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CHIEF NEWTON AKPOFODOH v. THE STATE (2019)

CHIEF NEWTON AKPOFODOH v. THE STATE

(2019)LCN/12686(CA)

In The Court of Appeal of Nigeria

On Monday, the 11th day of February, 2019

CA/B/196C/2018

 

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

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

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

CHIEF NEWTON AKPOFODOH Appellant(s)

AND

THE STATE Respondent(s)

RATIO

WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE IS USED TO PROVE THE OFFENCE OF CONSPIRACY

It is trite that the offence of conspiracy is often difficult to prove. This is so because it is contrived in secrecy. Circumstantial evidence is therefore often used to point to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy. PER NWOSU-IHEME, J.C.A.

INGREDIENTS FOR ESTABLISHING THE OFFENCE OF CONSPIRACY

Once common intention is proved, it becomes immaterial that the person did not personally carry out the act. See AHMED V. THE STATE (1998) 7 SC (Pt. 1) Pg. 105 at 106, OYEDIRAN V. THE REPUBLIC (2003) 3 ACLR Pg. 516.
What the prosecution needs to prove to sustain a conviction for conspiracy are:
1. Direct or positive evidence of a plot between the conspirators which
2. Will be deemed a direct proof of the offence, or by inference; and
3. Evidence of criminal acts or inactions of the parties concerned. See AFOLABI V. THE STATE (2013) LPELR 207 (SC). PER NWOSU-IHEME, J.C.A.

WHETHER OR NOT EVALUATION OF EVIDENCE OF WITNESSES AND ASCRIPTION OF PROBATIVE VALUE THERETO IS THE FUNCTION OF THE TRIAL COURT

It is settled law that evaluation of evidence and the ascription of probative value thereto reside within the province of the Court of trial that saw, heard and assessed the witnesses. Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the view of the trial Court. However, the Court of Appeal can intervene where there is insufficient evidence to sustain the Judgment, or where the trial Court fails to make proper use of the opportunity of seeing, hearing and observing the witness or where the findings of fact of the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by evidence before the Court. See EDJEKPO & ORS V. OSIA & ORS (2007) 29 NSCQR 842 at 885. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): This criminal appeal was filed by the Appellant who was arraigned before the Asaba Division of the High Court of Delta State presided over by F.N. Azinge, J., on an information of conspiracy, attempted murder and murder.

In a considered Judgment delivered on the 29th of March, 2018, the Appellant was found guilty on all counts as charged and was sentenced to terms of imprisonment for the offences of conspiracy and attempted murder and sentenced to death for the offence of murder.

?A summary of the case as presented by the prosecution (Respondent) at the trial Court was that the Appellant was said to have had a conversation with one John Mogidi (hereinafter called the deceased). In the course of the conversation, the Appellant was said to have threatened to kill the deceased and gave him five days to live. On the 16/5/2016, the Appellant in another telephone conversation also threatened to kill the deceased. The deceased then decided to leave for his home. He boarded a motorcycle with his friend (PW1) and on the way, they were intercepted by two vehicles, a black

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Prado Jeep and another black Toyota Camry Car. The Appellant and his son Darlington Akpofodoh, Christopher Omatseye alias Marley, Idiameta Agbaminido alias Freeborn, Joseph Uwaye alias Unueri and others alighted from the cars with arms and ordered the deceased to enter the Appellant?s car. The deceased resisted the order and there was some form of scuffle. Darlington, the Appellant?s son questioned the deceased for disobeying his father?s order, he then corked his gun and shot the deceased.

PW1, who was with the deceased, took to his heels and was also shot from behind and he fell. Believing that PW1 was dead the cars sped off.

PW1 was rescued by some people who took him to the hospital and subsequently informed his relations and the police. It was PW1?s statement to the police that led to the arrest of the Appellant while the rest of his gang members are still at large.
?
The Appellant stood trial on a four (4) count information of conspiracy to commit murder punishable under Section 324 of the Criminal Code Law, Cap 21, Volume 1, Laws of Delta State, 2006, conspiracy to commit felony to wit: attempted murder punishable

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under Section 516 of the Criminal Code Law, Cap C21, Volume 1, Laws of Delta State, 2006; murder punishable under Section 319(1) of the Criminal Code Law, Cap C21 Volume 1, Laws of Delta State, 2006 and attempted murder punishable under Section 320 of the Criminal Code Law, Cap C21, Volume 1, Laws of Delta State, 2006.

In his Judgment, the learned trial Judge convicted the Appellant and sentenced him on all four counts. In count one, conspiracy to commit murder, he was sentenced to 14 years imprisonment. In count two, conspiracy to commit a felony to wit: attempted murder, he was sentenced to seven (7) years imprisonment. In count three, attempted murder, he was sentenced to life imprisonment and in count four, murder, the Appellant was sentenced to death by hanging.

The Appellant, being aggrieved with the conviction and sentence, filed this appeal which revolves on the said Judgment.

Counsel for the Appellant, Olayiwola Afolabi, Esq., distilled three issues for determination thus:
(1) ?Whether the learned trial Judge rightly convicted the Appellant for the offences of murder and attempted murder when the essential ingredients in proving

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the charges were not established against the Appellant.
(2) Whether the learned trial Judge was right when he convicted the Appellant of the offence of conspiracy to commit murder and attempted murder.
(3) Whether the amendment of the charge at the conclusion of trial did not occasion a miscarriage of justice that should nullify the entire proceedings.?

Counsel for the Respondent, O.I. Asenoguan Esq., adopted the three issues as formulated by the Appellant.

The issues raised by Counsel for the Appellant which Counsel for the Respondent adopted in its entirety can conveniently be compressed into one straightforward issue, it is:
?Whether on the facts and circumstances of this case, the trial Court was right in holding that the prosecution proved its case beyond reasonable doubt to justify the conviction of the Appellant on all four counts as charged.?
?
Taking the issues he formulated, learned Counsel for the Appellant O. Afolabi Esq., contended that the Appellant was arraigned and convicted amongst other offences for the previous offence of murder of one John Mogidi. That the evidence led by the prosecution makes it

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clear that it was one Darlington Akpofodoh (son of the Appellant) that shot the deceased, John Mogidi and not the Appellant.

Counsel argued that the presence of the Appellant at the scene will not make the Appellant culpable for the act of his son. He cited ZUBAIRU V. STATE (2011) ALL FWLR (PT. 592) 1672 at 1706, EBONG V. STATE (2012) ALL FWLR (PT. 633) 1945 at 1966 – 8.

Referring to page 252 of the Records, Counsel submitted that the learned trial Judge relied solely on the incredible and unsubstantiated evidence of PW1 in coming to the conclusion that the Appellant was guilty of conspiracy to commit murder and attempted murder.

He posited that when a charge is amended, it becomes a new charge that requires a fresh plea and recalling witnesses for further cross examination for the prosecution to successfully prove the guilt or otherwise of the accused upon the allegations brought against him in the new charge. He cited OGUDU V. STATE (2012) ALL FWLR (Pt. 629) 1111 at 1147.

Reacting to the argument raised by Counsel for the Appellant, Learned Counsel for the Respondent, O.I. Asenoguan Esq., argued that the fact that the Appellant was

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not having a gun with him at the scene of crime or that he was not the person that directly shot the deceased but the son of the Appellant, Darlington Akpofodoh, will not exonerate the Appellant of the offence in the face of the clear provisions of Sections 7 and 8 of the Criminal Code Law, Cap C21 Vol. 1 Laws of Delta State.

He contended that the trial Court was right to have convicted the Appellant on the offence of conspiracy to commit murder and attempted murder. That what the prosecution must prove to sustain the charge is either a common intention of the accused persons to do an unlawful or a lawful act by an unlawful means. Counsel posited that the Appellant and the other conspirators were seen in the same cars, alighting from the same car together trying to forcefully and illegally abduct the deceased to an unknown destination before the deceased was shot for disobeying the Appellant and they all entered the same car and drove off. He cited DABOH V. STATE (1977) SC 197 at 216.

On the amendment of the charge at the conclusion of trial, Counsel argued further that an amendment to a charge or information can be done any time before Judgment even

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after adoption or final written addresses. He cited UGURU VS STATE (2002) LPELR 3325 (SC) also Section 216 ? 218 of the Administration of Criminal Justice Law of Delta State.
Counsel submitted that the only amendment made was the name and signature of Counsel who signed the information. He posited that it was open for Counsel for the accused at the trial Court to apply to call or recall any witnesses based on the amendment and at the trial Court, Counsel for the Appellant elected not to call or recall any witness and wondered how mere signature and name of Counsel who signed the information prejudiced the case of the Appellant.

Let me start with conspiracy to commit murder. It is trite that the offence of conspiracy is often difficult to prove. This is so because it is contrived in secrecy. Circumstantial evidence is therefore often used to point to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy.
?It is on record that there was a telephone conversation between the deceased and the Appellant and the Appellant was said to have

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threatened the deceased. PW1 gave a narrative of how the Appellant and his gang stopped the motorcycle conveying him and the deceased. The Appellant and his gang came in two vehicles, tried to drag the deceased to their vehicle and when he resisted, the son of the Appellant questioned the deceased for disobeying the Appellant?s (his father?s) order and shot him dead. They couldn?t have entered the same vehicle, headed to the same destination fully armed, targeted the deceased, shot him dead and also shot PW1 if they had not met somewhere to conspire on how to strike and they indeed struck, killed the deceased and shot at PW1.
Once common intention is proved, it becomes immaterial that the person did not personally carry out the act. See AHMED V. THE STATE (1998) 7 SC (Pt. 1) Pg. 105 at 106, OYEDIRAN V. THE REPUBLIC (2003) 3 ACLR Pg. 516.
What the prosecution needs to prove to sustain a conviction for conspiracy are:
1. Direct or positive evidence of a plot between the conspirators which
2. Will be deemed a direct proof of the offence, or by inference; and
3. Evidence of criminal acts or inactions of the parties concerned. See AFOLABI V. THE STATE (2013) LPELR 207 (SC).

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In the instant case, the Appellant and his gang were seen in the same car, alighting from the same car, the entire members of the gang tried to forcefully and illegally abduct the deceased to an unknown destination on the orders of the Appellant, before the deceased was shot for disobeying the Appellant. They all entered the same vehicle and drove off.

It is on record that it was one of the gang members (the Appellant?s son to be precise) that shot and killed Mogidi (the deceased). PW1 took to his heels and was shot from behind. PW1 at page 186 of the Record of Appeal painted a very clear picture of the incident. Hear him:
they, Moses the driver were forcing Mogidi to enter the vehicle. When I said Chief Newton?s gang, I mean his son Darlington Akpofodoh, Mali Christopher Omatseye, Uwuere and Denta. As they were forcing him, Mogidi refused and Chief Newton’s son  came out and said ?my father asked you to enter the vehicle and you refused? so Chief Newton?s son corked his gun and shot Mogidi. As I was about to run, I was shot on my right hand.?

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On the offence of attempted murder, a person is said to attempt:
?If a person intends to commit an offence and in the process of putting his intention into execution by means he has adopted to its fulfillment and thereby manifest his intention by some overt act, but actually falls short of his intention to commit that offence either through an intervening act or involuntary obstruction, he is said to commit the attempt of that offence.?
It is clear from the testimony of PW1 that he was shot from behind as he was trying to escape from the scene. A person who shoots another with a gun at close range as in the instant case surely intended to kill him. PW1 was shot from behind and he fell down and eventually rolled into a gutter. The Appellant and his gang thought he was dead. That PW1 did not die is completely irrelevant. The learned trial Judge was therefore well within the law to have found the Appellant guilty of attempted murder and sentenced him accordingly.
?
On the charge of murder, to succeed on a charge of murder, the prosecution must establish that the deceased is dead, that the act or omission of the accused

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which caused the death of the deceased was unlawful and that the act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was its probable consequences. See ABOGEDE V. THE STATE (1996) 5 NWLR (PT. 448) 270, PHILIP OMOGODO V. THE STATE (1981) 5 SC Pg. 5 at 26 ? 27, THE STATE V. JOHN OGBUBUNJO (2001) 3 SCM. 119 at 123 and JAMES OBUBA KALU V. STATE (1993) 3 NWLR (PT. 279) 20 at 30.

The attack on the Judgment of the learned trial Judge herein, is basically as to the evaluation of the evidence adduced at trial.
On evaluation of evidence, Onnoghen CJN, had this to say in EDJEKPO & ORS V. OSIA & ORS (2007) 29 NSCQR 842 at 885:
It is settled law that evaluation of evidence and the ascription of probative value thereto reside within the province of the Court of trial that saw, heard and assessed the witnesses. Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the view of the trial Court.

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However, the Court of Appeal can intervene where there is insufficient evidence to sustain the Judgment, or where the trial Court fails to make proper use of the opportunity of seeing, hearing and observing the witness or where the findings of fact of the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by evidence before the Court. See EDJEKPO & ORS V. OSIA & ORS (2007) 29 NSCQR 842 at 885.?

The Appellant took exception to the credibility accorded the testimony of PW1 the only eye witness on the grounds that his oral evidence contradicted his documentary evidence because while the PW1 stated that it was the Appellant that called the deceased, the call logs revealed that it was the deceased that called the Appellant.

PW1 was a very vital eyewitness who gave a graphic account of how the Appellant and his gang operated on that fateful day. He was not only an eyewitness, he was also a victim because he was shot as he tried to escape.

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He knows almost all those in the gang of the Appellant and the role each played. For Counsel for the Appellant to cling to this very minute and inconsequential aspect of PW1?s testimony is to deliberately make a mockery and a caricature of a very serious offence such as the brutal murder of Mogidi the deceased.

It is not every minute contradiction in evidence that would affect the plausibility of a witness. For the testimony of a star witness such as PW1 to be affected, it must be solid, significant, major and worthwhile.

Counsel for the Appellant conceded that the deceased died. He took exception to the fact that the death of the deceased was caused by the Appellant for the simple reason that the deceased died of gunshot wounds and that it was not the Appellant that fired the shot that led to the death of the deceased. Therefore, he contended, that the Appellant cannot be said to be responsible for the act or omission that caused the death of the deceased.
I am not impressed with the puerile argument of Counsel for the Appellant which does not hold water in the face of Sections 7 and 8 of the Criminal Code Law Cap C21, Vol. 1, Laws of Nigeria

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applicable to Delta State which I expect Learned Counsel for the Appellant to be conversant with.
A reproduction of the aforementioned Sections 7 & 8 of the Criminal Code Law is apposite at this juncture.
SECTION 7
?When an offence is committed each of the following persons are deemed to take part in committing the offence and to be guilty of the offence and may be charged with actually committing it;
(a) Every person who actually does the act or makes the omission which constitutes the offence.
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
(c) Every person who aids another person in committing the offence.
(d) Any person who counsels or procures any other person to commit the offence.?
It should be noted that a conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence itself.
SECTION 8
?When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the

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prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
Considering the facts and circumstances of this case, the argument of Counsel for the Appellant that it was the Appellant?s son and not the Appellant himself that shot the deceased is unknown to our Criminal Law.
?Even though I had reproduced part of the testimony of PW1 earlier in this Judgment, it may be proper to reproduce the relevant portion of PW1?s testimony for a clearer picture concerning the role played by the Appellant in the murder of Mogidi (the deceased)
?On 16/5/2016, myself and Mogidi went to Nigercat to drink. After drinking, Mogidi was answering a call from Chief Newton and he said Chief Newton was reminding him that he gave him five days within which to kill him and two days have past. After the call, we waited for sometime then Mogidi asked me to call a motorbike to take him home. As we were going close to Chekeli Junction, two vehicles, one Spider and one Prado Jeep, Spider Camry Car, both black in colour.

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The vehicles double crossed us. Chief Newton and his son came down. They were four in each of the vehicles and with guns. When Chief Newton and his gang came down, they asked us to enter the Prado Jeep, so Mogidi refused to enter inside the vehicle. They, Moses the driver were forcing Mogidi to enter the vehicle. When I say Chief Newton?s gang, I mean his son Darlington Akpofodoh, Mali, Christopher Omaseye, Uwuere and Demita. As they were forcing him, Mogidi refused and Chief Newton?s son came out and said, my father asked you to enter the vehicle and you refused, so Chief Newton?s son corked his gun and shot Mogidi. As I was about to run, I was shot on my right hand. When I was shot, I fell down. They were shooting and shooting then I rolled and entered inside the gutter and they left. After they left, I started shouting for help. Somebody came and carried me to the hospital and called my people and my people called the police. The police came and took my statement. I was shot from the back and it came out from the front of my shoulder
(See page 186 of the Record of Appeal).

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From the above detailed testimony of PW1 on the role played by Chief Newton (the Appellant) in the events that culminated in the murder of Mogidi (the deceased), even if the Appellant was not at the scene, he would still not be exonerated once he aided and counseled the act. See CHIEF FESTUS OKOTIE-EBOH & ORS V. D.P.P. (1962) 1 ALL NLR. 353.
The Supreme Court in UBIERHO V. STATE (2005) 5 NWLR (PT. 919) 644 at 657 ? 657 clearly stated:
?Where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime, therefore what each did in the commission of the crime is irrelevant but the fact of common intention resulting in the execution of the common object is enough to render each of the accused person in the group guilty. Common intention is incapable of positive proof but its existence can be inferred from the circumstances disclosed in this case. This is the general doctrine of joint liability in crime. Thus, a fatal blow or gunshot which is given by one of the parties is deemed in law to have been given by all those who were present and participated in the offence.

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This implies that the person who actually delivered the fatal blow in such a case is no more than the hand by which the others struck.?
In view of authorities cited above, the Appellant is deemed to have shot the deceased particularly in view of the provisions of Sections 7 & 8 of the Criminal Code already reproduced earlier.
The learned trial Judge was therefore within the law when he came to the conclusion that the Appellant was as guilty as the person who pulled the trigger.

There is no gainsaying the fact that the act of the Appellant was intentional and with the knowledge that death or grievous bodily harm was the probable consequences.

There was an attempt by the Appellant and his gang to abduct the deceased, when he resisted, he was shot at close range. A person who shot another with a gun at a very close range obviously intended to kill him. It is on record that the deceased died on the spot from gunshot injuries.
?
Learned Counsel for the Appellant made heavy weather and invited attention to the amendment of the charge at the conclusion of trial and therefore occasioned a miscarriage of justice.

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It is very clear on record that the amendment was simply inserting the name and signature of the Counsel who signed the information. Even though in the circumstance, there was no reason to call or recall witnesses and the defence never applied to do so. The amendment was innocuous and it was obvious that the Appellant did not suffer any injustice by the application nor was he prejudiced. Learned Counsel for the Appellant was merely holding on to straw or better still, ?looking for the leg of a snake?.

It is my humble but firm view that the murder of Mogidi was gruesome and callous. The learned trial Judge was well within the law to have convicted the Appellant on all four counts of the charge and sentenced him accordingly.

In the premise, the sole issue is resolved against the Appellant and in favour of the Respondent. This appeal is most unmeritorious and is hereby dismissed in its entirety. The Judgment of the Asaba Division of the Delta State High Court delivered on the 29th day of March, 2018 by F.N. Azinge, J., is hereby affirmed as well as the conviction and sentence of the Appellant.

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HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother CHIOMA EGONDU NWOSU-IHEME, JCA (PhD). I am in complete agreement with the reasoning and conclusion therein that the appeal is devoid of merit and should be dismissed. In STATE V. OLADIMEJI (2003) 14 NWLR pt. 839 pg. 57: (2003) 7 SC 108, the Supreme Court per Katsina Alu JSC held as follows:
“This Court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the Offence.” See also SELE EYOROKOROMO & ANOR V. THE STATE (1983) LPELR -1188 (SC): UBIERHO V. THE STATE (2005) 5 MWVR pt. 919 pg. 644.
In this case, the three elements that constitute the offence according to Sections 7 and 8 of the Criminal Code Act viz common intention, unlawful purpose and the commission of an offence were present in this case for the learned trial Judge to come to the rightful conclusion that the Appellant was as guilty of murder as his son who actually shot

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and killed the deceased. See OGBALI V. THE STATE (1983) LPELR – 2274 (SC), AKINLOLU V. THE STATE (2017) LPELR – 42670 (SC); WAHEED BALOGUN v. THE STATE (2018) LPELR – 44215 (SC). I hereby affirm the judgment of Hon. Justice F.N. Azinge in Charge No. A115C/2016 delivered on 29th day of March, 2018 wherein the Appellant was convicted of various crimes and sentenced to death for one of them. Appeal Dismissed.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft form the Judgment just delivered by my learned brother, CHIOMA EGONDU NWOSU- IHEME, JCA (Ph.D)

My learned brother has comprehensively dealt with the points raised in this Appeal and I agree that the said Appeal is incompetent and liable to be dismissed.

I agree with the reasoning and conclusions of my learned brother that this appeal is most unmeritorious and is hereby dismissed in its entirety. The Judgment of the Asaba Division of the Delta State High Court delivered on the 29th day of March, 2018 by F.N. Azinge, J., is affirmed as well as the conviction and sentence of the Appellant.

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Appearances:

E.O. Afolabi with him, A. Osula, E.E.O. Ucholor, L.I. Irole Ifeyeh and S.O. AtoeFor Appellant(s)

O.I. Asenoguan with him, I.L. Aitufe and M.O. PetersFor Respondent(s)

 

Appearances

E.O. Afolabi with him, A. Osula, E.E.O. Ucholor, L.I. Irole Ifeyeh and S.O. AtoeFor Appellant

 

AND

O.I. Asenoguan with him, I.L. Aitufe and M.O. PetersFor Respondent