GODFREY MAKA v. THE STATE (2019)

GODFREY MAKA v. THE STATE

(2019)LCN/13401(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/B/333C/2016

RATIO

HOW BEST TO PROVE THE OFFENCE OF CONSPIRACY

It is trite that the offence of Conspiracy is difficult to prove. This is understandable because it is often contrived in secrecy. Circumstantial evidence is often resorted to in pointing out the fact that the conspirators had agreed on the plan to commit the crime.
There must therefore be an act done in the open to justify the inference of conspiracy. The offence of conspiracy is said to have taken place when people have acted by agreement or in concert.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.

WHEN THE COURT CAN MAKE CONCLUSION OF CONSPIRACY

In SALAMI VS. THE STATE (2015) 2 NWLR (PT. 1444) Pg 595 at 610 per Kumai Akaahs JSC stated thus:-
Once the Court arrived at a conclusion that the prosecution has established some community effort by the accused persons aimed at committing the crime, it will be safe to convict them of conspiracy.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

GODFREY MAKA Appellant(s)

AND

THE STATE Respondent(s)

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned before the High Court of Delta State, Asaba Division presided over by M. Umukoro, CJ, on an information of four count Charge of Conspiracy to commit felony to wit:- Kidnapping, Murder, and demanding with menace punishable under Section 516, 324, 406 and 323 of the Criminal Code.
In a considered judgment delivered on the 11th day of May, 2016 the learned trial Judge convicted the Appellant on the four Count Charge aforementioned and sentenced the Appellant to a total of 28 years imprisonment on the four Counts. This appeal is premised on the said judgment.

SUMMARY OF FACTS:
The case as presented at the trial Court was that the Appellant (as the 3rd accused) at the trial Court was arrested and charged to Court along four others with conspiracy to Kidnap, Murder as well as demanding with menace. The victim was PW1 a Judge of the High Court of Delta State. The Appellant prior to his arrest was the Police Orderly attached to PW1.

It began when a threat letter was written to PW1. The threat to kidnap

PW1 was subsequently investigated by the Police, the State Security Service (SSS) and the Nigeria Army.

PW1 and her husband played along with the kidnappers and decided to pay a ransom of Three Hundred Thousand Naira to pacify them. In the process, the 1st accused person the Security Guard and Police Officer attached to the residence of PW1 were arrested by PW2 close to where the ransom money was kept as instructed by the kidnappers. The arrest of the 1st accused led to the arrest of the 2nd accused who was a driver to PW1.

The Appellant was arrested because the phone used by the kidnappers to call PW1, also called an Etisalat number used by the Appellant. The men of SSS who were called in by PW1 to be part of the investigation decided to call the said Etisalat number. When the Etisalat number was called, the phone of the Appellant rang, he was sitting at the corridor at the home of PW1. When the Appellant?s Etisalat number rang, the Appellant switched it off at once. He was arrested by the SSS Officer and taken to the Area Commander?s Office in Warri. The Appellant was said to have agreed owing an Etisalat number but said the number

was with his brother and that his said brother had lost his phone. The Appellant whose car was parked outside the gate of PW1 had asked the 4th accused to remove his vehicle from the premises of PW1. As a result, when the police wanted to search the vehicle of the Appellant it had been removed on his instruction by the 4th accused. This led to the arrest of the 4th accused.

At the trial, PW1 testified as the complainant, the Army Officer testified as PW2 while the Police Officers who investigated the case at various stations testified as PW3, PW4, and PW5 respectively.

The Appellant testified in his defence. In his judgment delivered on the 11th day of May, 2016, the learned trial Judge convicted the Appellant on all the four counts and sentenced him to 28 years imprisonment. (See pages 320-356 of the Record of Appeal)

Learned counsel for the Appellant O. Afolabi Esq. distilled two issues for determination as follows:-
1. ?Whether upon a proper evaluation of the facts and evidence before the trial Court, the learned trial Judge was right in coming to the conclusion as he did, that the Prosecution proved the Charges against the

Appellant in accordance with the standard of proof imposed by law.
2. Whether the learned trial Judge did consider the defence of the Appellant.

Learned Counsel for the Respondent O.F. Enenmo Esq. adopted the two issues distilled by learned counsel for the Appellant.

The issues raised by learned counsel for the Appellant which were adopted by learned counsel for the Respondent can conveniently be compressed into one straight forward issue of narrow compass. Thus:
Whether on the facts and circumstances of this case, the learned trial Judge considered the defence put forward by the Appellant when he held that the prosecution proved its case beyond reasonable doubt.

Taking the issues he distilled, Learned Counsel for the Appellant O. Afolabi, Esq. contended, in summary, that the prosecution failed to call vital witnesses like the SSS man who dialed the Etisalat number of the Appellant or the SSS man Femi who was present when the said Etisalat number was ringing in the Appellant?s phone as a witness.

He also made heavy weather about contradictions that occurred in the testimonies of some of the witnesses for

the prosecution. Firstly, he pointed out that the PW1 in her statement to the Police stated that her husband was present when the Etisalat number was called and that her husband lured the Appellant to the car park while his phone was ringing in the chair. That in her testimony in Court, she said the phone was switched off by the Appellant after it rang. She never mentioned that she told the SSS man to confiscate the Appellant?s phone.

Also counsel argued that PW1 in her evidence in chief stated that the Appellant and two police guards were sitting at the corridor. Under Cross-examination PW1 said there were three of them inside the house. He cited
– AJOSE VS. F.R.N (2011) ALL FWLR (PT. 595) 396 at 402
– NWOKEARU VS. STATE (2010) ALL FWLR (Pt. 542) 1659 AT 1679.

?Reacting to the foregoing, learned counsel for the Respondent O. F. Enenmo Esq. referred to the evidence of PW1 ? PW5 and contended that the prosecution proved the offence of Conspiracy to Commit Felony to Wit: Kidnapping, Murder and demanding with menaces against the Appellant beyond reasonable doubt. Counsel submitted that there was agreement, a meeting of the minds

and a consensus between the Appellant and other co-conspirators to kidnap, Murder PW1 and demand for ransom.

He posited that failure to call the SSS man who dialed the Etisalat number or the SSS man Femi who was present when the Etisalat number was ringing in the Appellant?s phone was not fatal to the prosecution?s case. He cited
– OGUDO VS. THE STATE (2012) ALL FWLR (PT. 629) Pg. 111 at 1131, Paragraphs. A ? B;
– SUNDAY VS. STATE (2010) 18 NWLR (PT. 1224) Pg. 223 at 246. Paragraph B;
– IGRI VS. THE STATE (2012) 16 NWLR (PT. 132) Pg. 522 at 555 Paragraphs. C ? D; amongst others

In the instant case, the offence of conspiracy could be inferred from the

evidence of PW1 who was the target. She testified that the Appellant who was her Police Orderly conspired with her Driver, her Security Guard and some others to kidnap and murder her. They also called her severally demanding for money with menace.

PW2 testified how the Police officer and the security guard attached to PW1 were arrested close to where the ransom money was kept on the instruction of the other kidnappers.

The question now is could it be by coincidence that both the Police officer and the Security Guard attached to PW1 were arrested near the very spot the ransom money was kept, considering the fact that the ransom money was kept there on the instruction of the kidnappers.

Why was it that the same Etisalat number used by the kidnappers to call PW1 several times turned out to be the telephone of the Appellant who was PW1?s Orderly? This fact was established when the number used by the kidnappers was dialed and the telephone of the Appellant rang leaving no one in doubt that it was the same telephone used to harass, threaten and intimidate PW1 and her husband.

The only reasonable inference to be drawn is that the

Appellant?s phone that rang was the phone used by the conspirators to coordinate their common purpose which was to Kidnap, Murder and demand for money under threat and menace. The same telephone calls led to PW1 dropping the ransom money at the spot where the other conspirators were apprehended.

The defence put up by the Appellant at the trial Court that he did not own the telephone number 08092569722 and that he did not throw the sim card into the car does not hold water at all. It is an afterthought.

In proof of the four Count Charge, the PW1 Ngozi Flora Azinge narrated how her Driver, her Police Officer, her Security Guard and others conspired to kidnap and murder her and in addition called her severally with the telephone number which was later found to be that of the Orderly (Appellant) herein. How the conspirators instructed her

to keep the ransom money at a particular place and they played along which resulted in the arrest of her Security Guard and Police Officer attached to her residence being arrested at that very place suggested by the conspirators.

Under Cross-examination PW1 stated further:-
Not satisfied with the Police investigation that they have applied to glo and they were not responding, I resorted to my friends to do private investigation. I had three numbers of the 3rd accused. He told me that the Etisalat number was not working on the day the 3rd accused phone rang, they were three of us inside the house, myself, my husband and the SSS man Femi. The 3rd accused was sitting on the balcony because it was raining on that day. The 3rd accused was sitting on the balcony, we moved to door and the 3rd accused phone rang, the 3rd accused did not answer the phone. He put it off. I could not have taken the phone from the 3rd accused who had a gun with him. I asked the SSS man to take the phone from him. SSS ? Femi also called the phone and it rang.?

?It is therefore clear that the Appellant?s Etisalat phone number was criminally connected to the kidnap saga.

The 3rd accused is the Appellant herein. The above evidence of PW1 left no one in doubt that her Driver, Security Guard, Police Officer and others who knew her telephone number were calling her repeatedly threatening to kidnap and kill her if she did not make available the money they requested for.

Curiously when the SSS man tried to call that telephone number, it rang on the telephone of the police orderly attached to PW1 as a Judge of the High Court. The ringing of the phone of the Police Orderly when the SSS man tried to call the number of the kidnappers, coupled with the fact that the Security guard of PW1 and a Police Officer where seen together and arrested together at the very place where the kidnappers/conspirators had suggested to PW1 to drop the ransom money. All these kept no one in doubt that the conspirators/kidnappers acted in concert.

Learned counsel for the Appellant made heavy weather about what he termed inconsistencies in the evidence adduced by witnesses for the prosecution.

It is trite that a piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated not

where there is just a minor discrepancy between them.
Counsel for the Respondent had highlighted what counsel for the Appellant termed contradictions which I reproduced earlier in this judgment.
A mere variation and difference in the use of language is a natural phenomenon and should not count as material contradiction.

Learned Counsel for the Appellant also alluded to failure by the prosecution to call the SSS man who dialed the etisalat number or the SSS man Femi who was present when the etisalat number was ringing in the Appellant?s phone.
I had earlier reproduced relevant portions of the evidence of PW1. The evidence of PW1 and other prosecution witnesses sufficiently proved the prosecution?s case that the Appellant and his cohorts conspired to kidnap, murder the PW1 while demanding ransom money with menace.
The Supreme Court per Olufunlola Adekeye JSC in ADESINA VS. THE STATE (2012) 14 NWLR (PT. 1321) 452, stated:
It is the prerogative of the prosecution to call witnesses relevant to its case. Furthermore, the prosecution is not bound to call all probable witnesses or every person that was linked to the

scene of crime by physical presence or give evidence of what he saw. Once persons who can testify to the actual commission of a crime have done so, it suffices for the satisfaction of proof beyond reasonable doubt in line with Section 138 of the Evidence Act, Cap. 112, Laws of the federation of Nigeria, 1990.

In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side to believe. He did so extensively in relation to all the Counts on the information where he found inter alia at page 347 of the Records as follows:-
I disbelieve the 3rd accused, the Police Orderly attached to the PW1 ? a serving High Court Judge. The 3rd accused was aware that there were threatening calls to the PW1. The 3rd accused admitted that he was armed the day the Etisalat number rang. Why did the 3rd accused ask the 4th accused to remove his car? Where is the brother of the 3rd accused to whom he gave the Etisalat number? When did the said brother of the 3rd accused get that Etisalat number lost? The

very fact that the caller demanding for ransom turned out to be Etisalat number of the 3rd accused goes to show the depth of the 3rd accused in the scheme, agreement to intimidate the PW1 to pay ransom. I hold that the 3rd accused was neck deep in the crime to commit conspiracy to Kidnap, Murder, demanding with menaces and threat to Murder. I reject the defence of the 3rd accused and hold that the 3rd accused is guilty of Counts 1, 2, 3 and 4 in the information and convicted accordingly.?

The above is a clear and succinct finding of fact which this Court has no reason or justification to reverse.

In the premise, the sole issue is resolved against the Appellant and in favour of the Respondent. This Appeal is bereft of merit and is hereby dismissed in its entirety.

The judgment of the Court below in Charge No. W/15C/2013 delivered on the 11th day of May, 2016 by M. Umukoro CJ, sitting at the Asaba Division of the Delta State High Court, the conviction and sentence to a total of 28 years imprisonment on the four Counts are hereby affirmed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the lead Judgment

just delivered by my learned brother, CHIOMA EGONDU NWOSU-IHEME, JCA (Ph.D).
I agree with the reasoning and conclusion contained therein. I too resolve the sole issue against the Appellant and in favour of the Respondent as this appeal lacks merit and is hereby dismissed. The judgment of the High Court of Delta State delivered on 11th day of May, 2016, is hereby affirmed.
?
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Chioma Egondu Nwosu-Iheme, JCA. I agree that this appeal is devoid of any merit and it is dismissed by me.
I affirm the decision of the trial Court delivered on 11th day of May, 2016 in Charge No. U/15C/2013 by Hon. Justice M. Umukoro, C.J.

Appearances:

E. O. Afolabi with him I. I. IreherijehFor Appellant(s)

C. O. Agbagwu Deputy Director M.O.J Delta State, with him is assistant Director E.E. ErebeFor Respondent(s)

Appearances

E. O. Afolabi with him I. I. IreherijehFor Appellant

AND

C. O. Agbagwu Deputy Director M.O.J Delta State, with him is assistant Director E.E. ErebeFor Respondent