HENRY OMOSOWON v. THE STATE
(2019)LCN/13320(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2019
CA/AK/156CB/2012
RATIO
CONSPIRACY: DEFINITION
Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to do. In a charge of conspiracy, all that is required for the prosecution to proof is evidence of agreement between the parties express or implied before there can be conviction. The offence of conspiracy is said to have been completed when there is established agreement to do an unlawful thing or to do something which is lawful by unlawful means which is usually inferred from the facts and evidence led before the Court. See STATE V. GWANGWAN (2015) 13 NWLR (PT. 1477) 600; AYO V. STATE (2015) 16 NWLR (PT. 1486) and ADEYEMI V. STATE (2018) 5 NWLR (PT. 1613) 482.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
CONSPIRACY: ESSENTIAL INGREDIENTS TO PROVE THE OFFENCE OF CONSPIRACY
For the prosecution to ground a conviction for the conspiracy, the essential elements of the offence must be proved beyond reasonable doubt. They are as follows:
1. An agreement between the accused person to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Some act beside the agreement was done by one or more of the accused person in furtherance of the agreement.
3. That each of the accused person individually participated in the conspiracy.
SEE EZE V. FRN (2017) 15 NWLR (PT. 1589) 433.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
MURDER: HOW TO PROVE THAT AN ACCUSED IS GUILTY OF MURDER
To establish the guilt of a person charged with the offence, the prosecution must prove that: the deceased died, the death of the deceased was caused by the accused and the act or omission of the accused which caused the death of the deceased was intentional. See ABOKOKUYANRO V. STATE (2016) 9 NWLR (PT. 1513) 520; ASUQUO V. STATE (2016) 14 NWLR (PT. 1532) 309 and OKPA V. STATE (2017) 15 NWLR (PT. 1587) 1. The guilt of the accused can be prove through: a confessional statement or circumstantial evidence or evidence of eye witnesses. See UDE V. STATE (2016) 14 NWLR (PT. 1531) 122; UMAR V. STATE (2014) 13 NWLR (PT. 1425) 497 and IGBIKIS V. STATE (2017) 11 NWLR (PT. 1575) 126.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
CONFESSION: WHETHER CONFESSION CAN LEAD TO A CONVICTION
The law is that confession of guilt if proved to be satisfactorily made free and voluntarily may be a basis for conviction, its retraction, notwithstanding. See ABDULLAHI V. THE STATE (2013) 11 NWLR (PT. 1366) 434 and NWACHUKWU V. STATE (2007) 17 NWLR (PT. 1062) 1.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
CONFESSION: NATURE
A confession is an admission made at anytime by a person charged with a crime stating that he committed the crime. Where the confession is proved to be free, cogent and positive, a Court can base it conviction on the said confession. See OKO V. STATE (2013) 10 NWLR (PT. 1521) 455; KOLO V. COP (2017) 9 NWLR (PT. 1569) 118 and AGAGUA V. STATE (2017) 10 NWLR (PT. 1573) 254. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
PRESUMPTION OF A MAN TO INTEND THE CONSEQUENCES OF HIS ACT
A man is presumed to intend the natural consequences of his act. See BILLE V. STATE (2016) 11 NWLR (PT 1364) 162 and STATE V. JOHN (2013) 12 NWLR (PT. 1363) 337.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
HENRY OMOSOWON Appellant(s)
AND
THE STATE Respondent(s)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice C. E. T. Ajama of Ondo State High Court sitting at Akure Judicial Division delivered on 25th July, 2012 in Charge No: HKA/2C/2007. The appellant was charged with two others for the offence of conspiracy to commit murder and murder contrary to Section 324 and 316 of the Criminal Code Cap. 30 Vol. 11 Laws of Ondo State, 1978.
The case of the prosecution against the appellant was that on or about 21st January, 2004, the appellant conspired with 2 others and murdered one Sumaila Salami, Known as Alhaji by removing his heart for money ritual. The appellant on his part denied doing same. In proof of its case, the prosecution called four (4) witnesses and tendered some exhibits. While the appellant testified in his defence and called no other witness.
It was the case of the prosecution that the deceased was a motorcyclist (okada rider) on hire purchase. On the 19th January, 2004 one Segun the owner of the motorcycle came to inform the deceased?s father that his son Alhaji disappeared with his motorcycle
1
and is nowhere to be seen for 2 days. The deceased father as PW1 testified that several efforts were made to find him but to no avail and as a result of that, a case of missing person and stolen motorcycle was reported to the police at Owo police station. That while looking for the deceased, one Fatai a welder man informed the father that he saw the deceased last with the 1st accused person. Subsequently, the 1st accused person was seen riding the motorcycle and wearing the shirt of the deceased at Oka. They grab him and took him to Epinmi police station and was later transferred to Owo police station. The 1st accused person told the police that the deceased sold the motorcycle to one Henry, the 3rd accused person (appellant) at the rate of N60, 000 and that Alhaji has travelled to Lagos. During the investigation, the 2nd and 3rd accused persons were later arrested. At the Owo police station, the 3rd person admits knowing Ayo and Eric but denied conspiring with them to murdered the deceased. The trio confessed that the deceased, a motorcyclist was hired only to use his heart for money ritual. That they poisoned him in a cup of drinks and he became unconscious
2
then they took him to a place near Osse River at Igbo-Iwoye, tied his hands to the back and strangulated him to death and removed his heart.
In a considered judgment delivered on 25th July, 2012, the learned trial judge found the appellant and two other accused persons guilty of conspiracy to commit murder and murder and convicted them accordingly.
The appellant, dissatisfied with the decision, appealed to this Court in an Amended Notice of Appeal containing three (3) Grounds of Appeal.
During the hearing of the appeal on 27th February, 2019, learned counsel for the appellant P. A. Omoluabi, Esq. adopted the appellant?s brief of argument dated 1st March, 2017 and filed on 13th March, 2017 but deemed properly filed on 28th May, 2018 as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent A. O. Adeyemi-Tuki (DPP), adopted the respondent?s brief of argument dated 10th May, 2017 and filed on the 26th May, 2017 but deemed properly filed on 28th May, 2018 as his submissions against the appeal. He urged the Court to dismiss it.
Learned counsel for the appellant
3
distilled three issues for determination to wit:
1. Whether the trial judge was correct in the circumstances before the lower Court to hold that the prosecution had proved its case beyond reasonable doubt.
2. Whether from the nature and circumstances of this case, the prosecution proved its case against the appellant beyond all reasonable doubt wherein warranting conviction for murder.
3. Whether the decision of the lower Court is against the weight of evidence adduced at the trial.
On its part, the learned counsel for the respondent formulated a lone issue for determination to wit:
“Whether from the nature, circumstances, substance and situation of this case, the learned trial judge was not right when he held that ?I hold that the two counts of the information, to wit: conspiracy, contrary to Section 324 of the Criminal Code as well as murder contrary to Section 316 and punishable under Section 319 of the Criminal Code, Cap. 30 Vol. 11, Laws of Ondo State of Nigeria, 1978, respectively have been proved beyond reasonable doubt against the accused persons?.
A close look at the two sets of issues shows that they are
4
identical in substance. The appellant?s issue two can be merged into its issue one as one issue and indeed it is the same as respondent?s lone issue. I will decide the appeal on the basis of the issues formulated by the appellant the undoubted owner of the appeal.
ARGUMENTS ON THE ISSUES
ISSUE ONE
Learned counsel for the appellant submitted that in a criminal case, the prosecution is expected to prove the guilt of the accused person beyond reasonable doubt. That by the evidence before the Court, the appellant never had common intent with the 1st and 2nd to enable him conspired with them. That the law is that there must be a common intent or knowledge and subsequently a complete agreement for conspiracy to have established. He referred to the appellant?s testimony before the Court at page 61 and the case of ADELEKE V. STATE (2013) 16 NWLR (PT. 1381) 556.
Learned counsel submitted that even where the prosecution leads evidence fixing the appellant with the other accused person, no agreement or common intention was established by the prosecution. He cited OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360 and ODUNEYE V. STATE (2001)
5
1SCNJ 7 for the view. He argued that the lower Court was in error to have dismissed the defence of the appellant against the conspiracy.
He contended that the onus of proving or disproving a defence to conspiracy put forward in Exhibits E-E1 it?s one that never shift to the accused person. That the appellant has no duty to establish his innocence. He reasoned that the lower Court failed to properly evaluate the evidence adduced before it for conspiracy and murder. That the prosecution case rested on the evidence of P1-4 and that only PW1, 2 and 4 that claimed to have knowledge of the crime. He contended that the evidence of the prosecution witnesses are contradicting to each other, he referred to their testimonies at pages 34-35 of the record. That where there is contradiction in the evidence of the prosecution, the accused is entitled to benefit therefrom.
Counsel argued that there is no evidence before the trial Court establishing an intention to kill by the appellant. That the entire evidence against the appellant is speculative. That the prosecution must establish that the act of the accused killed the deceased. He cited MADU V. STATE
6
(2012) 15 NWLR 405. That the trial Court cannot convict the appellant as co-accused on same or similar evidence except in compelling circumstances. He cited OKORO V. STATE (2012) 4 NWLR (PT. 1290) 351 for the view. He urged the Court to resolve this issue in favour of the appellant.
Learned counsel for the respondent submitted that in any criminal trial, the prosecution has the evidential burden to prove the offence(s) beyond reasonable doubt. That where the prosecution is able to produce credible and convincing evidence of the commission of the offence, the evidential burden is discharged. He cited AYENI V. STATE (2016) 11 SCM 1 AT 20 for the view. That it is not the number of the witness that is important but the degree and credibility of the proof. He defined conspiracy and submitted that the prosecution must establish that the criminal minds really met somewhere to hatch a crime by two or more persons. He cited STATE V. OLASHEHU SALAWU (2012) ALL FWLR (PT. 614) 1 for the view.
?
Counsel argued that the offence of conspiracy is committed under secrecy and that the evidence is usually a matter of inference from the surrounding circumstances. He
7
cited KAZA V. THE STATE (2008) 7 NWLR (PT. 1085) 125 for the view. That the appellant tactically admitted that he added some substance to the drink they gave to the deceased but that the drink did not killed him until the 1st and 2nd strangulated him and thereby killed him. He reasoned that, in law, once the fact of conspiracy is established, it does not matter what a party to the conspiracy did, all the conspirators will still be liable. Cited STATE V. SALAWU (2012) ALL FWLR (PT. 614) 1.
Learned counsel contended that the appellant has confessed to the commission of the crime and that once an extra judicial statement has been proved to be more voluntarily, it amounts to guilt of the accused. That in proving a case of murder the essential ingredients and the guilt of the appellant must be established beyond reasonable doubt for the prosecution to secure conviction. He referred to UGURU V. THE STATE (2002) 9 NWLR (PT. 771) 90 and OFORLETE V. THE STATE (2000) 12 NWLR (PT. 681) 415.
Learned counsel submitted that the three elements of proving the offence of murder have been established. That the evidence of PW3 Dr. William O. Ajemole who conducted
8
the autopsy and tendered Exhibit A the medical report has actually established that the deceased has died. That by the established evidence before the Court, it is established that the appellant and co-accused person murdered the deceased. He urged the Court to resolve this issue in favour of the respondent.
ISSUE TWO
Learned counsel for the appellant adopted his arguments in issues one and two and submitted that the evidence of the prosecution witnesses are full of inconsistencies but the learned trial Court believed the evidence. He quoted some testimonies of PW1, 2 and 3 and submitted that they are inconsistent. Counsel argued that where a finding of Court is shown to be perverse, an appellate Court is duty bound to interfere with the finding of the lower Court as in the instant case. He urged the Court to resolve this issue in favour of the appellant.
?
In reacting to this issue, learned counsel for the respondent submitted that assuming without conceding that there are contradiction(s) or inconsistencies, such go to no issue for being immaterial, because said counsel, the contradiction if any must go to the root of issue which is not the case
9
in the instant case. That the appellant has confessed in his statement Exhibit E which was properly tested and admitted at the trial within trial in evidence after being found to be voluntarily by the Court. That an accused person can be convicted even where he retracted his own confession. That the evidence of the prosecution witnesses corroborates the appellant confessional statement. He urged the Court to resolve this issue in favour of the appellant.
RESOLUTIONS OF THE ISSUES
Learned counsel for the appellant submitted that there was no established evidence of conspiracy between the accused person/appellant and 1st and 2nd accused persons before the lower Court. Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to do. In a charge of conspiracy, all that is required for the prosecution to proof is evidence of agreement between the parties express or implied before there can be conviction. The offence of conspiracy is said to have been completed when there is established agreement to do an unlawful thing or to do something which is lawful by unlawful means which is usually inferred from the facts and
10
evidence led before the Court. See STATE V. GWANGWAN (2015) 13 NWLR (PT. 1477) 600; AYO V. STATE (2015) 16 NWLR (PT. 1486) and ADEYEMI V. STATE (2018) 5 NWLR (PT. 1613) 482.
For the prosecution to ground a conviction for the conspiracy, the essential elements of the offence must be proved beyond reasonable doubt. They are as follows:
1. An agreement between the accused person to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Some act beside the agreement was done by one or more of the accused person in furtherance of the agreement.
3. That each of the accused person individually participated in the conspiracy.
SEE EZE V. FRN (2017) 15 NWLR (PT. 1589) 433.
In the instant case, the prosecution in an attempt to prove its case called four witnesses. PW1, is the deceased father who testified that his son the deceased Sumaila Salami (Alhaji) is an okader rider. That on the 19th January, 2014 the owner of the motorcycle came to him and said that he has gone with his motorcycle and he has not seen him again.
He made several effort but proof to no avail hence he reported the matter to
11
the police at Owo. That while searching for him one Fatai told them that he saw the deceased last with the 1st accused person riding bike and subsequently the accused person was arrested at Oka with the bike and worn the deceased shirt. PW3 Dr. William testified that he carried out the post morterm examination on the deceased and tendered the medical report, he stated that the deceased died as a result of homicidal knife cut into the abdomen and chest. PW 4 the investigating police officer testified in respect of what he investigated as the I.P.O which led to the arrest of the 2nd and 3rd accused persons.
The appellant in his confessional statement admitted to have committed the offence. DW1 admitted that he and Eric Abisoye took the deceased to Henry Omosowon the appellant herein and he (appellant) administered some substance into the deceased drink and he fell asleep before taking him to where he met his un-timely death. The appellant as DW3 in his statement Exhibit 3 stated that on the 20th of January, 2004 Eric Abisoye and his friend brought a man to him and called him Alhaji and told him that he was the one they wanted to use his heart for money
12
ritual. He stated that three of them Eric Abisoye and Ayodele Adebayo slept in my house. I poisoned drink and gave it to the okadaman which he drank and could not know what he was doing and both of us led him to where he was killed and later burnt the heart with other thing and mixed it with black soap.
It is decipherable from the above evidence on record, the accused person had conspired with others to murder and indeed murdered the deceased. The acts of the accused persons which was done towards actualizing their common end which is the criminal conspiracy can be inferred that they did so in furtherance of their conspiratorial agreement to commit the alleged offence. It is my view that the prosecution proved the offence of conspiracy against the appellant and I so hold.
ISSUE TWO
The appellant and other accused persons were tried and convicted for the offence of murder. To establish the guilt of a person charged with the offence, the prosecution must prove that: the deceased died, the death of the deceased was caused by the accused and the act or omission of the accused which caused the death of the deceased was intentional. See ABOKOKUYANRO V. STATE
13
(2016) 9 NWLR (PT. 1513) 520; ASUQUO V. STATE (2016) 14 NWLR (PT. 1532) 309 and OKPA V. STATE (2017) 15 NWLR (PT. 1587) 1. The guilt of the accused can be prove through: a confessional statement or circumstantial evidence or evidence of eye witnesses. See UDE V. STATE (2016) 14 NWLR (PT. 1531) 122; UMAR V. STATE (2014) 13 NWLR (PT. 1425) 497 and IGBIKIS V. STATE (2017) 11 NWLR (PT. 1575) 126.
The evidence proffered by prosecution witnesses clearly demonstrate that the deceased died. The medical report is a concrete evidence that the deceased died. It stems from the evidence the respondent proved the first ingredient that the deceased died.
In proof of the second ingredient, the confession made by the appellant in his confessional statement which content are in all material particular in tandem with the testimonies of the prosecution witnesses. The law is that confession of guilt if proved to be satisfactorily made free and voluntarily may be a basis for conviction, its retraction, notwithstanding. See ABDULLAHI V. THE STATE (2013) 11 NWLR (PT. 1366) 434 and NWACHUKWU V. STATE (2007) 17 NWLR (PT. 1062) 1.
A confession is an admission made at
14
anytime by a person charged with a crime stating that he committed the crime. Where the confession is proved to be free, cogent and positive, a Court can base it conviction on the said confession. See OKO V. STATE (2013) 10 NWLR (PT. 1521) 455; KOLO V. COP (2017) 9 NWLR (PT. 1569) 118 and AGAGUA V. STATE (2017) 10 NWLR (PT. 1573) 254. In the instant case, PW1 the father of the deceased testified that his son was murdered. PW4 testified on the role he played as the investigating police officer. PW3 the pathologist that performed the autopsy on the deceased and tendered Exhibit A the medical report without objection testified on the cause of the death of the deceased. Unarguably, the appellant in his confessional statement Exhibit E confessed to killing the deceased and removed his heart for money ritual by him and his co-accused in crime. They poisoned him before they killed the deceased by strangulation. The lower Courts findings on the point is unassailable. A man is presumed to intend the natural consequences of his act. See BILLE V. STATE (2016) 11 NWLR (PT 1364) 162 and STATE V. JOHN (2013) 12 NWLR (PT. 1363) 337.
The learned counsel for the
15
respondent had given an answer and gone extra mile to submit on the correct position of the law as to what constitutes contradiction or inconsistency and the fact that it is only material contradiction that had adversely caused a miscarriage of justice that would upset the decision of a Court. It is my humble view that there was no contradiction or inconsistency in the evidence of the prosecution witnesses. The lower Court was therefore right in law to have based its decision upon the evidence of those witnesses, I so hold.
The appellant castigated the lower Court?s evaluation of evidence before the Court, he accuses the lower Court of improper evaluation of evidence because the judgment said counsel, is against the weight of evidence. This castigation connotes that the decision of the Court is against the weight of evidence tabled by the prosecution which the Court wrongly drew it decision. I find no such accusation against the lower Court decision. The Court based its decision on the evidence before the Court and by those credible evidence, the prosecution had proved the offence of conspiracy and murder beyond reasonable doubt against the
16
appellant.
Issue two is resolved against the appellant and in favour of the respondent.
Having resolved all issues in this appeal, I find no merit in this appeal. Appeal dismissed and convictions and sentences by the lower Court condemning the appellant to death is affirmed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead judgment in draft as prepared by my learned brother, Ridwan Maiwada Abdullahi, JCA and I concur that from the evidence on record, conspiracy and murder had been proved.
I dismiss the appeal and affirm the trial judgment and the orders therein contained.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA just delivered. I agree with the reasoning and conclusion therein that this appeal being unmeritorious be dismissed.
The appellant along with two others were charged, tried and eventually convicted for the offences of conspiracy to commit murder and murder contrary to Sections 324 and 316 of the Criminal Code Law Cap 30 Vo. 11, Laws of Ondo State, 1978. The
17
conviction of the appellant was predicated on the testimonies of PWI, PW2, PW3 and his confessional statement Exhibit E. Exhibit E was admitted in evidence pursuant to a trial within trial in which the Court accepted its voluntariness.
It is trite that the appellant’s confessional statement alone is sufficient to ground a conviction. The settled law on this matter is that a confession that is free, direct and positive is sufficient to warrant a conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. See the cases of ADOBA V STATE (2018) 12 NWLR, PT 1633, 236 AT 256-257 PARAS H-A and 258 PARA A; SOLOLA & ANOR V THE STATE (2005) 11 NWLR, PT 937, 460 and ASUQUO V THE STATE (2016) 14 NWLR, PT 1532, 309. More than the appellant’s confessional statement, there is the unchallenged evidence of PWI, PW2 and PW3 which established all the ingredients of the offences for which the appellant was convicted.
This appeal was also argued on the issue whether the charge of conspiracy was proved beyond reasonable doubt to warrant the appellant’s conviction on same. Conspiracy is an inchoate offence; i.e.
18
an Incomplete offence which is deemed to have been committed despite the fact that the substantive offence is not completed. In cases of conspiracy direct positive evidence of the plot between the co-conspirators is hardly capable of proof. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned. See ODUNEYE V THE STATE (2001) 13 WRN 88 and NWOSU V STATE (2004) 15 NWLR, PT 897, 466. I am satisfied from the evidence on record that the learned trial judge properly made the inference of conspiracy from the acts of the accused persons. I find no reason to disturb the conviction and sentence for conspiracy.
For these and the more detailed reasoning in the lead judgment I too dismiss this appeal for being devoid of merit. I affirm the conviction and sentence of the lower Court.
19
Appearances:
Appellant counsel aware of the hearing date but never appeared and nothing excusing absence.For Appellant(s)
O. F. Akeredolu (ACLO, MOJ, Ondo State)For Respondent(s)
Appearances
Appellant counsel aware of the hearing date but never appeared and nothing excusing absence.For Appellant
AND
O. F. Akeredolu (ACLO, MOJ, Ondo State)For Respondent
