MUKAILA SALAWU v. THE STATE
(2012)LCN/5399(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/I/192/2007
RATIO
EVIDENCE: WHETHER THE RECORDING OF STATEMENT BY AN INTERPRETER IS ADMISSIBLE
The general proposition is well settled that where an interpreter has been used in recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. See Olalekan v. State (supra) and Nwaeze vs. State supra cited by appellant’s counsel. Appellant’s counsel stated the correct position of the law. PER ADZIRA GANA MSHELIA, J.C.A.
CRIMINAL LAW: INGREDIENTS OF PROVING THE CHARGE OF MURDER
As regards the charge of murder, the prosecution is equally required to prove same beyond reasonable doubt. It is trite law that in a charge of murder, the essential ingredients that the prosecution must establish in order to succeed are:-
(a) That the deceased has died;
(b) That the death of the said deceased has resulted from the act of the accused;
(c) That the act of the accused was intentional with knowledge that death or grievious bodily harm was its probable consequence, See:- Akinfe v. State (1988) 3 NWLR (Pt.85) 729; Ogba v. The State (1992) 2 NWLR (Pt.222) 164 at 198; Onah v. The State (1985) 3 NWLR (Pt.12) 236; Miller V. State (2005) 8 NWLR (Pt.927) 236 at 263 and Buje v. State (supra) 299. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MUKAILA SALAWU Appellant(s)
AND
THE STATE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Justice M.A.A Abass of the Oyo State High Court of Justice delivered on the 14tn day of July, 2005. The appellant along with three other accused persons were charged before the Oyo State High Court of Justice, Ogbomoso judicial Division for the offences of conspiracy to commit felony to wit murder and murder of one Raji Tiamiyu, a traffic warden then serving in Ogbomoso who was kidnapped from his duty post before he was eventually assassinated contrary to sections 324 and 319 of the criminal code, Cap 30. Vol. II, Laws of Oyo State, 1978 (now cap 38 volume II, Laws of Oyo State 2000).
For clarity the two count charges read as follows:
STATEMENT OF OFFENCE
“Conspiracy to commit felony to wit: murder contrary to section 324 of the Criminal Code, Cap. 30, Vol. II Laws of Oyo State of Nigeria, 1978.
PARTICULARS OF OFFENCE
Taiwo Oladejo (m), Waheed Balogun (m), Mukaila Salawu (m), Alawoye Olawuyi (m) on or about the 27th day of November, 2002 at Takie area, Ogbomoso in Ogbomoso Judicial Division did conspire together to murder Raji Tiamiyu.
STATEMENT OF OFFENCE
Murder contrary to Section 319 of the Criminal Code, Cap. 30 Volume II, Laws of Oyo State of Nigeria, 1978
PARTICULARS OF OFFENCE
Taiwo Oladejo ‘m’ Waheed Balogun ‘m’ Mukaila Salawu ‘m’ Alawoye Olawuyi ‘m’ on or about the 27th day of November, 2002 at Odo-Oba Area, Ogbomoso in the Ogbomoso Judicial Division did murder Raji Tiamiyu.”
The case proceeded to trial. The four accused persons pleaded not guilty to both charges. The prosecution called seven (7) witnesses and tendered Exhibits 1 to 15B, while the four accused persons gave evidence in their defence and called no other witness. Appellant was 3rd accused before the lower court.
The case for the prosecution was that the accused persons in company of other persons now at large who are members of the Odua People’s Congress, (OPC) on the 27th of November, 2002, kidnapped one Raji Tiamiyu, who was a Police Traffic warden from around Takie area in Ogbomoso and took him in a taxi cab to somewhere around Odo-Oba ara in the out skirt of Ogbomoso town where he was killed after which he was set on fire. It was the case of the prosecution that the alleged killing of the deceased was done by the accused persons and others now at large who are members of OPC in retaliation of an earlier killing in Ogbomoso town of a member of the OPC the previous day i.e. 26th November, 2002 by the Police during a gun battle between the police and the O.P.C.
At the close of defence case all counsel addressed the court. After evaluating the evidence adduced by both prosecution and the defence, the learned trial judge convicted the 1st, 2nd and 3rd accused persons now appellant for the offences of conspiracy to commit felony to wit: murder contrary to section 324 of the criminal code and murder contrary to and punishable under section 319 of the criminal code, cap 30 vol. II, Laws of Oyo state of Nigeria, 1978. They were sentenced to 10 years imprisonment each with Hard Labour on the 1st count of conspiracy and on the 2nd count of murder they were sentenced to death by hanging. While 4th accused was discharged and acquitted. See pages 157-201 of the record.
Being dissatisfied with the Judgment, appellant lodged an appeal, to this court against his conviction vide his notice of appeal dated 2nd day of August, 2007 containing one ground of appeal. With the leave of this court which was sought and obtained on 14/7/09 appellant amended his notice and grounds of appeal by incorporating additional grounds of appeal. The amended notice dated 15th day of July, 2009 contained 11 grounds of appeal.
In compliance with the rules of this court the appellant’s brief of argument dated 26th April, 2010 and filed on 7/5/10 was deemed properly filed and served on 5/10/10. The Respondent’s brief of argument dated 10th October, 2011 and filed 2011 and filed 10/10/11 was deemed properly filed and served on 11/10/11. When the appeal came up for hearing appellant’s counsel as well as respondent’s counsel adopted their respective briefs of argument. Appellant’s counsel urged the court to allow the appeal. While respondent’s counsel urged the court to dismiss the appeal.
Appellant formulated four issues for determination as follows:-
1. Whether the various findings of fact made by learned trial judge as to conspiracy and murder in so far as they affect the Appellant are not perverse and if they are whether they can be used as a basis to find Appellant guilty of the offences charged. Distilled from Grounds 3, 4, 5, 6 and 7.
2. Whether Exhibit 8 and 8A are admissible documents and if they are not, whether the learned trial Judge could have validly relied on same to reach his conclusion. Ground 2.
3. Whether the prosecution proved any allegation of conspiracy against the Appellant.
4. Whether the prosecution proved the essential ingredients of murder against the Appellant.
Respondent distilled three issues from the 11 grounds of appeal. The issues are:-
(1) Whether or not the various findings of fact made by the learned trial Judge in relation to the offences of conspiracy and murder for which the Appellant was charged along with others, are justifiable and capable, of rendering the Appellant guilty of the offences.
(2) Whether or not Exhibits 8 and 8A are admissible and learned trial Judge has rightly relied on them in his Judgment.
(3) Whether or not the Appellant was properly charged, tried and convicted of the offences of conspiracy and murder for which he was charged.
The issues formulated by the appellant are apt as such I will be guided by same in determining this appeal. I will however treat the issues in this order: – Issues 2 will be treated first, while issues 1, 3 and 4 will be treated together for convenience and the fact that they are interwoven.
Appellant’s complaint under issue 2 is for the purpose of determining the correctness of the admission of Exhibits 8 and 8A in evidence. Appellant explained that Exhibit 8 was the original statement taken from the Appellant in Yoruba language, while Exhibit 8A is the English version of Exhibit 8. Appellant further mentioned that the two exhibits were tendered through PW1 corporal Mohammed Abdullahi. That, the Yoruba version of the statement Exhibit 8 was taken by corporal Padonu. Reliance was placed on the testimony of PW1. Appellant argued in the brief that prosecution did not call or offer explanation as to why corporal Padonu was not called as a witness though he was the person that took the statement admitted as Exhibit 8. It was argued that prosecution failed to abide by the clear provisions of sections 34 (3) and 36 of the Evidence Act. Appellant submitted that Exhibit 8 is foreign to PW1 as he did not take the statement from him hence he cannot lawfully tender same. That the Police officer who took the Yoruba version of the statement of the appellant must be called as a witness to identify the statement he took. Reliance was placed on Olalekan v. State (2001) and Nwaeze v. State (1990) 2 NWLR (Pt.428) 1 at 20.
It was further submitted that Exhibit 8 as tendered is incompetent and no decision can be predicated on same. That since Exhibit 8 is incompetent, Exhibit 8A the English version cannot stand on its own as there is no foundation upon which Exhibit 8A rest. It was argued that Exhibit 8A is incompetent and a nullity.
The response of the respondent is also contained under issue 2 formulated by respondent. Learned counsel referred to the testimony of PW1 recorded at page 97 of the record and contended that the submission of appellant’s counsel that exhibit 8 and 8A are inadmissible is misconceived. That, there is evidence on record that investigation of the appellant and his co-accused persons in connection with the offences charged which is subject matter of this appeal was carried out by a team of police officers as could be gathered from PW1’s testimony, and that of PW7 contained at page 114 paras 3 lines 2-3 of the record. It was contended that from the testimonies of PW1 and PW7 which remained uncontradicted and unchallenged throughout the trial, there is no discrepancy between exhibit 8 and 8A. It was further argued that there is no evidence on record to show that PW1 who translated exhibit 8 from Yoruba version to English language does not understand the two languages. Furthermore learned counsel submitted that PW1 who interpreted exhibit 8 to exhibit 8A is even the legally recognised witness expected to tender such a document. Reliance was placed on Ajidahun V. State (1991) 9 NWLR (Pt.213) 33 at 35 ratio 2 and Nwali v. State (1991) 3 NWLR (Pt.182) 663 ratio 6. That the submission of appellant’s counsel that failure of the prosecution to call CPL Padonu who recorded exhibit 8 the Yoruba version of the statement of the appellant is fatal to the respondent’s case is grossly misconceived. It was also argued that respondent’s counsel who prosecuted the case at the lower court has discretion as to who to call as witness and who not to call. See: – Eli v. Agid (2004) All FWLR (Pt.220) 1347 at 1362 para G.
Furthermore, respondent’s counsel submitted that the objection to the admissibility of exhibits 8 and 8A being raised at this stage by the appellant is belated. That objection of this nature ought to have been raised timeously. Learned counsel also referred to page 97 of the record to buttress his point that none of the counsel to the accused persons objected to the admissibility of exhibits 8 and 8A when prosecution sought to tender them as exhibits before the lower court. Counsel submitted that the court was entitled to act on the unchallenged and uncontradicted evidence placed before it by the prosecution. Reliance was placed on the case of Provost Lagos State College of Education & Ors v. Edun (2004) All FWLR (Pt.201) 1628 at 1642. 1643 paras H – A. It was argued that exhibits 8 and 8A are admissible and the learned trial Judge rightly relied on them. He urged the court to hold that the statements of the appellant are admissible and resolve this issue in favour of the respondent.
The question raised under this issue is the admissibility of exhibit 8 allegedly made by the appellant to the police. There was evidence before the learned trial judge that the appellant made the statement in Yoruba language which was recorded by CPL Padonu. The statement was translated into English by CPL Mohammed Abdullahi and was admitted in evidence as exhibit BA without objection by the appellant. The contention of appellant’s counsel is that since CPL Padonu who recorded the appellant’s statement in Yoruba language was not called as a witness exhibit 8 is inadmissible because PW1 was not the person who recorded the statement in Yoruba language hence he cannot lawfully tender same. The fact that the statement was made is not disputed. The grouse of the appellant is the absence of the police officer who recorded the statement in Yoruba language. There is evidence on record that investigation of the appellant and his co-accused person in connection with the offences charged was carried out by a team of police officers. This is evident from the testimonies of PW1 and PW7. PW1 CPL Mohammed Abdullahi while Abdullahi while giving evidence before the lower court stated at page 97 of the record as follows:-
“The 3rd accused person was brought to the Owode Police Station, Ogbomoso where he was interrogated in Yoruba language and he made a statement in Yoruba, The statement made in Yoruba language was recorded by CPL Padonu. I made the translation to English language. The 3rd accused person was taken before the Divisional Crime officer, Mr, Abiodun Jimoh, Deputy Superintendent of Police with the confessional statement. The statement was again read to the accused person and the DCO endorsed and signed it.
PW1 further stated at page 116 paragraphs 2 of the record thus:
“The manner of the Recording of the statements of the accused persons was that when they give their statements in Yoruba language it will be interpreted in English by the member of the investigation on team who understand Yoruba and it will be recorded by a member of the team in English language. I read the statement of the 1st accused to him and he said it was correct before he signed it ———. The same applies to all other accused person,” (underlining mine for emphasis).
There is no evidence on record to show that PW1 who translated the Yoruba version of appellant’s statement into English language does not understand Yoruba language. PW1 while answering question under cross examination by 1st accused counsel clearly stated that he could read and write in Yoruba language. PW1 under cross-examination at page 76 of the record stated thus:-
“— I am not a Yoruba man but I understand Yoruba language very well, I can read and write in Yoruba language. The statement being sought to be tendered were read over severally to the 1st accused person by myself and corporal Joseph Padonu to (sic) record the Yoruba version and I made the translation from Yoruba to English language. ”
Since PW1 can read and write in Yoruba language and he was the person that translated the Yoruba version of appellant’s statement to English language, the argument of appellant’s counsel that exhibit 8 is inadmissible in evidence through PW1 is not tenable. Under the circumstances it is my humble view that the two statements i.e, Yoruba and English version could be tendered through PW1 since he was the person that translated the Yoruba version of the statement to English version. The absence of CPL Padonu is therefore not fatal to the prosecution’s case. I hold that exhibit 8 and 8A are properly admissible in evidence as the statements of the appellant and the learned trial judge rightly in my view relied on same while determining the case before him. See Ajidahun vs. State (1991) 9 NWLR (Pt.273) 33 at 35 ratio 2 and Nwali vs. State (1997) 5 NWLR (Pt.182) 663 ratio 6.
The general proposition is well settled that where an interpreter has been used in recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. See Olalekan v. State (supra) and Nwaeze vs. State supra cited by appellant’s counsel. Appellant’s counsel stated the correct position of the law. However, in the instant case the facts as revealed on record are distinguishable from the two authorities relied upon by appellant’s counsel. In the circumstances I will resolve issue 2 in favour of the respondent.
Issues 1, 3 and 4 are covered by grounds 1, 3, 4, 5, 6, 7, 8, 9, and 10, I intend to treat them together because they are interwoven. In stating the general principle of law regarding findings of fact reliance was placed on Okhuarobo vs. Aigbe (2002) 9 NWLR (pt.771) 29 at 85. In the appellant’s brief of argument learned counsel made reference to 23 findings of fact made by the learned trial judge on pages 181-183 of the record. Counsel referred to the 4th finding and contended that there is no evidence to support the finding that appellant was aggrieved by the death of Kasali Shittu. The finding being perverse must be set aside. As regards the 5th finding learned counsel submitted that no witness gave evidence linking the appellant with any act of kidnapping. Reliance was placed on Millar vs. State (2005) 8 NWLR (pt.927) 236. Learned counsel also referred to the 8th finding and submitted that there was no evidence to establish the fact that Raji Tiamiyu begged the appellant as he was not involved in the killing. That by virtue of S.27 of the Evidence Act whatever fact that was confessed by Waheed Balogun (2nd accused) cannot be extended to the appellant as confessions of 2nd accused is not binding on the appellant. Counsel also referred to the 11th finding and maintained that each accused person can only be damnified on the basis of his own confessional statement and not on the basis of what other accused persons had confessed to. See Enitan vs. State (1986) 3 NWLR (Pt.30) 604. It was argued that the Oath taken can only make the appellant an accessory after the act of murder but certainly he cannot be made culpable for the act of murder. Reference was also made to exhibits 8 and 8A and portion of the testimony of the appellant appearing at page 127 of the record to show that appellant did not take Oath before the man (Raji Tiamiyu) was killed. It was argued that the Oath which appellant said he took was not to disclose the areas where they were at that time to anybody. That appellant did not say that, he took Oath not to tell anybody of the fact of killing of Raji Tiamiyu which was about to take place. Learned counsel further contended that the failure to call corporal Padonu who purportedly took or wrote exhibit 8 is fatal to the case of the prosecution as it has rendered the document unreliable as documentary hearsay. Reliance was placed on Flash Fixed Odds vs. Akatugba (2001) 9 NWLR (Pt.717) 46 at 63, Counsel urged the court to set aside the above findings of fact as they are not supported by evidence.
As to the propriety of the decision of the learned trial judge which found the appellant guilty of conspiracy, learned counsel contended that prosecution did not lead any evidence showing or establishing that appellant had any agreement with anybody to murder Raji Tiamiyu, Reliance was placed on Njovens vs. State (1973) 5 S.C. 171. It was argued that the learned trial judge misconceived the content of the supposed confessional statement made by the appellant to reach his conclusion that from the surrounding circumstances it could be inferred that, appellant with others agreed to kill Raji Tiamiyu. Counsel contended that exhibits 8 and 8A which formed the plank of the confessional statement purported to have been made by the appellant are incompetent. He urged the court to allow him adopt his argument under issue 2. That there was no basis to conclude that appellant was involved in any conspiracy. Learned counsel further submitted that prosecution did not lead any independent witness to show that:
i. Appellant was part of a pre-conceived agreement to kill Raji Tiamiyu.
ii. Appellant facilitated the coming into fruition of the agreement to kill Raji Tiamiyu.
It was further argued that the learned trial judge overlooked the evidence on record that, the decision to kill Raji Tiamiyu had long been taken before appellant came on to the scene, That the learned trial judge relied on a “non existing Oath not to reveal the decision to kill Raji Tiamiyu” That the consideration of the appellant’s case proceeded on a wrong footing which gravely influenced the thinking of the trial judge. Reference was made to the portion of the judgment at page 186 of the record. Counsel also referred to the statements of the appellant exhibits 8, 8A, 14 and 14A copied out on page 37 of the record and submitted that appellant did not confess or admit taking part in the kidnapping of the said Raji Tiamiyu. To support his contention that Raji Tiamiyu had already been kidnapped when appellant came in contact with the car in which the kidnapped man was kept, counsel relied on the statement of the appellant appearing on page 32-33 of the record and his testimony at page 126 of the record. That the mere fact that a person was present at the scene of a commission of a crime is not sufficient to say or conclude that he agreed to the commission of that offence, See Millar vs. State (2005) 8 NWLR (pt.927) 236. That there is no evidence to support the conclusion of the learned trial judge in convicting the 3rd accused/ appellant for conspiracy.
As to whether the prosecution had proved the allegation of murder beyond reasonable doubt learned counsel relied on the case of Aibangbee vs. State (1998) 1 ACLR Vol, 1 page 168 at 206 to determine whether the ingredients to be proved as laid down by the Supreme Court have been proved by the prosecution. Reliance was also placed on S.138 of the Evidence Act. Learned counsel submitted that prosecution did not call any oral evidence connecting the accused person with murder of the said Raji Tiamiyi. Counsel urged the court to expunge exhibit B and BA the alleged confessional statement of the appellant and relied on his submission under issue 2 which he urged the court to allow him adopt same. That exhibit 8 and 8A did not contain any statement by which the appellant admitted killing or participating in the killing of Raji Tiamiyu. That the findings and conclusion of the learned trial judge are perverse. Counsel relied on portion of the judgment appearing on page 195 of the record. Learned counsel submitted that in the statement of the appellant nowhere did he admit taking Oath of secrecy immediately before the deceased was led to where he was shot. That the conclusion of the trial judge as to Oath taking before the killing of Raji Tiamiyu cannot be justified. It was further argued that the learned trial judge wrongly invoked and relied on S.8 of the Criminal Code law of Oyo State in holding that, appellant was a participant in the act leading to the death of Raji Tiamiyu. It was submitted that reliance on the concept of common intention was most unwarranted. Counsel adopted his arguments on issue 3 and contended that there is no evidence whatsoever that, appellant had a foreknowledge or knowledge of the fact that other people had the intention of killing Raji Tiamiyu. That prosecution did not lead evidence to show that there was ever an agreement between him and other people to kill or do an unlawful act against Raji Tiamiyu. That the principle of law enunciated in Asimiyu Alarape vs. State (2001) FWLR (pt.410) 1872 at 1898-1999 relied on by the learned trial judge is inapplicable to the facts and circumstances of the present case. Learned counsel submitted that prosecution had failed to prove the charge of murder beyond reasonable doubt and the trial judge wrongly convicted the appellant.
Respondent’s counsel in his brief of argument contended that the various findings of fact made by the learned trial judge in relation to the offences of conspiracy and murder, for which the appellant was charged along with others, are justifiable and capable of rendering the appellant guilty of the offences. The findings numbered 1-23 are contained on pages 181-183 of the record. Learned counsel submitted that the findings were deduced from the testimonies of the witnesses called before the lower court by the respondent, the appellant and his co-accused persons, the additional evidence of DW1 and DW2 given at the locus in quo contained at pages 134-136 of the record. The learned trial judge reflected it in his judgment at page 183 para 2 of the record. Counsel also referred to the 4th and 5th findings of the learned trial judge contained at page 181 and the salient portions of the testimonies confirm the findings of the trial judge. The relevant portion of the testimony of DW1 is contained at page 120 lines 1-11 of the record, and page 721 lines 5-10 of the record, while the testimony of DW2 is at page 123 lines 1-9 of the record, that of DW3 is contained at page 126, 2nd to the last paragraph of the record of appeal. Learned counsel further contended that the 8th, 10th, 11th and 13th findings contained at page 182 of the record are justified by the testimonies of DW1 at page 119, paragraphs 3-5 and DW2 at page 123 paragraph 4 lines 4 – 8 of the record. Learned counsel maintained that the findings of the learned trial judge are in conformity with the evidence given by the witnesses before him, therefore the findings are justifiable. That the learned trial judge has a duty to make findings and decision, order or judgment based on the evidence adduced before him. Reliance was placed on Idiok vs. State (2008) All FWLR part 427 page 797 at 811 paras. A – B. It was also argued that, the findings of the learned trial judge which formed the basis of the judgment being challenged before this Honourable Court has not in any way occasioned miscarriage of justice or violation of any law or procedure. Counsel urged the court not to disturb the findings of the learned trial judge in the instant appeal. Reliance was placed on the cases of Ubani vs. State (2004) FWLR part 191 page 1533 at 1552 paras. A – B and Fannami vs. Bukar (2004) All FWLR (part 198) 1210 at 1270 paras A-E. Counsel further argued that the finding of the learned trial judge is not perverse. See Awudu vs. Daniel (2004) All FWLR part 225 page 10 at 36 para A.
In order to determine whether or not the appellant was properly charged, tried and convicted for the offences of conspiracy and murder, counsel submitted that an appraisal of the testimonies of the prosecution witnesses and DW1 – DW3 is necessary. Counsel referred to the testimonies of PW1, PW2, PW3, PW4 and PW7 as well as DW1 – DW3. Learned counsel also referred to the pieces of evidence which cleared any doubt as to the criminal liability for the offences charged. The relevant pages are page 126 paragraph 2 of the record, paragraph 4 of same page 126; page 127 paragraph 1 of the record; page 127 paragraph 3 of the record; paragraph 5 of same page and 126 paragraph 1 of the record. It was submitted that from the various testimonies of the appellant referred to the following inferences could be deduced namely;
1. He connived and/or conspired with the 1st, 2nd and other accused persons now at large to kidnap and assassinated the late Raji Tiamiyu.
2. He was at the strategic point of the scene of the crime to aid the other accused person to carry out the murder of the deceased.
3. He had common intention with other accused persons to murder the late Raji Tiamiyu.
As regards the charge of conspiracy leaned counsel submitted that it is clear from the available evidence tendered during trial, both oral and documentary that the appellant’s denial of his involvement is a mere evasive denial and this made the trial court not to believe him.
The learned trial judge is entitled to believe or disbelieve any witness who testified before him, having had the privilege of watching the demeanour of such witness(es). See Adelumola vs. State (1988) 1 NWLR (pt.73) 683 ratio 1, Learned counsel also spotted discrepancy in the testimony of the appellant and his statement to the police exhibit 8A as regards his mission to the house of the deceased OPC member. Learned counsel submitted that in view of the material contradiction in the testimony of the appellant and cogent circumstantial evidence linking him with the offence of conspiracy with other accused persons, the irresistible conclusion that can be made is what was decided by the learned trial judge that the appellant has common intention with other accused persons to commit the offence of conspiracy and was accordingly found guilty of committing same. Reliance was placed on Buje vs. State (2001) 4 NWLR (Pt.85) page 286 at 298 paras. A and C and Oyakhire vs. State (2007) All FWLR (pt. 344) 7 at 12-74. Learned counsel contended that prosecution successfully proved the offence of conspirary as charged as it could be inferred from the circumstances that the appellant together with his co-conspirators conspired with one another to assassinate the late Raji Tiamiyu. See Ikeke vs. State (1999) 2 NWLR (Pt.590) 247 at 250 ratio 1-4.
As regards the charge of murder learned counsel submitted that the law has laid down certain conditions which prosecution must prove beyond reasonable doubt, Counsel referred to the conditions laid down in Idowu vs. State (2000) 80 LRCN page 2788 at 2791 ratio 3. Learned counsel submitted that all the conditions have been proved by the prosecution beyond reasonable doubt. That appellant was present at a strategic point at the scene of crime with a view to aiding the commission of the murder of the deceased by his co-conspirators so that the secret of this unlawful act will not be revealed. This automatically qualifies the appellant to be a party to the commission of the offence of murder. See Buje vs. State (1991) 4 NWLR (Pt.185) 287 at 289-290 ratio 2 and 4. Learned counsel concluded his submission that the conviction of the appellant for the offence of murder by the learned trial judge based on cogent and positive circumstantial evidence adduced by the prosecution during trial and/or observation of the learned trial judge when he visited the locus in quo is lawful, proper and justifiable and so he urged the court to so hold. Reliance was placed on Kim vs. State (1991) 2 NWLR (pt.175) 622 at 634 para C; Oduneye vs. State (2001) 83 LRCN 1 at 24 para E and Aigbadion vs. State (2000) 7 NWLR (pt.666) 686 at 688 ratio 1.
The question is whether the prosecution adduced cogent and credible evidence before the trial court to justify the conviction of the appellant for the offences of conspiracy to commit murder and murder.
Conspiracy is accepted as an agreement of two or more persons to do an act which it is an offence to agree to do. As direct practice, evidence of plot between conspirators is hardly capable of proof. The courts establish the offence of conspiracy as a matter of inference to be deduced from certain criminal acts of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence, and the meeting of the minds need not be physical. The offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. See Nwosu vs. State (2004) 15 NWLR (Pt.897) 466; Oduneye vs. State (2001) 2 NWLR (pt.697) 311; Obiako vs. State (2002) 10 NWLR (pt.776) 612 and Adejobi vs. State (2011) (Pt.1261) 347.
The learned trial judge relied on exhibit 8 and 8A appellant’s statement to the police and his testimony in court in coming to the conclusion that appellant conspired with his cohorts to kill the person that was kidnapped. I earlier resolved under issue 2 that exhibit 8 and 8A are admissible in evidence and the learned trial judge rightly relied on same in determining the culpability or otherwise of the appellant as regards the alleged offences charged. I find it necessary to first reproduce the findings of the learned trial judge relating to the charge of conspiracy appearing at page 186 of the record.
The learned trial judge had this to say:
“The 3rd accused is Mukaila Salawu. He made a statement to the police in which he fiated his role in the kidnapping and execution of the deceased. He admitted following a gang of OPC members from Ogbomoso, i.e. the house of late Alfa Kasali Shittu (where he said he went to condole the family) to a distance of over six Kilometres from Ogbomosho town where the victim was killed, He was present and acted along or in concert with the other gangs of OPC members in taking the late Raji Tiamiyu to a place in the bush at the out skirt of Ogbomoso town. He took part in both the Oath taking before the execution and after the execution. It is also in evidence, which I believe, that he never reported the killing of the victim which was done in his presence to any law enforcement agent. He infact ran away from the town along with the other accused persons and was arrested about five months after the incident.
The 3rd accused is also a member of the OPC, I am unable to agree with the submission of the learned counsel to the 1st, 2nd and 3rd Accused person that there was no common intention of Accused persons to kill the victim in the light of the overwhelming evidence relating to the acts and conducts of the 1st, 2nd and 3rd Accused persons on the day of the incident (i.e 27th November, 2002).
The fact that the 3rd Accused person joined others in taking Oath of secrecy to conceal what was to be done before the killing and another Oath to conceal what was done after the killing are enough evidence of not only connivance or agreement to kill the victim and conceal the killing, but also to perpetually conceal the unlawful killing.
I therefore hold that the conducts and acts of the 3rd Accused person are such upon which an agreement or meeting of minds between him and the 1st and 2nd Accused persons and others now at large, to effect an unlawful purpose of killing Raji Tiamiyu could be inferred.
I therefore reject his evidence that he never conspired with the others to kill the late Raji Tiamiyu. I am of the view that the prosecution has established the case of conspiracy to commit murder against the 3rd Accused. I find him guilty as charged. He is accordingly convicted on the first count of conspiracy.”
The appellant in his statement to the police made on 27/4/2003 i.e exhibits 8 and 8A which relevant portion of same is reproduced on page 180 of the record, narrated the role he played and other accused persons regarding the killing of the said Raji Tiamiyu (deceased). The relevant portion of the statement appearing on page 180 of the record read thus:-
“…………………………………………………………….
on the 26th November, 2002, at about 6.00 p.m., I was on my farm at Molete area when I heard that the OPC had engaged the police in gun fight in the Ogbomoso town. I heard several gunshot and I came back home, I then heard through people that Alfa Kasali died in the process. On the 27th November, 2002 at about 8.00 a.m I went to Baaki area to greet the mother of Kasali about the death of her son. When I was there at Baaki, I saw a vehicle painted Taxi colour but cannot know the registration number. When I got to the vehicle, I met Oluwole ‘m’ who said I should board a motorcycle and be following him with other in the taxi. There in the vehicle, I saw Waheeb Balogun alias “Femujeba”. We passed Randa road to a distance along Onitirin village. At a point by Odo-Oba River, I was asked by Oluwole and Dauda to stop there while they went into the bush with a man kidnapped. I never knew him to be a police man then I suddenly heard a gunshot. Oluwole and Dauda and Taiwo were all carrying guns. When they came back, they said they had killed him but I didn’t ask who the person was. We then boarder our motorcycles and started coming back to the town. Along the line, while going Waheed “Femujaba” said the secret might linked (sic) and took us to his house at J.K’s compound opposite the seminary, Ogbomoso and all of us including the Okada men and the taxi driver swore that we shall never reveal the secret that whoever reveals shall die…”
Appellant gave evidence on his own behalf as DW3 and stated that they were at the scene of crime with DW1 and DW2 and they took Oath of secrecy twice to conceal the assassination of Raji Tiamiyu, The testimony of the appellant (DW3) appeared on pages 125-128 of the record. The pieces of evidence extracted by Respondent in its brief of argument at pages 17-19 are relevant. From the evidence adduced before the trial court both oral and documentary it could inferred from the circumstances that appellant conspired with the other co-accused to kill the victim Raji Tiamiyu. The conduct of the appellant revealed that he had common intention with the other accused persons to murder the late Raji Tiamiyu. Appellant was at the strategic point of the scene of crime to aid the other accused persons to carry out the murder of the deceased. I cannot fault the findings of fact arrived at by the learned trial judge which was reproduced (supra). Appellant did not call the Okada men who took him and other accused to the scene to confirm the circumstances under which they went to the scene and Oath administered on them. As rightly observed by respondent’s counsel appellant’s denial of his involvement is a mere evasive denial and trial court was entitled to disbelieve him, having watched his demeanour in the witness box. A trial court has the liberty and privilege to believe one side and disbelieve the others. See Adelumola vs. State (1988) 1 NWLR (pt.73) 683 ratio 1. From the totality of the evidence adduced it is my considered view that prosecution successfully proved the offence of conspiracy as charged. The appellant together with his co-conspirators acted under circumstances through which it can undoubtedly be inferred that they conspired with one another to assassinate the late Raji Tiamiyu. The learned trial judge in my humble view rightly convicted the appellant for committing the offence of conspiracy. See Buje vs. State (2001) 4 NWLR (Pt.185) page 286 at 298 para A-C; Okeke vs. State (1999) 2 NWLR (pt.590) 247 at 250 ratio 1-4, Oyakhire vs. State (2007) All FWLR (pt.344) 1 at 12-14 and Iyaro vs. State (1988) 1 NWLR (pt. 69) 256 at 266-267.
As regards the charge of murder, the prosecution is equally required to prove same beyond reasonable doubt. It is trite law that in a charge of murder, the essential ingredients that the prosecution must establish in order to succeed are:-
(a) That the deceased has died;
(b) That the death of the said deceased has resulted from the act of the accused;
(c) That the act of the accused was intentional with knowledge that death or grievious bodily harm was its probable consequence, See:- Akinfe v. State (1988) 3 NWLR (Pt.85) 729; Ogba v. The State (1992) 2 NWLR (Pt.222) 164 at 198; Onah v. The State (1985) 3 NWLR (Pt.12) 236; Miller V. State (2005) 8 NWLR (Pt.927) 236 at 263 and Buje v. State (supra) 299.
The prosecution cannot succeed in establishing the guilt of the accused charged with murder, as in this case, unless it not only established the cause of death but established in addition thereto that the act of the accused person caused the death of the deceased. See: – Gbadamosi v. The State (1992) 9 NWLR (Pt.266) 465 at 478; Ekpe v. The State (1994) 9 NWLR (Pt.368) 263 at 269 and Bakare v. The State (1987) 1 NWLR (Pt.52) 579.
In the instant case, then is no doubt whatsoever that the deceased died. As rightly observed by the learned trial Judge, it is evident from the evidence of the 1st, 2nd and 3rd accused persons that a person referred to by them as a Traffic warden by name Raji Tiamiyu was shot dead. The 1st accused on 25th of April, 2003 led a team of police detectives to the scene of the killing of Raji Tiamiyu and showed them the remains of the burnt bones of Raji Tiamiyu which were taken to the State Hospital, Ogbomoso where the Doctor (PW3) confirm them to be the bones of a male adult. PW6 wife of deceased confirmed that since 27/11/02 she did not see her husband.
On the question whether the death resulted from the act of the appellant, the submission in the appellant’s brief was that the prosecution did not call any oral evidence connecting the appellant with the murder of the said Raji Tiamiyu. The appellant in both his statement to the police exhibit 8 and 8A and his testimony in court did not deny being present at the scene of crime. He only denied active participation in the real killing of the deceased. Appellant also admitted following the other assailants for over a distance of six kilometers from the town to the scene of crime. Appellant also admitted taking Oath of secrecy with other co-accused persons immediately before the deceased was led to where he was shot and later in the house of the 2nd accused at J.K’s house, opposite seminary, Ogbomoso after the killing of the deceased. At page 195 of the record the learned trial Judge gave other reasons why he believed the prosecution that appellant and 1st and 2nd accused persons were members of the gang of OPC members, who kidnapped the deceased from Ogbomoso town and took him to a place called Onitirin in the outskirt of Ogbomoso where he was killed.
Furthermore, at page 196 the learned trial Judge found as follows:-
“Having accepted the evidence of the fact that it was the shot fired by the 1st accused from a single barrel gun that caused the death of the deceased, I am bound to hold further and I so hold that by virtue of the provisions of Section 8 of the Criminal Code, Law of Oyo State Cap 30 of 1978, the 2nd and 3rd accused persons who formed the common intention to kill the deceased and were actually present at the scene of Crime must be found equally guilty of the offence of murder. I hold that the 2nd and 3rd accused persons from the available evidence before the court particularly of the fact that 1st accused and others were carrying guns on the day of the incident the 2nd and 3rd accused persons are also liable to be found guilty of the offence of murder by virtue of the provisions of section 8 of the Criminal Code, Cap 30, Laws of Oyo State 1978.
I am fortified in this holding by the decision of the Supreme Court in the case of Asimiyu v. The State (2001) FWLR (Pt.41) 1872 at 1898 – 1999 where Iguh JSC said:-
“the point that needs to be emphasized in these sorts of cases is that once it is firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose and in the prosecution of such purpose an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose is committed, each of them is deemed to have committed the offence, in such circumstances, the court once the execution of the Common intention or design is established, would be right in asserting that it does not matter on such facts which of the accused person does what. This is for the simple reason that under such circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have been given by the rest of his co-accused persons. The person actually delivering the blow is said to be no more than the hand by which the others all strike.” See:- also Igaiegh Atenyi V. the Queen 1955 WACA 34 and Ofor v. The Queen (Supra).
I therefore hold that all the ingredients of the offence of murder has been established against the 2nd and 3rd accused. The 2nd accused Waheed Balogun and the 3rd Accused, Mukaila Salawu are accordingly found guilty of the offence of murder as charged. They are accordingly connected of murder of Tiamiyu Raji as charged.”
Having regard to the circumstances of the case, I am of the humble view that the findings of fact reproduced (supra) made by the learned trial Judge are not perverse. As rightly submitted by respondent’s counsel appellant was present at a strategic point at the scene of crime with a view to aiding the commission of the murder of the deceased by his conspirators so that the secret of this unlawful act will not be revealed. This automatically qualifies the appellant to be a party to the commission of the offence of murder. See:- Buje v. State (1991) 4 NWLR (Pt.185) 287 at 289-290 ratio 2 and 4.
From the available evidence on record it is evident that the appellant and his co-accused persons both 1st and 2nd accused persons and those at large, shot the deceased with gun before he was later burnt beyond recognition. PW2 and PW3, photographer and the medical doctor testified before the lower court to the effect that the remnants of the burnt body of the deceased were worked upon by them. This goes a long way to show that the appellant and his co-conspirators killed and/or inflicted grievous bodily harm on the deceased. The conduct of the appellant clearly implicated him and he did not offer acceptable explanation as to why he was at the scene of crime. I agree with the submission of respondent’s counsel that the conviction of the appellant for the offence of murder by the learned trial Judge based on cogent and positive circumstantial evidence adduced by the prosecution during trial and the observation of the learned trial Judge when he visited the locus in quo is lawful, proper and justifiable. I so hold. I am satisfied that prosecution proved the offence of murder beyond reasonable doubt.
In the result and for the reasons stated herein above; I hereby resolve all the three issues against the appellant.
On the whole and from the totality of the evidence adduced, it is my considered view that the appeal lacks merit and is accordingly dismissed. Appeal dismissed. The conviction and sentence passed on the appellant on 14th July, 2005 by the Oyo State High Court are hereby affirmed.
MODUPE FASANMI, J.C.A.: I had the privilege of reading the lead judgment of my learned brother A. G. Mehelia J.C.A, in which I agree entirely and adopt as mine.
I agree that the appeal is devoid of merit and hereby dismiss it. I abide by the consequential orders contained in the lucid judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I respectfully agree with the judgment just pronounced by my learned brother, Mshelia, J.C.A.
Appearances
H. O Afolabi with O. O. Ogwezzy (Mrs) and J. O. Abdulsalam Esq.For Appellant
AND
L. A. Ganiyu D. L. D (Director Legal Drafting) Oyo State Ministry of Justice with Adegboyega Salawu S. L. O. (Senior Legal Officer)For Respondent
