JOHN v. STATE (2020)

JOHN v. STATE

(2020)LCN/14008(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/C/03C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu BarkaJ ustice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

EDET EDET JOHN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

It is trite that in all criminal proceedings, the burden is placed on the prosecution to prove the alleged offences beyond reasonable doubt. This stems from the fact that the constitution of the land makes provision to the effect that an accused person is presumed innocent unless proven guilty. See Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. See also the provision of Section 135 (1) and (2) of the Evidence Act, 2011. The burden of proving the guilt of the accused remains throughout on the prosecution and never shifts. This includes the burden of leading evidence disproving any defense set up by the accused person. See Omotayo vs. The State (2013) 2 NWLR (pt. 1338) 235, Edun vs. FRN (2019) ALL FWLR (pt. 1008) 877 @ 898.
This burden of proving the accused person’s guilt is that of proof beyond doubt, meaning that the prosecution needs to establish the guilt of the accused person with compelling and conclusive evidence consistent with a high degree of probability. PER BARKA, J.C.A.

WHETHER OR NOT THE COURT CAN ACT ON THE EVIDENCE OF A SINGLE WITNESS

It is the law that a Court of law can act on the evidence of a single witness if such witness is believed and the case is established beyond reasonable doubt and thereby proceed to convict and to sentence accordingly. See Afordike vs. The State (2019) 5 NWLR (1666) 395 @ 424 per Akaahs JSC. PER BARKA, J.C.A.

THE DEFENCE OF ALIBI

It is quite common for an accused person to raise the defense of alibi, that is to contend that he was elsewhere when the offence was committed and that he has been erroneously linked to the offence. The defense of alibi would however crumble where the accused person is fixed at the scene by the victim or an eye witness. In such circumstances, the investigation of a claim of alibi would serve no useful purpose, see Victor vs. The State (2013) 12 NWLR (pt. 1369) 465”.
See also the cases of Edwin vs. The State (2019) 191 LRCN 109 @ 129, Ayan vs. The State (2013) 15 NWLR (pt. 1376) 34, Ntam vs. The State (2003) 11 NWLR (pt. 830) 142, Tanko vs. State (2008) 16 NWLR (pt. 1114) 591. PER BARKA, J.C.A.

MODE TO BE EMPLOYED BY THE PROSECUTION TO PROVE THE GUILT OF A PERSON ACCUSED OF MURDER AND ARSON

Where an accused person is charged with the offences of murder and arson as in the instant case, which are criminal in nature, the burden of proving such allegations rests squarely upon the prosecution, and in proving the guilt of the accused, the prosecution will normally employ one or more of the following:
i. Evidence of eye witnesses.
ii. Confessional statement of the accused person
iii. Circumstantial evidence.
Whichever mode the prosecution chooses to employ, the law provides that the guilt of the accused must be proved beyond doubt, for where any doubt arises in the prosecution’s case, or is manifest from the evidence rendered; such doubt must be exercised in favor of the accused person.

In the case at hand, the appellant was accused of the offences of murder and arson. The offence of murder is said to be complete where the following ingredients are shown to exist.
i. The death of the deceased.
ii. That the death resulted from the act of the accused person.
iii. That the accused knew that his act will result in the death or did not care whether the death of the deceased will result from the act. See Durwode vs. The State (2000) 15 NWLR (pt. 691) 467 @ 487 – 488, Ogbu vs. The State (2001) 7 WRN 50, State vs. Ibrahim (2019) ALL FWLR (pt. 1007) 704 @ 728, Kabaka vs. The State (2011) 202 LRCN 171, Edoho vs. The State (2010) 42 NSCQR 451 @ 456. PER BARKA, J.C.A.

WHETHER OR NOT CONTRADICTIONS ALLEGED MUST GO TO THE SUBSTANCE OF THE CASE

This Court in the case of Olayiwola vs. The State (2018) ALL FWLR (pt. 918)1 @ 26, restated the position of the law, in that where the prosecution’s case is riddled with material contradictions and inconsistencies, the Court will be slow to rely on same in convicting the accused person. In other words, the contradiction alleged must go to the substance of the case. In the words of the Supreme Court, the contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole, or as to the reliability of the witnesses. See Ukpong vs. The State (2019) ALL FWLR (pt. 1005) 414 @ 446. In qualifying this legal stance, Onnoghen CJN, opined that:
“It would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion as it would be likely that the witnesses compared notes. In effect variations in testimony seem to be badges of truth. Witnesses may not always speak of the same facts or events with equal and regimented accuracy. For contradictions in the evidence of prosecution witnesses to affect a conviction, particularly in a capital case, they must raise doubts as to the guilt of the accused person,” see also Ikemson vs. The State(1989) LPELR – 1473 (SC), Akpa vs. The State (2008) LPELR – 368 (SC).”PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal filed with the leave of Court, is against the judgment of the High Court of Justice, Akwa Ibom, sitting in Okobo and presided by Gabriel Ette J, in charge with No. HOK/2c/2014; The State vs. Chief Lawrence John Esin and ors; delivered on the 5th day of August, 2016, wherein the appellant was found guilty of the offences of conspiracy, murder and arson and sentenced to death by hanging. The accused appellant, was arraigned and jointly tried along with eight others on the following counts of the charge:
COUNT I.
STATEMENT OF OFFENCE
Conspiracy, contrary to Section 552 of the Criminal Code, Cap. 38 vol. 2 Laws of Akwa Ibom State of Nigeria 2000.
PARTICULARS OF OFFENCE
That you CHIEF LAWRENCE JOHN ESIN, NKOYO LAWRENCE ESIN, EDET SOLOMON ANWANA, JOSHUA OKON EDET, ENO SOLOMON ANWANA, ETIM ASUQUO UKPONG, EDET EDET JOHN, ASUQUO OKON JOHN and others now at large on the 4th day of January, 2014 at Udung Ukpong village, Okobo Local Government Area in the Okobo judicial Division conspired among yourselves to commit a felony contrary to

section 552 of the Criminal Code cap. 38, Vol. 2 laws of Akwa Ibom State of Nigeria, 2000.
Count II.
STATEMENT OF OFFENCE.
MURDER, Contrary to Section 326(1) 0f the Criminal Code, Cap. 38, Vol.2 Laws of Akwa Ibom State of Nigeria 2000.
PARTICULARS OF OFFENCE
That you, CHIEF LAWRENCE JOHN ESIN, NKOYO LAWRENCE ESIN, EDET SOLOMON ANWANA, JOSHUA OKON EDET, ENO SOLOMON ANWANA, ETIM ASUQUO UKPONG, EDET EDET JOHN, ASUQUO OKON JOHN and others now at large on the 4th day of January, 2014 at Udung Ukpong Village, Okobo Local Government Area in the Okobo Judicial Division, unlawfully killed one MICHAEL SOLOMON ANWANA and thereby committed an offence punishable under Section 326(1) of the Criminal Code, Cap.38,Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000.
COUNT III
STATEMENT OF OFFENCE
ARSON, Contrary to Section 464(a) of the Criminal Code, Cap. 38, Vol. 2 Laws of Akwa Ibom State of Nigeria, 2000.
PARTICULARS OF OFFENCE
That you, CHIEF LAWRENCE JOHN ESIN, NKOYO LAWRENCE ESIN, EDET SOLOMON ANWANA, JOSHUA OKON EDET, ENO SOLOMON ANAWANA, ETIM ASUQUO UKPONG, EDET EDET JOHN, ASUQUO OKON JOHN and others now at large on the

4th day of January, 2014 at Udung Ukpong Village, Okobo Local Government Area in the Okobo Judicial Division willfully and unlawfully set ablaze the house and properties of MICHAEL SOLOMON ANWANA and thereby committed an offence punishable under Section 464(a) of the Criminal Code Cap. 38, Vol. 2, Laws of Akwa Ibom State of Nigeria 2000.

When the three count charge, was read to the accused persons, on the 14th of April, 2014, they all pleaded not guilty, and the case proceeded to a full blown trial.

The brief facts of the case amply stated by the appellant, are that on the 31st day of December, 2013, one Onwinokor Lawrence Esin, son to Chief Lawrence Esin (1st Accused) died, and the community was thrown in to mourning. The deceased and PW1, who were neighbors and relatives of the bereaved family went to sympathize with the 1st accused person. It was in the course of this sympathy visit that (1st accused) person, accused the deceased Michael Solomon of having a hand in the death of his son, and ask the deceased to go as he intends to embark on a fact finding mission to unravel the cause of death of his son. Four days thereafter, the fact finding team

returned to say that from their findings from various soothsayers, the late Michael Solomon Anwana and one Nkoyo Lawrence Esin took the late Onwinokor captive and killed him through the power of witchcraft. Incensed by this revelation, the deceased who had hitherto been invited to the venue was allegedly tortured and was set ablaze in his house which was also razed down. Whereas the appellant stated that all these happened in his absence and without his knowledge, the prosecution alleged that the appellant who was the 7th accused person before the lower Court was identified by the PW 2 as one of the perpetrators of dastardly crime.

The prosecution called five witnesses and tendered several exhibits in proof of its case. The accused person thereafter gave evidence in his defense and also closed his case. At the close of trial, written addresses were ordered, filed and adopted. The vexed Judgment which convicted and sentenced him to death by hanging was delivered on the 5th day of August, 2016.

Dissatisfied with the judgment of the lower Court, appellant, who was the 7th accused person before the lower Court, filed a Notice of Appeal against the said

judgment on the 26th day of September, 2018, with the leave of Court granted on the 18th day of September, 2018. The Records of Appeal were transmitted from the trial Court to this Court on the 7th day of January, 2019. Appellant’s brief was filed on the 21st of February, 2019. The respondent filed the respondent’s brief on the 19th day of November, 2019, and on the 9th day of March, 2020, being the day scheduled for the hearing of the appeal, parties adopted their respective briefs. In the briefs filed, learned counsel for the appellant prayed the Court to allow the appeal, set aside the conviction and sentence imposed by the lower Court and enter an order of discharge and acquittal. The learned counsel for the respondent on the other hand, urged the Court to dismiss the appeal.

In the brief settled by G. A. Umoh, the learned counsel for the appellant, three issues were identified for resolution as follows;
1. Whether the learned trial judge was right in convicting the Appellant of the offence of Conspiracy, murder and Arson by relying solely on the purported vague statement of PW2 without considering the defense of alibi raised by the

Appellant (Ground 1).
2. Whether the learned trial judge erred in law in finding the appellant guilty of conspiracy, murder and Arson even when none of the ingredients of these offences were proved against the Appellant. (Ground 2).
3. Whether the learned trial judge erred in convicting the Appellant despite the contradictions in the evidence of the prosecution witnesses as to the circumstances of death of the deceased. (Ground 3).

The learned counsel for the respondent, Uwemedimo Nwoko, the Honourable Attorney General and Commissioner for Justice, Akwa Ibom State equally identified three issues for resolution as follows:
1. Whether or not the learned trial judge was right when he rejected the plea of alibi by the Appellant.
2. Whether or not the offence of conspiracy, murder, and Arson were proved against the Appellant to warrant his conviction and sentence.
3. Whether or not the perceived contradiction complained of by the Appellant was fatal to the prosecution’s case as it relate to the murder of the deceased.
I elect to be guided by the issues distilled by the Appellant.

Issue 1.
Whether the learned trial

judge was right in convicting the appellant of the offences of conspiracy, murder and arson by relying solely on the purported vague statement of PW2 without considering the defense of alibi raised by the appellant.
The learned counsel for the appellant submits that the Judge convicted the appellant solely on the fact that his name was listed as one of the Akaba Boys without properly evaluating and considering the evidence before the Court, and that there was no corroborative evidence in support of the assertion that appellant was a member of the purported Akaba boys. He referred to the appellant’s first extra judicial statement of the 31st of January, 2014, to the effect that he was at home sleeping at that time, and further in exhibit D, where he denied knowing anything about the crime and also in his evidence in Court. Submits also that the Court erroneously paid more attention to the fact that appellant’s name was listed amongst the accused persons that perpetuated the crime rather than the police failure to investigate. Submit that a trial Court has the duty of considering the defense put forward by an accused person no matter how weak,

shallow or stupid as stated in the case of Omoruyi vs. The State (2014) LPELR – 23222 (SC). Submit that the improper evaluation and or consideration of the defense of alibi amounted to the infringement of the appellant’s right to fair hearing as enunciated in the case of Attah vs. The State (2010) LPELR – 597 (SC). Submit that there is no credible evidence linking the appellant with the Akaba Boys, and therefore urged the Court on the foregoing to acquit the appellant on the premise that prosecution failed to investigate the defense of alibi raised by the appellant.

The response of the learned counsel to the respondent is that the holding of the lower Court is unassailable in the face of the positive identification of the appellant by the PW2. Submits that where evidence is adduced which pins the accused person at the scene of crime, the plea of alibi is demolished. The case of Edwin vs. The State (2019) 291 LRCN 109 @ 129 was referred to. Further submits on the authority of Nwankwoala vs. The State (2006) LPELR – 2112 (SC) that where it is difficult to distinguish the acts of co-accused persons or to prove the distinct act played

by each of them, the position of the law is that where two or more persons intentionally do a thing jointly, it is deemed as if each of them has done it individually. He therefore urged the Court to resolve the issue against the appellant.

with compelling and conclusive evidence consistent with a high degree of probability.

The piece of evidence roping the appellant with the alleged crime came from the PW 2, in his evidence in Court where he stated as follows:
“They started torturing my father by beating him and inflicting machete cuts on him. Some of them included Ededet John (Appellant), Ededet Ntukidem now at large, Okon Asukwo Akaninyene at large, Kufre Okon Akaninyene at large, John Okon Akaninyene at large, Anwana Anwana, at large, Usie Sunday Jack at large, Edet Solomon said that they should kill my father because it was my father who killed his wife. Eno Solomon also said they should kill my father because he killed her son. These group of people with others whose names I do not know, but can identify if seen beat up my father, tortured him, machete him and took him to his compound. They poured fuel all over him, tied him up and roasted him to ashes while alive. All the people in the dock were present and others now at large. After having burnt my father to ashes, they were chanting and jubilating.”

What a scene. On the 29th of April, 2015, when this witness was

answering questions under cross examination, affirmed that he listed the names in his evidence in his statement to the police. I note that none of the accused persons in the dock, including the present appellant made any issue with respect to the identification at the scene made by the witness. In Adeyemi vs. The State (1991) 2 LRCN 490 @ 504, the apex Court resolved the issue when it held that where a witness who gave evidence of visual identification and was not cross examined nor shaken on the issue by way of cross examination, nothing stops the Court from accepting such evidence. The lower Court was therefore on sound footing relying on the unchallenged evidence by the PW2 which pinned the appellant at the scene of crime. The complaint of non evaluation of the evidence is therefore unsustainable. This is because in the instant case, the issue of the identity of the appellant was not made an issue having been pinned to the site by the witness. This finding by the lower Court cannot be faulted.

It is the law that a Court of law can act on the evidence of a single witness if such witness is believed and the case is established beyond reasonable doubt and

thereby proceed to convict and to sentence accordingly. See Afordike vs. The State (2019) 5 NWLR (1666) 395 @ 424 per Akaahs JSC.

It flows from the foregoing that the evidence of the prosecution witness having unequivocally pinned the appellant to the scene of crime, the failure to investigate the defense of alibi set out by him will not enure to his favor, on the simple reasoning that his assertion that he was elsewhere at the time of the commission of the crime and couldn’t have committed the offence alleged, is destroyed by the unequivocal evidence of the PW 2. See Kanu vs. AG Imo State (2014) 6 NWLR (pt. 1402) 1, Ebri vs. The State (2004) 11 NWLR (pt. 885) 589, Yalia vs. The State (2019) ALL FWLR (pt. 1012) 653 @ 683.
In the case of Yalia vs. The State (supra), per Kekere-Ekun JSC, the Apex Court emphasized the point when it held that:
“One of the most fundamental requirements in the proof of any crime is proof beyond any reasonable doubt that the accused person committed the offence charged or that he was in company of those who committed the offence. It is quite common for an accused person to raise the defense of alibi, that is

to contend that he was elsewhere when the offence was committed and that he has been erroneously linked to the offence. The defense of alibi would however crumble where the accused person is fixed at the scene by the victim or an eye witness. In such circumstances, the investigation of a claim of alibi would serve no useful purpose, see Victor vs. The State (2013) 12 NWLR (pt. 1369) 465”.
See also the cases of Edwin vs. The State (2019) 191 LRCN 109 @ 129, Ayan vs. The State (2013) 15 NWLR (pt. 1376) 34, Ntam vs. The State (2003) 11 NWLR (pt. 830) 142, Tanko vs. State (2008) 16 NWLR (pt. 1114) 591.
In the light of the foregoing, the contention of the appellant that appellant’s defense was not considered and or that there was no evidence linking the appellant to the heinous crime in question must fade. This issue is determined against the appellant.

Issue 2.
Whether the learned trial judge erred in law in finding the appellant guilty of conspiracy, murder and arson even where none of the ingredients of these offences were proven against the appellant.

Learned counsel seeks to rely on his arguments made with respect to issue one, to

submit that the offences of conspiracy, murder and arson was not proved against the appellant.

Contrariwise, it was the contention of the learned Attorney – General that the offences alleged were proved as held by the lower Court.

Moving arguments on whether the prosecution proved the offence of murder against the appellant, counsel relied on the case of Udo vs. The State (2018) LPELR 43707 (SC) on the ingredients to prove in establishing murder, which must be proved beyond reasonable doubt.

Analyzing the ingredients one after the other, counsel submitted that there was no proof of the death of Michael Solomon Anwana, and moreover, there was no evidence proving that any act of the appellant caused the death of the deceased. He maintained that the evidence of murder was not established owing to the contradictory nature of the prosecution’s case. He insists that there is no evidence that somebody died and therefore urged the Court to hold that prosecution failed to establish the case of murder against the appellant. On the count of arson alleged against the appellant, it was argued on the authority of Okhiria vs. State (2016)

LPELR-40144 (CA) that all that is required to establish the offence is:
“All that is required in proving the ingredients required in proving the offence of arson are: (a) that a dwelling house was actually set ablaze; (b) that accused person was responsible in doing so and did so intentionally, see Chia vs. The State (supra) per Bada JCA”.

Learned counsel submits that there was no evidence that a building belonging to Michael Solomon Anwana was set ablaze as claimed by the PW 1 and PW 2. He further holds the view that the appellant was not mentioned to have participated in the alleged burning down of the house.

On whether the offence was proved by the prosecution, learned counsel for the respondent referred to the evidence of the PW1 – PW5 which established the fact that the deceased, Michael Solomon Anwana was actually dead, as well as the circumstances of his death. Counsel further argued that a man intends the natural consequence of his act. With regards to the offence of arson, it was conceded that the ingredients of the offence offered in the case of Okhiria Vs. The State (supra) remains apt, further contending that all

the ingredients of the offence were established.

I had occasion to pontificate on the same arguments, raised in the earlier case of Ukpong vs. The State delivered before now. Incidentally the arguments were raised by the same counsel for the appellant. Therein I stated that:
Where an accused person is charged with the offences of murder and arson as in the instant case, which are criminal in nature, the burden of proving such allegations rests squarely upon the prosecution, and in proving the guilt of the accused, the prosecution will normally employ one or more of the following:
i. Evidence of eye witnesses.
ii. Confessional statement of the accused person
iii. Circumstantial evidence.
Whichever mode the prosecution chooses to employ, the law provides that the guilt of the accused must be proved beyond doubt, for where any doubt arises in the prosecution’s case, or is manifest from the evidence rendered; such doubt must be exercised in favor of the accused person.

In the case at hand, the appellant was accused of the offences of murder and arson. The offence of murder is said to be complete where the following

ingredients are shown to exist.
i. The death of the deceased.
ii. That the death resulted from the act of the accused person.
iii. That the accused knew that his act will result in the death or did not care whether the death of the deceased will result from the act. See Durwode vs. The State (2000) 15 NWLR (pt. 691) 467 @ 487 – 488, Ogbu vs. The State (2001) 7 WRN 50, State vs. Ibrahim (2019) ALL FWLR (pt. 1007) 704 @ 728, Kabaka vs. The State (2011) 202 LRCN 171, Edoho vs. The State (2010) 42 NSCQR 451 @ 456.

With regard to the first ingredient of the charge of murder, I fail to understand the position of the appellant which was to the effect that the death of the deceased was not established on the mere assertion that no medical certificate to that effect was tendered in court. That cannot be the position of the law. In that regard, I find myself in agreement with the learned Attorney – General, that where the cumulative evidence of the PW1 – PW 5 is examined, one is left in no doubt that the deceased person (Michael Solomon) is dead. PW1, his dearest wife convincingly told the Court that the deceased, who is her

husband, is dead, and went further to describe the circumstances of his death. The evidence of the PW2, which is to the effect that the appellant led the Akaba Boys on the orders of the 1st accused person went to the deceased house, broke the doors of the house and finally set the house ablaze, and the further evidence of this witness that the deceased was roasted alive was not challenged nor impugned. I am in the circumstance in agreement with the learned counsel for the respondent that these pieces of evidence by the witnesses settled the fact as to the death of the deceased. The contention by the appellant’s counsel that prosecution failed to adduce evidence as to the death of the deceased fades upon the established position of the law, to the effect that in view of the eye witness account as to the death of the deceased as to how the deceased met his death, no further evidence regarding the cause of death is necessary. SeeAkpan vs. The State (1972) LPELR – 378 (SC), Dajo vs. The State (2018) LPELR – 45299 (SC), Ukpong vs. The State (2019) ALL FWLR (pt. 1005) 414 @ 448:
“Where the cause of death is obvious, medical evidence

ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where the death was instantaneous or nearly so.”
The argument by the appellant to the effect that nobody died from the evidence adduced is idle and unsupportable in view of the position of the law.

There is the other submission, by the learned respondent’s counsel, and rightly in my view that looking at the evidence adduced before the lower court, and where a situation arises as in the instant case, where more than one person is accused of the joint commission of a crime, and where the act has been done, it is enough proof that all the accused persons participated in the commission of the crime, and what each of them individually did in furtherance of the commission of the crime becomes immaterial. See Nwankwoala vs. The State (2006) LPELR – 2112 (SC). The further position of the law since established is that where the prosecution has established a community effort on the part of the appellant with regards to the death of the deceased, the appellant is deemed in law to have killed the deceased. This appears to be the situation in which the appellant

finds himself. His situation is made worse by the evidence proffered by the PW2, which the trial Court believed to the effect that appellant led the Akaba boys to set the house and the deceased person ablaze.

With respect to the other leg of the issue, can the complaint of the appellant with regard to the finding of the lower Court that he was guilty of the offence of arson leveled against him? Indeed the case of Okhiria vs. The State (supra) established the template on what amounts to arson, and how it can be established. Here too as ably argued, evidence abound as to how the deceased persons house was set ablaze. There is evidence that the Akaba Boys led by their commander, one Ukpong were ordered to burn the house of the deceased. Documentary evidence corroborated the fact that the deceased house was indeed burnt to ashes. Appellant in the circumstance couldn’t have escaped liability. This issue is similarly resolved against the appellant.

With respect to the alleged offence of conspiracy under Section 552 of the Criminal Code Cap 38 of vol. 2 Laws of Akwa Ibom State of Nigeria 2000, conspiracy has been commonly described as an agreement of

two or more persons to do an act which it is an offence to agree to. Per Fatayi-Williams in Haruna vs. The State (1972) LPELR-1356 (SC). It is a precondition that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved. In the latter case of Patrick Njovens vs. The State (1973) 5 SC 12, Coker JSC, on the issue stated that:
“The overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy… the gist of the offence of conspiracy is the meeting of the minds of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained of.”
The learned appellant’s counsel, relying on the case of Aituma vs. The State (2006) 10 NWLR (pt. 989) 459 posits that the elements of conspiracy were not established. That could be so. This is because as rightly argued; the crime of conspiracy is usually hatched with the utmost

secrecy. See Iboji vs. The State (2016) 255 LRCN 173 @ 185, Friday vs. The State (2016) 257 LRCN 1 @ 12.
Recently the Supreme Court in the case of Ayinde vs. The State (2019) 12NWLR (pt.1687) 410 @ 426, restated the point that conspiracy is usually shrouded in secrecy. To establish it, once it is clear to the Court that the conspirators knew of the existence and the intention or purpose of the conspiracy, and then conspiracy is inferred or presumed.
See further on this the cases of Bouwor vs. The State (2016) 252 LRCN 1 @ 14, Daboh vs. The State (1973) 5 SC (reprint) 122 @ 134, Friday vs. The State (2016) 257 LRCN 1 @ 12.
I am inclined to agree with the learned counsel for the respondent that from the pieces of evidence adduced, most particularly the evidence of the PW2, and the circumstance in which the deceased was killed points poignantly that an agreement to do an act or omission not to do a legal act was occasioned. It’s evident as argued that the conspirators acted in concert and thus acted in unison when they killed the deceased and razed his house to ashes. The gruesome act, points and or infers that all the accused persons acted in

unison for having acted in concert, it is safe to infer that the appellant and his co-conspirators acted in furtherance of the agreement reached amongst them. I have no hesitation agreeing with the lower Court that the circumstance and the totality of the happenings leading to the death of the deceased pointed to no other than the fact that they conspired to commit the act, which they ultimately committed. This issue is similarly resolved against the appellant.

Issue three.
Whether the learned trial judge was right in convicting the Appellant despite the contradictions in the evidence of the prosecution witnesses as to the circumstances of death of the deceased.
The argument of learned counsel for the appellant can be found at pages 17 – 22 of his brief. The contention of the respondent is that the lower Court erred in convicting the appellant despite the glaring contradiction in the prosecution’s case. He complains that the prosecution’s case is tainted with contradictions and inconsistencies, which the lower Court failed to consider.

Counsel highlighted for instance the evidence of the PW1 and PW2 with regards to the murder of

the victim, and opined that the Court cannot pick nor choose which to believe, and which not to believe. He also referred to the evidence of the PW 3 and PW4 on the making of exhibit D, which he stated is contradictory. He contends that the contradictions are of a material nature which should have raised doubt as to the guilt of the appellant. He then relied on the case ofEkezie vs. The State (2016) LPELR-40961 (CA) to submit that the contradiction in the evidence of the PW 1 touches on the elements of the offence of murder for which the appellant was convicted. He urged the Court to disregard the evidence of the PW1 – PW5 which touches on the manner of the death of the deceased being fundamental as it touches on the death of the deceased.

In his response on the issue, it was submitted that for contradiction to be substantial so as to affect the case of the prosecution it must relate to the element of the offence charged, and not peripheral matters that has no bearings on the substance of the case. The cases of Alao vs. The state (2011) LPELR-1473 (SC), Akpa vs. The State (2008) LPELR – 368 (SC) were relied on. He argued that whether it was

Okon John or Saviour who hit the deceased with a stick is immaterial as such cannot affect the justice of the case. Similarly whether the appellant adopted the statement he made at Oron Police Station or made a new one at the state police Headquarters is equally immaterial. Ikemson vs. The State (1989) LPELR – 1473 (SC). He submits that the fact that the deceased was killed by the appellant and his co-accused persons had been established beyond doubt, as to argue otherwise is to stand the law upside down. He then urged the Court to resolve the issue against the appellant.

I have in the circumstance given the arguments herein a close but critical examination. What the Court is to determine here is whether the pieces of evidence rendered by the PW1 and PW2 with regards to how the deceased was killed contradicted each other, and whether it was material to how the deceased was killed, and further whether the evidence of the PW 3 and PW4 contradicted each other on the making of the appellant’s statement, and whether the contradiction if any was substantial as to affect the judgment of the lower Court.

In my candid but firm view, the learned counsel

for the appellant appears to be absolutely correct having submitted in line with the decision of this Court in Ekezie vs. The State (supra), that where the evidence of a prosecution witness is materially or staggeringly in conflict creating doubts in the mind of the Court, such doubt must be resolved in favor of the accused appellant. This Court in the case of Olayiwola vs. The State (2018) ALL FWLR (pt. 918)1 @ 26, restated the position of the law, in that where the prosecution’s case is riddled with material contradictions and inconsistencies, the Court will be slow to rely on same in convicting the accused person. In other words, the contradiction alleged must go to the substance of the case. In the words of the Supreme Court, the contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole, or as to the reliability of the witnesses. See Ukpong vs. The State (2019) ALL FWLR (pt. 1005) 414 @ 446. In qualifying this legal stance, Onnoghen CJN, opined that:
“It would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at

a future date. If that were to happen, such accounts would be treated with suspicion as it would be likely that the witnesses compared notes. In effect variations in testimony seem to be badges of truth. Witnesses may not always speak of the same facts or events with equal and regimented accuracy. For contradictions in the evidence of prosecution witnesses to affect a conviction, particularly in a capital case, they must raise doubts as to the guilt of the accused person,” see also Ikemson vs. The State(1989) LPELR – 1473 (SC), Akpa vs. The State (2008) LPELR – 368 (SC).”

I have in the context of the law examined the area of complaint by the appellant. It seems to me that the evidence given by the PW1 and PW2 with regards to the murder of the deceased, most particularly as to who hit the deceased with a stick or machete does not derogate from the fact that the deceased was indeed hit by one of the parties mentioned, and not material in the examination of how the deceased was killed. Owing to the evidence placed before the Court, the fact remained that the deceased was killed by the communal effort of the appellant and his co accused

as argued. So also whether the statement of the accused was taken at whatever police station does not seem to have any bearing on the fact that the deceased from the other pieces of evidence adduced by the prosecution was killed on the fateful day by the appellant and his buddies. I fail to see any material contradiction which ought to have weighed or created doubts in the mind of the trial Court, and the argument presented by the learned counsel for the appellant in view of the position of the law crumbles, and thus lacking in merit. From the foregoing therefore, I see no merit in the argument of learned counsel, and thereby resolve the issue against the appellant.

All the three issues canvassed having been resolved against the appellant, the inevitable conclusion is that appellant’s case is lacking in merit, and deserved to be dismissed, which I now do. The appeal being unmeritorious is hereby dismissed by me. The judgment of Gabriel E. Ette of the High Court of Justice, Akwa Ibom, Okobo, delivered on the 5th of August, 2016, whereof the appellant was convicted and sentenced to death by hanging is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA I agree with the reasoning and conclusion.
I also dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the draft judgment of my learned brother, Hamma A. Barka, JCA. I agree with the conclusion that the judgment of the lower Court should be affirmed.

As rightly posited in the lead judgment the evidence of the prosecution witnesses having unequivocally pinned the appellant to the scene of crime; the failure to investigate the defence of alibi set out by the accused person is not detrimental to the case of the prosecution.

I agree with my noble lord that there are overwhelming evidence that the deceased was killed by the communal effort of the appellant and his co-accused and hence liable for the consequences of their collective acts. I too dismiss the unmeritorious appeal and affirm the judgment of the lower Court delivered on 5/8/2016.

Appearances:

A. Umoh Esq. For Appellant(s)

Uwemedimo Nwoko HAG, with him Bassey Ekanem and Cecilia Ekanem PSC. For Respondent(s)