AMINU MOHAMMED V. THE STATE (2011)

AMINU MOHAMMED V. THE STATE

(2011)LCN/4488(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of April, 2011

CA/L/928/2009

RATIO

INCONSISTENT EVIDENCE: CONSEQUENCE OF A WITNESS TENDERING TWO OR MORE INCONSISTENT EVIDENCE ON OATH

Where a witness has two or more inconsistent evidence given on oath by him on record, he is not entitled to the honour of credibility and does not deserve to be called truthful – see Ezemba v. Ibeneme (2000) 10 NWLR (pt 674) 61. PER R.C. AGBO J.C.A.

OFFENCE OF CONSPIRACY: WHAT THE OFFENCE OF “CONSPIRACY” ENTAILS AND ITS INGREDIENTS THAT MUST BE PROVED TO SECURE CONVICTION AGAINST THE ACCUSED PERSONS

On conspiracy the law is quite clear. Conspiracy has been defined as an agreement of two or more persons to do an act which is an offence to agree to do, see Osondu v. FRN (2000) 12 NWLR (pt 682) 448. The ingredients of conspiracy are (1) An agreement between two or more persons to do an illegal act or a legal act by illegal means (2) The agreement must be followed by an act to give effect to the agreement. See Waziri v. The state (2005) 5 NWLR (pt 658) 550. PER R.C. AGBO J.C.A.

CIRCUMSTANTIAL EVIDENCE: BASIS UPON WHICH A COURT WILL CONVICT ON CIRCUMSTANTIAL EVIDENCE

For a court to convict on circumstantial evidence, such evidence must be such as to lead to only the conclusion of guilt and no other probable conclusion. PER R.C. AGBO J.C.A.

OFFENCE OF CONSPIRACY: WHAT THE PROSECUTION MUST PROVE IN ORDER TO PROVE CONSPIRACY AND SECURE CONVICTION

Generally, to prove conspiracy and be able to secure conviction, the prosecution must prove, inter alia, that there was: (a) an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal, by illegal means; (b) individual participation in the conspiracy by each of the accused persons. See: Garba v. COP (supra) at page 405. PER OLUKAYODE ARIWOOLA. J.C.A.

CONSPIRACY: DEFINITION OF THE WORD “CONSPIRACY”

“CONSPIRACY”, as defined in the Oxford Advanced Learner’s Dictionary, 6th Edition is ” a secret plan by a group of people to do something harmful or illegal.” PER RITA NOSAKHARE PEMU, J.C.A.

“CONSPIRE”: MEANING OF THE WORD “CONSPIRE”

“CONSPIRE”, means to “secretly plan with other people to do something illegal or harmful.” PER RITA NOSAKHARE PEMU, J.C.A.

DUTY OF THE PROSECUTION: CONSEQUENCE OF THE FAILURE OF THE PROSECUTION TO LINK THE ACCUSED TO THE COMMISSION OF THE CRIME

…the prosecution has woefully failed to link the Appellant to the commission of the crime, and this is fatal to the case of the prosecution -MBELE V. STATE 1990. 7. S.C. Pt. 117 at page 31. It is trite that there must be something in the entire evidence to link the Appellant with the crime. PER RITA NOSAKHARE PEMU, J.C.A.

ATTEMPTED MURDER: CRITERIA FOR PROVING ATTEMPTED MURDER

The criteria for proving attempted murder are three fold. They are: (a) Nature of weapon used (b) Part of victim’s body, brutalized by the lethal weapon, (c) The extent of proximity of the victim with lethal weapon. PER RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

AMINU MOHAMMED Appellant(s)

AND

THE STATE Respondent(s)

R.C. AGBO J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on 8th April 2009 in which the appellant was convicted on a two count charge of conspiracy to murder contrary to S. 324 of the Criminal Code Cap 32 Laws of Lagos State 1994 and attempt to murder contrary to S.320(1) of the Criminal Code Law Caps. 32 Laws of Lagos State 1994. He was sentenced on the first court of conspiracy to 10 years imprisonment while he was sentenced on the 2nd count to 18 years imprisonment. The appellant had been tried together with Lateef Sofolahan who was also convicted. In the information dated 20th July 2001 the accused persons were alleged to have attempted to murder Senator Abraham Adesanya on the 14th day of January 1997 at Simpson street Lagos.
Upon arraignment and plea the prosecution had called two witnesses and closed its case. Each accused person had testified and closed his case and appeal adjourned for the parties to file written addresses. The prosecution at this stage with leave of court called a third witness. Several documents were also tendered.
Upon conviction, the appellant being dissatisfied filed this appeal. The notice of appeal contained 20 grounds of appeal to wit:
“GROUND ONE
The trial court erred in law when it found as follows.
“In all the circumstances, I find PW1 to be a credible witness and do so hold.”
Thus making a perverse finding not supported by the evidence on record and occasioning a substantial miscarriage of justice.
GROUND TWO
The trial court misdirected itself when in determining the credibility of PW1, it focused attention mainly on the demeanor of the witness while in court and held as follows:
“More importantly, PW1’s credibility has been attached on the ground that he has revealed himself to be a liar because he admitted lying. It is also submitted that he is a tutored and sponsored witness who has no mind of his own. He is also said to be a drunkard who dulls his memory with alcohol. Should the testimony of PW1 in this court be believed in the circumstances?
I watched PW1 in the box and he was quite sober and he came across as a rather different individual. He maintained decorum and was forthright and calm. He answered questions put to him without prevarication or argument…. lf indeed PW1 was a drunkard, he never came to court inebriated; he appears to have had a change of heart and I am able to believe his testimony that:
“I used to drink when I was in the world; I was of a heavy drinker, I used to drink to forget my sorrows and the hardship of the job
If he had been drinking and forgot some things, it would only meant that his testimony was not accurate. But when he testified that he used to drink a lot-that was in the past. I do not think the fact that PW1 used to drink makes him an incredible witness; nor does the fact that he missed out a few de-tail.”
GROUND THREE
The trial court erred in law when it found contrary to evidence on record that:
“His testimonies in court remain unshaken and he did not contradict himself in cross examination. Apart from his admission that he denied the commission of the crime initially under instructions, it has not been shown by the defence that he is either a habitual liar or that he lied under oath. Rather the thread that runs through his testimony about the other sister cases is that when he put on oath in the various courts, he came clean and admitted that his denial of the crime was untrue. I would not call him a habitual liar. As for his being a tutored witness, that is not so. He stated under cross examination by the 1st defendant that:
“The counsel to the state told me to just state what I was asked to do since I was just carrying out orders:
It is quite far-fetched to assume that his statement that he was told how to behave in court means that the state taught him to lie……”
Thus occasioning a grave miscarriage of justice.
GROUND FOUR
The trial court erred on the facts when it held that:
“Considering alt the circumstances of this case, the military set up and the training of PW1, I believe these two statements are a plausible explanation of the difference in PW1’s extra judicial statement Exhibit Pl and his testimony in court now… In any event, Exhibit Pl does not give any information about this charge, so it cannot be the basis of any alleged inconsistency in PW1’s testimony. In deed the defence has not been able to say that his testimony in court was inconsistent.”
Whereas the testimony of PW1 is anything but consistent.
GROUND FIVE
The trial court erred in law when after identifying the main issue to determine in the case failed to answer the very critical question which it posed thus:
“To answer the question posed in this charge I must determine whether the state has proved beyond reasonable doubt that the two accused persons were part of a plan or agreement to murder senator Abraham Adesanya. The case presented by the prosecution is that the defendants and PW1 and 2 were parties to an agreement and design to eliminate the said victim which is borne out by the fact that on the 14th January 2007, he was shot at.
Now there is no doubt that there was a design to kill the said victim in the mind of someone because an attempt was made on is life and PW1 admitted shooting at his car. The topical issue is whether that plan was personal to PW1 or whether the accused persons were privy to and agree to that intention of his.”
GROUND SIX
The trial court erred in law when in treating the evidence of the PW1, it held that:
“PW1 explained the discrepancy in his present admission of the conspiracy to kill the victim and his denial in his previous statement by saying that he was obeying instructions from his superior, Major Hamza Mustapha to deny the plot………”
GROUND SEVEN
The trial court erred in law when it found contrary to evidence that:
“PW1 did not contradict himself at all. He was firm and absolute and I find his testimony acceptable. I find the evidence led by pw1 acceptable and I accept it. Having found and heard that PW1 is a credible witness and that his testimony is acceptable, can it sustain the charge of conspiracy? I believe so.”
Thus occasioning a miscarriage of justice.
GROUND EIGHT
The trial court erred in law when it decided to ascribed credibility and acceptability to the evidence of PW1 in its entire ramification before even considering the evidence of PW2 who was also a prosecution witness, thus failing to consider the totality of the prosecution case as he was duty bound to do and as such treated the evidence of PW1 in isolation of the others and occasioned a substantial miscarriage of justice.
GROUND NINE
The trial court erred in law when after finding as a fact that the evidence of PW1 was materially contracted by PW2’s testimony, proceeded to treat him (PW2) as an incredible witness with a view to preserving the materially contradicted evidence of PW1. Thus occasioning substantial miscarriage of justice.
GROUND TEN
The trial court misdirected itself in law in its treatment of the evidence of PW2, in that it was solely focused on whether the evidence can corroborate the testimony of PW1. Whereas, a dispassionate consideration of the evidence of PW2 should not be confined to such matters only.
GROUND ELEVEN
The trial court erred in law, when it held as follows:
“I agree with the State that there is circumstantial evidence of the agreement and the involvement of the two accused persons. The presence of DW1 in the car on the day of the incident which is admitted by all the witnesses is circumstantial evidence in support of PW1l’s testimony. The fact that they went together with PW1 on a number of occasions which is also admitted by the witnesses except the 2nd defendant is also circumstantial evidence independent of PW1’s testimony of an agreement between him and the defendants. As l have noted above the fact that the victim was shot at is admitted by the defendants and not in contention at all and this is also circumstantial evidence of conspiracy… Having considered the totality of the evidence before me, I finally believe that the testimony of PW1 is corroborated by the overt acts of DW1 and 2. There is prima facie evidence of an agreement between the defendants and PW1. I find and hold that the assignment that the team had was to eliminate perceived enemies of the state as deposed by PW1”
GROUND TWELVE
The trial court erred in law when it determined the guilt of the appellant before even considering the defence of the appellant. Thus prejudging the case against the appellant.
GROUND THIRTEEN
The trial court erred in law when it held that:
“In my evaluation, DW1 is an accused person trying to save himself and as such he is willing to bend the truth in the hope of avoiding a conviction. I watched him in court and though he maintained the calm of the military man, he was shifty and his testimony was not consistent.”
GROUND FOURTEEN
The trial court erred in law in its treatment of exhibit P4A and 48 wherein it used same to contradict the evidence of the appellant on record, whereas the said exhibits were not in evidence at the time the appellant testified nor was the attention of the appellant drawn to their content as required by the provisions of the Evidence Act Cap 112, LFN, 1990.
GROUND FIFTEEN
The trial court erred in law when it held that:
“I firmly believe that exhibit P4B is proof that DW1 made a statement and this court can examine it and compare it with his present testimony.”
Thereby occasioned a miscarriage of justice.
GROUND SIXTEEN
The trial court erred on the facts when after examining the content of exhibit P4B held that it was contrary to the evidence given by the appellant in open court in the course of the trial.
GROUND SEVENTEEN
The trial court erred in law when it held that:
“It is obvious that in this present action there was an attempt on Senator Adesanya’s life. All parties agreed that there was infact an attempt to kill the victim. PW1 stated categorically that on the day in question, he and the 1st defendant were in the car while PW2 was driving and after following the victim’s car from his office he shot at the car with intention of killing him. The topical question has been whether the accused persons share in the intention to kill Senator Adesanya manifested by PW1 or whether they can be made responsible or liable for his said action. From the totality of the evidence led in this suit, I find and hold that there was an intent to kill the victim of this crime as deposed by PW1, who stated that he and his team were instructed by Major Mustapha to eliminate the said victim. His testimony on their intention is corroborated by the testimony of the 1st defendant that he went along on “surveillance” armed with three guns……”
GROUND EIGHTEEN
The trial court erred in law when it held that
“In this present action, the 1st defendant was part and parcel of the plan to eliminate the victim and in furtherance of that intention he followed PW1 and PW2 out on the 14th January 2007 when PW0shot at the victim. He is liable and responsible for the acts as if he pulled the trigger. I therefore find him guilty on the count of attempted murder.
GROUND NINETEEN
The judgment of the trial court is unreasonable, unwarranted, having regard to the evidence adduced at trial.
GROUND TWENTY
The trial court erred in law when it passed maximum sentence on the appellant thus:
“On the 1st count of conspiracy to commit murder, I find the 1st defendant guilty as charged and he is hereby sentence to ten years imprisonment with hard labour. On the 2nd count of attempted murder, I find the 1st defendant guilty as charged and sentence him to eighteen years imprisonment with hard labour.”
The parties exchanged written brief of agreement. The appellant’s brief was filed on 8/7/10. The respondent brief was filed on 27/10/10 while the appellant’s reply brief was filed 9/11/10. In his brief of argument the appellant distilled from his grounds of appeal five issues for determination wit:
“a. whether the internal conflicts in the evidence of the respondent before the trial court created doubts which should be resolved in favour of the appellant (distilled from grounds 3, 4, 9)
b. whether the trial court properly evaluated the evidence before it, in accordance with laid down principles and the law (distilled from grounds 8,9,10, 12 and 13).
c. whether the offences of conspiracy to commit murder and attempted murder were proved beyond reasonable doubts (distilled from grounds 1, 2, 3, 4, 9, 12,13 and 18.
d. whether PW1 is a credible witness and whether his evidence was corroborated being an accomplice in this case (distilled from grounds 1, 2, 6 and 17)
e. whether exhibits P4A and 48 were properly admitted by the trial court after the appellant had closed his case. (distilled from grounds 13, 14, 15 and 16) and if not whether the use made of the exhibits is not unlawful and unjust.”
It is to be noted that the appellant distilled no issues for determination from grounds 7, 11, 19 and 20. These grounds of appeal are therefore deemed abandoned and ought to be struck out. See Ojo v. Kamalu (2005) 18 NWLR (pt 958) 523.
The respondent in its brief of argument distilled 4 issues for determination to wit:
“1. Whether the respondent proved the offence of conspiracy to commit murder and attempted murder brought against the appellant beyond reasonable doubt. (Grounds 1, 2, 3, 4, 9, 12, 13 and 18)
2. Whether there is material contradiction in the evidence of the respondent’s witnesses sufficient to create doubt in the guilt of the appellant. (Grounds 3, 4 – 9)
3. Whether exhibit P4 and B were properly admitted in evidence by the trial court and reliance on them is lawful. (Grounds 13, 14, 15 and 16)
4, Whether PW1 is a credible witness and his evidence was corroborated in this case being an accomplice. (Grounds 1, 2, 6 and 17).”
This case present an interesting scenario in that the PW1 Sgt. Barnabas Jabila a.k.a Sgt Roger; a serving soldier in the Nigerian Army admitted shooting at Senator Adesanya on 14th January 1997 with intent to kill him on the instruction of the State through a Major Mustapha. He testified that the appellant was part of a team constituted and instructed by Major Mustapha to effect the killing of Senator Adesanya. This the appellant denied and stated instead that he was part of a team set up by the security authorities to fish out Radio Kudirat which was a clandestine radio station causing some discomfiture to the then governing junta.
PW2 gave evidence that on the said day he drove the PW1 and the appellant to the scene of crime and that the PW1 did infact shoot at Senator Adesanya’s car and that the appellant disagreed with the PW1 for the shooting at Senator Adesanya’s moving car. He testified that the appellant who was in the car with himself and the pW1 quarreled with the appellant for shooting at the vehicle and both were separated by him, a quarrel denied by PW1. The trial judge held that the PW2 was not a credible witness and refused to use his testimony to corroborate the testimony of PW1.
A look at the issues distilled by counsel on both sides show that they are infact the same. The difference is only in semantics. The appellant’s issue (G) is the same as the respondent’s issue 1. The respondent’s issue 2 raises the same issue as the appellant’s issue (a). Respondent’s issue 3 raises exactly the same question as appellants issue (e), while respondent’s issue 4 raises the same questions as appellant’s issues (b) and (d).
I will start with the issue of whether exhibit P4 A and B were properly admitted in evidence by the trial court and reliance on them lawful. These exhibits were admitted after the defence had closed its case upon the granting of a contested application brought by the respondent pursuant to S.197 of the Administration of Criminal Justice Law of Lagos State 2007 seeking an order of court to reopen the case to allow the State Call Police witnesses. The trial judge in a considered ruling allowed the application. The appellant did not appeal against this ruling. PW3 was thereafter called and he tendered exhibits P4 A and B. It is therefore too late in the day for the appellant to challenge the admission of the exhibit on the basis that they were tendered after the close of the defence case, the appellant having not appealed against the ruling allowing the evidence to be led. The use made of the exhibits is another matter. Exhibit P4A is the extra-judicial statement made by the appellant to the Investigating Officer while exhibit p4 B is an endorsement as to the voluntariness of the statement by a Superior police Officer. The trial court used exhibit P4A to contradict the appellant’s viva voce evidence in her judgment. The time to contradict the appellant’s viva voce evidence is during his cross examination. Such a contradiction must be in consonance with S. 199 of the Evidence Act cap E.14 Laws of the Federation of Nigeria 2004. S. 199 provides thus-
“A witness may be cross-examined as to previous statements made by him in writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being
shown to him , or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, called to those parts of it which are to be used for the purpose of contradicting him”
This provision was not complied with. The appellant’s attention was not called to these parts of exhibits P4A to be used to contradict him. That having not been done, exhibit P4A was not proved. Having not been proved, it at best an admitted res whose content is not available to the trial court. Those portions of the appellant’s oral testimony contradicted with exhibit P4A remain intact and unchallenged. To that extent this issue is resolved in favour of the appellant.
The next issue to be resolved is whether the contradictions in the evidence of the respondent’s witnesses created doubts which should be resolved in favour of the appellant. In the first place the trial court made a clear finding that the PW2 is not a credible witness. She said at PW2 at page 498 of the record of appeal “I agree with learned counsel for the 2nd defendant that the PW2 is not a credible witness because of the different versions of the story he has told. In the same vein, there is conflict between his evidence and the testimony of PW1.
He stated categorically that Major Mustapha did not call him to instruct him, contrary to PW1’s testimony. He also stated that PW1 who was the leader did not tell him the purpose of their trip to Lagos. He also stated that he was surprised when PW1 started shooting. I agree with learned silk for the first defendant that PW2’s testimony does not assist the state. Certainly it cannot be used to corroborate the testimony of PW1 because he is not credible. See Mbele v. State (1990) 4 NWLR (pt145) 484. And more importantly, because he is an accomplice himself. See Odofin Bello v. The State. The testimony of PW2 carries no weight and is no worth to this court.”
It is clear from the above that the evidence of PW 2 was completely useless to the prosecution. But the evidence of the PW2 is not completely useless. This is because where there are contradictions or discrepancies which go materially to the charge, doubt will be created and benefit of it must be given to the accused person and in such circumstance he ought to be discharged See Nwachukwu v. The State (2000) FWLR (pt28) 2195 at 2208. Such discrepancies should not be minor discrepancies. But the discrepancies identified by the trial judge upon which she concluded that PW2 was not a credible witness are not minor differences. The testimony of PW2 highlighted by the trial judge suggests that there was no conspiracy. He was not instructed by Major Mustapha about the trip and PW1 did not tell him that they were in Lagos to kill Senator Adesanya. He was therefore surprised when the PW1 started shooting. Add to this his testimony that when the PW1 shot at Senator Adesanya, the appellant started quarreling with him and the two had to be separated by him, a statement denied by pW1. The seriousness of the damage done to the prosecution’s case become apparent, especially if it is remembered that with the court finding that the PW2 is not a credible witness, the only evidence available to the prosecution is the evidence of PW1. Added to this is the contradiction by the PW1 himself who testified that he came to eliminate Senator Adesanya commanded by O.C. Mopol Rabo Lawal, only to agree with PW2 that the trip was commanded by PW1 and that Rabo Lawal did not make that trip with them from Abuja to Lagos. PW1 also testified that he together with the PW2 fired at Senator Adesanya but accepted later that only he fired at Senator Adesanya.
Where a witness has two or more inconsistent evidence given on oath by him on record, he is not entitled to the honour of credibility and does not deserve to be called truthful – see Ezemba v. Ibeneme (2000) 10 NWLR (pt 674) 61.
It was not enough that the court determined that the PW 2 was not a credible witness, the conflicting evidence made given by him and PW1 should have ennured in favour of the appellant to found a verdict of not guilty.
On whether the prosecution proved the offence of conspiracy to commit murder and attempted murder against the appellant beyond reasonable doubt, the appellant through his counsel had argued that one of the ingredients of the offence of attempted murder which must be proved is an actual attempt to kill and cited Ononuju v. The State (1976) 5 SC, 1 and Iden v. The State (1994) 8 NWLR (pt 365) 719. In the instant case, the burden on the prosecution is obviated because PW1 who fired a gun at the car in which Senator Adesanya was being driven admits that he was sent to kill the Senator and so once conspiracy is established against the appellant, he shall be liable. He will be caught by the provisions of Ss 7 and 8 of the Criminal Code applicable to Lagos State. Now, the trial court did find that the accused persons did infact conspire with the PW1 to kill Senator Adesanya. On conspiracy the law is quite clear. Conspiracy has been defined as an agreement of two or more persons to do an act which is an offence to agree to do, see Osondu v. FRN (2000) 12 NWLR (pt 682) 448.

The ingredients of conspiracy are (1) An agreement between two or more persons to do an illegal act or a legal act by illegal means (2) The agreement must be followed by an act to give effect to the agreement. See Waziri v. The state (2005) 5 NWLR (pt 658) 550.
In the instant case the PWL had testified that himself, PW2, the appellant and some other soldiers were instructed by Major Mustapha to eliminate Senator Adesanya. Both the pW2 and the appellant denied this allegation. The appellant was emphatic that he came down to Lagos with the PW1 on an assignment to fish out Radio Kudirat, a Clandestine Radio Station. The court convicted the appellant on the ground that he came on this assignment armed with three firearms, that he was armed on the day of the incident and that he was in the same car with pW1 and PW2 when Senator Adesanya was shot at. It is clear from the judgment that the trial court did not rely on the direct evidence of the PW1 but more on circumstantial evidence, a step she was entitled to take. For a court to convict on circumstantial evidence, such evidence must be such as to lead to only the conclusion of guilt and no other probable conclusion. Both PW1 and the appellant were soldiers in elite formations. PW1 belonged to a formation called, the strike force” white the appellant belonged to a highly trained body of bodyguards whose principal function was to protect the military Head of State.
They were constituted into a special group sent to Lagos according to PW1 to eliminate Senator Adesanya while appellant claims they were sent specifically to trace an elusive radio station called Radio Kudirat. While it is obviously unlawful to kill Senator Adesanya, I am not aware that there is anything unlawful in tracing Radio Kudirat. I fail to see how the carrying of assigned arms by a trained military body guard can constitute circumstantial evidence of conspiracy to commit murder when evidence established that the appellant did not shoot and did in fact quarrel with the PW1 for shooting. In any case, the appellant testified that on the said day, he infact joined the PW1 in the car in pajamas having been woken up by the PW1 and that he did not carry his arms. Carrying arms and being in the same car with PW1 and 2 is not inconsistent with the appellant’s alleged assignment of surveillance to trace Radio Kudirat. The trial judge ought to have reminded herself that the standard of proof required is proof beyond reasonable doubt.
Appellant’s issue (d) relating to whether the PW1 is a credible witness has already been answered above. The finding that the PW1 is a witness of truth is clearly perverse. A person who lies when told to can never be regarded as a credible witness.
On the whole this appeal is allowed. The conviction of the appellant is hereby set aside. In its place is entered a judgment of not guilty.

OLUKAYODE ARIWOOLA. J.C.A.: I read before now the lead judgment prepared and read by my learned brother, Agbo, JCA.
I agree with the reasoning and conclusion in the said lead judgment. The appellant was convicted, inter alia, on a charge of conspiracy to murder, contrary to Section 324 of the Criminal Code, Cap 32, Laws of Lagos State 1994. He was sentenced to t0 (ten) years imprisonment on the count of conspiracy. He was tried together with one Lateef Sofolahan who was also convicted.
Conspiracy is an agreement by two or more persons to do an act, which it is an offence to agree to do. In other words, conspiracy is an agreement by two or three persons to commit an unlawful act, coupled with intent to achieve the agreement’s objective. See Haruna v. State (1972) 8-9 SC 174: Osondu v. Garba v. COP (2007) 16 NWLR (pt 1060) 378 at 400.
Generally, to prove conspiracy and be able to secure conviction, the prosecution must prove, inter alia, that there was:
(a) an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal, by illegal means;
(b) individual participation in the conspiracy by each of the accused persons.
See: Garba v. COP (supra) at page 405.
As clearly shown on the record, there was no proof of an agreement with the appellant by any other person(s) to carry out the offence alleged or with which the appellant was charged, convicted and sentenced. PW1, Sgt. Barnabas Jabila (aka Sgt. Roger) admitted that he shot at the car of Senator Adesanya on t4/I/tggt with intent to kill the Senator on the instruction of the State through one Major Mustapha. It was part of his testimony that the appellant was part of the team instructed to carry out the assignment. But the appellant unequivocally denied that he was assigned to kill. His testimony, inter alia, was that he was part of a team set up to fish out Radio Kudirat. It is however pertinent to note that PW2 testified as the one that drove both PW1 and the appellant on the day in question. He confirmed that PW1 indeed shot at Senator Adesanya’s car but the appellant disagreed with PW1 for shooting at the moving car and a quarreled ensued. The PW1 denied that he quarreled with the appellant.
There is no doubt that all criminal offences are required to be proved beyond reasonable doubt. But the offences with which the appellant was charged, convicted and sentenced were in my view not so proved, particularly with the lingering doubt in the bundle of evidence adduced by the prosecution.
For the above reason and the fuller reasons contained in the lead judgment of my learned brother, Agbo, JCA with which I entirely agree, in allowing the appeal, I too will set aside the conviction of the appellant. I abide by the consequential order in the said lead judgment.

RITA NOSAKHARE PEMU, J.C.A.:I have had the privilege of reading in draft, the lead Judgment of my brother judge R.C. Agbo J.C.A.I agree entirely with the reasoning and conclusions arrived at, as well as the consequential order made.Some contribution of mine, by way of emphasis is desirable.
There is overwhelming evidence that it was PW1 and not the Appellant that shot at Senator Abraham Adesanya’s car. P.W.2 the driver of the vehicle attested to this all important fact. The Appellant also said he never shot at Senator Adesanya’s car – see pages 30-50 of the Record of Appeal.
There is no description of the weapon used. The victim, Senator Abraham Adesanya did say he was not brutalized by anyone. Pages 159-164 of the Record of Appeal.
Curiously the learned trial judge made no finding on this. In criminal matters, and indeed in proof of any criminal offence, the prosecution has a duty to prove its case beyond reasonable doubt. That duty is fixed and the onus does not shift. It remains on the prosecution.
It is apparent that the prosecution did a shoddy job in the investigation of this matter.
The original copies of the Statements of the Accused person have not been produced. The Investigating Police Officer was not called to testify.
No ballistician came to testify. No vehicle was tendered to buttress the prosecution’s allegations.
It is an established Principle of Law that evidence adduced by the parties in a criminal matter must be carefully weighed and considered by the trial Judge.
“CONSPIRACY”, as defined in the Oxford Advanced Learner’s Dictionary, 6th Edition is ” a secret plan by a group of people to do something harmful or illegal”.

“CONSPIRE”, means to “secretly plan with other people to do something illegal or harmful.”
For a charge to be sustained, the law requires all the ingredients of the offence to be established.
The attitude of the Appellant, and indeed his reaction to the shooting incident by P.W.1, as corroborated by P.P .2 debunks any suggestion and/or allegation of conspiracy against the Appellant.
At page 385 of the Record of Appeal, the Appellant did say inter-alia, that he did not have a gun with him. See also pages 349-351 of the Record of Appeal.
P.W.2 at page 370 of the Record of Appeal did say:
“The 1st accused who was at the back of the car did not shoot”
This piece of evidence was not challenged by the Respondent under cross-examination;the prosecution has woefully failed to link the Appellant to the commission of the crime, and this is fatal to the case of the prosecution –
MBELE V. STATE 1990. 7. S.C. Pt. 117 at page 31.
It is trite that there must be something in the entire evidence to link the Appellant with the crime. No conspiracy or intent to kill Senator Abraham Adesanya has been linked to the Appellant.
The criteria for proving attempted murder are three fold. They are:
(a) Nature of weapon used
(b) Part of victim’s body, brutalized by the lethal weapon,
(c) The extent of proximity of the victim with lethal weapon.
All these, I dare say have not been established in this case.
The prosecution’s case becomes very watery and falls short of the establishment of the burden of proof required of it.
I am at a loss as to how the learned trial judge came to the conclusions which he did, in the face of all these lacunae.