating that he could understand from the development that people had already planned to attack us. When I was about to speak, some group of boys came in and demanded that we should leave.”
He continued at page 194 that:-
While some people were attacking me, others were simultaneously attacking the deceased.”
PW5 on his part said at pages 203 -204 of the record of appeal thus:-
The calls were made on 18/3/2015 between 17:00 hours and 18:30 hours (that is between 5pm and 6:30pm). The phone was registered as an exhibit. The 1st accused person did not deny making those calls and could not explain why he had to make calls within that period.”
The appellant in his statement to the police, Exhibit D at pages 51-52 of the record of appeal said:-
I call my PA Eyak Okon Udo at about 5:11pm, to know what was going on in the village. I call Ekikere Abai but the call did no go through. At about 5:00 Bernard Etim Obot call me to informed me that there is a very big problem at APC rally in one Udo Okos compound and that people are running to the secondary school where Bernard Etim was distributing PVC card to people. I call Akaninyene Peter Abai many times but did not go through and I was asking him what happened and I also asked him hope you are not there.”
The trial Court in its review and findings on the prosecutions case against the appellant vis-a-vis the charge of conspiracy at page 313 of the record of appeal stated thus:
“I disbelieve the 1st accused that he was telling the police the truth in Exhibit D then his calls to Akaninyene Abai did not go through. If the calls did not go through why did the 1st accused continue to ask the said Akaninyene Abai to tell him what happened as well as hoped that Akaninyene Abai was not there.”
Concluding its review and finding, the trial Court at pages 313 – 314 of the record of appeal held that:-
I do not believe the 1st accused on this explanation. PW5 stated in evidence and this was not controverted by the defence that all the calls to the other accused persons and others at large from his review of the call log on 18/3/2015, showed that all the calls were made between 17:00 and 18:30 hours which period of time, in my view was not the best of time for the 1st accused to inquire about the PVC distribution exercise in Nkek village. Again, if what he told the police was true, why the 1st accused apprehensive as to the presence of Akaninyene Abai at the scene of the APC rally. If Akaninyene Abai was not at the scene why did the 1st accused seek to know from him what happened after being informed by Bernard Etim Obot at about 5:00 that there was a very big problem at APC rally.
The inference I draw from Exhibit D is that the 1st accused called Akaninyene Peter Abai as testified by PW1 while he was at the venue of what was supposed to be APC rally as confirmed by DW1. I believe the evidence of PW1 that 1st accused called Akaninyene Abai and gave clear directive that the deceased should be prevented from leaving Nkek village alive. I believe PW1, that he was familiar with the voice of the 1st accused and could identify same when he heard the 1st accused as he spoke on phone with Akaninyene Peter Abai. I also believe PW1 that Akaninyene Peter Abai mobilized members of his group including the 2nd, 3rd and 4th accused to carry out the order given to them not to allow the deceased leave Nkek alive. I also believe PW3 that the 3rd accused told him in the face that he would also not be allowed to leave Nkek village alive; my understanding is that the 1st accused gave directive to Akaninyene Peter Abai to ensure that the deceased was killed. The directive of the 1st accused was carried out through the agency of the 2nd, 3rd and 4th accused persons who were seen by PW1 and PW2 in particular as they attacked the deceased who subsequently died on the same date.”
From the above, it is evident that there was direct evidence of conspiracy against the appellant and his co-conspirators. It is also my firm view that the circumstances of this case are inferable to only one conclusion that the appellant and co-conspirators conspired to kill the deceased as rightly held by the trial Court.
Learned appellants counsel also faulted the findings of the trial Court on its reliance on the evidence of PW1 in relation to recognition of the appellants voice while giving directive to Akaninyene Peter Abai on phone. I have carefully examined the facts in the cases of R V TURNBULL, ABUDU V STATE and host of other cases being relied upon by the appellant but regrettably the said facts are distinguishable with the facts in the instant case. In those cases, the real issue in contention was that of visual identification of an accused as opposed to familiar voice recognition. Be that as it may, identification generally is evidence tending to show that the person charged with an offence is person who was seen committing the offence. In the instant case, there was sufficient evidence of recognition of the appellants voice as confirmed from the call log and the trial Court was satisfied that the evidence proved beyond reasonable doubt that the appellant actually conspired to kill the deceased. It was held in plethora of judicial decisions, that identification evidence is not a sine qua non for conviction in all criminal cases. It is sufficient if credible evidence is adduced to show that the person charged with an offence is the same as the person who was seen committing the offence. See KAMILA V STATE (2018) 8 NWLR (pt. 1621) 252 at 271.
Finally, the appellant attacked the evaluation of the evidence by the trial Court alleging that the conviction was anchored only on the evidence of PW1 and peremptorily dismissing the unchallenged evidence of DW1. The pertinent aspect of the evidence of DW 1 is at page 222 of the record of appeal where he said:-
We remained at the venue until 7pm for PW1 and the deceased to come. Eventually, we dispersed and left without seeing the deceased and PW1.”
He went further to say:-
“PW1 was telling lies to the Court. The persons mentioned by PW1 in his evidence were not present at the meeting not being members of APC but members of PDP. I was present at the meeting from the beginning to the end, and nothing as described in the evidence of PW1 took place.”
Reviewing the evidence of the said DW1, the trial Court at page 312 of the record of appeal held:-
DW1 gave impression that the problem that took place during the political consultation meeting was caused by APC members themselves. DW1 dismissed the evidence of PW1 and PW2 as to how the venue was infiltrated by PDP supporters chanting songs and generally regarding what trans pired on the date as tissues of lies. I do not believe the account of DW1 as the truth of what transpired on the date in question. DW1 did not impress me as a witness of truth judging from his demeanor particularly when he was answering questions under cross-examination. DW1 conducted himself as someone who has some scores to settle with PW1 and who came to Court prompted by some interior motive and lacking in good faith and honest desire to speak the truth.
Learned trial Judge therefore concluded at pages 314 – 315 of the record of appeal thus:
“I hold the view that the conduct of the 1st accused person in going into hiding or in going to seek a safe haven in a hotel after becoming aware of the death of the deceased and/or make calls to some functionaries for their advice cannot be considered the action of someone who had no skeleton in his cupboard. At the material time, the 1st Accused person served as the Vice Chairman of Ukanafun Local Government Council. I reject as an after-thought the evidence of the 1st Accused in Court that he was waiting in Uyo all through the date of the incident to attend a meeting of the Ukanafun Local Government Council that was purportedly scheduled for that day but which, according to the 1st Accused was later cancelled. From the evidence before the Court, the conduct of the 1st Accused is more consistent with the action of a guilty mind considering the fact that at the material time he checked into the hotel and spent the night of 18/3/2015, no one accused the 1st Accused of masterminding the killing of the deceased.”
The foregoing findings cannot be faulted or flawed as the main issue was whether the appellant and the other co-accuseds had conspired to kill the deceased. The overwhelming evidence before the trial Court was to the effect that the deceased was killed in furtherance to the conspiracy hatched by the appellant and his co-conspirators. A Court of appeal should generally be loathed to interfere with or reverse findings of fact made by a Court of trial unless such findings are perverse. In the instant case, the finding of fact made by the trial Court that the appellant called Akaninyene Peter Abai on 18/3/2015 between the hours of 17:00 to 18:30 with clear directive not to allow the deceased leave Nkek village alive and that Akaninyene had mobilized the 2nd, 3rd, and 4th accused persons in carrying out that directive are unimpeachable. There is therefore no justification in disturbing the above findings.
The two issues are hereby resolved in favour of the respondent against the appellant.
In the result, the appeal is unmeritorious. It fails and is accordingly dismissed. The judgment of the trial High Court of Uyo delivered on August, 2017 on charge No. HUK/10c/2015 is hereby affirmed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by My Lord, M. L. Shuaibu, JCA. I agree with the reasoning and conclusion.
I also agree that the appeal be dismissed.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother, Muhammed L. Shuaibu, JCA. I concur, in toto, with the reasoning and conclusion in it. I too penalize the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.
Appearances:
Ekpenyong Ntekim with him, Ubong Etokakpan For Appellant(s)
Uwemedimo Nwoko (A.G, Akwa Ibom) with him, Edidiong Etim (PSC, MO.J, Akwa Ibom State) For Respondent(s)
