AJOR ENEJI v. THE STATE (2013)

AJOR ENEJI v. THE STATE

(2013)LCN/6707(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of February, 2013

CA/C/65C/2012

RATIO

ESSENTIAL INGREDIENTS TO BE PROVEN TO SECURE A CONVICTION FOR A CHARGE OF ASSAULT

Section 252 of the code defines assault as follows:-

“252. A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a presentability to effect his purpose, is said to assault that other person, and the act is called an assault.”

Then section 257 provides that:-

“253. An assault is unlawful, and constitute an offence unless it is authorized or justified or excused by law.”

From a community reading of the above provisions, an unlawful assault causing harm punishable under the provisions of Section 355 of the code would simply mean a strike, touch or application of any kind of force, directly or indirectly, by one person on another which is not authorized, justified or excused by law and which causes that other person, harm.

The essential ingredients or elements which constitute the offence and which must be proved beyond reasonable doubt in order to secure conviction for the offence are:-

a) that there was a strike, touch or application of any kind of force by the accused person on another person
b) that harm was caused to that other person thereby, and
c) the strike, touch or application of the force was not authorized, justified or excused by law.

These elements or ingredients must be established to the satisfaction of the court, beyond reasonable doubt in the sense that the evidence must be strong and cogent in showing that the accused person and no other, in fact committed the offence. The burden on the prosecution does not shift but remains on it throughout the trial and can only be discharged by the production of material, credible, sufficient and admissible evidence which leaves no other reasonable possibilities than that the accused person committed the offence. Nothing short of this would suffice. See Bakare v. State (87) 1 NWLR, 579; Agbo v state (2006) 6 NWLR (1977) 545; Uwwagboe v State (2007) 6 NWLR (1031) 606; Uluebeka v State (2011) 4 NWLR (1237) 358 at 361. Proof beyond reasonable doubt therefore does not depend on and is not attained by the number of witnesses called by the prosecution but on and attained by the quality of the evidence adduced by it against an accused person. Per MOHAMMED LAWAL GARBA, J.C.A.

WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE EVALUATION OF EVIDENCE BY A TRIAL COURT

The law is that where a trial court which has the primary duty of evaluation of evidence and ascription of value to it in a case had properly done so, an appellate court would have no justification for interfering with the assessment and the inferences drawn by that court in its decision of the issues in the case. Situations in which an appellate court may and should interfere with the evaluation of evidence by a trial court; have long been recognized and defined by principles of law in judicial practice. They are where a trial court fails to properly or at all evaluate the evidence placed before it or where inferences drawn from evidence differ from the facts on which the evidence was predicated. Where a trial court has unquestionably performed its primarily function of evaluating the evidence before it as required by law, an appellate court has no business to interfere with the exercise and embark on re-evaluation of the evidence simply because it would have reached a different conclusion on some or even all of the facts. See Sha v Kwan (2000) 5 SC 178; Ojokolobo v. Alamu (1998) 9 NWLR (565 ) 220; Adebayo v. Adusei (2004) 4 NWLR (862) 44; Fagbenro v Arobadi (2000) ALL FWLR (310) 1575; Omoregie v. Iduoemwanye (1985) 2 NWLR (S) 41. Per MOHAMMED LAWAL GARBA, J.C.A.

WHETHER PROOF OF HOW THE ACCUSED PERSONS ARE CONNECTED IS NECESSARY TO ESTABLISH CONSPIRACY

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

AJOR ENEJIAppellant(s)

AND

THE STATERespondent(s)

MOHAMMED LAWAL GARBA, J.C.A.: (Delivering the Leading Judgment): The Appellant and two (2) other persons, Adie Christopher Ebodo and Olom Adie were arraigned before the Cross River State High Court sitting at Ogoja on a two (2) count charge of conspiracy and grievous harm contrary to the provisions of sections 520 (6) and 355 respectively, of the Criminal Code Law Cap C 16 Vol. 3, Laws of Cross River State, 2004. At the trial, the prosecution called four (a) witnesses while the Appellant and the other accused persons testified for their defence and also called two (2) other witnesses. At the end of the trial, Adie Christopher Ebodo was discharged and acquitted while the Olom Adie and the Appellant were convicted for the offences of conspiracy and causing harm in the judgment delivered on the 31/1/2012.
Because the Appellant was aggrieved by his conviction, he filed a notice of appeal against the judgment on the 9/2/12. The ground was as follows:
“The Judgment, Conviction and Sentence is altogether unreasonable, and cannot be supported having regard to the weight of evidence.”
However, with the leave of the court granted on the 3/5/12, an amended notice of appeal filed on the 13/4/12 was deemed by the court. The amended notice of appeal contains five (5) grounds of appeal from which the learned counsel for the Appellant, Fakuta N. Nachamada, Esq., formulated two (2) issues for determination in the Appellant’s brief filed on the 3/5/12. The issues are:-
“1. Whether the trial court was right to have held that the offence of causing harm was proved by the prosecution against appellant beyond reasonable doubt.
2. Whether the trial court was right in convicting the Appellant for the offence of conspiracy to assault.”
Learned counsel did not indicate from which of the grounds of appeal the above issues were distilled in the brief. I would always emphasize the need for counsel to in their brief of argument, indicate from which grounds of an appeal the issues they raise for determination therein were distilled because of established principles of law in respect of formulation of such issues, the breach of which may render the issues incompetent. The issues raised by the Appellant were adopted by the learned Senior State Counsel, Ministry of Justice, Cross River State, Mr. Okoi Ukam, who settled the Respondent’s brief filed on the 9/7/12 with the leave of the court. The briefs of argument were adopted and relied on by the learned counsel for the parties to the appeal as their submissions in support of their respective positions in the appeal, at the oral hearing on the 4/12/12. We were urged by them to uphold the submissions and to allow or dismiss the appeal as the case may be.
Looking at the grounds of the appeal, communally, the issues raised by the learned counsel would appear to be derivable from them and so I would use them for the determination of the appeal.
The submissions on issue 1 for the Appellant are that while PW1 had testified that the three accused persons assaulted him outside the Hall they were meeting, but the evidence of PW1 his wife, and of PW5 and 6 was that 1st accused person did not go out of the hall at the material time. That PW2 being PW1’s wife, was interested and will always testify in favour of her husband. We were urged to discountenance her evidence of what happened to the PW1. It was also submitted that the 2nd accused person who said he fought with PW1 had said that “nobody asserted or joined” him to slap PW1 and the Appellant only separated them from fighting. Further that the Appellant had denied involvement in the fight with PW1, but was convicted for causing harm. Exhibit ‘1’, i.e. medical form, was said to be a photocopy of a public document which was not admissible in evidence whether or not it was consented to by the defence. Sections 89, 90(c) and 102 of the Evidence Act were cited for the submissions. In addition, because 2nd accused was not cross examined on his account of what happened between him and PW1, it is taken as true and established, placing reliance on Oludamilola v State (2010) 8 NWLR (1197) 565 at 571; Oforlete v State (2000) 12 NWLR (681) 415 and Nkwa v COP (1977) NNLR, 9. Counsel then said a court cannot just disbelieve a witness or piece of evidence except it is based on evidence, citing Usufu v. State (2007) 1 NWLR (1000) 94 at 120 as authority and argue that the High Court’s disbelief of the evidence of 2nd accused person was not based on proper evaluation of evidence. In further argument, counsel said the prosecution had failed to prove the ingredients of the offence of causing harm against the Appellant, relying on the case of Egwaba v FRN (2004) ALL FWLR (232) 1512 at 1519 -20. He urged us to resolve the issue in favour of the Appellant.
On the issue 2, the learned counsel for the Appellant said the ingredients for the offence of conspiracy which the prosecution must prove beyond reasonable doubt are:-
a) That there was an agreement between the accused persons to execute an agreed act;
b) That the agreed act is unlawful.
On the authority of Aituma v State (2007) 5 NWLR (1028) 466 at 482, 487; Amachree v Nig. Army (2002) 3 NWLR (807) 281; Kaza v State (2008) 7 NWLR (1085) 125 at 154, it was submitted that the prosecution must establish that the accused persons had formed a common intention to commit an unlawful act. 2nd accused person’s evidence was said by counsel to be that PW1 had blown his nose and “muscus spared from the said nose unto PW1’s body” who complained and instead of apologizing, PW1 slapped him two (2) times. That PW1 retaliated by slapping PW1 once and that the Appellant separated DW1 from PW1 and did not join in slapping PW1. It was the contention of counsel that since the High Court believed the evidence of PW1 and PW2 against the Appellant, it had to believe the same evidence against the 1st accused person who was found to be the actor by that court. That the High Court cannot acquit the actor and yet convict the Appellant on the same piece of evidence since any act of co-conspirators binds other conspirators and the case of Atiku v. State (2010) 1 NWLR (1199) 241 at 248 was cited. Relying on Harb v FRN (2008) ALL FWLR (430) 705 at 709 learned counsel submitted that in a charge of conspiracy, the prosecution must prove not only the inchoate or rudimentary nature of the offence, but also the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence i.e. both mens rea and actus reus. That in the Appellant’s case, the prosecution did not even attempt to produce evidence to suggest mens rea and that there was no evidence to infer conspiracy and we were urged to resolve the issue in Appellant’s favour.
Mr. Ukam had submitted on issue 1 that Exh. ‘1’ was a duplicate and not a photocopy of the medical Form kept by PW4; the Investigation Police Officer, and so by the provisions of Section 86 (3) of the Evidence Act, is an original copy in its primary form. He said the exhibit needs no certification to be admissible in evidence as an original copy. It was the further submission of the learned State counsel that the evidence of Appellant on its own established an incident of attack on PW1 by the PW2 accused person which resulted into injuries and we were urged to resolve the issue in favour of the Respondent.
On the issue 2, at was said that the evidence of PW1 and PW2 shows that there was communication between the 1st accused person, 2nd accused and the Appellant before the assault on PW1 and so the High Court was right to infer conspiracy. It was submitted that in establishing the offence of conspiracy, the law does not require the prosecution to prove physical meeting of the accused persons or the precise agreement to commit a particular offence and it is enough to prove that they were in consensus ad idem to carry out a criminal act. It was also not required that the prosecution must prove that the act committed was the one intended by the accused persons and that the intention can be inferred from their action. The cases of Ogbu v State (2007) ALL FWLR (361) 1651; Garba v COP (2007) ALL FWLR (384) 260; Abacha v State (2001) 3 NWLR (699) 35 were referred to on the submissions and the High Court was said to have been right to infer a common intention by the Appellant and 2nd accused persons to cause harm. It was also argument of counsel that the evidence of PW1, PW2 and PW3 corroborate each other in proving the assault of PW1 by the Appellant and 3rd accused. Learned counsel conceded that where the evidence was the same against accused persons then, all of them would either float or sink together on the strength of such evidence, but that the facts in the case of Atiku v State (supra) cited in the Appellant’s brief are not the same with that of the Appellant. Counsel said that the High Court had relied on the evidence of DW5 and DW6 who were at the meeting with PW1 and PW2 that no other person left the meeting apart from PW1 to discharge the 1st accused person. That the Appellant and 2nd accused person were outside the door of the venue of the meeting and so their leaving the meeting did not arise. The principle in Atiku v State (supra) also expounded in the case of Okoro v State (2012) 1 MJSC (Pt. 4) 59 at 89 is said by counsel not to be applicable to the Appellant’s case and we were urged by him to uphold the decision of the High Court on the same issue.
The first issue it may be recalled, is whether the offence of causing harm was proved beyond reasonable doubt against the Appellant. The High Court had found the Appellant guilty of assault contrary to Section 355 of the Criminal Code Law which provides thus:-
“355. Any person who unlawfully assaults another and thereby does him harm is guilty of a felony, and is liable to imprisonment for three years.”
Section 252 of the code defines assault as follows:-
“252. A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a presentability to effect his purpose, is said to assault that other person, and the act is called an assault.”
Then section 257 provides that:-
“253. An assault is unlawful, and constitute an offence unless it is authorized or justified or excused by law.”
From a community reading of the above provisions, an unlawful assault causing harm punishable under the provisions of Section 355 of the code would simply mean a strike, touch or application of any kind of force, directly or indirectly, by one person on another which is not authorized, justified or excused by law and which causes that other person, harm.

The essential ingredients or elements which constitute the offence and which must be proved beyond reasonable doubt in order to secure conviction for the offence are:-
a) that there was a strike, touch or application of any kind of force by the accused person on another person
b) that harm was caused to that other person thereby, and
c) the strike, touch or application of the force was not authorized, justified or excused by law.
These elements or ingredients must be established to the satisfaction of the court, beyond reasonable doubt in the sense that the evidence must be strong and cogent in showing that the accused person and no other, in fact committed the offence. The burden on the prosecution does not shift but remains on it throughout the trial and can only be discharged by the production of material, credible, sufficient and admissible evidence which leaves no other reasonable possibilities than that the accused person committed the offence. Nothing short of this would suffice. See Bakare v. State (87) 1 NWLR, 579; Agbo v state (2006) 6 NWLR (1977) 545; Uwwagboe v State (2007) 6 NWLR (1031) 606; Uluebeka v State (2011) 4 NWLR (1237) 358 at 361. Proof beyond reasonable doubt therefore does not depend on and is not attained by the number of witnesses called by the prosecution but on and attained by the quality of the evidence adduced by it against an accused person.
In order to determine whether the prosecution had proved the charge of assault causing harm against the Appellant, the evidence adduced at the trial would have to be considered.
The evidence adduced in support or proof of the charge by the prosecution were the testimonies of PW1 – PW4. In brief, the evidence of PW1; Hon. Agabi Edward Efenji, who was the complainant in the case, was to the effect that when at the meeting of 28/10/07, he was about to go out of the half, the 1st accused person, who he said recruited thugs to the meeting including the 2nd and 3rd accused persons, signaled to the 2nd accused with his hand. That the 2nd & 3rd accused persons were at the door of the hall and as he stepped out of the hall, he felt a heavy blow on his back with a stick which knocked him down and he was put back to his feet by a fist blow by the 3rd accused person (the Appellant). PW1 then stated that n 1st accused joined them and all of them were beating me all over.” It was his evidence that one Opah Irinam rescued him from the accused persons and it was the said 2nd accused person who hit him with the stick. Under cross examination, PW1 and 2nd accused did not attack him because he blew his nose on him and that he did not slap 2nd accused.
He said the 2nd and 3rd accused person also threatened his life and maintained that “I was attacked by the three accused persons”.
PW2 was PW1’s wife and the relevant of part of her evidence was that when PW1 got up in the hall of the meeting to go out, “1st accused communicated with the 2nd and 3rd accused” who were at the door and who followed PW1 when he stepped out. Thereafter, she heard the voice of PW1 and so said “I jumped from my seal and was hurrying outside. I got to the door and saw 2nd accused hitting PW1 at his back and 3rd accused pushing PW1 with his fisf in front. I was stepping down outside the door when I saw PW1 wriggly himself off 2nd and 3rd accused. I held PW1’s hand and was telling him “Don’t touch anybody.” As I was doing so 2nd and 3rd accused swarmed on PW1 again raining blows on him over my head. They threw one leg of sandals at him which hit him on his face and PW1 dropped before me. At that point one Opah Irinam, a commercial driver, came and ask PW1 what the matter was. He asked PW1 for the key to his car as he advised PW1 to leave immediately. PW1 gave Opah Irinam his car key he was holding in one hand.” Under cross examination, PW2 said from where she sat in the hall, she could not see PW1 and did not hear or see what preceded the attack but insisted that what she saw was not a fight. PW2 maintained that ” I saw 2nd and 3rd accused persons attacking PW1.”
PW3, Opah Irinam who PW1 said had rescued him from the attack by the accused person, gave a brief evidence as follows:-
“I know PW1.
I know PW2
I know accused persons
On 28/10/2007, I was in my vehicles parked close to Gakam School. I don’t know the name of the school. I was waiting for passengers when I heard a noise from the school. I rushed three and saw the 3rd accused persons beating PW1. I collected PW1’s car key from him and drove him in his car away from the school to his house. 2nd accused was holding a stick while 3’d accused was holding a slippers/sandals.
CROSS EXAMINATION (Adie)
I am from Gakem. I was born there. I am about 30 years old. I did not attend primary school. I heard shouts of “stop that” and rushed to the scene. I pulled PW1 from the grip of accused persons, got his car key from him and took him his house. There I saw accused persons and PW1. I am not lying.”
PW4, the IPO, was used to put the medical form he issued to PW1 and the statements of the accused persons made to him during investigation, in to evidence as exhibits 1-4.
The above is a resume of the evidence adduced by the prosecution. On his part, the evidence by the Appellant was that on the date in question, he was loading passengers on his vehicle when saw may people, at the venue of the meeting in question and later saw PW1 and 2nd accused person exchanging words and slaps. He separated the fight and left. Under cross examination, Appellant said he did not know why PW1 and 2nd accused person were fighting.
Worthy of note in the evidence before the High Court adduced by the prosecution is that the evidence of PW1 and PW2 that the Appellant and 2nd accused person were at the door of the meeting when PW1 wanted to go out and that the two of them beat him, was not challenged let alone, discredited under cross examination. In fact the direct evidence of PW3 that he saw the three (3) accused persons beating the PW1 and that the Appellant was holding a slippers/sandal was not challenged at all. In its judgment, the High Court had carefully considered and assessed the evidence adduced in support of the charge against the Appellant before ascribing probative value to it. In evaluating the credibility of the evidence of the Appellant who was the 3rd accused person, the High Court had in its judgment stated that-
“Third accused person said he did not touch PW1, his uncle. That he was only separating the fight between PW1 and second accused like I asked before; why then did PWI say third accused hit him with a fist blow, particularly as third accused has no problem with PW1. PW2 said accused person were raining blows over her head on PW1. PW2 gave details and said second accused was holding a stick white third accused was holding slippers/sandals. Why did 3rd accused person not call those he said witnessed the fight to come and testify. Second accused said PW1 called him a thief and a tout and slapped him twice, third accused who said he was present makes no mention of the thief and thug. I believe the story told by PWs, 1, 2 & 3 and hold that third accused hit PW1 with a fist blow and a leg of sandals/slippers. ”
The High Court had dutifully assessed the evidence by the prosecution and the Appellant on the charge that the Appellant had assaulted PW1 by beating him. The evidence of the prosecution leaves no doubt that the Appellant had assaulted PW1 and the High Court was right in its assessment of the evidence in that regard.
The law is that where a trial court which has the primary duty of evaluation of evidence and ascription of value to it in a case had properly done so, an appellate court would have no justification for interfering with the assessment and the inferences drawn by that court in its decision of the issues in the case. Situations in which an appellate court may and should interfere with the evaluation of evidence by a trial court; have long been recognized and defined by principles of law in judicial practice. They are where a trial court fails to properly or at all evaluate the evidence placed before it or where inferences drawn from evidence differ from the facts on which the evidence was predicated. Where a trial court has unquestionably performed its primarily function of evaluating the evidence before it as required by law, an appellate court has no business to interfere with the exercise and embark on re-evaluation of the evidence simply because it would have reached a different conclusion on some or even all of the facts. See Sha v Kwan (2000) 5 SC 178; Ojokolobo v. Alamu (1998) 9 NWLR (565 ) 220; Adebayo v. Adusei (2004) 4 NWLR (862) 44; Fagbenro v Arobadi (2000) ALL FWLR (310) 1575; Omoregie v. Iduoemwanye (1985) 2 NWLR (S) 41. The evidence before the High Court has met the requirement of proof beyond reasonable doubt in respect of the offence of assault by the Appellant on PW1.
The next complaint in the appeal in that the medical form admitted as Exh. ‘1’ at the trial of the Appellant was a photocopy which required certification in order to be admissible in evidence under Sections 89 – 90 of the Evidence Act. It was contended that it does not matter that the defence did not object to its admission as long as it was inadmissible in law. Now, learned counsel is right that the only type of secondary evidence of a public document admissible in evidence in judicial proceedings before a court of law is a certified true copy of such document. Section 90 (1) of the Evidence Act, 2011 makes the following provisions:-
“90 (1). The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows:
(c) in paragraph (e) or (f), a certified copy of the document, but no other secondary evidence is admissible.”
Paragraph (e) of section 89 provides that secondary evidence may be given of the existence, condition or contents of a document when the original is a public document within the meaning of section 102 of the Act.
The combined effect of the above provisions is that an uncertified copy of a public document is inadmissible in law as secondary evidence of the contents of the original document. Because such an uncertified copy is rendered inadmissible in evidence by law, acquiescence, consent, failure or omission to object to its admission when it was tendered would not render it admissible in evidence. See Hassan v Maiduguri Management Control (1991) 8 NWLR (212) 738; Eme v Wamuoh (1991) 8 NWLR (203) 375. The provisions of Section 97(2)(c) of the provisions, Evidence Act, which were in pari material with the above provisions were applied in several cases which include Ministry of Lands Western Nigeria v Dr. N. Azikiwe (2009) ANLR, 49; Obadina Family v Ambrose Family (1969) 1 ANLR, 51; Aladegbemi v Fasamade (1988) 3 NWLR, 129; Nzekwu v Nzekwu (1989) 1 NSCC, 581.
The question that arises, however, is whether the medical form was a photocopy as alleged by the learned counsel for the Appellant. As stated before now, the exhibit was tendered through PW4 whose evidence on it started on Page 19 and ended at page 20 of the printed record of the appeal. It was as follows, page 19:-
“I issued Police Medical Form to pw1 to enable him receive medical treatment at General Hospital, Ogoja.”
Then at page 20:-
“This is the medical form, I issued to pw1…I sent the original in the case file to Ministry of Justice. I kept a duplicate of the fire and everything in it”,
Clearly, the witness did not say what he tendered was a photocopy of the form he gave to PW1. Section 86 (2) of the 2011 Evidence Act provides that:-
’86-(2) where a document has been executed in several parts, each part shall be primarily evidence of the document.”
Apparently, the Police Medical Form was made in original and duplicate copies such that both are executed in parts by PW4 who gave the original to PW1 and kept a duplicate copy made through the same mechanical process with the original, in the duplicate case file. In the circumstances, I agree with the learned counsel for the Respondent that being a counter part of the exhibit 1, it was not a secondary but primary evidence of the original Form which required no certification to be admissible in evidence.
See Nwobodo v Onoh (1984) 1 SC.1; Esso West Africa v Oladiti (1968) NMLR, 453.
The High Court had rightly considered, evaluate and weighed the contents of exhibit 1, which is at page 15 of the record of the appeal before it found the Appellant guilty of causing harm to PW1 when he assaulted him. I find no justification for interfering with that finding because the High Court had duly discharged its primary duty of evaluation of the evidence which in law satisfied the standard of proof of the offence charged. In the result, I resolve the issue 1 against the Appellant.
Issue 2 was whether the High Court was right in convicting the Appellant of conspiracy to assault PW1. The offence of conspiracy under Section 520(6) of the Criminal Code Law, Cap. 110 of Laws of Cross River State for which the Appellant was convicted by the High Court was provided for in the following terms:-
“520. Any person who conspires with another to effect any of the following purposes:-
(6) to effect any unlawful purpose, is guilty of a misdemeanor, and is liable to imprisonment for years.”
From these provisions, it is clear that the offence of conspiracy, which was not defined by the code, involves an agreement, express or otherwise, by two or more people to effect any in lawful, unauthorized or an illegal purpose. It is the meeting of the minds of the conspirators, the intention of two or more persons to do an unlawful act or a lawful act by unlaw means. (1988) 4 SCNJ 38; Gbadamosi v State (1991) 6 NWLR (196) 182; Oduneye v State (2001) 13 WRN, 88; Awosika v State (2010) 8 NWLR (1198) 49 at 78. The offence being the agreement between two or more persons, is very seldom proved by direct evidence but most often by inferences drawn from the facts and circumstances of a particular case. The law recognizes that the offence of conspiracy is a separate and distinct offence and is independent of the actual commission of the offence to which it is related. Consequently, the law is that an accused person can be convicted of conspiracy even if he is not found guilty of the substantive offence to which it relates. See Atano v A-G. Bendel State (supra); Obiakor v State (2002) 10 NWLR (776) 612; Balogun v Attorney General. Osun State (2002) 4 SC.23, (02) 2 SCNJ, 196 at 209; Sule v State (2009) 8 SC, 177.

The law is also settled that conspiracy is proved or established once it is shown by evidence that the agreement alleged is common to all the people accused and proof of how they are connected among themselves is not necessary. As a matter of law and fact, they need not to know each or shown to have started the criminal design at the same time. The bottom line of the offence of conspiracy is the agreement or meeting of the minds of the conspirators. See Daboh v State (1977) 5 SC, 197; Obiakor v State (supra); Nwosu v. State (2004) 15 NWLR (897) 466; Aje v State (2006) 8 NWLR (982) 349.
In the Appellant’s case, the unchallenged evidence by PW1 & 2 was that the Appellant and 2nd accused had stood at the door of the Hall where the meeting in question was held and when PW1 stepped through and outside the door, the two of them beat him. The evidence was supported by the evidence of PW3 who said he saw PW1 being beaten by the Appellant, 1st and 2nd accused persons. The evidence that there was communication between 1tt accused and the Appellant and 2nd accused when PW1 stood up to go outside the Hall of the meeting and evidence of the beating of PW1 by the Appellant and 2nd accused leave no doubt on the common agreement or intention of the Appellant & 2nd accused to effect the premeditated act of beating PW1, which was unlawful. There was no need to prove how the Appellant and 2nd accused or 1st accused were connected or that they knew each other in the face of the evidence of the fact that though they were not invited and attending the meeting in question, the Appellant & 2nd accused person positioned themselves, deliberately, at the entrance door to the venue of the meeting in clear execution of their agreement to beat PW1 which they eventually carried out. The evidence of the agreement as can be reasonably inferred from the proved facts of the Appellants’ case, leaves no reasonable doubt of the meeting of the minds of the Appellant and 2nd accused person to effect an unlawful purpose of beating PW1. The evidence has satisfied the standard of proof required by law and the High Court was therefore right to have accepted and relied on it to convict the Appellant of the offence of conspiracy.
In the result, I find no merit in the submissions by the learned counsel for the Appellant on the issue which for that reason, is resolved against the Appellant.
In the final result, because the two issues raised in the appeal have been resolved against the Appellant, the appeal fails for lacking in merit. It is dismissed and the decision of the High Court convicting the Appellant of the offences of conspiracy and assault causing harm, is hereby affirmed.

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the lead judgment prepared by my Lord, Mohammed Lawal Garba, JCA and I concur that the appeal lacks merit and I also dismiss it.
Bekwara community met under the auspices of their Traditional Ruler, His Royal Highness, Stephen Onoh on 28th day of October, 2007 to discuss the ownership and management of Eyatem Primary School situate in the community but funded by the Cross River State Government. The Hon. Agabi Edward Efenji (PW1) and his wife, Mary Agbo Efenji (PW2) and other prominent members of the community were in attendance. In the course of heated discussion and strained nerves, the appellant and one Olom Adie (2nd accused) assaulted PW1. The evidence of Olom Adie (2nd accused) at page 77 lines 12-29 of the printed record reads as follows:
“Olom Adie, live at Gakem Bekwarra Local Government Area, student. I just wrote Senior School Certificate Examinations.
I KNOW PW1.
On 28th October, 2007 there was a meeting going on at St. Mark Primary School, Gakem. At about 1-2pm I was not part of the meeting but I was at that primary school. PW1 came out of the meeting Hall to ease himself. As he was passing by me he blow his nose. I drew his attention to what he did to me. He asked me whether I had been sent to him and started shouting on me. He called me a thief, a tout and slapped me twice. I slapped him once in return. We gripped ourselves. 3rd accused person ran and separated us and blamed me as an Elder. PW1 went back into the meeting venue and reported the incident to the meeting. 1st accused was inside the meeting room.
I never threatened PW1 before. I did not beat PW1 with a sandal.”
The appellant testified in the lower Court as Dw2. He testified as follows:
‘Dw2: Sworn on Bible and states in English language.
Ajor Eneji, lives at Gakem in Bekwarra Local Government Area, Driver. I know Pw.1.
On 28th day of October, 2007 I packed my vehicle by the road loading passengers. I saw many people at St. Mark Primary School, Gakem. I went to toilet. As I was returning I saw pw1 and 2nd accused exchanging words. After about a minute I heard a slap on the face of 2nd accused. 2nd accused was shouting why did you slap me. 2nd accused slapped Pw1. I told 2nd accused to let go of Pw1. I separated the fight and left. I did not see 1st accused there.
Cross-examination (Ibitham)
I went to the toilet at St. Mark’s Primary School. I cannot read.
Statement of witness read to him.
I did not write the statement. I signed the statement. I don’t know why Pw1 and 2nd accused were fighting. 2nd accused did not tell me why he was fighting with pw7. I told the police on my statement what 2nd accused told me that cause the fight. 2nd accused told me the day after the fight. Pw1 was not present when 2nd accused was telling me. 1st accused is not my brother. I did not see catarrh stains on Pw7’s shirt. Witness told the police he saw catarrh stains on pw1’s shirt.”
The learned trial Judge heard the prosecution evidence and weighed same against the evidence adduced by the defence before holding at page 80 tines 18-20 of the printed record that:
“In the end result I find the second and third accused persons guilty of assaulting Pw1 contrary to section 355 of the Criminal Code Law Cap C16 Vol.3 Laws of Cross River State, 2004…
I have disbelieved the catarrh story of the accused person. I have held the 2nd & 3rd accused persons assaulted Pw1.
PwS…
Having discharged the catarrh story, having held that 2nd and 3rd accused person beat Pw1 together and since conspiracy can be inferred from the fact of doing things together towards a common end, and there being no explanation for the joint beating of Pw1 by 2nd and 3rd accused persons conspired to assault Pw1 contrary to Section 520(6) of the Criminal Code Law Cap C76 Laws of Cross River State, 2004.”
The argument put forward on behalf of the appellant by his learned Counsel, if accepted, is for this Court to reevaluate the evidence led by the witnesses based on their credibility to arrive at a different decision from that of the learned trial judge who had the singular opportunity of hearing the witnesses and assessing their demeanour before arriving at his decision to convict the appellant. This is not the kind of situation when an Appeal Court may interfere with the findings of fact by a learned trial judge. In customs & Excise Board vs. Barau (1982) 2 NCR 1 Fatayi – William C.J.N, at 21 deprecated a situation where the then Federal Court of Appeal interfered with the findings of the learned Chief Judge who saw the witnesses, heard their testimony, assessed their credibility and believed the prosecution witnesses before convicting the appellant for importing carpets in Nigeria without authorization. His Lordship held at page 21 lines 11-28 of the judgment as follows:
“In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his findings, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this court held (1968) NMLR at 95) that:
“where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court”
Again in Adeyeri II vs. Atanda (1995) 5 NWLR (Pt.397) 512 at 539 paragraphs “C”-“F” Onu, JSC held that:
‘The demeanour of the witnesses was essential to the proof thereof and the trial Court which saw and heard them testify unquestionably evaluated the evidence and appraised the facts which cannot be faulted and the Court of Appeal did not substitute its views for those of the trial Court See Akinloye & Anon vs. Eyiyola and Ors. (1968) NMLR 92 at 95. The matter was a straight forward one of oath against oath to be established through credible evidence of the witnesses. See Joshua vs. I. G. of Police (1959) SCNLR 516; (1959) 4 FSC 203 AT 205; Bayo Adelumola vs. The State (1988) 1 NWLR (Pt.73) 689 at 691 and Anthony Igbo vs. The State (1975) 9 – 11 SC. 129. The trial Court which heard and watched the witnesses testify, thereafter expressed its preference for the respondents’ case; it was pre-eminently in a better position to make that finding. See Akpapuna & Ors. vs. Obi Nzeka II (1983) 2 SCNLR 7; Etowa Enang & Ors. vs. Fidelis Adu (1981) 11 – 12 SC 38, 40 and Akinloye vs. Eyiyola (supra).”
I am not persuaded by learned Counsel to the appellant to upturn the findings of the learned trial Judge which is supported by the evidence. Thuggery in whatever form should be discouraged among right thinking members of the society. The appellant had no respect for prominent members of his community that had assembled to determine the ownership and management of Eyatem Primary School situate in his community which if not him, his children or relations may in future, benefit from the services the school will render to all and sundry. I am of the opinion that the learned trial Judge was right to convict and sentence the appellant without an option of fine. This may serve as a deterrence to other thugs who may be like minded to, in future, take laws into their hands. I also dismiss this appeal. Appellant to complete sentence.

ONYEKACHI A. OTISI, J.C.A.: I have had opportunity to read the lead judgment of my learned brother, Mohammed Lawal Garba, JCA, and I am in complete agreement with the judgment.
I also abide by the Order affirming the decision of the lower Court, convicting the appellant of the offences of conspiracy and assault causing harm.

Appearances

F. N. Nachamada with Ogar OlimFor Appellant

AND

Okoi UkamFor Respondent