OKEMEFUNA NDOZIE V. THE STATE (2013)

OKEMEFUNA NDOZIE V. THE STATE

(2013)LCN/6417(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of July, 2013

CA/B/339CB/2012

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

OKEMEFUNA NDOZIE Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE MEANING OF THE OFFENCE OF CONSPIRACY

In the recent Supreme Court case of Posu v. The State supra at Pg. 412, Mohammed, J.S.C. stated as follows on the meaning of conspiracy –
“Conspiracy means the meeting of the mind of the conspirators. It consists of intention of two and agreement by them to do an unlawful act or to do lawful act by an unlawful means. Conviction for conspiracy is usually predicated on circumstantial evidence, which must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused.” PER OGUNWUMIJU, J.C.A.

PROVING THE CRIMINAL OFFENCE OF CONSPIRACY

Lord Justice Udo Udoma, J.S.C. in Daboh v. The State (1977) All NLR 146; (1977) 5 S.C. 122 held as follows on proof of criminal conspiracy:
“It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the persons charged be also proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, courts usually consider it sufficient if it be established by evidence the circumstances from which the court would consider it safe and reasonable to infer or presume the conspiracy.”

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State sitting at Ogwashi-Uku delivered by Honourable Justice T. O. Diai on 23rd May 2012, wherein the lower court found the appellant guilty of the offence of conspiracy to commit murder and sentenced him to 10 years imprisonment without an option of fine.
The facts which led to this appeal are as follows:
The appellant and three other persons were originally arraigned before the lower court on 1st December, 2010 upon information filed on 19th August, 2010. The original information was subsequently substituted by a four count information on 12th December, 2011.
In the information filed by the State, the 1st, 2nd and 3rd appellants were charged with the following offences:
STATEMENT OF OFFENCE: COUNT 1
Conspiracy to commit felony to wit: murder, punishable under
S.324 of the Criminal Code Law Cap. C.21 Vol.1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M) CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwashi-Uku Judicial Division did conspire to commit murder.
STATEMENT OF OFFENCE: COUNT II
Murder, punishable under S. 319(1) of the Criminal code Law Cap. C.21 Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M). CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March 2010 at Otulu, in Ogwashi-Uku Judicial Division murdered one SMART OKUTE
STATEMENT OF OFFENCE: COUNT III
Membership of unlawful society punishable under S.64 of the Criminal Code Law Cap. C.21 Vol, 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) AND OTHERS NOW AT LARGE ON OR ABOUT THE 21st DAY OF March 2010 at Otulu, in Ogwashi-Uku Judicial Division belong to the Unlawful Society known as Jurice,
The 4th accused person was charged as follows:
STATEMENT OF OFFENCE: COUNT IV
Accessory after the fact to murder punishable under S.322 of the Criminal Code Law Cap. C.21 Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
MEKWUNYE HEZEKIAH, well knowing that one Onyeka and Onyebushi Melwunye did on the 21st day of March 2010 murdered one Smart Okute, did on the 21st day of March, 2010 in Ogwashi-Uku Judicial Division and on other days thereafter receive, comfort, harbor, assist and maintain the said Onyeka and Onyebushi Mekunye.
At the trial the prosecution called 5 (five) witnesses and each of the accused persons testified in their own behalf and called no witness. The respondent’s case was that the appellant alongside the 2nd and 3rd accused are members of an unlawful society known as ‘Jurice’ and that they conspired to murder and indeed murdered the deceased person on the 21st day of March, 2010. The case against the 4th accused was that his sons were members of the said ‘Jurice’ and that they were involved in the murder of the deceased to the knowledge of the 4th accused who assisted them to flee from justice.
The appellant testified for himself and called no other witness. He denied being a member of the ‘Jurice’ society and further denied being a part of any conspiracy to murder the deceased. Each of the other accused persons also testified for themselves individually without calling any other witness. Written addresses were subsequently exchanged and adopted on behalf of the parties.
In a considered judgment delivered on 23rd May, 2012, the 1st, 2nd and 3rd accused persons were discharged and acquitted in Counts II and III but were convicted on Count I and each sentenced to 10 years imprisonment without option of fine while the 4th accused person was discharged and acquitted in count IV.
The 1st, 2nd and 3rd accused being dissatisfied with the conviction and sentence filed separate notices of appeal against said decision.
On 17/8/2012, the appellant filed another notice of appeal within the statutory period on which he now relies. On 18/12/2012, the appellant filed an appellant’s brief in which his counsel identified one issue for determination also essentially agreed to by the State DDPP, Delta State in the brief filed by Mr. Enenmo. The issue is as follows:
Whether the prosecution proved the charge of conspiracy against the appellant beyond reasonable doubt.
I will also adopt that issue in the determination of this appeal.
In the brief settled by Ekemejero Ohwovoriole, Esq., he argued that the prosecution did not prove beyond reasonable doubt the offence of conspiracy to murder. He submitted that in the light of the decisions of the Supreme Court that conspiracy derives its roots from a meeting of the minds, it follows that the offence is hardly capable of direct proof except where one of the accused persons confessed to the crime otherwise counsel argued, proof of conspiracy can only be by inference from established facts adduced in proof of the substantive offence. He cited Aituma v. State (2006) All FWLR Pt. 318 Pg. 671 at 684; Oladejo v. State (1994) 6 NWLR Pt. 348 Pg. 101 at Pg. 127; Posu v. The State (2011) 2 NWLR Pt. 1234 Pg. 393 at 412.
Counsel reminded the court that the learned trial judge was of the view that the substantive offence had to be proved before there can be enough proof of conspiracy. After considering the evidence, the learned trial judge had concluded that there was no evidence linking the appellants with the killing of the deceased. Counsel drew our attention to the fact that from the judgment it is obvious that the only evidence from which the court inferred conspiracy to murder against the appellant are contained in the appellant’s statement admitted as Exhibit B. However a reading of Exhibit B does not show that there was an agreement to murder the deceased. All Exhibit B stated is that he was invited to Otulu village where he joined in a fight in progress. He did not say he was invited to fight. Counsel submitted that assuming, without conceding, that the appellant’s joining the fight amounts to a conspiracy, the inference to be drawn is a conspiracy to fight and not a conspiracy to murder the deceased. This is more so in the light of the fact that the learned trial judge specifically made a finding of fact that there was no link between the act of the appellant and the death of the deceased.
Counsel also submitted that when, as in the instant case, the particulars of the offence of conspiracy alleged have been pinned down to conspiracy to murder, those particulars must be established.
Learned appellant’s counsel argued that Exhibit B did not show categorically that the particulars of the offence of conspiracy to murder had been proved. Counsel’s point is that the prosecution did not prove the particulars of the offence of conspiracy as contained in the charge. He cited Gbadamosi & Ors. v. The State (1991) 6 NWLR Pt. 196 Pg. 182.
Counsel also argued that the learned trial judge was wrong when he relied heavily on the evidence of PW3 the IPO to arrive at the conclusion that the appellant went to Otulu specifically to go and fight. The witness PW3 merely tendered the extra judicial statements of the accused persons during the trial which were admitted as Exhibits B, C and D respectively.
Learned appellant’s counsel argued vigorously that Exhibit C, the extra judicial statement of Nosike Iboji disclosing that there was a meeting cannot be the basis for finding the appellant guilty of conspiracy when there is no proof of the substantive offence. Counsel insisted that Exhibit C did not indicate the appellant as one of the people who attended the meeting. Counsel referred to S. 29(4) Evidence Act 2011 and argued that Exhibit C cannot be evidence against the appellant unless he admits it. He submitted that there was enough doubt created in the evidence of the prosecution to enable the trial court resolve such doubt in favour of the appellant. He urged us so to do. He relied on Onafowokan v. The State (1987) 3 NWLR Pt. 61 Pg. 538; Oladejoo v. The State, supra.
In the respondent’s brief settled by O. F. Enenmo deputy Director Public Prosecution, Delta State, counsel argued that in a charge of conspiracy to commit murder the onus of proof is on the prosecution to establish by evidence the fact beyond reasonable doubt that there exists an agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. He cited Dr. Oduneye v. State (2001) 83 LRCN 1 at 16.
Counsel agreed that since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof. It is an offence that is deduced from the act of the parties which is focused towards the realization of their common or mutual criminal purpose. He cited Njovens and Ors. v. State (1973) 5 SC 17.
However, he reiterated that it is the case of the prosecution at the lower court and before this court that it proved the ingredients of the offence of conspiracy to commit murder against the appellant beyond reasonable doubt through the credible evidence of the prosecution witnesses particularly the PW1, 2, 3, 4, 5 and the extra-judicial confessional statement (Exhibit ‘B’) of the accused person.
Counsel argued that the extra judicial statement of the appellant was tendered as Exhibit B and in it he confessed that he was a member of the secret society “jurice” who killed the deceased. He reminded the court that the evidence of PW4 is that the appellant and members of the group (jurice) were seen by PW4 pursuing the deceased Smart Okwuta into the bush. The appellant had a gun with him with which he threatened the PW4.
Members of the group came out with blood stains on their cloths. The dead body of Smart Okwuta was recovered from the bush a day after. The appellant did not contest the above mentioned facts.
Learned counsel also argued that since the appellant met and joined the fight that took place on 21/3/2010, the deceased was killed in the fight with the appellant in the midst of armed youths then the learned trial judge was right in inferring that there was conspiracy to murder Smart Okwute since conspiracy is a matter of inference, deduced from certain criminal act of the parties done in pursuance of an apparent criminal purpose common between them. See Haruna & Ors. v. State (1972) All NLR 738 at 754.
Learned respondent’s counsel argued that the appellant has not challenged the admission of Exhibit B and the rejection of the defence of alibi of the appellant.
Learned respondent’s counsel submitted that the fact that the appellant was discharged of the substantive offence does not render his conviction for murder inconsistent. He insisted that in the peculiar circumstances of this case, it is incorrect for the appellant’s counsel to contend that an acquittal on the count of murder renders the conviction for conspiracy unreasonable or inconsistent. He urged the Court of Appeal to affirm the judgment of the learned trial judge.
At page 65 of the record, the learned trial judge held on the count of conspiracy as follows:
“All the accused persons are not from Otulu. Was it then a mere coincidence that the members of the group came to Otulu on 21/3/2010 to fight? In exhibit ‘C’ the statement of the 2nd accused person, he stated that one Onyeka had reported the late Smart Okwute in their secret cult meeting before the ‘fight operation’ took place. It appears the fate of the deceased was sealed at that meeting. In the light of the evidence before the court, it does not appear to be a coincidence that members of the group invaded Otulu on the date material to this charge and participated in a fight, in the course of which the deceased was killed. Though the prosecution did not successfully establish that it was the act of the accused persons which caused the death of the deceased, the offence of conspiracy to murder the deceased can be inferentially deduced from the above facts.”
In the recent Supreme Court case of Posu v. The State supra at Pg. 412, Mohammed, J.S.C. stated as follows on the meaning of conspiracy –
“Conspiracy means the meeting of the mind of the conspirators. It consists of intention of two and agreement by them to do an unlawful act or to do lawful act by an unlawful means. Conviction for conspiracy is usually predicated on circumstantial evidence, which must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused.”
The main point being made by learned appellant’s counsel is that where the substantive offence cannot be proved, the offence of conspiracy would be impossible to prove.
The record shows that the learned trial judge at Pg. 64-65 considered this issue and came to the conclusion that he could not believe the evidence of alibi put forward by the appellant. The learned trial judge then held that where there is evidence of admission and denial in the statement of an accused, the trial judge is entitled to use the admissions and that Exhibit B contained admissions that showed there was intention on the part of the appellant to murder the deceased. I have read the statements of the appellant and other appellants. The crux of their statements each of which could not be regarded as a direct and positive admission of guilt was that they belonged to a society called the Jurice and that on the 21/3/2010 there was a fight in Otulu village and the deceased was shot with a “gun”.
Lord Justice Udo Udoma, J.S.C. in Daboh v. The State (1977) All NLR 146; (1977) 5 S.C. 122 held as follows on proof of criminal conspiracy:
“It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the persons charged be also proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, courts usually consider it sufficient if it be established by evidence the circumstances from which the court would consider it safe and reasonable to infer or presume the conspiracy.”

The authorities are agreed that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The peculiarity of the offence of conspiracy is that it is the actual agreement alone which constitutes the offence and it is not necessary to prove that the illegal act has in fact been committed. See Omotola v. State (2009) 2-3 SC; (2009) 7 NWLR Pt. 1139 Pg. 148. Therefore according to the legal definition of conspiracy it is of no moment that the substantive offence was not proved as in this case. The argument of learned appellant’s counsel that because the substantive offence was not proved, the conspiracy a fortiori was not proved and thus the finding of the trial court is perverse is completely misconceived.
However, let us look at the facts of this case to see whether there was enough proof to infer that there was conspiracy. Exhibit B is the extra judicial statement of the appellant which binds him alone by virtue of S. 29(4) of the Evidence Act.
The relevant portion states as follows:-
“On 21/3/2010 at about 1700 hrs our man in our jurees oramici secret cult called my phone that I should come to Otulu village. So on my arrival to that very village the fight was already on then I now joined them for the fight so on that process then our member Onyeka and flash pursued the said boy and shot him with gun before all of us now ran away through Ubulu-Okiti Road to Issele-Uku, so later Onyeka and Flash now came to Issele-Uku with us and told us that “he done bantaran” then I now asked them the meaning of bataran he now told me that the meaning is that he has shot him and also dagger him to death… I am a member of jurice secret cult.”
There is no doubt in my mind that there was a previous tacit agreement to go to Otulu to fight, hence the quick response by the appellant to the invitation to come and fight at Otulu village. The learned trial judge hit the nail on the head when the court reasoned that since most of the society members including the appellant do not reside in Otulu, it could not have been a coincidence to get several of them to gather at the same time on the same day to fight. There is no evidence that this was a general melee in which there were several people on each side in which case we could not infer just a conspiracy to fight and cause breach of the peace. The fight as described by the appellant was not a spontaneous one. The overt act from which conspiracy to murder can be inferred is the fighting which the appellant admitted to. Conspiracy can be inferred from certain proved facts. The circumstantial evidence of the assembly of the society members at the village is proof positive that they had a preconceived agreement to fight with the deceased. The agreement might have been express or implied. Their agreement to go to Otulu to fight showed and their possession of dangerous weapons to go to fight shows that they meant to cause grievous bodily harm to the deceased. In the circumstances, I agree with the learned trial judge that there was conspiracy by the appellant to go and fight with the deceased at Otulu village and it is quite safe to infer that they meant to do grievous bodily harm during the fight. It is not a good argument as posited by learned appellant’s counsel that agreement or conspiracy to fight does not amount to murder. In the course of conspiring to do an illegal act like fighting, the probable consequence could be the death of the person fought with.
I have read the evidence of PW4 which was direct that the appellant was one of those who pursued the deceased into the bush from where the latter was found dead.
There is no doubt in my mind that the appellant and other members of the secret society knew that there was in existence or coming into existence the scheme to go to Otulu to fight the deceased which could result in the death of the deceased. See Oguntade, J.S.C. in Omotola v. The State supra. In Oladejo v. The State (1994) 6 NWLR Pt. 348 Pg. 101 at 126, the court held that the specific offence of conspiracy to commit murder must be inferred from the circumstances of the case. The evidence of conspiracy to murder must be specifically proved beyond peradventure. That can be so inferred here.

SIDI DAUDA BAGE, J.C.A.: I read before now the leading Judgment just delivered by my learned brother H.M. Ogunwumiju, J.C.A., I agree with the said Judgment. I agree with the Judgment. I affirm the conviction and sentence of Appellant. Judgment of the lower court affirmed. I dismiss the appeal.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, J.C.A. His lordship has dealt incisively with the Issue raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing to add to the Judgment. Indeed I hereby adopt the lucid lead Judgment as mine.
Accordingly, I too, resolve the Issue in the appeal in the same manner it has been resolved in the lead Judgment and dismiss the appeal. The judgment of the lower court delivered on 23/5/2012 in Charge O/4C/2010 is affirmed.

Appeal dismissed.

Appearances

Ekemejero Ohwovoriole, Esq.For Appellant

AND

O. F. Enenmo DDPP of Delta StateFor Respondent