MARRIS v. STATE (2020)

MARRIS v. STATE

(2020)LCN/14831(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/A/167C/2016

RATIO

CRIMINAL LAW: ON WHOM LIES THE ONUS WHERE A PERSON IS ACCUSED OF COMMITTING A CRIMINAL OFFENCE

Where a person is accused of committing a criminal offence, the onus is on the prosecution to prove the charge against him beyond reasonable doubt. See Section 137 (1) of the Evidence Act and the cases of JOSHUA ALONGE V. IGP 1959 IV FSC 203, AHMED V. THE STATE 2003 3 ACLR 145 177, ANAEKWE V. THE STATE 1988 ACLR 426, OBIAKOR V. THE STATE 2002 6 SCNJ 193 and ONYEKA MBERI V. THE STATE 2016 LPELR-CA/OW/351M/2012. PER WILLIAMS-DAWODU, J.C.A.
EVIDENCE: NATURE OF PROOF BEYOND REASONABLE DOUBT

As instructively stated by the apex Court in the case of MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC per Oputa J.S.C. as he then was: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must be proved beyond reasonable doubt, not beyond the shadow of any doubt that the accused person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice.” PER WILLIAMS-DAWODU, J.C.A.

CONFESSIONAL STATEMENT: WHETHER MERE DENIAL OF MAKING A CONFESSIONAL STATEMENT IS SUFFICIENT TO REJECT ITS ADMISSIBILITY

The settled law in that regard is that mere denial of making or signing a confessional statement by accused persons is not sufficient ground on which to reject its admissibility in evidence when it is properly tendered. See the cases of AKWUOBI V. THE STATE 2016 LPELR – SC 379/201 and OKWESI V. STATE 1995 NWLR 119 and EZENGE V. THE STATE 1999 14 NWLR PT. 6371. It is also the law that, where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within-trial. See the case of AKWOBI V. THE STATE supra. Where as in the instant, the statement is retracted in Court, while the Court can act on the confessional statement of an accused person to sustain a conviction, independent corroboration, however slight must be sought as held in the cases of SALAWU V. STATE 1971 NMLR 249 and AKINFE V. STATE 1988 3 NWLR PT. 85 729. It needs be quickly added here that evidence of corroboration is not required as of law but in practice. PER WILLIAMS-DAWODU, J.C.A.

COURT: PRIMARY DUTY OF A TRIAL COURT

The primary duty of a trial Court is to evaluate evidence and ascribe probative value to same. I shall now proceed to consider the evaluation of the evidence by the Court. PER WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ISAAC MARRIS APPELANT(S)

And

THE STATE RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the High Court of Niger State delivered on October 15th, 2015 by Hon. Justice H. I. Abdulmalik, wherein the Appellant (the 2nd Accused person at the Court below) was convicted and sentenced to death by hanging for the offence of conspiracy to commit armed robbery and culpable homicide and the offences of Armed Robbery and culpable homicide together with one Abdulrazak Isah (1st accused person at the Court below).

Dissatisfied with his conviction, the Appellant has come to this Court vide his amended Notice of Appeal of four (4) Grounds filed May 16th, 2017 which was deemed as properly filed and served on February and seeks the following reliefs:
An order of the Honourable Court setting aside the Appellant’s conviction and sentence by the Court below in case No: NSHC/SD/1C/2014 and in its place an order discharging and acquitting the Appellant on all count (sic).

As garnered in the printed Record before this Court, following the death of one Indian National, Chandra Mouli Muthyala, the Production Manager of Royal Ceramics Company at Suleja from

stab wound at a private hospital, the Appellant and the said Abdulrazak Isah were arrested. The Appellant was the deceased’s one time cook and steward and after Police investigations, he was charged along with Abdulrazak with the offence of conspiracy to commit armed robbery and culpable homicide and the offences of armed robbery and culpable homicide punishable with death. They were both convicted and sentenced and the Appellant herein appeals his conviction.

The position of the Respondent is that they were both guilty of the offences and were rightly convicted and sentenced.

In compliance with the Rules of this Court, the parties filed and exchanged their briefs of argument. The Appellant’s brief, dated and filed February 26th, 2020 and the Reply to the Respondent’s brief dated and filed on September 7th, 2020, which was deemed as properly filed and served on September 7th, 2020 and settled by E. U. Chinedum Esq. He adopted same at the hearing of this appeal and urged that the appeal be allowed. The Respondent’s brief filed July 10th, 2020, deemed August 5th, 2020 as properly filed and served was settled by M. G. Chiroma Esq., who adopted the brief and

urged that the appeal be dismissed.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
The Appellant submitted the following four (4) Issues:
1. Whether having failed to conduct a trial-within-trial to determine the voluntariness or otherwise of Exhibits “14b” and “14c” the trial Court could proceed to convict the Appellant on the strength of same (Ground 1).
2. Whether the trial Court was right in relying on the confessional statements of the 1st Accused to convict the 2nd Accused who neither adopted same by word nor conduct (Ground 2).
3. Whether given the substantial errors in the trial Court’s evaluation of evidence, the conviction of the Appellant was valid.
4. Whether the prosecution proved its case beyond reasonable doubt (Ground 3).

For the Respondent, a single Issue was submitted as follows:
Whether or not, considering the totality of the evidence adduced by the prosecution, the prosecution did not prove its case against the Appellant beyond reasonable doubt to sustain the conviction.

For the reason that the Appellant is the aggrieved party with his complaints to this Court and having carefully

considered the afore stated two sets of issues together with the record before this Court, one shall adopt the Appellant’s set of Issues, satisfied that a just and fair conclusion will be reached thereby.

SUBMISSSION ON BEHALF OF THE APPELLANT
The learned Counsel, Mr. Chinedum Esq., for the Appellant, submitted that the concept of trial-within-trial is an integral part for proof beyond reasonable doubt, necessary before conviction in order to determine whether an extra judicial statement was voluntary. That, the Court was wrong to have arrived at its decision based on the inadmissible Exhibit 14c, when it failed to not conduct a trial within trial, having found vitiating factors in respect of the Exhibit which the Appellant vigorously opposed. He cited in support the cases of DAIRO V. F.R.N. 2012 16 NWLR PT. 1325 P. 183, ACHUKU V. STATE 2015 6 NWLR PT. 1456 and C.O.P V. ALOZIE 2017 7 NWLR PT. 1565. Therefore, the judgment is perverse, he submitted.

He conceded that the confessional statement of an accused can be used in the conviction of another accused person in our jurisprudence but that, according to Section 29 (4) of the Evidence Act

the other accused person must have adopted it by words or conduct, which was not the case with Appellant. Therefore, the Court was wrong to have relied on it to convict the Appellant. He cited the cases of ANYANWU V. STATE 2012 16 NWLR PT. 1326 281 CA, OZAKI V. THE STATE 1990 1 NWLR PT. 124 P. 92 and OGUGU V. THE STATE 1990 2 NWLR PT. 134 P. 539.

The learned Counsel submitted that, the Court failed to properly evaluate the evidence before it which led to a miscarriage of justice as he leaned on the confessional statement of the other accused and so was wrong to have found the Appellant guilty. He cited in support, the cases of OYEKOLA V. AJIBADE 2004 17 NWLR PT. 902 356, BELLO V. STATE 2007 10 NWLR PT. 1043 564, ALAKE V. STATE 1992 9 NWLR PT. 265 260 and LORI V. TELLA 2006 18 NWLR PT. 1011 267. That, if the Court had properly evaluated the evidence, it would have found that the confessional statement of the Appellant was a product of torture which he contested in Court and urged for a re-evaluation by this Court. In support, he cited the case of OKINO V. OBANEBIRA 1994 5 NWLR PT. 344 348 SC and BROWN V. STATE 2012 3 NWLR PT. 1287 207 CA.

Further that, there was no proof beyond reasonable doubt as the Court placed a disproportionate amount of reliance on the confessional statement of the 1st accused person and the contested Appellant’s confessional statement in arriving at the guilt of the Appellant which he contested its voluntariness. In conclusion, he urged that the Appellant should be presumed innocent of the crime by the provision of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria and the appeal be allowed.

SUBMISSION ON BEHALF OF THE RESPONDENT
Mr. Chiroma, Esq., learned Counsel for the Respondent submitted that, the guilt of the Appellant in the instant appeal was proved by his voluntary confession or admission, which is one of the methods of establishing guilt of an accused person and referred to Section 27 (1) of the Evidence Act. He cited in support, the cases AKWUOBI V. STATE 2017 2 NWLR PT. 1550 P. 42, AJAYI V. STATE 2013 8 NWLR PT. 1360 P. 589 and OKOH V. STATE 2014 8 NWLR PT. 1410 P.502. He submitted that, the offence of criminal conspiracy was established against the Appellant and referred to Exhibits 14 a, b and c being his confessional

statements and that all the ingredients in respect of the offence are contained in the said statements. In support, he cited the case of OSUAGWU V. STATE 2013 5 NWLR PT. 1347 P. 360 and that the Court was right to have convicted the Appellant on the charge based on his confession and Exhibits 8a and 8b, the confessional statements of the other accused person which were admitted without any objection. He argued that, as the deceased Chandra Mouli Muthyala was certified dead from stab wound in Primus Hospital Nyanya after being found in the pool of his blood in his office, and given Exhibit 14 a, b and c which were corroborated by the evidence of PW 7, one Dr E. O. Umobong, that it was the Appellant’s act that caused the death of the deceased. And by the said confessional statements of the Appellant, it was established that the Appellant’s intentional act that caused the deceased’s death was with the knowledge that it would result in death or grievous bodily hurt. Therefore, the offence of culpable homicide was established.

On the offence of armed robbery, under Section 1 (2) (a) and (b), he submitted that robbery was correctly found based on the

confessional statements of the Appellant and the other person convicted, wherein it contained how they shared equally the One Hundred and Twenty Thousand (N120,000.00) found in the deceased’s bag as well as the handset and the laptop which was sold to the PW8. The use of knife, Exhibit 3, by the other conspirator to stab the deceased he argued was established and the combined effect of the evidence of the PW5, Exhibits 3, 8A, 8B and 14c which proved armed robbery. The third ingredient that the Appellant participated he submitted was also proved as the items of the deceased, part of which the Appellant shared from were found on the 1st accused person. He submitted that there was no need for the Court to have conducted trial within trial and the Appellant retracting his statements did not show there was torture and cited in support the cases of EKE V. STATE 2011 3 NWLR PT. 1235 P. 589, ABDULLAHI V. STATE 2013 11 NWLR PT. 1366 and AKWUOBI V. THE STATE supra. Further that, the Court did not rely on the confession of the 1st accused person to convict the Appellant but that through his confession, the Appellant adopted Exhibits 8a and 8b, the 1st accused person’s

confession. That, the DW1 who was invited by the Appellant to kill the deceased fixed the latter at the scene of the crime and as an abettor, the Appellant suffers the same fate/punishment as the one he abetted and therefore, both of them were rightly convicted and sentenced to death. In conclusion, he urged that, the appeal be dismissed and the decision of the Court being appealed against be affirmed.

THE POSITION OF THE COURT
I have very carefully and painstakingly gone through the Record and all the briefs presented by the parties for and against this appeal and having so very carefully done, I proceed to consider and determine the Issues adopted one after the other along the findings of the Court.

the apex Court in the case of MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC per Oputa J.S.C. as he then was: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must be proved beyond reasonable doubt, not beyond the shadow of any doubt that the accused person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice.”

For ease of reference, I shall reproduce the Issues hereunder as they are being considered;
ISSUE 1
Whether having failed to conduct a trial-within- trial to determine the voluntariness or otherwise of Exhibits “14b” and “14c”, the trial Court could proceed to convict the Appellant on the strength of same.
ISSUE 2
Whether the trial Court was right in relying on the confessional statements of the 1st accused to convict the 2nd Accused who neither adopted same by word nor conduct.
Issues 1 and 2 shall be considered together.

The Appellant herein along with a co- accused, one

Abdulrazak Isah as already stated were convicted and sentenced for the offences of conspiracy to commit culpable homicide contrary to Section 97 of the Penal Code, conspiracy to commit armed robbery contrary to Section 6 (a) and (b) of the Robbery and Fire Arms (Special Provision) Act Cap R11 LFN 2006, the offence of robbery under Section 1 (2) a and b of the Robbery and Fire Arms (Special Provision) Act Cap R11 LFN 2004 and the offence of culpable homicide under Section 221 of the Penal Code.

Exhibits 14b and 14c which were admitted along with Exhibit 14a were the confessional statements of the Appellant as well as the Attestation form respectively. It is important to note the pronouncement of the Court during the trial as contained on page 383 of the Record when the said documents were tendered for admission as Exhibits:
“Court: The 2nd accused is essentially saying he did not make the statement but he was tortured to make the thumb print, in the circumstance of his not making the statement, it is admitted in evidence but the Court will be very cautious in attaching value to it. It is admitted as Exhibit (sic) 14a, b, and (c).”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Trial within trial as it says is a trial, howbeit, mini, within the overall trial of the entire matter and it is one for the voluntariness of a confessional statement made to the Police. It is described by the learned Author, B. P. Ishaku in the Judicial Law Dictionary page 418, thus: “The procedure arises when an objection by the accused person on the ground of its being involuntarily obtained, the trial Court has a duty to try the issue of whether or not the statement was voluntarily made, before proceeding to admit same in evidence.”
See the cases of OLAYINKA V. STATE 2007 4 SC PT. 1 210, ADEBOWALE V. STATE 2013 16 NWLR PT. 1379 104 and IREGU EJIMA HASSAN V. STATE 2017 5 NWLR PT. 1557 1. It is pertinent to note that it is only upon an allegation of involuntariness of an accused person’s confessional statement that, a trial within – a trial should take place. In the instant, as already stated, the Appellant denied that he made Exhibits 14b and c and that he was forced to thumb print on them not knowing their contents. The settled law in that regard is that mere denial of making or signing a confessional statement by accused persons is not

sufficient ground on which to reject its admissibility in evidence when it is properly tendered. See the cases of AKWUOBI V. THE STATE 2016 LPELR – SC 379/201 and OKWESI V. STATE 1995 NWLR 119 and EZENGE V. THE STATE 1999 14 NWLR PT. 6371. It is also the law that, where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within-trial. See the case of AKWOBI V. THE STATE supra. Where as in the instant, the statement is retracted in Court, while the Court can act on the confessional statement of an accused person to sustain a conviction, independent corroboration, however slight must be sought as held in the cases of SALAWU V. STATE 1971 NMLR 249 and AKINFE V. STATE 1988 3 NWLR PT. 85 729. It needs be quickly added here that evidence of corroboration is not required as of law but in practice. In the light of the settled position of the law and the fact of the case as contained in the Record, the non-conduct of a trial within- trial was in order.

The primary duty of a trial Court is to evaluate evidence and ascribe probative value to same. I shall

now proceed to consider the evaluation of the evidence by the Court.

The relevant provisions of the Robbery and Fire Arms Act are hereunder reproduced:
Section 6 (a) and (b) of the Robbery and Fire Arms (Special Provision) Act Cap R11 LFN 2004 provides thus:
(a) Any person who aids, counsels, abets or procures any person to commit an offence under Sections 1, 2, 3, and 4 of this Act: or
(b) Conspires with any person to commit such an offence …… whether or not he is present when the offence is committed or attempted to be committed, shall be deemed guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.
Section 1(2) (a) and (b) of the Act provides:
Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced for not less than 21 years.
(2) if ……
(a) Any offender mentioned in Subsection (1) of this Section 1 is armed with any firearm or any offensive weapon or is in company with any person so armed: or

(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.

The evidence according to the Court and correctly was overwhelming against the 1st Accused, the convict, the said Abdulrazak at the Court below from his free and voluntary confessional statement, which according to the Court was “both positive and direct that they planned and perpetrated the crime, that he stabbed the deceased on his chest.” There was no objection when Abdulrazak’s statements, Exhibits 8a and b were tendered. See page 430 of the Record. The Court found from Exhibit 8a, how the Appellant was waiting for Abdulrazak with his motorcycle outside the fence of the Royal Ceramics, the Company with which they both worked, how the Appellant lifted him up over the fence into the Company premises. It found that the evidence of PW2 corroborated Exhibit 8a to the effect that PW2 at the close of work on the fateful day saw the said Abdulrasak with the deceased, Mr. Chandra Mouli. The Court found and believed that they

both escaped with the Appellant’s motorcycle, shared the sum of One Hundred and Twenty Thousand Naira of the deceased’s and contrary to the advice of the Appellant, Abdulrazak continued using the deceased’s two handset with the sim cards to make calls including calls to the Appellant whom he said was “feeding him with what was happening after Chandra Mouli (sic) death” which eventually assisted the Police to track down Abdulrasak who was on the run and the sale of the deceased’s laptop to one Okpara, the PW8. By the Record, from the confessional statement of Abdulrasak which was not objected to, he confirmed that he was cautioned by PW5 and that he understood everything and he took the investigating team to the scene of crime at the Company, he narrated how he entered and stabbed the deceased who fell and the team saw the remains of the blood. It was also on record that Abdulrazak took them to where he hid the knife he used to stab the deceased which was tendered and marked as Exhibit 3. Consequently, the Court concluded as follows and correctly in my considered view and humbly:
“From the above, the 1st accused had positively admitted, conspiracy to kill, and the

stabbing of late Chandra Mouli and conspiracy to rob and the robbery of his property.”
See page 432 of the Record. Further on the same page, it found and held thus on the question whether the prosecution proved the death of the said Chandra Mouli: “… Did the prosecution prove (sic) death of Mr. Chandra Mouli? It did, through the testimonies of PW1, PW2, PW3, PW4, PW5, PW7 and PW9. Specifically, PW1 said the victim was certified dead at Primus Hospital, Abuja (a private hospital) the corpse was then taken to Maitama Hospital and stored in the mortuary and the next day, it was taken to Asokoro Hospital for autopsy which was conducted by Dr. I.K. Okonkwo and his team. PW3 said “I sighted the deceased face down inside blood” PW4 said “as we began walking out we found Mr. Chandra Mouli in a pool of his blood in front of his office. We went closer and called him “Sir”, “Sir”, but he did not respond….” PW5 said I still requested for the autopsy report from the pathologist who conducted the autopsy…”
The Court found further on page 433 of the Record:
“…. The 1st accused in Exhibits 8a and b

admitted stabbing the deceased on the chest and watching him fell to the ground; PW3 and PW4 gave eye witness account of seeing him on the ground face down in a pool of blood. PW2 testified that the deceased was last seen with the 1st accused; and the medical examiner (PW7) gave the cause of death as exsanguination; …. means drainage of blood out of the body.” She also said: “It is a sharp instrument that was used because it penetrated the anterior wall, the heart and stopped at the posterior wall so definitely it was a sharp object that was used. What I can say from the injury is that it was made by a single individual.”
The Court continued on pages 433-434 of the Record:
“…from the foregoing, since the accused said he stabbed him on the chest and the chest injury was found to have caused the death due to massive loss of blood occasioned by the stab wound to the chest, it can be safely concluded that the act of the 1st accused caused the death of the deceased.”

On whether the 1st accused knew that his act was likely to cause the death of the deceased. The Court stated thus on page 434 of the Record:
“The answer is in the

affirmative for the following reasons: In Exhibit 8(a) the accused confessed that their mission on 4/10/2013 was to “kill” the deceased.”

One has in the foregoing endeavored to reproduce the findings of the Court with regard to the said Abdulrasak, the 1st accused person, who was convicted along with the Appellant, given the offences they were both charged with, for a good consideration and appreciation of the Appellant’s position in the finding and conclusion of the Court which culminated in the conviction and sentence of the Appellant. It is important to note that the Court was cautious of using the evidence of a co-accused and its impact on another accused and it stated thus:
“… the Court has to warn itself on the dangers of conviction based on confessional statement of co-accused.” See page 436 of the Record.

Before a conviction is based on a retracted confession there must be some corroborative evidence outside the confession which was would make it probable that the confession was true as the Court below made use of. See the case of AREMU V. STATE 1991 7 NWLR PT. 2011.

Corroborative evidence is independent

testimony which affects, implicates the accused in some material particular not only by connecting or tending to connect him with the crime but also that he committed the crime. See the cases of OHUKA V. STATE NO. 2 1988 4 NWLR PT. 86 36, SALAWU V. STATE 1971 NMLR 249 and AKINFE V. STATE 1988 3 NWLR PT. 85 729. The word corroboration is not a technical term and simply means evidence tending to confirm, support and strengthen other evidence sought to be corroborated. It needs not be direct evidence and can be circumstantial and need not confirm the whole account once it corroborates in some respect the evidence material to the charge. See the cases of OGUNBAYO V. STATE 2007 LPELR-2323 SC and IGBINE V. THE STATE 1997 9 NWLR PT. 519101 CA.

On the culpability of the Appellant, the Court on page 436 of the Record found that the Appellant and the said Abdulrasak were both at the premises of the Royal Ceramics Company on 4/10/2013, the day the deceased was killed, according to them, to collect their salaries, which they did and thereafter left. The Appellant in his evidence in chief denied his statement, Exhibit 14b and under cross-examination, claimed he could

not recollect the date he went to collect his salary and denied seeing his brother Jude and Abdulrasak on the said 4/10/2013 as he had to rush back to his new place of work. It was found that after the deceased’s death, Abdulrasak was in communication with the Appellant on the deceased’s mobile phone line. The Court found from the evidence of PW9, the investigating Police Officer, that though the Appellant in Exhibit 14a denied all allegations and knowledge of the crime, but after the arrest of the Abdulrasak who identified him as the Isaac Marris, he committed the crime with, the Appellant made Exhibit 14b voluntarily, confessing to the crime and 14c, the attestation form.

Following the denial by the Appellant that he never made the statement, the Court correctly tested the veracity of his confessional statement, Exhibit 14b and resolved the pertinent questions, whether the Appellant had the opportunity of committing the offence and whether the confession, Exhibit 14b was possible and consistent with other facts which were ascertained and proved beyond reasonable doubt. See the cases of KANU V. R 1952 14 WACA 30, R. V. OBASA 1962 2 SCNLR 402, DAWA V. STATE 1980 8-11 SC 236, OJEGELE V. STATE 1988 1 NWLR

71 414, OGOALA V. STATE 1991 2 NWLR PT. 175 509 and EJINIMA V. STATE 1991 6 NWLR PT. 200 627. Once a confessional statement passes the veracity test, it can support a conviction whether the statement was retracted or not, see the case ofDAWA V. STATE supra.The Court found as follows:
From a comparison of the Appellant’s statement in Exhibit 14b and the statement of Abdulrasak, Exhibit 8a as contained on page 439 of the Record, the Court found and correctly that both “accounts are identical.” The Appellant stated that on the said date, 4/10/2013, Abdulrasak called to inform him that the deceased was back and would be going back to Ajaokuta, that around 17: 00 hrs he called Abdulrasak to meet him at Royal Ceramics and they met at 17:30hrs, he was with his Jincheng Motorcycle. In Exhibit 8a, the confession of Abdulrasak, he admitted calling the Appellant at “Around 17:00hrs or there about I called Isaac Marris through phone and asked him how far. He asked whether I have come I replied Yes. Isaac Marris told me while we were still talking on phone that Chandra Mouli comes back that day being

Friday 4/10/2013 from Ajaokuta. I asked him whether Chandra Mouli travelled before? He said yes and I replied O. K. Isaac Marris asked me to meet him at a certain Junction very close to the road which Royal Ceramics vehicles normally entered through. Though I cannot remember the number of times I discussed with Isaac Marris on phone before I went to meet him at the agreed junction……l went to meet him with a black Jincheng Motorcycle already waiting.”
The Court further compared Exhibit 14b and Exhibit 8a respectively with regard to the instrument used for the dastardly action thus: “Abdulrazak told me that he has knife in his possession and Abdulrazak brought out the knife and showed me but in the darkness.” Exhibit 14b by the Appellant.
“1 was with a fairly long new knife I earlier bought for N300.” Exhibit 8a by Abdulrazak.
A blood-stained knife, Exhibit 3 was recovered through Abdulrazak which corroborated the Appellant’s knowledge of it. In Exhibit 14b the Appellant stated, “we both the follow (sic) the fence inside the bush and assisted Abdulrazak to climb the fence while I was standing behind the fence….”

In Exhibit 8, Abdulrazak stated as follows: “Isaac carried me up and I was able to jump over the fence through which I gained entrance into the factory while he wait keeping watch.” See page 440 of the Record.

Further, in Exhibit 14b the Appellant stated that Abdulrazak “later came back and told me that he has stabbed Chandra Mouli with the knife but he did not tell me exactly where he stabbed him. Abdulrazak came back to me with late Chandra Mouli bag containing laptop, handsets same document which I discovered when we got to Dikko market where we sat down and search the bag. It was also discovered that the total sum of One Hundred and Twenty Thousand Naira (N120,000.00) was inside the bag. The money was shared equally between both of us. I took Sixty Thousand Naira (N60,000.00) and Abdulrazak took Sixty Thousand Naira (N60,000.00).”

In Exhibit 8, Abdulrazak stated thus on page 440 of the Record: “I brought out my knife and stabbed Chandra Mouli one time on his chest. He shouted and I ran out … I rushed inside his office and carried his black laptop bag containing his documents, books, one HP laptop, the sum of N120,000.00 all in N1000

denomination, his two handsets … As I wanted to go out, I ran towards the fence and jump to hold it, climbed over it outside, I did not see Isaac Marris where I had left him watching. I trekked to the main road where I saw Isaac Marris standing with his Motorcycle. Immediately, he asked me to climb the Motorcycle so that he rode off to avoid people seeing us. I complied. He rode to Dikko Junction where we entered inside the market premises because it was already night and it was not market day. There I brought out everything inside the bag. He said we should throw away Chandra Mouli (sic) two handsets but I said no I want to use them Isaac asked me to keep Chandra Mouli’s laptop with me while he collected N60,000.00 while I took the remaining N60,000.00.”

Again, the following comparison was done where in Exhibit 14b, the Appellant stated thus on page 441 of the Record: “…… since then Abdulrazak has been calling me and asking how is the area and I do brief him that I learned that some people are being arrested but later I had (sic) that the police are looking for Abdulrazak, but I did not bother because I know

Abdulrazak was not within again.”
From the Record, he was tracked down in Edo State.

On page 441 of the Record, in Exhibit 8a, Abdulrazak stated as follows: “After the robbery of Chandra Mouli and his assassination, I used his Glo line to call different people among who is Isaac Marris who has been feeding me with what was happening after Chandra Mouli death (sic) i.e., how people were arrested by the police from Royal Ceramics and others. Isaac equally warned me never to allow myself to be arrested.”

The Court had before it evidence of the use of the deceased’s GLO number, Exhibit 5, by Abdulrazak which he used to call the Appellant. DW3, Jude Marris, the younger brother of the Appellant, confirmed Exhibits 4 and 5 (Nokia phone and GLO number) as his deceased’s boss’s number, that the Appellant was at the Royal Ceramics on the day in issue, 4/10/13 and that he was using a JINCHENG Motorcycle at the time in focus. See page 441 of the Record.

Therefore, the Court, in my view and humbly, correctly found thus on page 441 of the Record:
“In view of the foregoing, I am satisfied of the truthfulness of Exhibit 14(b) to safely act on it

even though there was retraction by the 2nd accused.” And concluded based on Exhibit 3, the knife and Exhibits 4, 5, 7 A-K all mentioned in Exhibit 14 (b) that, the Appellant was with the said Abdulrazak on the date of the incident as opposed to his testimony that he rushed back to his new place of work as he sought to plead alibi. On the overall, Exhibits 14a and 14b were correctly found not to be inconsistent with other proven facts before the Court in respect of the death of Chandra Mouli by stabbing with a knife on 4/10/13 at the Royal Ceramics by Abdulrazak who had the opportunity to commit the offence in conspiracy with the Appellant.

The offence of conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. In the case of NJOVENS V. STATE 1973 5 SC 12, the apex Court held as follows: “The overt act or omission which evidence conspiracy is the actus reus and the actus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar were

seen together coming out of the same place at the same time.”
The gist of the offence of conspiracy is the meeting of the mind of the conspirators and it is usually not proven by direct proof as the offence is complete by the agreement to do the act or make the omission complained about. Consequently, the offence is usually inferred from certain criminal acts of the parties done in pursuance of a criminal purpose in common. Essential ingredients of the offence lie in the agreement to do an unlawful act which is contrary to or forbidden by law and whether or not the accused persons had knowledge of its unlawfulness. See the case of CLARK V. THE STATE 1986 4 NWLR PT. 35 381.
Because of the nature of the offence of conspiracy which is usually hatched in secrecy, it is always open to the trial Court to infer conspiracy from the facts of the case as was correctly done in the Appellant’s case. See the cases of DR. SEGUN ODUNEYE V. THE STATE 2001 2 NWLR PT. 697 311, DABOH V. THE STATE 1977 ALL NLR 146 and NDOZIE V. STATE 2016 LPELR 26067 SC.

The law is however trite that, conspiracy to commit an offence is a separate and distinct offence and it is

independent of the actual commission of the offence to which the conspiracy is related. See the cases of SILAS V. THE STATE 2009 17 NWLR PT. 1169 33, IKEMSON V. THE STATE 1989 3 NWLR PT. 110 455, BALOGUN V. A-G OGUN STATE 2002 2 SCNJ 196 and NDOZIE V. STATE supra.

As contained on page 443 of the Record, the Court found direct evidence from the confessional statement of Abdulrazak to the effect that prior to 4/10/13, the Appellant called him to come to Abuja, that they had work to do and that “we both planned of going to collect enough money from Chandra Mouli after which we will kill him.”

From the Appellant’s additional statement, Exhibit 14b, the Court found an agreement between the parties where the Appellant stated thus “I told him we should killed (sic) Chandra Mouli he said okay” and in the other acts performed in furtherance of the agreement/conspiracy, such as the purchase of the knife by Abdulrazak, Exhibit 3, the lifting of Abdulrazak by the Appellant to enable him climb over the fence of the Royal Ceramics Company and the motorcycle made available by the Appellant. It was consequent upon the foregoing and in my considered view humbly,

that the Court found as follows on page 444 of the Record: “From the combined effects and findings in relation to Exhibits 8a and b and 14a, b & c and other circumstances of the case including the evidence showing that the 1st and 2nd accused were communicating with each other on the phone of the deceased, I am satisfied that conspiracy to commit armed robbery and culpable homicide had been proved beyond reasonable doubt.
Since conspiracy had been established, it is immaterial who actually scaled the fence and administered the fatal stab wound, they both would be liable and guilty of the offences bearing equal degree of culpability.”

The Court correctly stated the law, to the effect that, once there is reasonable ground to believe in the existence of a conspiracy as herein, evidence of acts done by the conspirators will be used against each of the persons believed to have so conspired. See the case of BALOGUN V. POLICE 20 NLR 148.

No doubt, given the resultant consequence of all its findings, the Court held that the Appellant was equally guilty of the offences of conspiracy to commit culpable homicide contrary to Section 97 of the Penal Code

conspiracy to commit armed robbery contrary to Section 6 (a) and (b) of the Robbery and Fire Arms (Special Provision) Act Cap R11 LFN 2006, the offence of robbery punishable under Section 1 (2) a and b of the Robbery and Fire Arms (Special Provision) Act Cap R11 LFN 2004 and the offence of culpable homicide punishable under Section 221 of the Penal Code.

In the light of all the foregoing, one finds oneself unable to disagree with the position of the Court below or disturb its findings. In the result, this appeal lacks merit, it therefore fails and is hereby accordingly dismissed. The convictions and sentences by the Court below as contained in the Judgment, accordingly hereby stand.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, ELFRIEDA O!UWAYEMISI WILLIAMS-DAWODU, J.C.A.

I agree with the reasoning and the conclusion which I adopt as mine. The appeal truly lacks merit. I also dismiss the appeal and I affirm the decision of the trial Court inclusive of the conviction and sentence meted out to the appellant.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft

judgment just delivered by my learned brother; ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. I agree with the reasoning, conclusion and orders therein.

Appearances:

Mr. E. U. Chinebum, with him, S. C. Nnaji and A. Abajomi For Appellant(s)

Mr. M. G. Chinowa DPP, MOJ Niger State with him, J. K. Alfa SSC. For Respondent(s)