OGBANJE v. STATE (2020)

OGBANJE v. STATE

(2020)LCN/15485(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/MK/2C/2019

RATIO

WORDS AND PHRASES: CONSPIRACY

Conspiracy is an agreement between two or more persons to plan an unlawful act or carry out a legal act through illegal means. It is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful act coupled with intent to achieve the objective of the agreement; State v Salawu (2011) LPELR-8252(SC); Adeleke v State (2013) LPELR-20971(SC); Bouwor v State (2016) LPELR-26054(SC); Kayode v State (2016) LPELR-40028(SC); Oduneye v State (2001) LPELR-2245(SC); Okoh v. The State (2014) LPELR-22589(SC); Adepoju v. The State (2018) LPELR-44355(SC).
Black’s Law Dictionary, Ninth Edition, page 351, defines conspiracy as:
An agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and…action or conduct that furthers the agreement; a combination for an unlawful purpose.
Ingredients of the offence of criminal conspiracy, which the prosecution must establish are:
1. That there was an agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy.
A charge of conspiracy is a totally separate offence from the completed offence. Thus, the offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted; Taiye v. State (2018) LPELR-44466(SC). As is the case in all criminal trials, the burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence. The charge can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence; Orisa v State (2018) LPELR-43896(SC). The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person; Orisa v State (supra). Recognizing the difficulties that could be encountered in proving conspiracy, Peter-Odili, JSC in Kayode v State (supra) at page 67 of the E-Report commented:
“It is because of the uniqueness of conspiracy and the fact that it is near impossible at times to establish it by direct evidence that it is usually proved through inference of the facts and circumstances of each case.” PER ONYEKACHI AJA OTISI, J.C.A.

ALIBI: CIRCUMSTANCE IN WHICH A PLEA OF ALIBI MAY BE DEMOLISHED

The settled position of the law is that a plea of alibi is demolished if the prosecution adduces compelling and sufficient evidence to fix the accused person at the scene of the crime at the material time; Smart v The State (2016) LPELR-40827(SC); Ezekwe v The State (2018) LPELR-44392(SC) Obakpolor v State (1991) 1 NWLR (165) 113; Abudu v The State (1985) 7 N.W.L.R. (Pt.1) 55. The evidence of PW3, PW4 and PW5 all fixed the Appellant at the locus criminis. PER ONYEKACHI AJA OTISI, J.C.A.

CRIMINAL PROCEEDINGS: WHETHER THE EVIDENCE OF A SINGLE WITNESS IS SUFFICIENT TO SECURE THE CONVICTION OF A PERSON

It is established that in criminal proceedings, the evidence of a single witness, if found to be cogent and credible is sufficient, without more, to secure the conviction of a person accused of committing a crime, except where the evidence is such that requires corroboration by law. Such evidence must be credible and must point irresistibly to the guilt of the accused person; Mohammed v. The State (2019) LPELR-46420(SC); Bassey v State (2019) LPELR-46910(SC); Ogu v COP (2017) LPELR-43832(SC); Olakunle v. State (2017) LPELR-48000(SC); Shurumo v. State (2010) LPELR-3069(SC). PER ONYEKACHI AJA OTISI, J.C.A.

EV IDENCE: DETERMINING WHETHER A CONTRADICTION MAY RENDER THE EVIDENCE OF AWITNESS UNRELIABLE

A contradiction that would impugn the evidence of a witness and render it unreliable must be material and relevant to the issue sought to be resolved. It is settled law that it is only discrepancies of such magnitude and relevance that constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice, that impacts negatively on the case of the party who relies on such evidence. Therefore, the contradiction in the testimony of a witness, which will be mortal to the case of the prosecution, must be substantial and must go to the root of the charge before the Court.

It must be one that touches an important element of what the prosecution needs to prove in the case; Princent & Anor v. The State (2002) LPELR-2925(SC); Dibie & Ors v. State (2007) LPELR-941(SC); Shurumo v. State (2010) LPELR-3069(SC); Ukpong v. The State (2019) LPELR-46427(SC). Minor discrepancies that do not affect the credibility of a witness may not be fatal; Uche v. State (2015) LPELR-24693(SC); Idi v The State (2017) LPELR-42587(SC). PER ONYEKACHI AJA OTISI, J.C.A.

CRIMINAL PROCEEDING: BURDEN OF PROOF

It is well settled in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt;Ogundiyan v. State (1991) LPELR-2333(SC), 1991] 1 NSCC 448. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence; Ayinde v. The State (2018) LPELR-44761(SC). Abokokuyanro v. The State (2016) LPELR-40107(SC) The State v. Musa Danjuma (1997) LPELR-3216(SC). An accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended.
A plethora of judicial pronouncements have sought to clarify what is implied in a proof beyond reasonable doubt. It is well settled that the expression beyond reasonable doubt does not mean beyond any shadow of doubt or that of absolute certainty, as would be found in the realm of heavenly trials, per Acholonu, JSC in Shande v State (2005) 12 MJSC 152; (2005) LPELR-3035(SC). It also does not mean proof to a scientific certainty, per Muhammad, J.S.C. (now CJN) in The State v. Azeez (2008) 4 S.C. 188. The explanation for this expression as proffered by Denning J. in the case of Miller V. Minister of Pensions 1947 2 All E.R. 372 at 373 and cited with approval in Agbo v. State (2006) 1 S.C. (PT. II) 73, (2006) LPELR-242(SC) at page 48 of the E-Report, was as follows:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
In Shande v State (supra) an explanation for the phrase proof beyond reasonable doubt was expressed by the noble Lord, Pats-Acholonu, JSC in this manner, page 19 of the E-Report:
“…proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”
See also: Agbo v. State (supra); Udo v. State (2006) 7 S.C. (PT. II) 83.

‘Proof beyond reasonable doubt’ therefore simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed;Adelumola v State (1988) LPELR-119(SC), (1988) 1 NSCC 165; Afolalu v State (supra), (2010) 6-7 MJSC 187; Ime Idiok v. State (supra), (2008) 6 MJSC 36, (2008) 4-5 S. C. (Pt. I) 84. The evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required. Thus, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT. 1) 59.
The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement;

Circumstantial evidence.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act.
See: Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Udo v State (supra); Afolalu v State (supra); Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (supra). Also instructive are the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, which provides that:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.
Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1) 59. PER ONYEKACHI AJA OTISI, J.C.A.

ALIBI: BURDEN OF PROOF

A defendant standing trial for an offence is entitled to plead and rely on a number of defences available to him under the law to disprove criminal liability against him, citing Osuagwu v. The State [2017] All FWLR (pt. 872) 1475 at 1511; R v. Barimah 11 WACA 49, Al-Hassani v. State [2011] All FWLR (pt. 567) 747 at 764 to 765 (CA). A defendant who intends to raise a defence of alibi must raise the defence timeously and this connotes raising it at the earliest encounter with the police. Once a defendant raises an alibi, the law imposes a bounden duty on the police to investigate the alibi to discover the genuineness of the defence. Failure by the police to investigate an alibi will result in the acquittal of the defendant. Reliance was placed on Ikaria v. State [2013] All FWLR (pt. 671) 1463 at 1471 to 1478; Adebiyi v. State [2016] All FWLR (pt. 827) 739. PER ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: POSITION OF THE LAW WHEN THE ORAL TESTIMONY OF A WITNESS CONTRADICTS HIS EXTRA JUDICIAL STATEMENT TO THE POLICE

The law is trite that when the oral testimony of a witness contradicts his extra judicial statement to the police, both the statement and the testimony are to be treated as unreliable and discountenanced, relying on Ayeni v. State [2016] All FWLR (pt. 838) 917 at 1125 to 1126 (SC); Agbi v. Ogbeh (2006) All FWLR (pt. 329) 941. PER ONYEKACHI AJA OTISI, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

ISAAC ADAOFOYI OGBANJE APPELANT(S)

And

THE STATE RESPONDENT(S)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the Ruling and Judgment of the High Court of Justice, Benue State, sitting in Makurdi, delivered on 17/3/2017 and on 22/3/2017 Coram Hon. Justice I. Hwande, trial Chief Judge, wherein the Appellant was found guilty on a two count charge of conspiracy and culpable homicide under Sections 97 and 222 respectively of the Penal Code Law, Cap 124, Laws of Benue State 2004, and thereupon was convicted and sentenced to death by hanging.

The Appellant was alleged to have, in conspiracy with other persons, caused the death of one Lawrence Omanchi in Makurdi on 8/8/2013 The Appellant, among others, conspired, attacked and killed one Lawrence Oche Omanchi with axes, stones, sticks and other dangerous weapons. The Appellant raised the defence of alibi, stating that he was at the time of the incident at Otukpa in Benue State. The police did not investigate the alibi. At the conclusion of trial, the trial Court found Appellant guilty of the two-count charge and sentenced him to death.

Aggrieved by his conviction and sentence, the Appellant lodged a Notice of Appeal dated 28/3/2017. An Amended Notice of Appeal was, by leave of this Court filed on 20/5/2019 but deemed properly filed and served on 11/6/2020 on nine grounds of appeal.

The parties filed Briefs of Argument in line with the Rules. The Appellant’s Brief was filed on 20/5/2019 but deemed properly filed and served on 11/6/2020. The Respondent’s Brief was filed on 18/9/2020 but deemed properly filed and served on 19/11/2020. At the hearing of this appeal on 19/11/2020, the Briefs were adopted by B.O. Akinseye-George, Esq. (Mrs.) with A. C. Acheme, Esq. for the Appellant; and by E.L. Edia, Esq., S.S.C. M.O.J. Benue State.

The Appellant distilled three issues for the determination of this appeal:
(1) Whether the lower Court was right in refusing to admit the extra-judicial statements of PW4 and whether the rejection of this vital evidence did not affect the finding of the lower Court and thereby occasioned a miscarriage of justice to the appellant (Grounds 4 and 6).
(2) Considering the entire circumstances and evidence led at the trial, whether the lower Court rightly jettisoned the appellant’s alibi and whether the conviction and sentence of the appellant should not be set aside for lack of proper identification in the circumstances, (grounds 2 and 8).
(3) Having regards to the doubts created in the case of the prosecution, whether the respondent proved the offences charged beyond reasonable doubt, (grounds 3, 5, 7 and 9).
For the Respondent, a sole issue was formulated thus:
Whether the Lower Court rightly convicted and sentenced the Applicant appropriately having regard to the evidence before it (Grounds 1 – 9).

The issues canvassed by the Appellant are all subsumed in the sole issue distilled by the Respondent. I shall therefore adopt the sole issue as framed by the Respondent for the determination of this appeal.

Arguments of Counsel
PW4 was the mother of the deceased. The Appellant’s contention was that the evidence in chief of PW4 and under cross-examination were contradictory and further contradicted her extra judicial statement made on 9/8/2013. When the Appellant’s Counsel sought to tender three statements made by PW4 to the police including the statement of 9/8/13, the application was refused by the lower Court on the ground that the statements were not relevant. It was argued that, judging from the circumstances, the Ruling of the lower Court was made in error. The statements were made in connection with the subject matter of the proceedings and were tendered to impugn the evidence of the PW4, which identified the appellant as one of the assailants of her son, citing Section 7 of the Evidence Act 2011. The statements were tendered to contradict PW4 under cross-examination. It was submitted that the decision of the lower Court on this issue was perverse and ought to be set aside as grave injustice has been occasioned as a result. The main factor that determines the entitlement of a document to admissibility is relevancy; citing Blessing v. Federal Republic of Nigeria [2014] All FWLR (pt. 736) 564 at 587. On when a decision is said to be perverse, Counsel cited and relied on Osokoya v. Onigemo (2018) All FWLR (pt. 942) 424 at 460; Adebiyi v. State (2016) All FWLR (pt. 827) 739 at 749. The Court was urged to admit the said statements which are:
– Statement dated 9/8/2013;
– Additional Statement dated 1/9/2013; and
– Statement dated 12/2/2014.
It was submitted that rejection in evidence of the statements of PW4 affected the finding of the lower Court on the evidence of PW4. Counsel posited that the finding of the trial Court on the evidence of PW4 and PW3 would have been different, the trial Court would have discountenanced their evidence as the veracity of their testimonies would have been shown to be in serious doubt. It was submitted that PW4 was not a witness whose evidence should be relied upon to convict and sentence a human being to the gallows. The extra judicial statements of the PW4 contradict materially her oral testimony in Court. The law is trite that when the oral testimony of a witness contradicts his extra judicial statement to the police, both the statement and the testimony are to be treated as unreliable and discountenanced, relying on Ayeni v. State [2016] All FWLR (pt. 838) 917 at 1125 to 1126 (SC); Agbi v. Ogbeh (2006) All FWLR (pt. 329) 941.

Appellant’s Counsel further complained that the lower Court failed to uphold the Appellant’s defence of alibi despite the fact that the alibi was not investigated by the police and the prosecution witnesses both in their extra judicial statements and oral testimony in Court failed to present cogent and positive evidence identifying or fixing him to the scene of the crime. A defendant standing trial for an offence is entitled to plead and rely on a number of defences available to him under the law to disprove criminal liability against him, citing Osuagwu v. The State [2017] All FWLR (pt. 872) 1475 at 1511; R v. Barimah 11 WACA 49, Al-Hassani v. State [2011] All FWLR (pt. 567) 747 at 764 to 765 (CA). A defendant who intends to raise a defence of alibi must raise the defence timeously and this connotes raising it at the earliest encounter with the police. Once a defendant raises an alibi, the law imposes a bounden duty on the police to investigate the alibi to discover the genuineness of the defence. Failure by the police to investigate an alibi will result in the acquittal of the defendant. Reliance was placed on Ikaria v. State [2013] All FWLR (pt. 671) 1463 at 1471 to 1478; Adebiyi v. State [2016] All FWLR (pt. 827) 739.

Upon his arrest, the Appellant informed the police in his two extra-judicial statements of 12/2/14 (Exhibit E) and 13/2/14 (Exhibit F) that he was working at Otukpa with his mother when he heard of the death of the deceased who lives in their neighborhood. The alibi was corroborated by DW1, the mother of the appellant in her statement (Exhibit D). But the police neglected to investigate the alibi. It was submitted that this failure created a gap in the case of the prosecution, leading to doubts which ought to be resolved in favour of the accused, citing the decisions inOzaki v. State [1991] 221 NSCC (pt. 1) 79 at 101; Ataloye v. State [2013] All FWLR (pt. 664) 55. The Appellant ought to be set free upon the consideration of this issue since there was no evidence that was cogent and positive enough to fix the Appellant on the scene of crime. In this regard, the Court was also urged to interrogate the evidence relied upon by the trial Court to arrive at the conclusion that the Appellant was properly identified by the prosecution witnesses, particularly the evidence of PW3, PW5 and PW6. Counsel for the Appellant relied on a number of judicial pronouncements on this issue including:Usman Sheu v. State [2018] All FWLR (pt. 920) 179; Adisa v The State (1991) 1 NWLR (PT 168) 490; Osuagwu v. The State (supra). The Court was urged to hold that the Appellant was not properly identified by the prosecution.

It was finally submitted, relying on a number of authorities, that the prosecution did not prove the case against the Appellant beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011. The Court was urged to set aside the judgment of the trial Court.

For the Respondent, the established three ways of proving the guilt of an accused person were stated:
1. Confessional statement
2. Evidence of eye witness
3. Circumstantial evidence that pins the accused to the crime; relying on Blessing v Federal Republic of Nigeria (2013) 12 WRN 36.

Counsel submitted that the offence of Criminal Conspiracy is hinged on the agreement between two or more persons to do an illegal act or to do an act which is legal by illegal means. That in the instant case, there was ample evidence on record that the Appellant conspired with others at large to kill and actually killed the deceased, Lawrence Oche Omanchi. The testimonies of PW3, PW4 and PW5 were relied on.

Mrs. Edia for the Respondent submitted that that the evidence before the trial Court showed that the prosecution proved it case beyond reasonable doubt as every ingredient of the offences of Criminal Conspiracy and Culpable Homicide punishable with Death Contrary to Section 97 and 222 of the Penal Code Law CAP 124, Laws of Benue State (Revised Edition) 2004 were satisfied. Citing and relying on Oludamilola v The State (2011) VOL 9 LRCNCC 20 at 23, it was submitted that for the prosecution to succeed in a charge of culpable homicide punishable with death, it must prove that;
ii. Death of a human being has actually taken place.
iii. Such death was caused by the accused.
iii. The act was done with the intention to cause death or that the accused knew or had reason to know that death should be the probable and not only the likely consequence of his act.
The decisions in Idiok v The State (2010) VOL 8 LRCNCC 96 at 99; Adava & Anor v The State (2006) VOL5 LRCNCC 66 at 73 were also relied on. The prosecution had proved these ingredients.

Mrs. Edia posited that the prosecution witnesses were witnesses of truth with no contradictions in their evidence. It was submitted, assuming but not conceding that there was any contradiction in the testimonies of prosecution witnesses, that not every contradiction will affect the substance of a case and thus lead to a judgment being disturbed. It would only be contradictions that affect an essential element of the offence charged, which the prosecution is expected to prove that will be fatal to the case of the prosecution, relying on Dibie v The State (2007) ALL FWLR (Pt 363) 84. In the instant case, there was no contradiction affecting the elements of the offence which the Respondent was expected to prove. The Court was urged to hold that the Respondent proved its case beyond reasonable doubt and that the trial Court was right in its decision to convict and sentence the Appellant.

Further, it was submitted, relying on Section 251(2) of the Evidence Act 2011, that the wrongful exclusion or rejection of evidence will not of itself be a ground for the reversal of a judgment if it appears to the Court on appeal that the decision would reasonably have remained the same had the evidence been admitted. Respondent’s Counsel submitted that there was no contradiction in the testimony of PW4. It was further submitted that the trial Court rightly jettisoned the Appellant’s alibi, which defence was not available for the Appellant. The defence of alibi crumbles upon pinning the accused to the scene of crime. Relying on Afolalu v The State (2010) 16 NWLR (PT 1220) 584; Olaiya v The State (2010) 3 NWLR (Pt 1181) 423. Counsel referred to the evidence of PW3, PW4 and PW5 in which the Appellant was positively identified. In order to take advantage of the defence of alibi, the accused person must give detailed particularization of his whereabouts on the crucial day of the offence which will include not just the specific place where he was but additionally, the people in whose company he was and what, if any, transpired at the said time and place. The Appellant in his statements, Exhibit E and F, attempted to put up a defence of alibi but the defence was not properly put to enable prosecution investigate same. Where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make-believe of plea of that defence, and which are completely devoid of material facts worthy of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation, Udo Ebre v The State (2001) 5 FWLR (PT. 59) 1244 at 1258. It was submitted that the alibi given by the Appellant was vague and was devoid of any material facts. The trial Court could not rely on it, citing Ibrahim v The State (1991) 5 SCNJ 129.

Counsel submitted that the expression “beyond reasonable doubt” does not mean “beyond every shadow of doubt”, relying on Abeke v The State (2008) VOL 6 LRCNCC 110 at 124. The Respondent having established the guilt of the appellant by credible evidence, met the standard of proof required under Section 139(1) of the Evidence Act, 2011 and the trial Court was right in convicting the Appellant. The Court was urged to dismiss the appeal.

Resolution
It is well settled in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt;Ogundiyan v. State (1991) LPELR-2333(SC), 1991] 1 NSCC 448. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence; Ayinde v. The State (2018) LPELR-44761(SC). Abokokuyanro v. The State (2016) LPELR-40107(SC) The State v. Musa Danjuma (1997) LPELR-3216(SC). An accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended.
A plethora of judicial pronouncements have sought to clarify what is implied in a proof beyond reasonable doubt. It is well settled that the expression beyond reasonable doubt does not mean beyond any shadow of doubt or that of absolute certainty, as would be found in the realm of heavenly trials, per Acholonu, JSC in Shande v State (2005) 12 MJSC 152; (2005) LPELR-3035(SC). It also does not mean proof to a scientific certainty, per Muhammad, J.S.C. (now CJN) in The State v. Azeez (2008) 4 S.C. 188. The explanation for this expression as proffered by Denning J. in the case of Miller V. Minister of Pensions 1947 2 All E.R. 372 at 373 and cited with approval in Agbo v. State (2006) 1 S.C. (PT. II) 73, (2006) LPELR-242(SC) at page 48 of the E-Report, was as follows:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.

2. Circumstantial evidence.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act.
See: Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Udo v State (supra); Afolalu v State (supra); Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (supra). Also instructive are the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, which provides that:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.
Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1) 59.

The Appellant was convicted and sentenced pursuant to the provisions of Section 222 of the Penal Code Revised Edition, Laws of Benue State, 2004, which provides:
Culpable homicide shall be punished with death –
(a) If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
The elements to be proved by the prosecution, beyond reasonable doubt, are: –
(a) That the deceased died.
(b) That the death of the deceased resulted from the act of the Appellant.
(c) That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.
See: Abogede v. State (1996) 5 NWLR (Pt. 448) 270; Ogba v. State (1992) 2 NWLR (Pt.222) 164 at 198; Igabele v State (supra); Nwaeze v State (1996) 2 NWLR (Part 428) 1; Gira v. State (1996) 4 NWLR (PT 443) 375; Edoho v State (2010) 4 MJSC (PT. 1) 1. The Appellant asserts that the elements of the offence were not proved beyond reasonable doubt. The Respondent asserts otherwise. The evidence adduced must now be examined to see if the conclusions of the trial Court were in line thereto.
(a) That the deceased died
It was not disputed that the deceased, Lawrence Oche Omanchi, died on 8/8/2013. He did not die naturally. PW6 was a police officer with “D” Division. Upon a report made to them by PW1, the father of the deceased, they evacuated Lawrence from the scene of the incident. PW6 testified that while doctors were attending to Lawrence, he died.
(b) The death of the deceased resulted from the act of the Appellant.
PW3, Oche Thomas Onogwu, was an eye witness to the incident. He testified, page 86 of the Record of Appeal:
“Some three boys came where I was still trying to on the generator set and asked about my brother. I told them he is inside. They said his cup is filled and they were waiting for him outside. When Lawrence came out I rushed to go and see what was happening. When Lawrence came out the boys started hitting him with stones, cutlasses and other dangerous objects. Mrs. Omanchi came out and asked the boys to leave Lawrence alone.
The boys pushed away Mrs. Omanchi. The boys hit Lawrence and he collapsed…My father asked me if I know any of the boys and I said yes. I told my father that I know the house of Adaofoyi who was among the boys. The accused in Court is the Adaofoyi I am talking of. I saw him among the boys that were hitting the deceased…
It was accused that pushed my mother down when she pleaded that the boys should leave Lawrence alone…
I knew the accused person before 8/8/2013. He use (sic) to come and drink in the shop of Mama Junior in front of our house.”

Under cross-examination, he maintained that the Appellant was well known to him. He admitted he did not mention the name of the Appellant in his first statement to the police on 8/8/2013. But in his second statement made on 12/2/2014, after the Appellant had been arrested, he mentioned his name.

In re-examination, PW3 said he did not mention the name of the Appellant to the police but that he told the police that if he saw the Appellant, he would recognize him.

PW4 was Mrs. Rosemary Oyita Omanchi, the mother of the deceased. She testified, page 88 of the Record of Appeal:
“Some two boys started beating my son. The accused was among the boys who started beating my son…I used to see the accused in the shop but I did not know his name before this incident. I only knew he was one of the boys living within our area.
I gave three statements to the police since I reported this matter. It is time(sic) I earlier said I was unable to identify the suspects because I was afraid there(sic) were going to attack me if I mentioned their names.”
(Emphasis mine)

PW4 made statements to the police on 9/3/2013, 1/9/2013 and on 12/2/2014. In her statement made on 9/3/2013, page 43 – 44 of the Record of Appeal, she told the police:
“For now I don’t know them, and I cant identify any of them because it was dark, exception of the welder who came to the house earlier…”

In her further statement on 1/9/2013, page 45 of the Record of Appeal, PW4 said:
“I earlier said I don’t know any of those who came to my house as it was night and dark, but my son Oche Thomas Unogwu ‘M’’ who was outside and saw three of them who came and left message with him for my late son Lawrence that, he should tell him his cup is already filled and they were going to come back and not long they came and killed him, when he saw him, he told me and his father (my) husband that he was among those who killed Lawrence. He is able to identify one of them …and that was why and how police came and arrested him. He identified himself as Peter. My son, Thomas ‘m’ still said those who are not yet arrested, if he sees them he can identify them…”

In her statement made on 12/2/2014, page 38 of the Record of Appeal, PW4 now mentioned the name of the Appellant. She said:
“I wish to state that I have recognized the suspect, Adaofoyi Isaac Ogbanje (ZICO) as one of those that came to kill my son in August 2013. I know him very well because he in the company of other boys come to my house to drink hot drink in the shop a woman sales(sic) in my house on daily basis. This is a boy that lives around my house. On that faithful (sic) day, I begged him and he pushed me off.”

Under further cross examination, PW4 reiterated that she did not know the name of the Appellant before the incident but she used to see him in their premises.

Mrs. Akinseye-George for the Appellant contended that the statements of PW4 were contradictory. That in her statements, nowhere was the name of the Appellant mentioned by the PW4 until her statement made on 12/2/2014, after his arrest by the police. Counsel argued that the contradiction is material enough to impugn her testimony as being unreliable. Counsel also contended that the evidence of PW3 was also in contradiction with the evidence of PW4.

On the application to tender the extra judicial statements made by PW4, the Learned trial Judge ruled, page 89 of the Record of Appeal:
“Court: the Court has noted the application of counsel to tender the statements made by PW4 to the police for the sake of contradicting this witness and the objection of the prosecutor to the application. The Court has noted that the statements made by the witness have been read and confirmed as correct by PW4.
PW4 has also answered that it was what she remembered at a particular time that she told the police at a single time.
I do not see the contradiction the counsel to the accused is insisting on bringing out again after his cross examination. I do not see the relevance of the statements being tendered as exhibit. The application to admit the said statements as exhibit is discountenanced.”

Upon a calm review of the statements made by PW4, the following thread is revealed:
1. She saw some boys beating her son, the deceased. She identified the Appellant as one of them and recognized him to be a boy living in their vicinity, who she used to see drinking in the shop of a woman who runs a drinking place in their premises.
2. She did not supply his name earlier to the police because she did not know his name at the time.
3. The Appellant was the one who pushed her off when she pleaded with them to leave her son, the deceased.

This thread runs through all three statements and was also in line with her evidence at the trial.
PW3 also testified that:
1. The Appellant was well known to him before the incident as someone who used to come and drink in a shop run by one Mama Junior in front of their house.
2. He also identified the Appellant as the particular boy who pushed PW4 down when she pleaded that the boys should leave Lawrence alone.
PW5 had also testified, page 92 of the Record of Appeal:
“The accused was already coming around our house before this incident. There is a shop close to our house and he used to come and drink in that shop.”

From the thread of the evidence of PW3 and PW4, and corroborated by PW5, they recognized the Appellant as someone who used to come to drink in a shop near their premises. PW3 and PW4 did not know his name. These witnesses were not cross examined on their evidence on how they recognized the Appellant. I see no material contradiction in the evidence of PW3 and PW4 or indeed in the evidence of PW4 on its own. There is therefore no reason to impugn her evidence and disturb the ruling of the learned trial Chief Judge made on 17/3/2016.

PW5, the brother of the deceased also testified in line with the evidence of PW3 and PW4. In other words, PW3, PW4 and PW5 were all eye witnesses to the beating of the deceased by the Appellant and other boys, which ultimately resulted in his death. I shall return to this point.

In his defence, the Appellant testified as DW2 while his mother testified as DW1. DW1 testified that on 8/8/2013, she and the Appellant were in Otukpa. She had gone with the Appellant to Otukpa in July, 2013 to build a house on her husband’s land in Otukpa as advised by her brother in law and the Appellant was assisting her. They stayed there in Otukpa till September, 2013. She said her daughter called her in the village and informed her that somebody was killed at Ankpa Quarters on a fight over handset. She further said under cross-examination, page 99 of the Record:
“The accused was the person who was up roofing(sic) trees on the land in the village. He was the one who mould(sic) bricks for the building…
I also brought other people and paid them to help the accused in building the house. I do not know the names of the people who helped my son in building the hose. I helped my son to uproot the trees and other people helped us also to uproot the trees. I do not know the names of the people who helped us in uprooting the trees…

Julius Ogbaje is same father with my husband. Julius Ogbanje was in the village in 2013 when I went there with the accused.”

DW2 was the Appellant. He knew the deceased who had lived in his neighbourhood but denied he knew anything about the death of the Appellant. He was aware some other persons were also standing trial before another Court for the same murder of Lawrence Omanchi. He denied that he knew who they were. The proceedings thereof were admitted as Exhibit G. He also said that on 8/8/2013 he was in the village working on his father’s land with his mother and some labourers.

Counsel for the Respondent invited the Court to note that the only witness of the accused was DW1, his mother, who had a personal interest in the case and desired to see her only son vindicated at all costs. Reliance was placed on the case of Ononuju v The State (2015) ALL FWLR (PT. 381) 1198 at 1221, where the Supreme Court per Alagoa JSC, citing Ukut & Ors v The State (1966) NWLR 18, per Bairamian JSC, stated:
“…where a witness has an interest to serve or protect, great caution should be exercised in acceptance, hook, line and sinker of his evidence.”
Let me clarify that the mere fact that DW1 was the mother of the Appellant does not, without more, make her evidence suspect. The fact that there is a blood relationship between a witness and the accused person is not sufficient to make the evidence of the witness unreliable. The evidence of a relation can be accepted, if credible or cogent enough to rule out the possibility of deliberate falsehood and bias. See also Omotola v. State (2009) LPELR-2663(SC), (2009) 7 NWLR (1139) 148. However, the Court would act on such evidence with due caution. Having clarified this point, I must observe that the evidence of DW1 and DW2 was not credible. I shall proceed to make my reasons for this observation.

In the first place, DW2 in his statements made on 12/2/2014 and 13/2/2014, Exhibits E and F, pages 14 – 16 and 18 – 19 of the Record of Appeal, simply stated that he was at Otukpa doing some work when he heard about the incident. The question is whether this information qualifies as an alibi that ought to have been investigated by the police.

When an accused person relies on the defence of alibi, he is simply saying that he was not at the scene of the crime when the offence for which he is charged was committed. It is the duty of the accused person at the earliest opportunity to raise this defence and to furnish the investigating authorities with comprehensive details of his whereabouts on the day the offence was committed. The defence of alibi must be precise and specific in terms of the place that the accused person was, person(s) that he was with, and possibly what he was doing at the material time. This is to ensure that the investigating authorities are not sent on a wild goose chase;Ochemaje v. State (2008) LPELR-2198(SC), (2008) 15 NWLR (Pt. 1109) 57; Ebre & Ors v. The State (2001) LPELR-995(SC); Ikumonihan v. State (2018) LPELR-44362(SC); Adegbite v. The State (2017) LPELR-42585(SC). Once this is done, the onus is on the prosecution to investigate the alibi, and the standard of proof required to establish the defence of alibi is one based on balance of probabilities.

The alibi given by the Appellant was simply that he was in Otukpa. No further details such as an address or description of the address, as well as the names of persons he was with, aside from his mother, DW1, were supplied. This information was certainly grossly insufficient and scanty to enable any reasonable investigation to be conducted by the police.

The Respondent also invited that Court to note that the Appellant who hails from the village he claims to have been at the time of the incidence did not mention any single person from his clan to identify that he was with him at the work site as a labourer. Indeed, I took note that DW1 and DW2 did not give the name of one single labourer or villager as having seen the Appellant in the village at the material time. I agree that it is undoubtedly curious to further note that even the Appellant’s Uncle, Julius Ogbanje, mentioned by DW1 as being the originator of the trip with the Appellant to the village in July 2013, was not part of the defence to save his nephew.
In his statement, Exhibit E, the Appellant stated that:
“…someone called my mother…to inform her but I don’t know the very person but somebody called her that they killed somebody at Anoka park which is not too far from our area.”
(Emphasis mine).
DW1 however said in evidence, page 98 of the Record of Appeal:
“As I was at home my daughter called me that somebody was killed at Ankpa Quarters on a fight over handset.”
(Emphasis mine)

The question is, was it his sister, the informant, that the Appellant, DW2 said he did not know? This cannot be the case. I see this contradiction as material.

The learned trial Chief Judge accepted the evidence of PW3, PW4 and PW5 that the Appellant was among the young men that attacked the deceased, Lawrence Omanchi, on 8/8/2013, resulting in his death. I agree with the learned trial Chief Judge that the evidence sufficiently identified the Appellant as part of the group of young men that attacked the deceased. From the state of the evidence adduced, I see no reason to disturb the conclusion of the trial Court on this issue.
(c) That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.

The question now is whether the Appellant acted intentionally with the knowledge that death or bodily harm would be the probable consequence of his action or whether the incident was accidental.

The evidence was that the deceased was heinously attacked with axes, sticks and stones. It was in evidence that his attackers first sent him a message through PW3 that his cup was full and that they were coming back. They attacked him viciously in the presence of his family members, who were unable to save him. There was overwhelming evidence that from the nature of the assault on the deceased, the Appellant and his group intended to cause grievous bodily harm and the death of the deceased resulted directly from their action. From the evidence adduced, they acted intentionally and with the knowledge that death would be the probable consequence of their action. The incident was not accidental. The inevitable conclusion to be reached is that death of the deceased resulted from the consequences of the intentional act of the Appellant and his group.

The elements of the offence of culpable homicide were therefore proved by the Respondent against the Appellant, beyond reasonable doubt.
Section 97(1) of the Penal Code, Laws of Benue State, provides:
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death or imprisonment shall, where no express provision is made in this Penal Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such Offence.
Conspiracy is an agreement between two or more persons to plan an unlawful act or carry out a legal act through illegal means. It is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful act coupled with intent to achieve the objective of the agreement; State v Salawu (2011) LPELR-8252(SC); Adeleke v State (2013) LPELR-20971(SC); Bouwor v State (2016) LPELR-26054(SC); Kayode v State (2016) LPELR-40028(SC); Oduneye v State (2001) LPELR-2245(SC); Okoh v. The State (2014) LPELR-22589(SC); Adepoju v. The State (2018) LPELR-44355(SC).
Black’s Law Dictionary, Ninth Edition, page 351, defines conspiracy as:
An agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and…action or conduct that furthers the agreement; a combination for an unlawful purpose.
Ingredients of the offence of criminal conspiracy, which the prosecution must establish are:
1. That there was an agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy.
A charge of conspiracy is a totally separate offence from the completed offence. Thus, the offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted; Taiye v. State (2018) LPELR-44466(SC). As is the case in all criminal trials, the burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence. The charge can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence; Orisa v State (2018) LPELR-43896(SC). The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person; Orisa v State (supra). Recognizing the difficulties that could be encountered in proving conspiracy, Peter-Odili, JSC in Kayode v State (supra) at page 67 of the E-Report commented:
“It is because of the uniqueness of conspiracy and the fact that it is near impossible at times to establish it by direct evidence that it is usually proved through inference of the facts and circumstances of each case.”

The evidence of PW5 was as follows, page 91 of the Record of Appeal:
“On 8/8/13…I saw my late brother arguing with some boys. I demanded to know what was happening. One of the boys said my late brother was holding his phone.
I asked my brother to return the phone to the boy. My brother said no when I asked why he did not want to return the phone he said they used the phone to call some boys for him. That he wanted to know those boys before he would return the phone…
My brother came into our house and was still complaining that he did not know the boys that were called and he did not know what they were called to do…
Few minutes after he left the house…we started hearing noise. When we got there, there was noise, we noticed some group of boys were beating my late brother. There (sic) were holding axe, sticks and machetes. We tried to stop them but they overpowered us…”
He was not cross-examined on these pieces of evidence.
PW3 had testified:
“Some three boys came where I was still trying to on the generator set and asked about my brother. I told them he is inside. They said his cup is filled and they were waiting for him outside.”

It can be inferred from these pieces of evidence, as well as from the facts and circumstances of this case, that the Appellant conspired with a group of other persons to commit the offence of culpable homicide.

All considered, I agree with the conclusion of the learned trial Judge that the elements of the offences of conspiracy and culpable homicide for which the Appellant was charged, were proved by the prosecution beyond reasonable doubt against the Appellant. All the issues arising for determination are thus resolved against the Appellant.

The appeal is completely without merit. The appeal fails and is hereby dismissed.

The conviction and sentence of the Appellant is hereby affirmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Onyekachi A. Otisi, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the lead judgment of my learned brother, O.A. Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal is without merit. I also dismiss the same and affirm the conviction and sentence of the appellant by the trial Court.

Appearances:

B. O. Akinseye-George, Esq. (Mrs.) with him, A. C. Acheme, Esq. For Appellant(s)

E. L. Edia, Esq., S.S.C. M.O.J. Benue State. For Respondent(s)