AKINLOLU OMOJOLA v. THE STATE (2014)

AKINLOLU OMOJOLA v. THE STATE

(2014)LCN/7432(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of August, 2014

CA/AK/141C1/2011

RATIO

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROVING THE INGREDIENT OF MURDER

To prove the offence of Murder as in the instant case contrary to section 316 and punishable under section 319 of the criminal code cap. 30, Vol.12 Laws of Ondo State of Nigeria, 1978 the burden is on the prosecution to prove that the deceased had died, the death of the deceased was caused by the accused and that 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 the case of Ogbe v. State (1992) 2 NWLR (Pt. 222) 64. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHEN CAN CIRCUMSTANTIAL EVIDENCE GROUND A CONVICTION

It is trite law that circumstantial evidence may ground a conviction where it is unequivocal, positive and points irresistibly to the guilt of the accused person. See the case of Oladejo v. The State (1987) 3 NWLR (Pt.61) 419. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

CRIMINAL LAW: AN ABETTOR; WHEN DOES AN ABETTOR BECOMES A PRINCIPAL OFFENDER AND THE CRIMINAL LIABILITY OF AN ABETTOR

It is trite law that once an abettor is found to be present at the commission of the offence he abetted, he automatically becomes a principal offender and it is mandatory on the trial court to convict him of the main offence and not its abetment. See Peter and Anor v. The State 1977 N.M.L.R 81 Per Adio J.C.A in Buje v. State Suit No: CA/J/138/90; (1991) 4 NWLR (Pt.185) 287 @ 302.
It was further held in the same case as to criminal liability of an abettor as follows:

“The criminal liability of the appellant was because he was in law, a principal offender as he was an abettor who was present when the crime was being committed, I have, elsewhere; set out the legal consequences. So, as pointed out by the learned trial judge, it could or could not be that the appellant was the actual person who cut the throat of the deceased with a sharp object or instrument like an axe. What was essential in this connection, was that the person or persons that the appellant aided or abetted, in the commission of the crime, killed the deceased.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER THE CONFESSION OF AN ACCUSED THAT IS FREE AND VOLUNTARY CAN GROUND THE CONVICTION OF THE ACCUSED

It has been established in a plethora of cases that where a court of law has ruled that a confession is free and voluntary then conviction can be based on it. See Alarape v. State (2001) 2 SC 114; Ikemson v. State (1989) 3 NWLR (Pt.110) 455, and Kaza Vs. State (2008) 7 NWLR (Pt.1085) 125 @ 166 para, A; 194, para. A; 195 para. D. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; HOW TO PROVE THE MENS REA IN THE OFFENCE OF CONSPIRACY

It is evident from the evidence before the court that the appellant was not only present throughout the events that led to the death of the deceased but also conspired and actively partook in the dastardly act. The appellant had the ample opportunity to retract or change his mind having seen the 1st accused removed a deadly weapon (described by the appellant in his evidence as a sharp knife) capable of causing death if used. See the case of Abacha Vs The State (2003) 3 A.C.L.R. 333 where it was held as follows: “The overt act of omission, which evidence conspiracy is the actus reus and the actus reus of each and every conspiracy must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators like those who Murdered Julius Caesar were seen together coming out of the same place at the same time and know each other”.
It is again held in Kaza v. The State (2008) 5 SCM 70 104 that: “In the offence of conspiracy, the mens rea is not easy to locate as it is mostly, if not invariably, buried in secrecy. And so, the actus reus of the offence which is easier to locate can draw the mens rea to the open and make it possible for the court to find inculpatory evidence.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; TESTS TO BE APPLIED IN THE EVALUATION OF A CONFESSIONAL STATEMENT
However, it is pertinent to point out that there are set out tests to be applied in the evaluation of a confessional statement before the courts can conveniently convict on it. See the case of Johnbull Ekwure Vs. State (1999) 13 NWLR (Pt.635) 456 @ 470 – 471 Paras H – B They are:

Is there anything outside the confessional statement to show it is true?
Does the accused have the opportunity to commit offence?
Is the accused person’s confession consistent with facts which have been ascertained and proved?
Is the confessional statement corroborated? per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHAT IS THE MEANING OF CONSPIRACY

Legally, therefore, conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way. In effect and for short, the purpose of the meeting of the two or more minds is to commit an offence. See the following cases:

– R. v. Aspinall (1876) 2 QBD 48 @ 58 – 59

– Njovens v. State (1973) 5 S.C 17,

– Dabo v. State (1977) 5 SC;

– Odeneye v. State (2001) 2 NWLR (Pt. 697) 311 @ 332 – 333

– Gbadamosi v. State Suit No: CA/L/62/88; (1991) 6 NWLR (Pt.196) 182 @ 204;

– Gabriel Erim v. The State (supra) per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria

JAMES S. ABIRIYI Justice of The Court of Appeal of Nigeria

Between

AKINLOLU OMOJOLA Appellant(s)

AND

THE STATE Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Hon. Justice F. O. Aguda-Taiwo sitting at Ore Judicial Division of Ondo State High Court, delivered on the 5th of August, 2010 and contained in suit No HOR/14c/2005.

The accused herein the appellant and two other persons, Segun Akinsuwa and Ayo Omoduyilemi stood charged at the High Court on a two count charge of conspiracy to commit murder contrary to and punishable under sections 516 of the Criminal Code cap. 30, volume 11, Laws of Ondo state of Nigeria, 1978 and Murder contrary to and punishable under section 319(1) of the criminal code cap. 30, Vol. 11, Laws of Ondo State of Nigeria, 1978.

The appellant and the other two accused persons were arraigned before the Honourable trial Court on the 26th February, 2007. The appellant and the other two accused persons pleaded not guilty to the offences charged against them.
Almost at the close of the trial, the court was informed that the 3rd accused person Ayo Omoduyilemi had been released by the Chief Judge of the State based upon the recommendation of the Committee on Administration of Criminal Justice. His name was subsequently struck out of the case.

It was the case of the prosecution (herein the respondent) that the appellant and two other accused persons Segun Akinsuwa and Ayo Omoduyilemi, on or about the 5th day of June, 2003 conspired together to kill one Mrs. Selifat Rahman (a.k.a Mama Lekan) after raping her. This is contained on page 35 of the record. The appellant on his part denied doing same. He claimed that on the said day, he was at Asejire Village between 8.am and 7pm. He denied knowing the deceased, let alone anything about her death. He denied knowing the other accused person except the 3rd accused person whom he according to him met at the Police Station, Ore for the first time. He later admitted under Cross-Examination that the 3rd accused person’s father married his Senior Sister. His oral evidence in court vary or does not align with his confessional statement in which he admitted being part of three accused persons who conspired to rape and terminate the life of the deceased.

In an attempt to prove their respective cases, the prosecution herein the respondent called four (4) witnesses, while the appellant alone testified in his defence. The respondent herein tendered ten (10) exhibits and ID 1 – 9. In a considered Judgment delivered on the 5th August, 2010 the accused persons, appellant herein and Segun Akinsuwa were found guilty of the offences in counts 1 and 2 for which they were charged and were sentenced to death by hanging. The Trial Judge also made a recommendation to the A. G. through the DPP of Ondo State Ministry of Justice for the re-arrest and the prosecution of Ayo Omoduyilemi of the charges against him.

Being dissatisfied with his conviction and sentence to death, the appellant has appealed vide his Notice of Appeal dated 25th August, 2010 and filed on the 28th of November, 2010.

The appellant, through his counsel filed an amended notice of appeal dated 4th of September, 2012 and filed on the 18th of September, 2012 containing five (5) grounds of appeal.

Learned Counsel for the appellant filed additional grounds of appeal dated 4th September, 2012 and filed 4th December, 2012 containing grounds 2, 3, 4, 5, 6 and 7 of the grounds of appeal and from which counsel distilled three (3) issues for the determination of this appeal to wit:

1. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for murder

2. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for conspiracy to murder.

3. Whether the Learned Trial Judge evaluated or properly evaluated the evidence before finding the appellant guilty and if not did not her failure to do so occasion a miscarriage of Justice

Learned Counsel for the appellant filed a Motion on Notice dated 8/03/2013 supported by an affidavit, contending that time within which the respondent ought to have filed brief of argument had lapsed and thus, asking the court to hear and determine this appeal solely on the appellant’s brief of argument.

Appellant’s brief of argument is dated 18th January, 2013 filed on the 21st of January, 2013 and it was adopted on the 7th of May, 2014.

By a motion on notice dated and filed 13/05/13 learned Counsel for the Appellant/Applicant prays this Honourable Court for an extension of time to file Records of Appeal the respondent’s Counsel Mrs. A. O. Adeyemi Tuki filed a notice of intention not to contest the application. The appellant’s record of appeal filed on 9/12/2011 was deemed on the 19/03/2014.

Respondent/Applicant’s Counsel by a Motion on Notice dated 25/04/2013 and filed 29/04/2013 prayed this Honourable Court for an order of extension of time within which the respondent /applicant may file the respondent’s brief and Appellant/respondent’s Counsel A. A. Olatunji filed a Notice of intention not to contest the application.

This Honourable Court granted the order as prayed and respondent’s brief was deemed properly filed on the 19/03/2014.

Appellant’s reply brief dated and filed 4th April, 2014 was adopted on the 7th May, 2014.

Respondent’s Counsel formulated the following two issues for the determination of this appeal.

(1) Whether the prosecution had discharged its burden of proof beyond reasonable doubt by credible evidence to warrant the conviction of the appellant by the trial court – ground 1 of the grounds of Appeal and grounds 2, 3, 5 & 7 of the Additional grounds of appeal.

(ii) Whether the decision of the trial court is unsupportable in view of the existence of inconsistencies and contradictions in the evidence of the prosecution (ground 4 of the additional grounds appeal).

Counsel for the Appellant then filed their appellant’s reply brief dated and filed 4th April, 2014 and was adopted on the 7th May, 2014.

The issues raised by both sides to me are similar. I shall therefore adopt and determine the appeal based on the issues as raised by the appellant. They are so adopted.

ARGUMENT ON ISSUE NUMBER 1

Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for murder

Learned Counsel for the appellant aver that the above issue arises from grounds 3 and 4 of the additional grounds of appeal filed on the 4th of December, 2012.

Counsel referred this Honourable Court to pages 126, 105 and lines 12 and 13 of page 119 of the records of appeal and went on to submit that the observations of the Learned trial Judge quoted in the above pages above show clearly that the case of murder was not proved against the appellant and that trial court was wrong when it convicted the appellant for murder.

Counsel argued that this Honourable Court and the apex court have in a plethora of cases established the basic ingredients that the prosecution must prove beyond reasonable doubt for the court to convict an accused person for the offence of murder under Section 319 (1) of the Criminal code cap. 30 Vol. 11 of the Laws of Ondo State of Nigeria. They are:

(a) That the deceased died;

(b) That the death of the deceased resulted from the act of the accused person;

He referred us to the following cases.

– Uwagboe vs State (2008) All FWLR (Pt.419) 425 @ 427, P.446, paras B – D (SC);

– Isah v. State (2007) NWLR (Pt. 1049) 582 @ 602 – 604 paras ….. D – D (CA);

– Ogba v. State (1992) 2 NWLR (Pt 222) 164;

– Uguru v. State (2002) 4 SC (Pt.11) 13;

– Osadiaye v. State (1977) 4 SC 691

– Idemudia v. State (1999) 5 SC (Pt 11) 110;

– Omini V. State (1999) 9 SC 1 and

– R. v. William Oledima 6 WACA 202.

Learned appellant’s Counsel submits that if there is the possibility showing that the deceased died from cause(s) other than the act of the appellant, then the prosecution has not established the case against the appellant. He referred the court to the case of R. v. Nwokocha (1949) 12 WACA 453; R, v. Owe (1961) 2 SCNLR 354 and Audu v. State (2003) 7 NWLR (Pt.820) 576.

Counsel argued that the deceased did not die from the act of the appellant considering the findings of the trial Judge. He contended that the accused could be convicted for a murder charge only if the prosecution unequivocally establish the cause of death and must show that the cause of death was as a result of the act of the accused person.

He argued that if the prosecution fails to prove the ingredients, that the accused must be discharged. Counsel referred this court to the case of Udosen v. State (2007) 4 NWLR (Pt.1023) 125.

Learned Counsel submits that the burden of proof in murder cases rest squarely on the prosecution and never shifts to the accused person. He referred to section 139 of the Evidence Act, 2011 and the case of Ismail V. State (2008) 15 NWLR (Pt.1111) 593 held per ARIWOOLA, J.C.A (as he then was) that:

“‘cdt is trite that in a murder case such as the instant, the prosecution must unequivocally show that the act of the accused actually caused the death of the deceased. In Lori v. State (1980) 8 – 11 S.C.S.L. @ 95 -96, the Supreme Court, per Nnamani, J.S.C had stated as follows: “in a charge of murder the cause of death must be established unequivocally and the burden rests on the prosecution to establish this and if they fail the accused must be discharged. See Rex Samuel Abengoke 3 WACA 85, R. v. Oledina 6 WACA 202. It is also settled law that the death of the victim must be caused by the act of the accused or put differently it must be shown that the deceased died as a result of the act of the accused. See Sunday Omoniyi Vs. State (1976) 5 SC 1, Frank Onyenam Keva Vs The State (1994) N.M.L.R 34. See Sunday Udosen Vs. State (2007) 2 SCM 128 at 142 – 143”.

Appellant’s Counsel contended that, if specific intention to kill is not established beyond reasonable doubt by the prosecution, the court will acquit the accused of the offences of conspiracy to murder and murder. He referred the court to the case of Amayo v. State (2001) 12 S.C. (Pt.1) 1 where it was held per Uwaifo J.S.C (as he then was) as follows:

“It is clear that if that specific intention is unable to be established beyond reasonable doubt by the prosecutions, then the court will be unable to find the accused guilty of murder”

Counsel submits that, for an accused person to be guilty of an offence he must have the mens rea to commit same and that in a murder charge he must be proved to have a specific intention to kill and not a general intention. He referred the court to the case of Kwaku Mensah v. R. (1946) A. C. 83; and Sharmpal Singh v. R. (1962) AC 88.

Counsel argued that neither general nor specific intention was traceable to the appellant herein as to warrant killing of the victim in this case.

He aver that even the controversial confessional statements admitted as exhibits 5, 6 and 7 did not show that the appellant intended to kill the victim.

Learned appellant’s counsel urged this Honourable Court to resolve this issue in favour of the appellant and hold that the offence of Murder was not proved beyond reasonable doubt by the prosecution.

(a) That there was no specific intent to kill the deceased that was traced to the appellant

(b) That the stabbing of the deceased was not done by the appellant (2nd accused) and no such thing was done with his consent

(d) That the supposed confessional statements admitted as exhibits 5, 6 and 7 did not prove the case of murder against the appellant

(e) That PW1’s evidence was purely hearsay (see page 46 to 48) of the record of appeal. He admitted that he didn’t see the appellant kill the deceased as he was not at the scene and admitted that the PW2 informed him that he saw the appellant and the deceased and that he was only involved in looking for the victim after the death.

(f) That assuming without conceding that the deceased was raped it was not proved that the deceased died of rape

(g) That from the various categorical observation of the learned trial judge quoted above by the (counsel) that there was no proof quoted above by me (counsel) that there was DW2 (2nd accused of person) killed the deceased.

On the part of the respondent, in arguing that issue his counsel started by identifying the ingredients of murder as follows:

(i) The death of the deceased;

(ii) The act or omission of the accused which caused the death; and

(iii) That the act or omission of the accused was intentional with knowledge that death, or grievous bodily harm was its probable consequence

Learned Counsel referred this Honourable Court to the following authorities

– Okeke v. The State (1999) 2 N.W.L.R (Pt.590) 246 @ 273
– Abogede v. The State (1996) 5 N.W.L.R (Pt.448) 270 @ 276

Counsel argued that it was clear from the evidence adduced by PW2, PW3 and PW4 that one Mrs Silifat Rahman died and that she did not commit suicide. He hinged on Exhibit 9 which is a medical report establishing the death of the deceased and its cause. Counsel referred the court to pages 48 – 55 and page 57 of the records. He stated that PW4 gave evidence vivo voci that the body of the deceased was identified by one Jimoh, a probable relation of the deceased.

Learned Counsel submitted that death of the deceased was sufficiently established.
He urged the court to so hold.

Further referring to pages 12 – 18 of the records of appeal, respondent’s counsel contends that Exhibits 5, 6 & 7 corroborate each other to the effect that the deceased died in the course of raping her. That the 1st accused having raped and stabbed the victim in the presence of the other accused persons, the appellant took turn in raping her before the 3rd accused followed suit.

Learned Counsel stated that the appellant herein instead of assisting the victim who bled from the stabbed wounds inflicted on her neck and jaw, went ahead to rape her as she struggled.
Counsel hereunder excerpts the appellant’s statement contained on page 16 of the records:

“Segun pushed the woman down forced her to have sexual intercourse with after remove (sic) sum N3,000.00 from her, he use cloth to cover her mouth and later brought one chap knife out which he use to stab the woman at her jaw, he later asked me to sex the woman of which I did after Segun was removed the black pant the woman put on”.

Learned Respondent’s Counsel cited section 7(b) of the Criminal code cap 37, Vol. 1, Laws of Ondo State, 2006 which provides that:

“Every person who does or omits to do any act for the purpose of aiding another person to commit the offence is deemed to have taken part in committing the offence and may be charged with actually committing the offence”.

Counsel submits that the confessional statement of the appellant and other accused persons (Exhibits 5, 6 & 7) were consistent and unambiguous to the effect that the trio lured the deceased to the farm under the guise of selling kolanut to her, raped her in turns and in the process, the 1st accused person injured her in the presence of the appellant who neither objected nor relaxed his sexual proclivity, he went ahead and raped her even in her agony.

Counsel referring to excerpts of the appellant’s confessional statement in exhibit ‘6’ above submits that it would be contrary to reason and also contradictory for the appellant to maintain that he raped the deceased in obedience to his friend’s (1st accused) instruction, having admitted that he had been earlier informed by the 1st accused person of their reason to lure the victim to the farm of the 3rd accused person’s father which is to rape her counsel further referred to page 16 of the records for the excerpts of the appellant’s confessional statement to that effect.

Learned Counsel cited excerpts of PW4’s evidence in Chief contained of page 57 of the records as follows:

“I was served with cochers (sic) paper to perform post mortem examination on the body of a woman Silifat Rahman ……………..there was evidence of manual strangulation of the neck of the accused (sic). The neck was cut first done (sic) before the neck was twisted ………….There was vulva swollen and congestion (sic) of virginal (sic) examined it and came to the conclusion that sexual activity had taken place. There was evidence of rape”

Learned Counsel to the respondent submits that the above excerpt was a clear evidence that the deceased died as a result of the combined effects of the physiological travina of the injuries inflicted on her by the 1st accused to which the appellant acquiesced and the psychological effect of being raped even in her moribund state in which the appellant actively participated.

Counsel submits that the accused persons acted in accord and that the precise act of a particular accused which led to the death of the deceased was not necessary. Counsel referred the court to the case of The State v. Oladimeji (supra).

Learned Counsel hinged on the presumption of mental capacity as enshrined in section 27 of the criminal code Vol. 1 Cap. 37, laws of Ondo State 2006 and emphasized its sufficiency to establish mens rea of the appellant.

Moreover, Counsel averred that the appellant at the time of the commission of this heinous crime, instead of fleeing the scene to report the incidence or be directly involved in preventing the injury of the helpless victim, consented to the dastardly act and took turn in raping the victim even while she bled to death. Counsel contends that the acts of all the accused persons were intentional and with the knowledge that death or grievous bodily harm was its probable consequence. He referred the court to the following cases:

– Orisakwe v. The State (2004) 12 NWLR (Pt.887) P.34 Para G
– The State v. Usman (2007) 5 A.C.L.R 34 @ 41 – 42

Learned Counsel argued that the pieces of evidence before the Honourable Court and the facts herein disclose common intention of the appellant and the co-accused persons to either kill the deceased or cause her grievous bodily harm. He urged the Honourable Court to resolve the issue in favour of the respondent and against the appellant.

RESOLUTION OF ISSUE 1

Whether the guilt of the appellant was established beyond reasonable doubt laid down by law before he was convicted for murder:

The instant appellant was charged along with two other accused persons for the offence of conspiracy to commit murder and murder of the deceased, one Silifat Raham. At the trial the appellant pleaded not guilty to the charge but made confessional statements as contained on pages 16 – 12 and 23 – 27 of the record of proceedings tendered as exhibits.

“I know Ayo Duyilemi “m” very well. I equally know Segun Akinsuiwa “m” as well. On the 5th day of June 03 at about 4:30pm Segun Akinsuiwa “m” came to inform me and Ayo Duyilemi “m” to meet him in Ayo’s father farm that there is a woman call (sic) Iya Lekan by name Silifat Raham ‘F” that we want to have sexual intercourse with. He later went and call the woman having deceiving the woman (sic) that he has kolanut to sell for the woman and that the woman should follow us to meet him in the farm, that was how self, Ayo and the woman went to farm …………”

It is further excerpted as follows:

“On getting to Ayo’s father’s farm we met Segun who is already waiting for us………..”

From the foregoing excerpts of the 2nd accused person’s testimony, it is not in doubt that the appellant herein concerted with the 1st and 3rd accused persons to carry out this heinous act. As far as I can infer from the excerpts above, it is obvious to me that the appellant and the co-accused parties agreed and planned to commit an unlawful act and their actions by luring the deceased and leading her to the farm, were aimed at achieving their common purpose which was to rape and cause the deceased a grievous bodily harm and death resulted. The trio having premeditated the act, the appellant and the 3rd accused person led the deceased to the 3rd accused’s father’s farm where they met the 1st accused already waiting for them.

I am in total accord with the observation of the learned trial judge on page 128 of the record which reads:

‘The evidence before the court shows that the prosecution proved the ingredients of the offence of murder contrary to section 316(3) against the 1st and 2nd accused persons section 316(3) of the criminal code provides that;

A person who unlawfully kills another under any of the following circumstances, that is to say;

“If the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature to endanger human life is guilty of murder”.

“The death of the victim in this case was caused by the 1st and 2rd accused persons during the commission of an unlawful purpose which is rape and act was accompanied by assault, violence and the use of sharp weapon or instrument which is likely to endanger the life of the victim”.

I also agree with the submission of the learned counsel for the respondent that the trio lured the deceased to the farm under the guise of selling kolanut to her, raped her in turns and in the process one of them injured the deceased with a sharp object in the presence of the appellant who did nothing to stop or assist the woman in getting medical attention but rather proceeded to rape the helpless woman as she struggled for life.

Having gone through the records and the arguments and submission of counsel on both sides, I agree and hold that exhibit 6, 7 and 5 which are confessional statements of the appellant and the co-accused persons are consistent and unambiguous. Section 7 of the Criminal Code Cap. 37 Vol.1 laws of Ondo State, 2006 provides that:

“When an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and they may be charged with actually committing it”.

Section 7(b) of the above provision is stated thus:

“Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence”

Relying on the above provisions of the law, therefore the appellant herein having admitted in his confessional statement that he took part in luring and in raping the deceased who was killed in his presence is deemed to have taken part in committing the offence and to be guilty of the offence charged which is conspiracy and murder pursuant to sections 516 and 316 of the criminal code, Cap. 30 Vol, 21 Laws of Ondo State, 1978.

Learned Counsel for the appellant submitted in paragraph 4:05 of their brief of argument that the observations of the learned trial judge quoted in paragraphs 4:03 and 4:04 shows clearly that the case of murder was not proved against the appellant, that, the trial court wrongly convicted the 2nd accused person herein the appellant for murder.

The paragraphs are hereunder reproduced:

4:03 “There was evidence in Exhibits 5, 6 and 7 the confessional statements of three accused persons respectively describing a situation where a knife was used by the 1st accused person in her neck region showing that the death of the deceased was caused by the 1st accused person.

Exhibit 9 in addition states that there was evidence of manual strangulation on the neck of the deceased. The cause of death of the victim in Exhibit 9 was not challenged by the defence. I therefore find that death of the deceased was a direct result of the vicious attack on her by the 1st accused person”

“I also find that the act of 1st accused person was intentional knowing that death or physical bodily harm was its probable consequence”

Para 4:04 “This evidence corroborates the evidence contained in Exhibits 5, 6, 7 of the accused persons themselves who were present when the victim died stated that PW1 stabbed the deceased with a knife on her throat, neck and jaw”

All contained on page 126 of the record of appeal.

I completely disagree with the submission of the learned counsel for the appellant as cited earlier on that, based on observations of the learned trial judge, that the case of murder was not proved against the appellant and who was wrongly convicted.

Exhibit 6 which is the voluntary confessional statement of the appellant herein was admitted in evidence without objection and I believe same to be a statement of truth. The evidence given therein was direct and proved active participation of the appellant in the alleged Murder.

As in the instant case where it is shown that a confession was freely and voluntarily made, be it judicial or extra judicial and it is direct, positive and properly established it constitutes proof of guilt and it is enough to sustain a conviction so long as the court is satisfied as to its truth.

Exhibits 5, 6 and 7 which are the voluntary confessional statements of accused persons and which corroborate each other, clearly show that the deceased Late Mrs. Salifatu Rahman was on 5th of June, 2003 lured by the appellant and the other two accused persons to the farm of the father of the 3rd accused ostensibly to sell kolanut to her. It is also disclosed in exhibit 6 of the 2nd accused (appellant herein) that the 1st accused met the 2nd accused and 3rd accused persons to inform them of and where to carry out the horrific act. It is also on record that the 2nd and the 3rd accused persons were the ones that led the deceased to the farm where she was eventually killed.

“The overt act of omission, which evidence conspiracy is the actus reus and the actus reus of each and every conspiracy must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators like those who Murdered Julius Caesar were seen together coming out of the same place at the same time and know each other”.
It is again held in Kaza v. The State (2008) 5 SCM 70 104 that:

“In the offence of conspiracy, the mens rea is not easy to locate as it is mostly, if not invariably, buried in secrecy. And so, the actus reus of the offence which is easier to locate can draw the mens rea to the open and make it possible for the court to find inculpatory evidence.”

Indeed and I so hold, the acts of a 2nd accused (appellant) and his cohort by deceiving the deceased into buying kola in the bush and leading her to the said farm brought to the fore the mens rea of their conspiracy to commit a crime.
It is also on record that after killing the victim her body was dragged and dumped in a nearby stream where it was found.
However, it is pertinent to point out that there are set out tests to be applied in the evaluation of a confessional statement before the courts can conveniently convict on it. See the case of Johnbull Ekwure Vs. State (1999) 13 NWLR (Pt.635) 456 @ 470 – 471 Paras H – B They are:

1. Is there anything outside the confessional statement to show it is true?

2. Does the accused have the opportunity to commit offence?

3. Is the accused person’s confession consistent with facts which have been ascertained and proved?

4. Is the confessional statement corroborated?

I am satisfied that Exhibit 6 which is the appellant’s confessional statement discloses enough evidence to ground a conviction and there are facts outside the exhibit which are corroborative of it and thus pointing to the guilt of the appellant.

The 2nd accused person herein the appellant had ample opportunity to commit the offence as seen in evidence.

It is also worthy of note that Exhibit 6 holds enough disclosure of the fact that the deceased died and that her death resulted due to the dastardly act of the appellant and his cohort. Based on the facts of Exhibit C6 which is unequivocal, positive and direct I hold that the court can conveniently convict the appellant solely on it having established the truth and correctness of it.

Furthermore, in addition to the voluntary confessions made by the appellant, the prosecution at the trial court called four (4) witnesses who all testified and the appellant called no witness. One of the prosecution witnesses PW4 a Doctor of Medicine and a specialist in forensic pathology and Morbid Anatomy gave expert evidence having carried out a post mortem examination on the deceased Hereunder is an excerpt from the evidence of the Pw4 contained on page 57 of the record:

“There was activity going on I took autopsy of the virgina examined it and came to the conclusion that sexual activity had taken place. There was evidence of rape. There was laborational analysis of the fluid got from the virgina. I carried the laboratory test personally I looked at the fluid under a microscope and saw sperm cells……………It is not likely that the sexual actually place (sic) after death because there was swollen of the vulva…………..It is not likely that the sexual actually place (sic) after death because there was swollen of the vulva………………”

The learned trial judge in the last paragraph of page 101 asserted that the evidence of PW2, PW3, PW4 a medical pathologist and Exhibit 9 (a report of the post mortem examination) all show that the deceased did not commit suicide. I indeed agree and so hold.

Learned Counsel for the respondent relying on the authority of Adepetu v. The State supra contended that where direct evidence of eye witness is not available as in the instant case, that the court may infer from proved facts the existence of other facts that may logically tend to prove the guilt of an accused person. I totally agree with the learned Counsel. See the case of Ikemson v. State suit No: 196/1987; (1989) 20 NSCC (Pt.11) 471 @ 475 (1989) 3 N.W.L.R. (Pt.110) 471@ 475 per Belgore, J.S.C where he held thus:

“If they participated that is enough for it does not matter what each one did in furtherance of the commission of the crime. The mere fact of common object to commit armed robbery and manifesting at the scene of crime to execute that object in law rendered all appellants guilty of the offence of armed robbery”.

It is therefore my candid view that the trial Court rightly convicted the 2nd accused person (appellant herein) for Murder having proved same against him beyond reasonable doubt and in accordance with the law.

The Learned trial judge in his judgment on page 105 of the record stated as follows

“Even though there was no direct evidence coming from an eye witness for the murder of the deceased however from testimony of PW4 in Court and Exhibit 9, (medical report) the cause of the death of the victim which was given in evidence was not challenged …….”

Therefore, given the evidence before this court, the circumstances of this case and relying on the authorities adduced herein I hold without doubt that the prosecution proved its case beyond reasonable doubt and Murder was established against the appellant. This issue is resolved against the appellant.

ARGUMENT ON ISSUE NO 2

Whether the guilt of the Appellant was established beyond reasonable doubt as laid down by law before he was convicted for conspiracy to murder.

This issue according to learned counsel for the appellant arises from grounds 2 and 5 of the additional ground of appeal. He submits that the offence of conspiracy to murder was not established against the appellant in the instant case. Counsel argued on points of law that the prosecution can only secure conviction in a conspiracy charge if it proved the following:

(a) That there was an agreement between two or more persons to do the illegal act alleged and;

(b) the individual participation in the conspiracy by each of the accused person.
He referred the court to the case of Garba v. C.O.P. (2007) 16 N.W.L.R (Pt.1060) 378 at 405 paras A-B C. A.

Counsel aver that the evidence relied upon by the learned trial judge in convicting the appellant did not show any agreement between the appellant and anyone to kill the deceased.

To back up his argument, Learned Counsel referred to exhibit 7, a confessional statement made by 3rd accused person, Ayo Omoduyilemi as follows:

“At the farm segun Akinsuwa then emerged and pushed the woman down and used his hand to cover her mouth he then have sexual intercourse with her. Afterward Segun Akinsuwa ‘m’ then threatened that if we did not have sex with the woman he will kill us in the farm. Before this time Segun had used the knife he brought to inflict injury on the woman’s neck. It was Omojole that sex the woman next while I sex her last”.

Learned Counsel submits that appellant was not guilty of the offence of conspiracy to murder. He on the observation of the learned trial judge on page 118 as follows:

“There was evidence that the victim was not raped by the 1st accused person before she was killed. DW1 raped her first and then killed her. He said in his statement that; forcefully had sex with her. After I finished with her I stabbed her in the jaw and throat. I don’t want her to come and reveal the matter at home. It was after I stabbed her that Omojola and Ayo sexed her”.

Counsel is of the contention that the above observation negates every insinuation that the appellant (DW2) was not in agreement with anyone to kill the deceased. Counsel further aver that the allegation of conspiracy to murder was not established against the appellant. Learned counsel stated without conceding that even if the appellant had canal knowledge of the deceased that it was under duress.

Counsel urged this court to resolve this issue in favour of the appellant and hold that offence of conspiracy to murder was not proved beyond reasonable doubt by the prosecution against the appellant.

On the part of the respondent, the respondent’s learned counsel submits that the prosecution had discharged its duty and proved the case of conspiracy and murder against the appellant beyond reasonable doubt. he argued that directly or circumstantially, that to prove the case of conspiracy, the following ingredients must be established:

(1) An agreement between two or more persons to do an unlawful act or an act which is legal by unlawful means and;

(ii) An act in furtherance of their agreement in which each of the accused is actively involved.

He referred this Honourable Court to the cases of: Abdullahi v. The State (2008) 17 N.W.L.R (Pt.1115) 221 – 222 paras. H – C and Usman Kaza v The State (2008) 7 N.W.L.R. (Pt. 1085) 125 SC.

Respondent’s Counsel submits that extrajudicial statements of the appellant and those of the co-accused persons are a damning exposition of a conspiracy to rape the victim by luring her to the 3rd accused person’s father’s farm.

That Exhibits 5, 6 and 7 which are confessional statements of the accused persons having been admitted in evidence has became part of the evidence of the prosecution. He referred the court to the case of Princewill v. The State (1994) 7 -8 S.C(Pt.11) 226 @ 240.

Learned respondent’s Counsel referred to the earlier excerpts of the voluntary confessional statement of the appellant and contended that there was actually an agreement between the appellant and the other two accused to do an unlawful act.

Counsel argued that the appellant, in furtherance of their agreement stated as follows:

“On getting to Ayo’s father’s farm we met Segun who is already waiting for us the woman then asked for the kolanut but Segun replied that we only deceived her that we tricked to this farm to have sexual intercourse with”.

Learned Counsel is of the contention that the above statement which is contained on page 16 of the record establishes the fact that the appellant and the other accused persons’ mindset met somewhere for the purpose of raping the deceased and which according to counsel is sufficient proof of conspiracy, He referred the court to the following cases in that respect:

– Gbadamosi v. The State (1999) 5 N.W.L.R (Pt.96) 182 SC.
– Shodiya v. The State (1992) 3 N.W.L.R (Pt.230) 451 @ 142.

Counsel argued that proof of conspiracy was generally a matter of inference which according to him could be inferred from the appellant’s confessional statements as excerpted earlier in this case. He referred the court to the cases hereunder: Gabriel Erim V. The State (2012) 9 ACLR 344 @ 352; Omotola & Ors v. State (2009) 8 ACLR 29 @ 46.

The respondent’s counsel maintained that the appellant and his cohort conspired to rape the deceased and in the process death ensued. He argued that who committed the particular act that caused the death of the victim did not matter since the accused persons acted in concert. Counsel submitted that all the accused persons committed conspiracy and murder. Counsel urged the Honourable Court to so hold.
He referred the court to the case of State V. Oladimeji (supra)

RESOLUTION OF ISSUE TWO:

Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for conspiracy to murder:

The contention of the appellant’s counsel under this issue is that the evidence relied upon by the learned trial judge to convict the appellant did not prove the appellant’s agreement with anyone to kill the victim.
In other words, he submitted that the offence of conspiracy to murder was not established against the appellant.

Generally, proof of conspiracy is a matter of inference and the inference of involvement of the appellant can be inferred from all the collateral circumstances of the case. Conspiracy is an offence that is often deduced or inferred from the acts of the parties thereto which are directed towards the realization of their common or mutual purpose or agreement.

– R. v. Aspinall (1876) 2 QBD 48 @ 58 – 59

– Njovens v. State (1973) 5 S.C 17,

– Dabo v. State (1977) 5 SC;

– Odeneye v. State (2001) 2 NWLR (Pt. 697) 311 @ 332 – 333

– Gbadamosi v. State Suit No: CA/L/62/88; (1991) 6 NWLR (Pt.196) 182 @ 204;

– Gabriel Erim v. The State (supra)

Considering the foregoing authorities and to succinctly do justice to this issue I wish to refer to the excerpts of the voluntary confessional statement of the 2nd accused person herein the appellant, which was reproduced somewhere in this Judgment, as contained on pages 16 to 17 of the record, Exhibit 6.

In the said exhibit 6, the appellant herein admitted knowing the 1st and the 3rd accused persons. He gave evidence that the 1st accused person Segun Akinsuwa met him and the 3rd accused person and informed them of the plan to deceive the victim into buying kolanuts knowing that it was her kind of business but, with the aim of raping and causing bodily harm to her. The instant appellant and the 3rd accused person agreed to the plan and led the victim to the farm where she was obviously helpless, having been overpowered by three (3) Young men. They executed the plan. She was raped and killed in cold blood. Excerpt of Exhibit 6 reveals as follows:

“He later went and call the woman having deceiving the woman (sic) that he has kolanut to sell for the woman and that the woman should follows us to meet him in the farm, that was how, self, Ayo and the woman went to the farm….”

I am in accord with the learned counsel for the respondent that the appellant and the other accused persons’ mind-set met somewhere for the purpose of raping the deceased and which is sufficient to prove conspiracy. See Gbadamosi v. The State (supra)
The appellant herein and the other accused persons agreed to rape and cause grievous bodily harm to the deceased. There was joint intention to commit crime which all the accused persons participated actually and, which is enough to convict the appellant for conspiracy. See the case of Bello v. State (2010) 12 (Pt. 2) S.C.M, page 52 para. C where it was held to thus:

“The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common purpose. It is immaterial that the persons had not met each other, concluded agreement can be inferred by what each person does or does not do in furtherance of the offence of conspiracy”

I agree with the position of the learned trial court on page 123 of the record where it held as follows:

“The truth is that they met before leaving on the 5th of June to go to the farm. The actus reus of the crime of conspiracy takes place at the moment the three accused persons agreed or concluded an agreement to carry into effect, their intention to achieve an unlawful purpose … the gist of the offence lies not in doing the act or effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or the agreement of the parties.”

I find that the offence of conspiracy to commit a felony was established against the appellant beyond reasonable doubt and in accordance with the law. His voluntary confessional statement having been admitted in evidence was unambiguous and not challenged.
This issue is hereby resolved in favour of the respondent and against the appellant.

ARGUMENT ON ISSUE NUMBER 3:

Whether the learned trial judge evaluated or properly evaluated the evidence before finding the appellant guilty and, if not, did not her failure to do so occasion a miscarriage of Justice.

This issue, according to learned appellant’s counsel arises from grounds 6 and 7 of the additional grounds of appeal. He averred that the learned trial judge entered a verdict of guilty against the 2nd accused person herein appellant because he did not show that he resisted the 1st accused person from killing the deceased. He quoted paragraph 4 of page 120 of the record where the learned trial judge found thus:

“On the whole I find that the 1st accused person was the one who physically inflicted the death, premeditated and unprovoked assault on the deceased in the presence of the 2nd and 3rd accused persons who stood by and watched and did nothing to prevent the assault. The assault was premeditated because the 1st accused carried a deadly weapon with him to the farm”

Learned Counsel further referred to and cited paragraph 2 of page 125 of the record of appeal and submitted that the observation of the Learned trial Judge was based on conjunctures and suspicion which has no place in law. He contended that the above observation as quoted is also speculative and the correct legal implication of Exhibits 5, 6 and 7 which are the accused persons’ confessional statements. Counsel argued that the learned trial judge did not take into cognizance the statements ascribed to DW1 in Exhibit 5 wherein he stated that he stabbed the victim to cover the rape and the statement ascribed to DW3 in Exhibit 7 that DW1 having stabbed the deceased threatened to kill him and the appellant should they fail to sleep with the victim.

Learned Counsel, hereunder reproduced statements made by DW3 contained in exhibit 7:

At the farm Segun Akinsuwa then emerged and pushed the woman down and used his hard to cover her mouth he then have sexual intercourse with her. Afterwards Segun Akinsuwa “m” then threatened that if we did not have sex with the woman he will kill us in the farm. Before this time Segun had used the knife he had brought to inflict injury on the woman’s neck. It was Omojola that sex the woman next while I sex her last”

Counsel also cited excerpt of DW1’s statement contained in Exhibit 5 as follows:

“I forcefully had sex with her. After I finished with her I stabbed her in the jaw and throat. I don’t want her to come and reveal the matter at home. It was after I stabbed her that Omojola and Ayo sex her last”.

Based on the excerpts highlighted earlier, learned counsel submits as follows:

(a) That, if the confessional statements were genuinely procured, which is so much doubt, it showed that the 2nd appellant who was the 2nd accused person had no control over both the victim and DW1.

(b) That if the killing had taken place in his presence, this I doubt though, the 2nd accused has no agreement to repudiate since he was not proven to have agreed with the DW1 to kill the deceased from the onset.

Learned Counsel contends that speculation has no place in law and neither parties nor the court is permitted or entitled to speculate anything. That it is trite that this court will interfere to set any conviction based on speculation aside. Counsel referred to the case of Ikenta Best Nig Ltd V. A. G. Rivers State (2008) ALL FWLR (pt. 417) @ 10 esp. @ 36.

Counsel argued that when the court speculates it amounts to shoring up for the prosecution. He contended that such speculation coming from the court cannot amount to proof beyond reasonable doubt. Counsel cited the case of Ndidi V. State (2007) 5 SC 175 per Muhammad, J.S.C where he held as follows:

“the cardinal principle of trial in criminal cases is that the trial court must not be seen to appear to look for excuse to shore up the case of the prosecution to get a conviction anyhow. Such an attitude of ignoble practice only portrays the court as anything but impartial abiter. It is reprehensible for any court to portray any attitude that shows tendency to get conviction at all costs for the prosecution. In that case, the court would have now turned itself into a prosecutor and a prosecutor. A court of law or reasonable tribunal should be wary of such a practice”.

Counsel submits that the inability of the appellant to repudiate the plan of the 1st accused person to kill the victim does not amount to a felony.
He further submits that the learned trial judge substituted his own version for the real evidence of parties and which, said counsel was wrong. He referred us to Iteshi Onwe V. State (1975) (reprint) 9 – 11 SC 14 @ P. 19 Paragraph 30 Learned Counsel argued that the learned trial judge’s reliance on the evidence of PW1, PW2 and PW4 as circumstantial evidence corroborating Exhibits 5, 6 & 7 to convict the appellant (2nd accused) of murder was based on a non-existent legal principle. He gave his reasons as follows:

(a) Exhibits 5, 6 and 7 did not allege nor establish murder against the appellant.

(b) That PW1 in his testimony contained on pg 46 – 48 of the record admits not seeing the appellant kill the deceased, not being at the scene and that he also admitted PW2 informed him that he saw the appellant and the deceased.

Counsel referred the court to paragraph 3 of pages 48 to 51 of the records for contradictions in PW2’s testimony.
He argued strongly that the evidence of PW2 is not only inconsistent but unreliable and not compelling.

Learned Counsel on principles of law pertaining contradictions in criminal matters cited the authority per Mohammed, J.S.C in the case of Omochukwu V. State (1998) 4 SC 49 @ 57 as follows:

“Where there are such contradictions and inconsistencies in the evidence before a criminal court, such as to cast reasonable doubt upon the guilt of the accused person such accused person should be given the benefit of the doubt and not be convicted on the basis of such unreliable evidence”.

Counsel contends that PW4 did not say victim died as a result of rape but of a cut to the neck and that there was no evidence that the appellant was the person who stabbed the deceased. Counsel stressed on the issue of speculation that the evidence led by prosecution witnesses were facts based on suspicion and speculation which according to counsel did not prove the guilt of the appellant. He gave a view that suspicion no matter how strong cannot ground conviction and referred the court to the case of Benson Obiakor V. State (2002) 6 SC (Pt.11) 33.

Further relying on the case of Benson V. Obiakor Supra, learned counsel maintained that the prosecution has not linked the appellant with the murder of the deceased.

He submits that the evidence led by the prosecution were fabrications which do not prove that the appellant killed the victim. Counsel urged the court to quash the conviction of the appellant.
Learned appellant’s counsel submitted that in cases where the evidence as to how the deceased met his death was conflicting, mixed up and inconclusive, that this court had discharged and acquitted an accused person. He referred the court to the case of Udosen V. State (2007) 4 NWLR (Pt. 1023) 125 where it was held as follows:

“In the instant case, the evidence as to how the deceased met her death was conflicting, mixed up and inconclusive”.

Learned Counsel averred that the trial court failed to evaluate the pieces of evidence before it and hence the wrongful conviction of the appellant. He submits that the misperception by the learned trial judge occasioned a miscarriage of justice. Counsel urged the court to hold that this issue succeeds, reverse the trial court’s decision by quashing the appellant’s conviction and accordingly acquit the appellant.

Learned appellant’s counsel finally submits that the offences of conspiracy to commit murder and murder were not proved beyond reasonable doubt against the appellant and that the conclusion of the learned trial judge was unsupported by evidence. He urged this Honourable Court to quash the appellant’s conviction and acquit him of the offences against him.

The respondent’s counsel in reaction to this issue submits that there are no material contradictions and inconsistencies in the prosecution’s evidence before the trial court which can assist the case of the appellant. In his submission learned counsel for the respondent tried to draw a distinction between contradictions and discrepancies in evidence of witnesses which he said received judicial interpretation in the case of Jerry Ikuepenikan V. The State (2011) 1 NWLR (pt. 1229) 449 where it was held that, contradictions go to the essentiality of something but minor discrepancies, depend on astuteness and capacity to observe meticulous details.

He cited the case of Dibia & Ors V. The State (2008) 6 ACLR @ 329 Ratio 35 where it was held that:

“On the question of whether there are material contradictions it is necessary to say that for contradictions to be regarded as material, it must go to the root of the charge before the court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are usually expected in every trial since human memories do not have equal capacities of storing and retrieving events that happened”.

Again, learned counsel referred this court to the case of Akpa Vs. The State (2008) 6 ACLR 514 @ 518 and submitted that a piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated. He contended that the evidence of PW2 is unambiguous and have no material contradictions or inconsistencies. Counsel referred to pages 48 – 49 of the records where he excerpted PW2’s evidence to wit:

“On the 5/6/2005 when I came back from my farm in the evening as I was going out around 6pm. I saw the 2nd accused with the deceased in the evening the woman greeted me. She told me she was asked to come and buy kolanut… I saw only the 2nd accused person with the woman. When I came back I saw a lot of people who said they were looking for Iya Alado……, they said the woman went out in the morning and they have not seen her and that was not her usual way of going out…. we then went to Baale’s house… I saw the 2nd accused person at the entrance to Baale house. I asked if he knows me, because I saw him with the deceased earlier that day.
He did not reply me. The people said that the 2nd accused has not gone out that day …….”

Learned respondent’s counsel averred that there was no iota of contradiction or inconsistency in the evidence of the PW2 as according to him, on cross examination as contained on page 50 of the records PW2 stated thus: “I saw them at about 6pm” and that his response to the defence lawyer’s question as to what time the PW2 saw the 2nd accused person and the deceased, the PW2 answered “Before 6pm”.

Counsel contented that 6pm means either a little before or after 6pm. He referred the court to the case of Akpa v. The State (supra)

Learned Counsel submits that if PW2 saw the appellant with the deceased at about 6pm and informed the PW1 before 6pm that the two pieces of evidence cannot be contradictory, but only apparently discrepant as one according to counsel does not affirm the opposite of the other.

Learned counsel argued that some people said the 2nd accused on that fateful day did not go out which is against the evidence of the PW2 that he saw the 2nd accused and the deceased together on their way to the farm. Counsel aver that non of the people who said the 2nd accused did not go out on that day could come to the court to give evidence in that regard. Counsel urged the court to hold that there are no material contradictions or inconsistencies in the evidence of PW2 that could be of help to the appellant. Respondent’s Counsel submits that the evidence of prosecution witness, particularly those of PW2, PW3 and PW4 are not contradictory but said they jointly and severally corroborate the confessional statements of the appellant establishing the fact of his involvement in raping and murder of the deceased. He went further to submit that the courts have shifted from reliance on technical justice to doing substantial justice that, the appellant in the instant case cannot rely on technical and typographical loopholes to rob this case of justice. He referred the court to the following cases:

– Ogbaegbe v. FBN PLC (2005) 18 NWLR (Pt.957) 357
– Ogbogoro v. Omenunuma (2005) 1 NWLR (Pt.906) 1 @ 16

By way of conclusion, learned counsel referred the court to the case of Adepetu v. The State (1998) 9 NWLR (Pt. 565) P.21 paras A – B and contends that where direct evidence of eye witness is not available as in the instant case, that the court may infer from proved facts the existence of other facts that may logically tend to prove the guilt of an accused person. Counsel stressed that the trial court arrived at its decision by drawing inferences and presumptions which were logically permissible and not speculation and wrongful evaluation as canvassed by the appellant. He further referred this court to the case of Peter v. The State (2007) A.C.L.R 192 @ 196.

He submits that the evidence of PW2 and that of the PW1 were not inconsistent. He relies on the authority of Ojo Vs Gharoro (2003) 2-3 SC @ 113 – 114. Counsel submits that the above mentioned cases of Obiakore V State and Eme Orji V. State referred to by the appellant’s counsel are not relevant. He urged the court to so hold.

In a way to further elucidate his arguments, learned counsel contends that a conviction can be sustained on a free and voluntary confession, not withstanding that the accused retracted the statement. He referred the court to case of Nweze v. State (1996) 2 N.W.L.R (Pt.428) 1 and Ayo V. State (2008) 6 ACLR 220 @ 230.

Learned Counsel relied on sections 7 and 8 of the criminal code cap. 37 vol. 1 Laws of Ondo State, 2006 to say that the appellant and the other two accused persons raped and murdered the deceased, since they conspired to rape her and in the process injury and death ensured. Counsel concluded by urging the court to dismiss the appeal and affirm the conviction and sentence of the appellant.

The appellant in his reply brief argued through his counsel that the court cannot just ascribe common intention to two offenders without a proof by tangible evidence. He submits that court can infer common intention to an accused person if in the process of committing a criminal act a co-accused commits the crime which goes beyond their common purpose. Counsel argued that had the learned counsel for the respondent appreciated the purport of section 7 (b) and section 8 of the criminal code cap. 37 Vol. 1 Laws of Ondo State on aiding, abetting and or common intention by persons to commit crime, that his reasoning would have been different. Counsel argued that the victim did not die of Rape but due to unilateral decision of a co-accused to inflict injury on her. He relied on the authority of Alarape V. State (2001) 2 SC 114 and State V. Azeez (2008) All F.W.L.R (Pt 424) 1423 to buttress that the law places a duty on the prosecution which is to lead evidence before the court of circumstances where “common intention” may be inferred.
Learned appellant’s Counsel further placed his reliance on the case of Ofor Vs R (1955) 15 WACA 4 and R. Vs Bada (1944) 10 WACA, per Owoade J.C.A in the case of Obinna Osuoha v. The State (2010) LPELR CA/OW/150/2009 where it was held as follows.

“However, the proof of common intention is a condition precedent to conviction in this type of case and a presumption of a common intention should not be readily applied”

Counsel referred the court to the case of Mbang v State (2007) All FWLR (Pt.372) 1862 and Adio v. The State (1986) 4 SC as to proof of common intention and its definition. He concluded that in law where an accused person leads an uncontradicted evidence that he was intimidated and or coerced to witness the commission of a crime he cannot be guilty of aiding the commission of such crime.
He referred to the case of Obinna Osuoha Vs State Supra. He urged the Honourable Court to be persuaded by the decision in the case of R. Vs kennedy No 2 (2008)1 AC 269 per Lord Bingham as follows:

“… Criminal law generally assume the existence of freewill … and it acknowledges situation of duress ……”

Leaned Counsel argued that the appellant did not commit further offence other than rape and that victim died as a result of stabbing by a co-accused person which is according to counsel, beyond rape. He referred the court to the case of Mohammed V. The State (1980) 3 – 4 S.C 56.

He submitted that in the circumstances of the case at hand, that for a person by reason of his act or omission to be convicted for aiding and for forming a common intention under the provision of the criminal code, that, the following must have arisen from the evidence led:

i. the prosecution proves that the efforts or omission of the accused positively encouraged and or contributed to the commission of the crime alleged. The Appellant in this appeal was coerced; hence he is a victim of an attack by the other accused person. State v. Azeez (2008) All FWLR (Pt. 424) 1423

ii. The accused must be proved to have foreseen that the other person might commit the crime, in this case the murdering act. (In the present Appeal there was no evidence that the Appellant was aware that the other person had a knife with which he killed).

iii. The accused and the person who carried out the crime complained must be proved to have acted in concert; i.e. shared same purpose at all- time material to the later crime

iv. Prosecution must prove by evidence that there was an opportunity for the commission of the later crime (murder) between the Appellant and the other person.

v. prosecution must prove that the accused provoked and or intrinsically encouraged the later crime of murder.

vi. the prosecution must show that the accused caused or contributed to a cause of the crime. The actus reus in this case was the killing of the deceased with a knife. To be guilty of that crime it must be shown that the Appellant caused or encouraged the victim to be killed as a joint principal. See the case of Mohammed v. State (1980) 3-4 S.C. 56. In the case of Mohammed v State (supra) the Supreme Court held that conviction based on common intention under Section 8 of the Criminal Code cannot be sustained when no use of weapon was in contemplation of the Appellant. The Court per BELLO J.S.C held that:

“the consequence of an act may be said to be probable if a reasonable man would consider its occurrence to be the natural and normal effect of the act. I do not think that a reasonable man would conclude that death in such a violent manner may be a probable consequence of the simple assault, which the appellants and Isa had formed a common intention to prosecute. Nobody was armed at the initial stage of the fight. Weapons were used after the 1st appellant had withdrawn himself from the fight. That being the case, the conviction of the 1st appellant by virtue of section 8 of the Criminal Code cannot be sustained.”

vii. if a weapon is used by one of the persons, the test to be applied is whether his use of the weapon was a probable consequence of their Joint purpose: See the cases of Muonwem and Others v. The Queen (1963) 1 All N. L. R. 95 at 98 and Digbehin and 2 Ors. v. The Queen (1963) 1 All N.L.R. 388 at 392. Sir, with due respect, I do not think that three able bodied men would need a knife to have canal knowledge of one woman. It cannot be imagined that they planned to harm one of them with a knife to have carnal knowledge of a harmless woman.

Learned Counsel submitted that the arguments forwarded by the respondent be discountenanced in their entirety and their cited authorities distinguished as not being applicable in the instant case. He further urged this Honourable Court to uphold that appeal and acquaint the appellant.

RESOLUTION OF ISSUE NO 3:

Whether the learned trial judge evaluated or properly evaluated the evidence before finding the appellant guilty and, if not, did not her failure to do so occasion a miscarriage of justice.

Learned Counsel for the appellant referred to paragraph 4 of page 120 and paragraph 2 of page 125 of the records and contended that the learned trial judge’s observations were based on conjunctures and suspicion which has no place in law. He further stated that it was speculative and not the correct legal implication of exhibits 5, 6 and 7 relied upon by the trial court. Counsel maintained that the statements ascribed to DW1 in Exhibit 5 that he stabbed the victim to cover the rape and DW3 in Exhibit 7 that DW1 having stabbed the deceased, threatened to kill him and the appellant if they did not sleep with the victim, were taken into cognizance by the learned trial court.

The said observation of the learned trial judge on paragraph 4 and 2 of pages 120 and 125 respectively are hereunder reproduced:

“On the whole I find that the 1st accused person was the one who physically inflicted the deadly premeditated and unprovoked assault on the deceased in the presence of the 2nd and 3rd accused person’s who stood by and watched and did nothing to prevent the assault. The assault was premeditated because the 1st accused carried a deadly weapon with him to the farm”

“There was evidence before the court that during the process of raping the victim which was the original plan of the three (3) accused persons, murder was committed.
After the victim was subdued and attacked by the 1st accused person using a knife on her jaw, throat and neck area she died in the process. Since Murder was committed in the process of raping the victim there was evidence that the 2nd accused person acquiesced to the murder because at the moment when the 1st accused person brought out a knife to stab the deceased and during the entire period of time when he inflicted injuries on the deceased there was no evidence or indication by the 2nd accused person showing a total repudiation of the plan of the 1st accused person to kill the victim as opposed to their previously agreed plan to rape her.”

The learned trial judge continued after the above excerpts as follows:

“If the 2nd accused person had no intention to cause the death of the deceased as soon as he saw the 1st accused bring out the knife to stab the deceased thereby using more parts than is ordinarily required to rape her he must show concrete evidence that he did not agree with the 1st accused that stab wounds would be inflicted on her which could lead to her death. The 2nd accused person needed to demonstrate immediately that he had no intention of causing death or that he did not acquiesce for the use of any weapon that could cause her death.”

The learned trial judge did exhaustively evaluate the pieces of evidence and facts before him before arriving at the said observation. I agree and so hold. See the provision of law contained in section 7 (b) of the criminal code cap.57, Vol. 1 Laws of Ondo State, 2006 supra to that effect.

It is my view that the learned trial judge having presided over the matter and had the opportunity of observing the demeanor of the accused persons and also as on record that the prosecution called four (4) witness who all testified and considering the voluntary confessional statement of the accused persons Exhibits 5, 6 and 7 before the Honourable Court, cannot be said to have arrived at his observations as quoted earlier in this case based on conjectures, suspicion, speculations and possibilities.

I disagree with the Learned Counsel for the appellant on that assertion.
I agree, however, with the learned counsel for the respondent that courts of law have shifted from technical justice to doing substantial justice. See the case of Ahmadu v. Yantumaki (2011) 9 N.W.L.R. (Pt. 1251) 161 @ 168.
Therefore, considering the facts and evidence before the court and also the statements ascribed to DW1 and DW3 in Exhibits 5 and 7 respectively as put forward by counsel, I hold the view that the learned trial judge did properly evaluate the evidence before the court. The trial judge held in his Judgment on page 117 of the records as follows:

“I am satisfied from the surrounding circumstances at hand and I hold that the voluntary confessional statements of the 1st and 2nd accused persons contained Exhibits 5 and 6 are true. It is therefore my view that full weight and effect should be accorded to the confessional real statements of the two accused persons. I am even of the view that the 1st and 2nd accused persons could be convicted in view of their confessional statement contained in Exhibits 5 and 6 alone.
There was however in addition to their confessional statement the evidence coming from PW1, PW2 and that of cause that (sic) of PW4 to evaluate. In the case of PW4 his evidence is direct while in the case of PW1 and Pw2 their evidence circumstantially points to the fact the accused persons had link with the deceased woman”.

The 2nd accused person herein, the appellant even though denied his confessional statement contained in Exhibit 6, it is trite law that confession where voluntary, is admissible. The denial is a matter to be considered in deciding the weight to be attached to the confession. See Ekpenyong v. State Suit No: CA/PH/200/89; (1991)6 N.W.L.R (Pt. 200) 682 @ 706It is on record that the victim was last seen alive in company of the 2nd and 3rd accused persons as contained in the evidence of PW2 and corroborated by exhibits 4, 5, 6 and 7. The accused persons being the last to have therefore been seen with the deceased person have the responsibility of explaining what caused the death of the deceased. They did so in their voluntary confessional statements.

In evaluating the evidence of the accused persons, the learned trial justice made it clear in his judgment on the last paragraph of page 122 of the record as follows:

“The evidence also suggests a plan of the 1st accused person with the other accused persons to rape the deceased and that in the furtherance of this plan DW1 went ahead to tell lies to the deceased inviting her to the farm to buy Kolanut. There was evidence that the 2nd and 3rd accused persons knew that the 1st accused persons had no kolanut to sell yet they agreed to a plan to lure her into a farm”

On page 124 of the record the learned trial judge was able to bring out the common intention of the accused persons to commit a felony which was carefully premeditated and carried out. The learned judge was also able to make it clear that the accused persons actually know each other and infact that 3rd accused’s father got married to the 2nd accused person’s sister.

It is on record that the 1st accused person went and met the 2nd and 3rd accused persons and thereby hatched the plan to commit the act.

The learned trial court held on page 124 of the record as follows:

“… the confessional statement of each of the accused persons against the other accused person is admissible against the other person” see the case of Omotola Vs. The State (2009) 2-3 SC (Pt. 11) 196.

Having gone through the evidence and facts before the Court, from the proved and accepted facts above, it is clear to me that the circumstances surrounding the death of the deceased are unequivocally pointing to the appellant and his cohort. I am not impressed by the argument of the learned Counsel for the appellant in paragraphs 6:13 and 6:14 contained on page 14 of the appellant’s brief as to substitution of the evidence of witnesses. I do not have doubt in my mind that the trial court did justice in this case.

I so hold.

This issue is resolved against the appellant and in favour of the respondent.

The findings of the learned trial court that Exhibit 6 is the voluntary confessional statement of the appellant is in order, I so hold. By virtue of section 28 of the evidence Act, 2011, the said confessional statement is relevant facts against him. As noted earlier in this judgment, the court can convict on a confessional statement alone even where the accused resiles from it. See Ejinsima Vs. The State (1991) 6 N.W.L.R. (Pt. 200) 637 and Obidiozo & Ors. V. The State (1987) 1 N.W.L.R (pt. 67) 748.
Considering the surrounding circumstances of the instant appeal, it is my conclusion that the prosecution discharged the burden of proof placed upon it beyond reasonable doubt. I therefore hold that the appeal lacks merit and it is accordingly dismissed. The conviction and sentence of the appellant by the Hon. Justice F. O. AGUDA TAIWO on the 5th of August, 2010 is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A: I read in draft the Judgment Delivered by my learned brother Mohammed A. Danjuma, JCA.
I agree with the conclusion that the appeal lacks merit. I also dismiss the appeal.

JAMES SHEHU ABIRIYI, J.C.A: I read before now the draft of the judgment just delivered by my learned brother Mohammed A. Danjuma. I agree entirely with him that the appeal is unmeritorious and should be dismissed.

In his extra-judicial statement Exhibit 6 which was admitted without objection, the appellant stated that the three of them deceived the deceased to follow them to the farm where kolanut would be sold to her. This was confirmed by PW2 who stated as follows:

“I saw the 2nd accused with the deceased in the evening. The women greeted me. She told me she was asked to come and buy kolanut from the farm….”
It was while the deceased was being raped that one of the rapists struck the deceased a few times with a knife.
That led to her death. The bleeding piece of earth or remains of the deceased was carried by the rapists and hidden by the stream.
It was immaterial that the appellant did not himself strike the deceased with the knife. Section 7 (b) of the Criminal Code Cap 37, Vol. Laws of Ondo State provides as follows:

“Every person who does or omits to do any act for the purpose of aiding another person to commit the offence is deemed to have taken part in committing the offence and may be charge with actually committing the offence.”

As the learned trial judge rightly pointed out at page 128 of the record of appeal the death of the victim in this case was caused by the 1st and 2nd accused persons during the commission of an unlawful purpose which is rape and the act was accompanied by assault, violence and the use of sharp weapon likely to endanger the life of the victim.

The appeal is therefore dismissed for want of merit. The conviction and sentence of the appellant are affirmed.

Appearances

Adekunle Ojo Esq.For Appellant

AND

D. L. Olafimihan (Principal Legal Officer, Ministry of Justice, Ondo State)For Respondent