C.O.P v. OGOR & ORS
(2022)LCN/5123(SC)
In The Supreme Court
On Friday, April 08, 2022
SC.1126/2017
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Between
COMMISSIONER OF POLICE APPELANT(S)
And
1. CHIEF FIDELIS ENANG OGOR 2. CHIEF JOSEPH NOMBA EYOR 3. CHIEF OBETEN AGARA 4. CHIEF ABENG OGBANG 5. CHIEF ANTHONY OBETAN 6. CHIEF BEN ABENG IKPANI 7. CHIEF OBEN ABANG 8. CHIEF LIVINUS EGBA 9. LINUS AYO 10. CHIEF SUNDAY ABENG RESPONDENT(S)
RATIO:
THE EFFECT OF FAILURE TO OBTAIN LEAVE TO APPEAL FROM THE COURT OF APPEAL
It is also settled that where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be obtained by the Party from the Court of Appeal or this Court. So, failure to obtain leave renders the appeal incompetent, and it will be thrown out – see Garuba V. Omokhodion (supra). AMINA ADAMU AUGIE, J.S.C
ONCE AN ERROR IS IDENTIFIED IT WOULD NOT INVALIDATE THE GROUNDS OF APPEAL
Nevertheless, the position of the law as it stands today is that once the error complained of is identified and properly oriented in the Ground, the inelegance of its Particulars would not invalidate the grounds from which they follow -see Best (Nig.) Ltd. V. B.H. (Nig). Ltd. (2011) 5 NWLR (Pt. 1239) 95 and Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, wherein Nweze, JSC, stated:
“It is not every failure to attend to grounds of appeal with the fastidious details prescribed by Rules of this Court that would render such a ground incompetent This is particularly so where sufficient particulars can be gleaned from the grounds of appeal – and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded – Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice – Put differently, since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow – This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253 – Indeed, this Court, recently stamped its infallible authority on this current posture. Abe v. Unilorin (2013) LPELR-206443.” AMINA ADAMU AUGIE, J.S.C
THE PRINCIPLE OF LAW ON THE CONSPIRACY TO COMMIT AN OFFENCE
Now, it is trite law that conspiracy to commit an offence is a separate and distinct offence by itself and it is independent of the offence of the actual commission of the offence to which the said conspiracy relates – see Atano V. A.G., Bendel (1988) 2 NWLR (Pt. 75) 201, wherein Nnamani, JSC, explained:
“It is obvious that the offence of conspiracy to commit an offence will necessarily precede in point of time the offence of the actual commission of the offence to which the conspiracy relates. So, it is possible that one may be guilty of conspiracy to commit an offence and yet not be guilty of the actual commission of the offence. For it is possible that one might change one’s mind before the offence was committed but after the conspiracy might have been hatched. And consequently, that one might not have gone along with the other conspirators in the commission of the offence itself. In other words, that one might have dropped out of the whole scheme after the conspiracy had been entered into.” AMINA ADAMU AUGIE, J.S.C
THE DEGREE OF PROVING BEYOND REASONABLE DOUBT
To expatiate, proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that will amount to reasonable doubt need not reach certainty but should achieve a high degree of probability. Once the ingredients of the particular offence the accused is charged with are proved, then that constitutes proof beyond reasonable doubt.
For the accused to be entitled to the benefit of doubt, that must be a genuine and reasonable one arising from some evidence before Court. See the case of Nwankwo v FRN (2003) 4 NWLR (pt.809) 1 at 35-36. MARY UKAEGO PETER-ODILI, J.S.C.
THE PRINCIPLE OF LAW ON THE CHARGE OF CONSPIRACY
It is a known position of the law that where a charge of conspiracy is based on the same facts as the substantive charge, the authorities require that the Court deals with the substantive charge and then sees if the charge of conspiracy is desirable and could be sustained.
See AMACHREE VS NIGERIAN ARMY (2003) 3 NWLR (PT.807) 256 at 274 applying R VS. DAWSON (1960) 1 AER 558 and NJOVENS VS. STATE (1973) 5 SC 17 at 68. MARY UKAEGO PETER-ODILI, J.S.C.
It is pertinent to note that there are concurrent findings of fact by the two lower Courts. What the Appellant is seeking by this appeal is for this Court to engage in a third evaluation of the facts. This Court is always very wary of interfering with concurrent findings of fact unless they are shown to be perverse. The Appellant therefore has an uphill task to satisfy the Court that there are exceptional circumstances to warrant the setting aside of the concurrent findings. See: Atto Maba Vs The State (2020) LPELR-52017 (SC) @ 31-32 D-C; Olayode Vs The State (2020) LPELR-62519(SC) @ 18 A-B. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
TO DISCHARGE THE BURDEN OF PROOF THE GUILT OF THE ACCUSED MUST BE ESTABLISHED BEYOND REASONABLE DOUBT
In criminal prosecution, the guilt of the accused must be established beyond reasonable doubt. In order to discharge the burden of proof, every ingredient of the offence charged must be proved. Failure to prove an essential element of a crime is fatal. It means that the burden of proof beyond reasonable doubt has not been discharged and the accused would be entitled to an acquittal. See:Nwaturuocha Vs The State (2011) LPELR-8119 (SC) @ 15-16 F-C; Mohammed Ibrahim Vs The State (2015) 11 NWLR (Pt. 1469) 164 @ 191 G-H & 197 C-D; Oladele Vs Nigerian Army (2004) 6 NWLR (Pt. 868) 166; FRN Vs Umeh & Anor (2019) LPELR-46801 (SC) @ 18 C-D. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
AMINA ADAMU AUGIE, J.S.C.(Delivering the Leading Judgment): The criminal matter that led to this appeal started at the Chief Magistrate Court, Apiapim-Obubra in Cross River State, and it has to do with the breaking of an “ancestral pot’, used by Ovanum People during traditional burial ceremonies. The ten Respondents, as the Accused Persons therein, were alleged to have:
(1) Conspired among themselves to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace.
(2) Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community Graveyard without authority; and
(3) Willfully and unlawfully damaged one pot valued at N500.00 property of Chief Raymond Ewena Okpa.
According to the four Witnesses that testified for the Prosecution against them, PW1 [Chief Raymond Ewena Okpa], who is the Village Head of Ovanum, was informed about the death of the son of the fourth Respondent (now deceased), and he delegated PW2 [John Egede] and PW3 [Abeng Okera] to carry the said ancestral pot and mark the burial spot for the internment of the deceased child.
However, PW2 and PW3 were stoned and chased by the Respondents, who had gathered at the fourth Respondent’s house for the burial of his son, and in the process of being attacked with stones, the ancestral pot got broken.
The ten Respondents, who testified themselves, attributed their arrest and prosecution to a chieftaincy dispute between fourth Respondent and PW1. In his judgment delivered on 5/12/2005, the Chief Magistrate, held as follows:
The evidence of the Prosecution Witnesses, especially that of PW2, pointed unequivocally to the fact that on 28/2/2004, the Accused persons and their cohorts created a scene at the spot when PW2 and PW3 approached the 4th Accused Person now deceased to show them where to mark the grave for the burial of the 4th Accused Person’s brother by name- Oyama Onyum. There is copious evidence that the Accused Persons and their cohorts threw stones at PW2 and PW3 which led to damage or destruction of the traditional pot in Exhibit M. From the evidence so far led, I cannot hesitate to infer that the traditional pot was damaged as a result of the conduct of the Accused persons. No better inference can be drawn than this. After all, the offence of conspiracy has a hub. It does not mean that all the Accused persons must be present at the same time and spot. A person can be anywhere and still match conspiracy. To all intents and purposes, the 1st Accused Person’s house is the hub of this conspiracy. It is not true, as submitted by Counsel that PW2 and PW3 did not lead evidence as to the conspiracy. The evidence of PW2 and PW3 revealed without any equivocation that Accused persons and their cohorts conspired and threw stones at them thereby damaging the traditional pot and chasing them away. None of these Prosecution Witnesses changed his stand under cross-examination and I am bound to believe them. – I hold that the Prosecution has proved its case in all the Counts beyond reasonable doubt in accordance with Section 138(1) Evidence Act Cap 112. I find all the Accused Persons Nos 1 to 10 guilty as charged and I convict all of them as charged.
They were all “cautioned and discharged” on Counts I and II and on Count III, the ten of them were each sentenced – “to 2 years I.H.L. or pay N2000 as fine”. The Chief Magistrate also ordered that “all the convicts are bound over to keep peace for 7 years without any Surety”. They then appealed to the High Court, Calabar, in its appellate jurisdiction, wherein they complained inter alia that the Chief Magistrate erred in convicting them for an offence under Section 249(d) of the Criminal Code, when the place where the alleged offence took place was not proved to be a public place, but the private residence of the fourth Accused. Section 249(d) of the Criminal Code – Laws of Cross Rivers State, provides –
Every person who, in any public place, constitutes himself in a manner likely to cause breach of the peace shall be deemed to be idle and disorderly persons, and shall be guilty of a simple offence and shall be liable to imprisonment for one month.
The High Court agreed, and it held as follows in its judgment of 24/6/2009 –
The main Count here is Count 2 – Even the Respondent reproduced the testimony of PW1 thus – “We do not have any graveyard, and whenever any death occurs that place would be marked graveyard”. As if that is not enough PW3 said – “When I approached the Chief to give me a burying place, the Chief gave me somebody, who accompanied me to the compound of the 4th Accused. I now accompanied the 4th Accused Person to show me where to measure the grave”. l, therefore, agree with Appellants’ Counsel that indeed there is no place in existence called Ovanum Community graveyard, and if there is no such graveyard, could there, therefore, be any trespass into same and causing a breach of peace thereat? In my view, the answer is in the negative, as you cannot put something on nothing and expect it to stand – This means that there is no way Counts one and two could have been proved in the lower Court for that Court to have convicted the Appellants therein. Their convictions on those two Counts cannot stand and is accordingly set aside. The reason being that the finding of fact by the lower Court is perverse in consequence of which a Court of Appeal like this one, can interfere.
It also set aside their conviction on Count III, and then concluded as follows:
In the final analysis, it is ordered as follows:
1. The judgment/decision of the learned Chief Magistrate Grade II, Apostle B.E. Mbang, Esq., dated 5/12/2005 is, hereby set aside.
2. Appellants are discharged and acquitted on all the three Counts Charge upon which they were convicted.
3. The binding over Order for 7 years upon the Appellants is set aside.
This time around, it was the Appellant, who appealed to the Court of Appeal, which dismissed his appeal, and affirmed the said judgment of the High Court. Further aggrieved, he appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, which are being challenged by the Respondents, and the Grounds of Objection set out in their Notice of Preliminary Objection are –
1. All the four Grounds of Appeal in the Notice of Appeal raised, variously, issues of fact and of mixed law and fact and are, therefore, incompetent.
2. No solitary Ground of Appeal, on grounds of law alone in the said Notice exists, capable of salvaging the Appellant’s said above incompetent Notice of Appeal, which is comprised of incompetent grounds.
3. No leave of this Court, was ever, or could be obtained, to salvage the incompetent Grounds of Appeal therein.
The four Grounds of Appeal, which are being challenged, complain as follows:
Ground One: The lower Court misdirected itself when it held as follows:
“PW2 and PW3 alluded to the presence of certain boys at the scene, who were digging the grave while the Respondents looked on. PW3 was particularly clear on this. This was the Witness with poor sight. An interesting part of their testimonies was that they ran immediately stones were being thrown at them with their assailants in pursuit, how could they name those stoning them with their backs turned, is some mystery. They did not report any injury so equally mysterious is the fact that stones thrown at them did not injure them but only broke the small pot held by PW2″.
Ground Two: The lower Court misdirected itself when it held as follows:
“While PW1, who was not at the scene, was eager to name his adversaries in the leadership tussle as the perpetrators of the alleged offence, PW2 and especially PW3 named other persons, who they described as boys, as different from the Respondents, who were called Chiefs, as the likely perpetrators”.
Ground Three: The lower Court misdirected itself when it held as follows:
“Having come to the above conclusions on the main Counts, the first Count of Conspiracy is fatally flawed and cannot in the circumstances be sustained as well”.
Ground Four: The judgment of the Court below is unwarranted and cannot be supported having regard to the evidence adduced.
To cut to the chase, the Appellant filed a Reply Brief, wherein he conceded that Grounds 1, 2 and 4 are grounds of fact or mixed law and fact. But he contends that the same cannot be said about Ground 3 of the said Grounds of Appeal. In effect, there is no contention as to the fact that the said Grounds 1, 2 & 4 of the Grounds of Appeal are incompetent, and they are accordingly struck out.
Is Ground 3 also incompetent? The Respondents say that it is since it involves evaluation of evidence to meet legal requirement to prove conspiracy; and at the very best, it is a ground of mixed law and fact because a ground of appeal that questions evaluation of facts before the application of the law, is a ground of mixed law and facts – State V. Omoyele (2016) LPELR-40842 (SC).
They further argued that the present alterations and amendments of the Constitution have deleted Subsection (3) of its Section 233 that authorized an Appellant to seek and obtain leave of the Court of Appeal or leave of this Court to appeal against a ground of appeal based on fact or mixed law and fact; and citing Shittu V. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 95 that the Constitution has denied the Appellant the right to remedy his problems and seek for leave from this Court, where the grounds of appeal are based on fact or mixed law and fact, since all such appeals, like this appeal, end at the Court of Appeal.
I must say here that the Issue of whether Section 233(3) is deleted from the amended Constitution has been settled by this Court in a ruling delivered on 5/2/2021 in Amadi V. Wopara – SC.837/2018, wherein I explained that –
“The observation made by Rhodes-Vivour, JSC, in Shittu V. PAN Ltd. (supra) is, no doubt, an obiter dictum. It was not part of the arguments before the Court. What is more, he made the observation after he upheld the Objection raised by the Respondent and struck out the grounds of appeal because “they are caught by Section 233 (3) of the Constitution”. In effect, his comment made in passing is not binding on this Court- see Afro-Continental Nig. Ltd. V. Ayantuyi (1995) 9 NWLR (Pt. 420) 411 SC.”
As to the merits of the Objection, the Appellant submitted in his Reply Brief that Ground 3 questions the lower Court’s understanding of the law on conspiracy vis-a-vis the cogent evidence he adduced at the trial; that it queries the findings of the lower Court to the effect that it improperly misunderstood the law as it concerns conspiracy such that a proper understanding would have helped it to better appreciate the evidence before it enough to make proper inferences; and that it is a ground of law based on the decisions of this Court, which he cited.
For instance, he referred to the guidelines to properly determine whether grounds of appeal are one of law, or of fact or of mixed law and fact, and quoted what I said in Obayuwana V. Adun (2020) 13 NWLR (Pt 1741) 371 as follows:
“Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter.”
He submitted that this is a restatement of the landmark judgment of this Court in Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484, wherein Eso, JSC, said:
“It is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law.”
He also cited Ekunola V. C.B.N (2013) 15 NWLR (Pt. 1377) 224/260, Uwak V. Ekpemyong (2019) 7 NWLR (Pt. 1670) 67, Daniel V. INEC (2015) 9 NWLR (Pt. 1463) 113, N.I.W.A V. S.P.D.C.N. Ltd. (2020) 16 NWLR (Pt. 1749) 160, and submitted that since a sole ground of law can sustain a Notice of Appeal, it means that the Notice of Preliminary Objection filed by the Respondents is incompetent as the only procedurally valid means to challenge his Notice of Appeal (given the circumstance) is by way of an application seeking to strike out the alleged incompetent grounds. He, therefore, urged this Court to so hold.
The question is whether Ground 3 of the Grounds of Appeal alleges an error in law or fact, therefore, the Ground itself and its Particulars of Error must be construed together because its classification as a ground of law can only give competence to an appeal without leave, if the nature of the misdirection or error clearly stated in the Particulars bears out the category assigned -see Garuba V. Omokhodion(2011) 6-7 SC (Pt. V) 89, Metal Const. (W. A.) Ltd. V. D. A. Migliore (1990) 1 NWLR (PE 126) 299, Globe Fishing V. Coker (1990) 7 NWLR (Pt. 162) 265 and Nyako V. Adamawa State House of Assembly (2016) LPELR-41822(SC), wherein M. D. Muhammad, JSC, said:
“The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its “children” or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the Parties.”
The Particulars of Error of the said Ground 3 (set out earlier) are as follows:
i. The Respondents were charged for breach of peace owing to their malicious conducts. The Count is hereby reproduced as follows –
“Conspiracy to effect unlawful purpose to malicious damage/conduct likely to cause breach of peace contrary to Section 518(6) of the Criminal Code CAP 31, Volume II Laws of the Cross River State of Nigeria, 1983”.
ii. Conspiracy cannot be ascertained by mathematical precision but by drawing necessary inferences or deductions from certain criminal acts of the parties concerned.
iii. The Appellant, through its PW2, already led cogent evidence to show that the Respondents willfully damaged the Village pot when the Respondents hurled stones at him.
iv. The lower Court failed to sustain the Count on conspiracy by drawing the proper inference from the testimony of PW2 despite the expression of a criminal design and intent by the Respondents, who hurled stones at PW2, thereby damaging the village pot in the custody of PW2.
It is also settled that where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be obtained by the Party from the Court of Appeal or this Court. So, failure to obtain leave renders the appeal incompetent, and it will be thrown out – see Garuba V. Omokhodion (supra).
The question, therefore, is what is the distinction between the questions of law and questions of fact? In answering same, Obaseki, JSC, made the difference clear in Metal Const. (W.A.) Ltd. V. D. A. Migliore & Ors (supra) as follows:
“Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. – Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.”
That is the distinction – any matter to be decided on evidence and inference therefrom is a matter of fact, while an appeal on point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit a particular decision or disposal of the case before the Court.
The Respondents herein were charged with the offence of conspiracy, and the bedrock of the offence is the agreement to do something unlawful – Ikemson V. State (1989) 3 NWLR (Pt. 110) 455, Erim V. State (1994) 5 NWLR (Pt. 346) 522. The conspirators must have agreed to do something unlawful to justify a conviction for conspiracy.
The word “unlawful’ means “not authorized by law; illegal; criminally punishable”- see Black’s Law Dictionary, 9th Edition.
In this case, in setting aside the Respondents’ conviction for conspiracy by the trial Chief Magistrate Court, the High Court had first of all considered the allegation in Count 2 that they “conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority” and held that they could not have been guilty of conspiracy, because there is “no place in existence called Ovanum Community graveyard”. In affirming the above decision of the High Court, the Court of Appeal held that:
“From the evidence adduced by the Appellant – the count of conspiracy was based on the same facts as those of the two substantiative offences, and where a charge of conspiracy is based on the same facts as the substantive charge, the Court is enjoined to deal with the substantive charge and then see if the charge of conspiracy is desirable and could be sustained. See Amachree V. Nigerian Army (2003) 3 NWLR (Pt. 807) 256 at 274 applying R V Dawson (1960) 1 AER 558 and Njovens V. State (1973) 5 SC 17 at 68. The Count was predicated on the existence of a public place as envisaged by Section 249(d) of the Criminal Code, as such it is palpably evident that the existence of the said Ovanum Community graveyard is fundamental to the success of the allegation. The Witnesses at trial on both sides of the divide were unanimous that there was no such place in existence. In other words, the public place, Ovanum Community graveyard, where the Respondents were supposed to have trespassed did not exist – Having come to the above conclusions on the main Counts, the first Count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”
The complaint in Ground 3 of the Grounds of Appeal is that the Court of Appeal erred when it held that based on its conclusions on the main Counts II and III, Count I for conspiracy is fatally flawed, and so, it cannot be sustained as well.
However, it appears from the Particulars of Error to the said Ground that the Particulars are not in consonance with the complaint in the Ground itself. The decision of the Court of Appeal is that the Count of conspiracy was based on the same facts as the main Counts and having concluded that the Appellant failed to prove the existence of Ovanum Community graveyard – a public place; a key element in Count II, then the Count on conspiracy cannot be sustained.
Nevertheless, the position of the law as it stands today is that once the error complained of is identified and properly oriented in the Ground, the inelegance of its Particulars would not invalidate the grounds from which they follow -see Best (Nig.) Ltd. V. B.H. (Nig). Ltd. (2011) 5 NWLR (Pt. 1239) 95 and Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, wherein Nweze, JSC, stated:
“It is not every failure to attend to grounds of appeal with the fastidious details prescribed by Rules of this Court that would render such a ground incompetent This is particularly so where sufficient particulars can be gleaned from the grounds of appeal – and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded – Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice – Put differently, since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow – This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253 – Indeed, this Court, recently stamped its infallible authority on this current posture. Abe v. Unilorin (2013) LPELR-206443.”
The point I am trying to make is that the issue of whether Ground 3 is a ground of mixed law and fact or a ground of law depends on whether this Court must evaluate the evidence to determine whether the lower Courts are right that the Appellant failed to prove that the said incident took place in a public place, which would make it a ground of mixed law and fact. However, if the question is whether the Court of Appeal is right that Respondents cannot be convicted for conspiracy since a key element to sustain the main was not proved, then Ground 3 is a ground of law because evaluation of evidence is out of it.
The alleged breach of peace that led to this Appeal occurred in 2004 – 18 years ago, and I believe it is in the interest of justice to deal with this appeal and lay the matter to rest once and for all. As it is, it is not necessary to evaluate evidence in addressing the complaint in the Ground itself; it is on that premise that I hold that the said Ground 3 of the Grounds of Appeal is a ground of law
Besides, the Issue distilled by the Appellant from the said Ground 3 is – “whether the lower Court was correct in its finding when it failed to sustain the Count of conspiracy against the Respondents? Thus, the Appellant is right that Ground 3 of the Ground of Appeal is a ground of law, and as he also submitted, it is trite law that a sole ground of law is sufficient to sustain a Notice of Appeal -see Ekunola V. CBN (supra).
But I must add that the issue for determination in the appeal must be distilled from the said competent ground of appeal, and not from the other grounds of appeal, which are incompetent, and struck out.
As this Court, per Ogunbiyi, JSC, put it in Njemanze V. Njemanze (2013) 8 NWLR (Pt. 1356) 376 – “no competent issue can arise from an incompetent ground of appeal”. See also Akpan V. Bob & Ors (2010) LPELR-376(SC).
In this case, the Appellant formulated two Issues for Determination and Issue [i], which questions whether the evidence led by the Prosecution proved the allegation against them beyond reasonable doubt, is distilled from the other Grounds of Appeal in his Notice of Appeal, which have been struck out earlier for being incompetent. The said Issue is also incompetent, and it is struck out.
Issue [ii] is distilled from the said Ground 3 of the Grounds of Appeal, which has been adjudged competent, and the Issue is, therefore, competent, and I will adopt same in dealing with this appeal. Thus, it goes without saying that the Preliminary Objection raised by the Respondents “to the hearing and determination of this appeal” must be overruled, and it is, hereby, overruled.
So, this appeal turns on the narrow issue of whether the Court of Appeal is right that in view of its findings on the substantive offences, the Respondents could not be guilty of the offence of conspiracy. The Appellant, who focused his arguments on other areas, did not have anything to say about this Issue.
The Respondents reechoed the Court of Appeal’s conclusion that since it was alleged in Count 2 that they caused breach of peace by trespassing into Ovanum Community graveyard without lawful authority, the said Count cannot be proved except there is proof that the event occurred in a public place, thus, the Ovanum Community graveyard, as a public place, is a condition precedent to establishing same; and that the Witnesses were unanimous that there was no such place in existence, therefore, the public place, Ovanum Community graveyard, where they were supposed to have trespassed, did not exist at all.
Now, it is trite law that conspiracy to commit an offence is a separate and distinct offence by itself and it is independent of the offence of the actual commission of the offence to which the said conspiracy relates – see Atano V. A.G., Bendel (1988) 2 NWLR (Pt. 75) 201, wherein Nnamani, JSC, explained:
“It is obvious that the offence of conspiracy to commit an offence will necessarily precede in point of time the offence of the actual commission of the offence to which the conspiracy relates. So, it is possible that one may be guilty of conspiracy to commit an offence and yet not be guilty of the actual commission of the offence. For it is possible that one might change one’s mind before the offence was committed but after the conspiracy might have been hatched. And consequently, that one might not have gone along with the other conspirators in the commission of the offence itself. In other words, that one might have dropped out of the whole scheme after the conspiracy had been entered into.”
In other words, a conviction for the offence of conspiracy does not fail merely because the conviction on the substantive charge had failed – see Bouwer V. State (2016) 4 NWLR (Pt. 1502) 295, Balogun V. A.G., Ogun State (2002) 6 NWLR (Pt. 763) 512, Okanlawon V. State (2015) 17 NWLR (Pt. 1489) 445.
Even so, the Courts have deprecated the practice of including a Count of conspiracy to commit an offence as well as a Count for actually committing the offence itself, where the evidence to support the two Counts are the same.
In arriving at its decision in this case, the Court of Appeal relied on its decision in Amachree V. Nigerian Army (2003) 3 NWLR (Pt. 807) 256/274, wherein applying R v. Dawson (1960) 1 AER 558, the Court held as follows –
“In Dawson’s case, there were fourteen substantive Counts and one Count for conspiracy – The Court frowned at the charge of conspiracy. The principle that emerged from that case is whether conspiracy charge should also be charged where there are substantive charges in relation to the same conduct- This established principle in Dawson’s case [is] that the proper approach to an indictment containing conspiracy charge and substantive charges is to deal with the substantive charges first and then proceed to see how far the conspiracy Count should be there at all and whether it is made out. The answer to the question decides the fate of the charge of conspiracy.”
It also relied on Njovens V. State (1973) 5 SC 17, wherein this Court held that:
“The Accused Persons are charged with various Counts of specific offences comprising of acts or omissions, which would constitute for each of them, the actus reus to associate him with the conspiracy – There is only one set of evidence, which is being used to prove the conspiracy as well as the specific charges. In R v. Dawson (1960) 1 WLR 163 the Court of Criminal Appeal deprecated this practice, which carries no legal obloquy whatsoever, but fails to stand the test of strategy – The learned trial Judge was right to conclude that all the Accused took part in abetting the offence of robbery.”
Clearly, the issue at stake in this appeal has nothing to do with the fact that the conviction for the substantive offences failed; it has to do with the fact that the Prosecution adduced the same evidence to support the allegations against the Respondents in Counts 2 & 3. which are substantive offences, and the offence of conspiracy in Count 1. That being so, the Court of Appeal is certainly right.
In a charge of conspiracy to commit an offence, even though a separate offence from the substantive offence, where the facts are intricately interwoven, Courts are enjoined to deal with the substantive offence first. This is because, in such circumstances, the conviction for conspiracy will fail if the conviction for the substantive offence is set aside – see Okiemute V. State (2016) 15 NWLR (Pt. 1535) 297 SC, Oladejo V. State (2018) 11 NWLR (Pt 1630) 238/244 SC.
In this case, in Count 1 of the Charge, the Respondents were alleged to have conspired “to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace”, and in Count 2 they were alleged to have-
Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority thereby committed an offence punishable under Section 249(d) of the Criminal Code Cap 31 Vol. II LCRSN 1983.
Section 249 (d) of the Criminal Code specifically states that every person, who, “in any public place, constitutes himself in a manner likely to cause breach of the peace – shall be guilty of a simple offence”. In other words, to be guilty of the said offence under Section 249(d), the Respondents must have conducted themselves in a manner likely to cause breach of the peace in a public place, and the public place, as alleged in Count 2, is Ovanum Community graveyard.
The Prosecution adduced evidence in support of both Counts, therefore, to ground a conviction for conspiracy, the allegation in Count 2 must be proved. It is an established fact that the Ovanum Community graveyard does not exist, which means that the Prosecution had failed to prove a fundamental element that cuts across the substantive offence itself and the offence of conspiracy.
So, the Court of Appeal made the right call – it held that the public place, Ovanum Community graveyard, where the Respondents were supposed to have trespassed did not exist thus, the Count for conspiracy “is fatally flawed and cannot in the circumstances be sustained as well”, and I completely agree.
In the circumstances, this appeal lacks merit, and it is hereby dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Amina Adamu Augie, JSC and to underscore the support in the reasonings from which the decision emanated, I shall make some remarks.
This appeal to the Supreme Court arises from the decision of the Court of Appeal Calabar Division or lower Court or Court below, Coram: Nwosu-Iheme, Adah and Oyewole JJCA from a decision on 19th October, 2017 in which the Court below dismissed the appeal from the decision of the High Court of Cross Rivers State sitting in Calabar of 24th June 2009 per S.M. Anjor J. against the decision of the High Court which had allowed the appeal of the Appellants therein against their conviction by the Chief Magistrate Court, Apiapum Obubra.
The Chief Magistrate had on 5/12/2005 convicted the Appellants at the Court below on three counts of conspiracy to effect an unlawful purpose, conduct likely to cause a breach of the peace and wilful and unlawful damage.
BACKGROUND FACTS
One Chief Raymond Okpa (PW1) in his capacity as the Chief of Ovanum Ntem Village was informed of the demise of the 4th accused (who also died in the course of trial) person’s son and was consulted to mark the spot or gravespot for the burial of the deceased 4th accused person’s son. Subsequently, PW1 designated PW2 (John Egede) and PW3 (Abeng Okera) to carry the Ovanum customary sacred pot to mark the graveyard for the committal of the deceased child to mother earth. However, due to the ‘clan head’ dispute between PW1 and the 1st Respondent herein (Chief Fidelis Egor), PW2 and PW3 were harassed, stoned and chased away by the Respondents and the Ovanum sacred pot got broken in the process.
The Respondents were charged before the Chief Magistrate Court, Apiapum Obubra Division on the 1st June 2005 in charge No: MB/76C/2004 on three counts which are stated below:
COUNT I
That all the accused persons on the 28th day of February 2004 at Ovanum Village, Obubra Local Government Area in Obubra Magistrate District conspired among themselves to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace and thereby committed an offence punishable under Section 518 (6) Of the Criminal Code CAP 31, Volume II, Laws of Cross River State of Nigeria, 1983.
COUNT II
That all the accused persons on the same date and place in the aforesaid Magistrate District conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum community grave yard authority thereby committed an offence punishable under Section 249 (d) of the Criminal code CAP 31 Volume II, Laws of Cross River State of Nigeria 1983.
COUNT III
That the accused person on the date and place in the aforesaid magistrate District wilfully and unlawfully damaged one pot valued at N500.00 property of Chief Raymond Ewena Okpa and thereby committed an offence punishable under Section 45 of the Criminal Code, volume Laws of Cross-River State of Nigeria 1983.
The Respondents pleaded not guilty. The Appellant called four witnesses namely:
PW1 – Chief Raymond E. Okpa
PW2 – John Egede
PW3 – Abeng Okera
PW4- I.P.O.
The Respondents defended themselves in person without inviting anybody to testify in support of their defence. The Magistrate Court in its judgment sustained the counts against the Respondents and convicted them accordingly.
Consequently, the Respondents registered their dissatisfaction with the judgment of the Magistrate Court by lodging their appeal to the High Court of Cross River State. The High Court in its judgment set aside the decision of the trial Magistrate Court and thereafter discharged and acquitted the Respondents of all the offences charged. On further appeal, to the Court of Appeal, Calabar Division (lower Court), the lower Court in its unanimous decision delivered on 17th October 2017 affirmed the decision of the High Court. The Appellant is dissatisfied, hence this instant appeal.
On the 13th January, 2022 date of hearing, learned counsel for the Appellant, Aderemi Oguntoye, Esq. adopted the brief of argument filed on 31/12/2018 and deemed filed on 13/1/2022 and a Reply brief filed on 5/2/2021 and deemed filed on 13/1/2022. He distilled two issues for determination as follows:-
1. Whether the evidence of the Appellant (prosecution) proved beyond all reasonable doubt, the allegation that the Respondents wilfully and unlawfully damaged the Ovanum village pot.
2. Whether the lower Court was correct in its findings when it failed to sustain the count of conspiracy against the Respondents.
Learned counsel for the Respondents, Ubong Esop Akpan Esq. adopted the brief of argument filed on 29/7/2019 and deemed filed on 13/1/2022 in which they formulated a single issue for determination, viz:
Whether the Court of Appeal rightly confirmed the discharge and acquitted by the High Court Calabar of the 10 Respondents in this appeal.
The Respondents had raised and argued a Preliminary Objection contesting the competence of the appeal in the brief of argument. It needs no saying that the Objection would be first tackled as the jurisdiction of the Court is questioned alongside the competence of the appeal.
PRELIMINARY OBJECTION
The Respondent/Objector contended that the four grounds of appeal are based on fact or at best, mixed law and fact for which the need for leave to appeal is mandatory and that leave was neither applied for nor obtained, contrary to Section 233 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The implication being the incompetence of those grounds and the appeal itself, rendering the Court bereft of jurisdiction. He cited Out v African Continental Bank (2008) 1 SC (pt.212) 652; Fasuyi v PDP (2017) LPELR-43462 (SC) pp.10-12 (CA).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The learned counsel for the Appellant submitted that it is not correct that all the grounds of appeal are on fact or mixed law and fact as ground 3 is clearly on pure law. Therefore if the other grounds fail, ground 3 alone can sustain the appeal. He cited Ogbechie v Onochie (1986) 2 NWLR (pt.23) 484 at 491; Ekunola v C.B.N (2013)15 NWLR (pt. 1377) 224 at 260 etc.
The Respondents/objectors had argued that all the grounds of appeal and particulars of error cannot be relied upon by this Court to sustain the appeal as the grounds are based on fact or mixed law and fact and since no leave was obtained the Notice of Appeal is incompetent.
That assertion of the objectors is too sweeping and a generalisation not borne out of what is before the Court in the light of ground 3 of the Appellant’s Notice of Appeal.
I shall quote the said Ground 3 for clarity, thus:-
GROUND 3
The lower Court misdirected itself when it held as follows:
“Having come to the above conclusions on the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”
In Obayuwana v. Adun (2020) 13 NWLR (Pt.1741) 371 at p.390, the Supreme Court per Augie, J.S.C analysing the guidelines to properly determine whether grounds of appeal is one of law, or of fact or of mixed law and fact held inter alia:
“… where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter…”
The aforementioned reasoning is a restatement of the landmark decision of the Supreme Court per Eso, J.S.C in Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at p.491, where the Court opined as follows:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal misunderstanding by the lower Tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law.”
Grounds 3 as outlined above is a ground that questions the lower Court’s understanding of the law on conspiracy vis-a-vis the cogent evidence adduced by the Appellants during trial. It queries the findings of the lower Court to the effect that it improperly misunderstood the law as it concerns conspiracy such that a proper understanding would have helped the lower Court better appreciate the evidence before it enough to make proper inferences. This is a ground of law based on the aforementioned Supreme Court authorities.
I agree with learned counsel for the Appellant that flowing from the above, it is trite law that a sole ground of law can sustain a notice of appeal in an appeal from the Court of Appeal to the Supreme Court. This was the holding of the Supreme Court per Chukwuma Eneh, J.S.C in Ekunola v. C.B.N (2013) 15 NWLR (pt.1377) 224 at p.260, wherein the Court stated as follows:
“Although it is trite that a single ground of law is sufficient to sustain a notice of appeal in an appeal; also, see: Niger Construction Ltd. V. Okugbeni (1987) 2 NSCC (Vol.18) 1258, (1987) 4 NWLR (pt.67)787 per Nnaemeka-Agu, JSC.”
This position of the law has been validated by this Court in countless authorities. See the following cases: Uwak v. Ekpemyong (2019) 7 NWLR (Pt.1670) 67; Daniel v. INEC (2015) 9 NWLR (pt.1463) 113, N.I.W.A v. S.P.D.C.N Ltd (2020) 16 NWLR (Pt.1749) 160.
Given the fact that a sole ground of law can sustain a notice of appeal, it means that the Notice of Preliminary Objection filed by the Respondents is incompetent as the only procedurally valid means to challenge the Appellant’s notice of appeal (given the circumstance) is by way of an application seeking to strike out the other alleged incompetent grounds.
The implication of what I am trying to say is that, assuming the other grounds of appeal are incompetent, the appeal can be grounded on the surviving sole ground 3 and the appeal valid. On that note, the Preliminary Objection fails and is dismissed.
MAIN APPEAL
For ease of reference, I shall make use of the issues drafted by the appellant.
ISSUE 1 & 2
1. Whether the evidence of the Appellant (prosecution) proved beyond all reasonable doubt, the allegation that the Respondents wilfully and unlawfully damaged the Ovanum village pot
2. Whether the lower Court was correct in its finding when it failed to sustain the count of conspiracy against the Respondents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Learned counsel for the Appellant contended that all the ingredients of the offences charged were proved by the prosecution beyond reasonable doubt and the guilt of the Respondents established. That the circumstantial evidence in this case is overwhelming and leads to no other conclusion than the guilt of the Respondents. He cited Nweke Onah v The State (1985) 2 NSCC 1361; Sahalatu Shazali v The State (1988) 12 SC (pt.11) 58 etc.
It was further submitted for the Appellant that it had led cogent and circumstantial evidence pointing to the fact the Respondents conspired to damage the Ovanum village pot. He cited Nwankwoala v State 92006) 14 NWLR (pt.1000) 663 at 682-683.
Learned counsel for the Respondents contended that the evidence proffered by the Appellant in support of the count of conspiracy was based on same fact as those of the two substantive offences. That where a charge of conspiracy is based on the same facts as the substantive charge, the authorities require that the Court deal with the substantive charge and then see if the charge of conspiracy is desirable and could be sustained. He cited Ikemson v State (1989)3 NWLR (pt.110)455; Amachree v Nigerian Army (2003) 3 NWLR (pt.807) 256 at 274 etc.
That the Court of Appeal found as a fact that the two eye witnesses located the scene of the said grave digging exercise as the compound of the late Asiga Agara and not any Ovanum Community graveyard and the count in the face of the Appellant’s failure to prove the “public place ingredient” of the offence of conduct likely to cause a; breach of the peace, found that count 2 was not proved.
Learned counsel for the Respondents submitted that the prosecution failed to discharge the burden of proof laid upon it over the counts charged and these findings the Court below found were not perverse and so the appeal should be dismissed.
In resolving the issues above posed, it is to be restated that by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, the ten (10) accused persons now Respondents are presumed innocent. To prove otherwise, the prosecution now Appellant must establish the three criminal allegations by proving each of the essential ingredients of each of the three counts beyond reasonable doubt, failing which the ten accused persons must be acquitted. The next question to be tackled is the meaning of proof beyond reasonable doubt.
In answer, proof beyond reasonable doubt means:
1. Proof that precludes every reasonable hypothesis except that which it supports, and
2. Proof, which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusion.
Therefore in every criminal trial such as the one under discourse, for evidence to legally support a conviction, that evidence must exclude beyond all reasonable doubt every other conceivable imaginable state of affairs other than that which points to the guilt of the accused. For a fuller understanding, an accused must be acquitted of the crime charged if a conclusion of guilt is not the only reasonable interpretation to which the facts adduced against him are susceptible. See Ubani v State (2003) 4 NWLR (pt.809) 51 at 64.
To expatiate, proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that will amount to reasonable doubt need not reach certainty but should achieve a high degree of probability. Once the ingredients of the particular offence the accused is charged with are proved, then that constitutes proof beyond reasonable doubt.
For the accused to be entitled to the benefit of doubt, that must be a genuine and reasonable one arising from some evidence before Court. See the case of Nwankwo v FRN (2003) 4 NWLR (pt.809) 1 at 35-36.
The charges against the ten respondents at the trial are thus:-
1. Conspiracy to effect unlawful purpose to wit malicious damage/conduct likely to cause breach of peace contrary to Section 518(6) of the Criminal Code Cap 31, Volume II Laws of Cross River State of Nigeria, 1983.
2. Conduct likely to cause breach of peace by trespassing into the Ovanum community graveyard without authority thereby committing an offence contrary to Section 249 (d) of the Criminal Code Cap 31, Volume II Laws of Cross River State of Nigeria, 1983.
3. Wilfully and unlawfully damaging one pot valued N500.00 property of Ovanum Ntem entrusted to Chief Raymond Eweno Okpa ‘M’ and thereby committing an offence punishable under Section 451 of the Criminal Code Cap 31, Volume II Laws of Cross River State of Nigeria, 1983.
The statutory provisions which the 10 accused persons allegedly violated, are set out below:
1. Conspiracy to effect unlawful purpose
518. Other conspiracies
Any person who conspires with another to effect any of the following purposes-
(6) to effect any unlawful purpose is guilt of a misdemeanour and is liable to imprisonment for two years.
249. Idle and disorderly persons.
The following persons-
(d) every person who, in any public place, conducts himself in a manner likely to cause a breach of the peace, shall be deemed idle and disorderly persons and may be arrested without warrant, and is guilty of simple offence and liable to imprisonment for one month.
2. Malicious damage
451. Malicious injuries in general.
Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour and he is liable, if no other punishment is provided, to imprisonment for two years.
THE CHARGE OF CONSPIRACY
The first charge alleges conspiracy to effect two unlawful acts.
– Conspiracy is a working together of at least two minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful manner.
– Since conspiracy involves minds and Judges not being mind readers, they have been compelled to deduce the working of the criminal mind from the physical acts demonstrated by the alleged perpetrators. Niki Tobi, J.C.A (as he then was) stated thus on the subject:
“legally 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, the purpose of the meeting of the two or more minds is to commit an offence.
While the law does not require the physical meeting of the minds in a predetermined or known place, as the offence of conspiracy could be committed by written communication, the prosecution must establish that the criminal minds really met somewhere to hatching crime”. See Shodiya v State (1992) 3 NWLR (pt.230) 457 at 499.
In order to prove conspiracy,
– It is not necessary that there should be direct Communication between each conspirator and the other.
– All that need to be established is that the criminal design is Common to all of them.
– Proof of how they connected with or amongst themselves or that the connection was made, is not necessary. This is because there could even be cases where one conspirator may be in one town and the other in another town and they may never have seen each other but there could be acts on both sides which could lead the Court to the inference, that these acts were aimed at achieving a common purpose.
See: (1) ERIM VS STATE (1994)5 NWLR (PT.346) 522 AT 533
(2) IKEMSON VS STATE (1989) 3 NWLR (PT.110) 455.
At the trial, in the Magistrate Court, the evidence led by the Appellant in support of the count of conspiracy was based on same facts as those of the 2 substantive offences.
It is a known position of the law that where a charge of conspiracy is based on the same facts as the substantive charge, the authorities require that the Court deals with the substantive charge and then sees if the charge of conspiracy is desirable and could be sustained.
See AMACHREE VS NIGERIAN ARMY (2003) 3 NWLR (PT.807) 256 at 274 applying R VS. DAWSON (1960) 1 AER 558 and NJOVENS VS. STATE (1973) 5 SC 17 at 68.
ESTABLISHING THE SUBSTANTIVE COUNTS OF THE TWO OFFENCES CHARGED.
BREACH OF THE PEACE: Count 2 at trial alleged that the Respondents caused breach of the peace by trespassing into the Ovanum Community graveyard without lawful authority.
This count cannot be proved except there is proof that the event occurred in a public place as contemplated by Section 249 (d) of the Criminal Code. Therefore proof that the Ovanum Community graveyard is a public place is a condition precedent to establishing count 2 as alleged or at all.
The witnesses at the trial on both sides of the divide were unanimous that there was no such place in existence.
There was conflicting evidence establishing that the venue of the incident was private premises.
Certain salient points need be highlighted thus:-
– PW1 was not at the scene of the burial.
– The remaining witnesses stated that the Respondents were in the compound of the late initial 4th accused, Asiga Agara.
– The two eyewitnesses PW2 and PW3 Stated this much without equivocation. Lines 2-13 of page 10 of the record of appeal (testimony in chief of PW2) to wit;
“I went with Obum Egba to the place Where they went to measure the graveyard. On reaching there the accused persons have started digging the grave. Our Abong Okera and Chief Oybiafl the two persons and one Asiga Agara deceased’s father to tell where they should dig the grave in reply Abong Okera asked one Asiga Agara if he knew him very well i.e 4th accused. In reply, the 4th accused told them that it is over 20 years that he does not measure land for grave in his compound. Therefore they started throwing stones at us. The pot was holding got broken as a result of the stones thrown at us. It was the stones that broke the pot”.
Testimony in chief of PW3 (on lines 12-24 of pages 17 of the record) was that:
“On reaching at the 4th accused person’s compound we met a group of boys digging the grave and the chief was standing and watching them. I now asked the father to show me where to dig the grave, but he relied to me that the he does not know where to dig this grave. In the process of asking the man to show me where to dig the grave and our demand was turned down. The boys started throwing stones on us and in the process the pot with which wine was put was broken. The chiefs were in the compound during the pandemonium caused by the accused persons and their cohorts. went back to PW1 and complained that the exercise failed as the 4th accused person chased us out of his compound with a group of people”.
The Court of Appeal Calabar found as a fact that the two eyewitnesses located the scene of the said grave digging exercise as the compound of the late Asiga and not any Ovanum Community graveyard.
The Court in the face of the Appellant/Complaint’s failure to prove the “public place ingredient” of the offence of conduct likely to cause a breach of the peace, found that count 2 was not proved.
The specific finding was not appealed against by the Appellant. Count 3 at trial alleged malicious damage. The Appellant as a prosecutor was bound to prove that the Respondents broke the said sacred pot. Unfortunately for the prosecutor, PW1 was not at the scene of crime and could only give hearsay evidence which is totally inadmissible.
Furthermore, the Court of Appeal could not help but take note of the facts that:
1. PW2 and PW3 alluded to the presence of certain boys (not related to Respondents) who were digging the grave while the Respondents looked on;
2. PW3 was particularly clear on boys, being their assailants;
3. This was the same witness with poor sight;
4. Both witnesses testified that they ran immediately stones were being thrown at them with their assailants in pursuit, how they could name those stoning them with their backs turned is some mystery;
5. They did not report any injury;
6. So equally mysterious is the fact that the stones thrown at them did not injure them but only broke the small pot held by PW2;
7. While PW1 who was not at the scene was eager to name his adversaries in the leadership tussle as the perpetrators of the alleged offence, PW2 and especially PW3 named other persons who they described as boys as different from the Respondents who were called Chiefs, as the likely perpetrators.
These are devastating findings and none of the grounds of appeal has been able to dent the legal process by which these findings were made, nor has the soundness of reasoning in the above 7 findings, been impeached.
Where an accused raises alibi, the following principles apply:
– Where the testimony of witnesses located an accused person committing crime at the material time, his defence of alibi will fail. See BALOGUN v A.G OGUN STATE (2002) 6 NWLR (PT.763) 512.
– Where the defence of alibi is raised for the first time in the course of his defence in the witness box, the learned trial Judge will be in order to treat such an alibi as an unserious after-thought to be appropriately discountenanced. See EMMANUEL EKE v THE STATE (2011) 45 NSCQR 652.
The Court below made the following findings:-
1. In the case at hand however, neither PW4, the police investigator, nor the trial Magistrate made any attempt to examine the alibi of the Respondents. The entire scenario leaves so much to be desired. Doubts are evident in the evidence presented. These doubts must work to the benefit of the accused persons who are the Respondents in this appeal. See UBANI v STATE (supra).
2. Both substantive counts were not established, and
3. Having failed to prove guilt in the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well. This is because the substantive of any conspiracy offence are non-existent.
The Court of Appeal found that: the decision of the High Court was not perverse, to require appellate intervention because:
(1) Where the findings of fact made by a trial Judge are not supported by credible evidence, or there is improper evaluation of evidence, the appeal Court is in as much as good position to deal with the facts and findings as the trial Court.
(2) The finding of Court will be perverse where:
a. It is speculative and not based on any evidence or
b. The Court took into account matters which it ought not to have taken into account or
c. The Court shut its eye to the obvious.
The prosecution (Appellant) thus clearly did not prove or establish the three counts laid against the 10 Respondents.
The follow up conclusion on the foregoing is that the prosecution failed to discharge the burden of proof on it under the law and there is a lingering doubt created in the evidence relied on by the prosecution, the doubt has to be resolved in favour of the accused persons whose acquittal and discharge are thus automatic.
There is nothing on which this Court can hinge an interference with findings so sound and not impugned of the Court below. Therefore this appeal fails for lacking in merit.
I abide by the consequential orders made.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The Respondents herein were charged before the Chief Magistrates Court, Apiapum-Obura, Cross River State on a 3-count charge of conspiracy to commit malicious damage/conduct likely to cause breach of peace, conduct likely to cause breach of the peace and malicious damage under the Criminal Code Cap. 31 Volume II Laws of Cross River State of Nigeria, 1983.
The facts that gave rise to the charge have been adequately captured in the lead judgment. Suffice it to say that the trial Chief Magistrate found them guilty as charged. On counts 1 and 2, they were cautioned and discharged. On count 3, for malicious damage, they were each sentenced to a term of 2 years imprisonment with hard labour or a fine of N2000.
On appeal to the High Court in its appellate jurisdiction, the conviction and sentences imposed on the Respondents on all three counts were set aside. On further appeal to the lower Court, the judgment of the High Court was affirmed.
The Appellant is still dissatisfied and has further appealed to this Court vide its notice of appeal filed on 28/12/2017 containing 4 grounds of appeal.
It is pertinent to note that there are concurrent findings of fact by the two lower Courts. What the Appellant is seeking by this appeal is for this Court to engage in a third evaluation of the facts. This Court is always very wary of interfering with concurrent findings of fact unless they are shown to be perverse. The Appellant therefore has an uphill task to satisfy the Court that there are exceptional circumstances to warrant the setting aside of the concurrent findings. See: Atto Maba Vs The State (2020) LPELR-52017 (SC) @ 31-32 D-C; Olayode Vs The State (2020) LPELR-62519(SC) @ 18 A-B.
The Respondents herein filed a preliminary objection to the competence of the appeal on the ground that all the 4 grounds of appeal filed by the Appellant are grounds of fact or mixed law and fact for which no leave was sought or obtained, which renders the said notice incompetent.
By virtue of Section 233 (3) of the 1999 Constitution, as amended, any ground of appeal that does not fall Within the provisions of Section 233(2) thereof, requires prior leave of this Court or the Court below. Section 233(2)(a) provides that an appeal shall lie to the Supreme Court from decisions in any civil or criminal proceedings before the Court of Appeal as of right, where the ground of appeal involves questions of law alone. Subsections (b)-(f) are not relevant to this appeal.
The 4 grounds of appeal shorn of their particulars read as follows.
GROUND 1
The lower Court misdirected itself when it held as follows:
“PW2 and PW3 alluded to the presence of certain boys at the scene who were digging the grave while the Respondents looked on. PW3 was particularly clear on this. This was the same witness with poor sight. An interesting part of their testimonies was that they ran immediately stones were being thrown at them with their assailants in pursuit, how they could name those stoning them with their backs turned is some mystery. They did not report any injury so equally mysterious is the fact that the stones thrown at them did not injure them but only broke the small pot held by PW2.”
GROUND 2
The lower Court misdirected itself when it held as follows:
“While PW1 who was not at the scene was eager to name his adversaries in the leadership tussle as the perpetrators of the alleged offence, PW2 and especially PW3 named other persons who they described as boys as different from the Respondents who were called chiefs, as the likely perpetrators.”
GROUND 3
The lower Court misdirected itself when it held as follows:
“Having come to the above conclusions on the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”
GROUND 4
The judgment of the Court below is unwarranted and cannot be supported having regard to the evidence adduced.
Learned counsel for the Appellant appears to concede the fact that Grounds 1, 2, and 4 are of mixed law and facts for which no leave was sought. He is correct. It follows that the said grounds of appeal and the Appellant’s Issue 1 predicated thereon, are incompetent and accordingly struck out. It is however his contention that Ground 3 is a ground of law and can therefore sustain the appeal. The particulars of Ground 3 are as follows:
GROUND 3
The lower Court misdirected itself when it held as follows:
“Having come to the above conclusions on the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”
PARTICULARS OF ERROR
i. The Respondents were charged for breach of peace owing to their malicious conducts. The count is hereby reproduced below:
“Conspiracy to effect unlawful purpose to wit malicious damage/conduct likely to cause breach of peace contrary to Section 518(6) of the Criminal Code Cap. 31, Volume II Laws of Cross River State of Nigeria, 1983.”
ii. Conspiracy cannot be ascertained by mathematical precision but by drawing necessary inferences or deductions from certain criminal act of the parties concerned.
iii. The Appellant, through its PW2 already led cogent evidence to show that Respondents willfully damaged the village pot when the Respondents hurled stones at him.
iv. The lower Court failed to sustain the count of conspiracy by drawing the proper inference from the testimony of PW2 despite the expression of a criminal design and intent by the Respondents, who hurled stones at PW2 thereby damaging the village pot in custody of PW2.
A careful reading of Ground 3 reveals that the Appellant’s complaint borders on a misapplication of the law to proved or admitted facts i.e. that the prosecution having established through PW2, that the Respondents deliberately hurled stones at him and damaged the village pot in the process, the lower Court ought to have drawn the necessary inference that the Respondents conspired to do an illegal act, to wit: malicious damage/conduct likely to cause a breach of the peace.
It has been held severally by this Court that a ground of appeal complaining of a misunderstanding by the Court below of the law or a misapplication of the law to facts already proved or admitted, is a ground of law. See: State Vs. Omoyele (2017) NWLR (Pt. 1547) 341; Amuda Vs Adelodun (1994) 8 NWLR (Pt. 360) 22 @ 30: Ogbechie Vs. Onochie (1986) 2 NWLR (Pt. 23) 484; Anukam Vs Anukam (2008) 1-2 SC 34. I therefore agree with my learned brother that Ground 3 is a ground of law.
The Appellant’s Issue 2 is predicated on ground 3. My learned brother has dealt with this issue quite comprehensively in the lead judgment. I agree entirely with the reasoning and conclusion that there is no merit in the said issue.
In criminal prosecution, the guilt of the accused must be established beyond reasonable doubt. In order to discharge the burden of proof, every ingredient of the offence charged must be proved. Failure to prove an essential element of a crime is fatal. It means that the burden of proof beyond reasonable doubt has not been discharged and the accused would be entitled to an acquittal. See:Nwaturuocha Vs The State (2011) LPELR-8119 (SC) @ 15-16 F-C; Mohammed Ibrahim Vs The State (2015) 11 NWLR (Pt. 1469) 164 @ 191 G-H & 197 C-D; Oladele Vs Nigerian Army (2004) 6 NWLR (Pt. 868) 166; FRN Vs Umeh & Anor (2019) LPELR-46801 (SC) @ 18 C-D.
In the instant case, an essential element of the offence of malicious damage/conduct likely to cause a breach of peace under Section 249(d) of the Criminal Code is that the act or conduct must have occurred in a public place. Having failed woefully to establish this fact, the prosecution did not succeed in establishing the guilt of the Respondents beyond reasonable doubt. The lower Court was therefore justified in dismissing the appeal and affirming the judgment of the High Court of Cross River State, sitting in its appellate jurisdiction acquitting and discharging the Respondents and setting aside the binding-over order made against them. The findings have not been shown to be perverse.
For these and the more elaborate reasoning in the lead judgment, I also dismiss the appeal for being without merit.
Appeal dismissed.
ABDU ABOKI, J.S.C.: I had the privilege of reading before now, the judgment written by my learned brother AMINA ADAMU AUGIE, JSC, with whom I am in agreement with the reasons adduced and the conclusion contained thereat, that this appeal lacks merit and ought to be dismissed. My Noble Lord has quite admirably resolved the issues distilled for the determination of this appeal.
I am in entire agreement with the reasoning and conclusion arrived at, by my learned brother AMINA ADAMU AUGIE, JSC that this appeal is lacking in merit. The appeal is therefore dismissed by me.
I endorse and affirm the decision of the Court of Appeal, Calabar Division.
I abide by the consequential order(s) (if any) contained in the lead judgment.
Appeal dismissed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Amina Adamu Augie, JSC, has accorded me the opportunity of a preview of the judgment just delivered. I agree entirely with the reasoning postulated therein, to the conclusive effect that the present appeal lacks merits.
Hence, having adopted the reasoning in question as mine, I too hereby dismiss the appeal.
Appeal dismissed.
Appearances:
Aderemi Oguntoye, Esq. For Appellant(s)
Ubong Esop Akpan, Esq. For Respondent(s)
