ORNGU ABO V. THE STATE
(2011)LCN/4591(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of May, 2011
CA/J/26C/2004
RATIO
CONSPIRACY: STATUTORY PROVISION ON WHAT CONSTITUTES THE OFFENCE OF CONSPIRACY; WHETHER THE OFFENCE OF CONSPIRACY CAN BE PROVED BY DIRECT EVIDENCE
Sections 96 and 97 of the Penal Code provide as follows: 96. (1) “When two or more persons agree to do or cause to be done – (a) An illegal act; or (b) An act which is not illegal by illegal means, such an agreement is called criminal conspiracy. (2) Notwithstanding the provision of subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. 97. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with fine or with both.” In Obiakor V. The State (2002) 6 SC (Part II) 33 @ 39-40 the Supreme Court held per Kalgo, JSC: “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 actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A
PROOF OF CONSPIRACY: WHETHER THE OFFENCE OF CONSPIRACY IS CAPABLE OF BEING PROVED BY DIRECT PROOF
On the nature of proof required to establish criminal conspiracy, Achike, JSC had this to say in Oduneye V. The State (2001) 1 SC (Part I) 1 @ 6 – 7: “A conviction for conspiracy is not without its inherent difficulties. First the offence of conspiracy is not defined under the Criminal or Penal Code. But perhaps, more importantly, a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is “evidence not of the fact in issue but of other facts from which the fact in issue can be inferred” Evidence in this connection must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused.” (Emphasis mine) His Lordship went on to quote the House of Lords’ decision in Mulcahy V. R (1868) 3 H.L. at p. 317 per Willes, J where the offence of conspiracy was defined thus: ‘A conspiracy consist not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.” (Emphasis supplied by Achike, JSC.) His Lordship Achike, JSC stated further: “… 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; from the acts of the parties thereto which are focused towards the realisation of their common or mutual criminal purpose. ” See also: Patrick Njovens V. The State (1973) 5 SC 17. Dabo & Anor. V. The State (1977) 5 SC 22; Kaza V. The State (2008) 1 – 2 SC 151 @ 164 – 165. It is therefore manifest from the authorities cited above that proof of conspiracy is usually based on circumstantial evidence. It is a matter of inference from the establishment of other relevant facts. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A
PROOF BEYOND REASONABLE DOUBT: MEANING OF THE WORD “PROOF BEYOND REASONABLE DOUBT”
Proof beyond reasonable doubt means the prosecution establishing the guilt of the accused persons with compelling and conclusive evidence. It means a degree of compulsion that is consistent with probability. See: Shurumo V. The State (2010) 12 SC (Part I) 73 @ 108 – 109 per Rhodes-Vivour, JSC. I am of the view that on the count of criminal trespass the prosecution discharged the burden on them. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A
CONTRADICTION IN PROSECUTION’S CASE: WHETHER IT IS EVERY CONTRADICTION IN THE PROSECUTION’S CASE THAT WILL BE FATAL TO THE HIS CASE
The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibie V. The State (2004) 14 NWLR (893) 257 at 280 A – D; Ikemson V. The State (1989) 2 NSCC (Vol, 20) 471; Onubogu V. The State (1974) 1 All NLR (Part II) 5; Okonji V. The State (1987) 1 NWLR (52) 659. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A
EVIDENCE OF SINGLE WITNESS: NATURE OF THE EVIDENCE OF A SINGLE WITNESS WILL BE SUFFICIENT TO PROVE A CHARGE
The law is that the evidence of a single witness is sufficient to prove a charge if such evidence is direct, cogent and points irresistibly to the guilt of the accused person. See Oduneye V. The State (supra). PER KUDIRAT M.O. KEKERE-EKUN, J.C.A
JUSTICES:
MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
ORNGU ABO – Appellant(s)
AND
THE STATE – Respondent(s)
KUDIRAT M.O. KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): The appellant herein along with 2nd, 3rd, & 4th original appellants now deceased and others at large were charged before the High Court of Benue State sitting at Vandeikya on a three-count charge as follows:
Count 1
That you Orngo Abo, Yohol Aku, Ikyenge Ugbanem, Songo Vembe, Ayagwu Aku, Kunde Jor, Aonduna Kunde, Terkule Yohol, Terumbur Songu and Bem Songu all males on or about the 2rd of April 1997 at Mhambe Gasav Village Konshisha Local Government Area of Benue state within the jurisdiction of this Honourable court agreed to do illegal acts to wit: To trespass into the compound of Dekpugh Ikwakaa set fire on his dwelling house and burn down his property and the same acts were done in pursuant of the agreement and you thereby committed an offence punishable under Section 97 of the Penal Code.
Count 2
That you Orngo Abo, Yohol Aku, Ikyenge Ugbanem, Songo Vembe, Ayagwu Aku, Kunde Jor, Aonduna Kunde, Terkule Yohol, Terumbur Songu and Bem Songu all males on or about the 23rd of April 1997 at Mhambe Gasav Village Konshisha Local Government Area of Benue State you committed criminal trespass by entering into the compound and dwelling houses then in possession of Dekpugh Ikwakaa cultivated the compound and set the house including his property ablaze and thereby committed an offence punishable under section 348 of the Penal Code.
Count 3
That you Orngo Abo, Yohol Aku, Ikyenge Ugbanem, Songo Vembe, Ayagwu Aku, Kunde Jor, Aonduna Kunde, Terkule Yohol, Terumbur Songu and Bem Songu all males on or about the 23rd of April 1997 at Mhambe Gasav Village Konshisha Local Government Area of Benue State within the jurisdiction of this Honourable Court committed mischief by fire to wit: you set fire on and burnt down his dwelling houses and property of Dekpugh Ikwakaa intending to cause the destruction of buildings which were ordinarily used as places in custody of property and human dwelling and you thereby committed an offence punishable under Section 337 of the Penal Code.
From the record of proceedings, only Orngo Abo, Yohol Aku, Ikyenge Ugbanem, Songo Vembe and Ayagwu Aku, the 1st – 5th accused persons were actually arraigned before the lower Court on 17/6/2002. They each pleaded Not Guilty to each of the three counts of the charge. To prove its case the prosecution called four witnesses. At the close of the prosecution’s case a no case submission was made on behalf of the appellants. It was overruled on 21/5/03 and the appellants were called upon for their defence. On the same 21/5/03 the court was informed of the death of the 2nd accused, Yohol Aku. His name was accordingly struck out. The remaining accused persons now numbered 1st – 4th accused each testified on their own behalf and called three other witnesses. Thereafter learned counsel for both parties addressed the court. In a considered judgment delivered on 23/9/03 the learned trial Judge found each of the accused persons guilty on each of the three counts.
They were convicted and sentenced as follows:
Count 1: Two months imprisonment or a fine of N1, 000.00 (One thousand Naira).
Count 2: A fine of N100 or two months imprisonment.
Count 3: Three months imprisonment in addition to a fine of N2, 000.00 each. In the event of failure or inability to pay the fine imposed under this count, after the completion of the three months prison term, a further three months as an option.
The sentences were to run concurrently.
The appellants were dissatisfied with their conviction and sentence. They each filed a notice of appeal dated 29/9/03 containing three grounds of appeal, The parties duly filed and exchanged their respective briefs of argument in compliance with the Rules of this Court, When the appeal came up for hearing on 14/4/2011, learned counsel for the appellants, E.I. IAREN Esq. informed the court that the 2nd, 3rd and 4th appellants were deceased. He applied that their names be struck out. They were struck out accordingly. He adopted and relied on the appellants’ brief dated 13/2/04 and filed on 17/2/04 and urged the court to allow the appeal, set aside the judgment of the lower court and discharge and acquit the 1st appellant. T.A. Ese Esq, Principal State Counsel II, Ministry of Justice, Benue State adopted and relied on the respondent’s brief dated 15/8/2006 and filed on 8/9/2006. It was deemed filed on 18/9/06. He urged the court to dismiss the appeal.
The appellant formulated a single issue for determination as follows:
Whether or not the Lower Court was right in convicting and sentencing all the appellants to various terms of imprisonment on all the charges, when the prosecution did not prove its case beyond reasonable doubt as required by law.
Learned counsel for the respondents adopted the issue formulated by the appellants with slight modification as follows:
Whether or not the lower court was right in convicting and sentencing all the appellants to various terms of imprisonment on all the charges.
I adopt the issue formulated by the respondent for the determination of the appeal.
The facts that gave rise to the charge before the lower court, as could be gathered from the record and the submissions of learned counsel are as follows:
The complainant, Dekpough Ikwakaa stated that he purchased three to four plots of land from one Jov Zer for N6.00 in 1973. After his death in 1988 one of his elder sons, Kunde Jov returned from Taraba State, and claimed that the land given to him was too big and that he would reduce it and give part of it to someone else. He resisted. When the Kindred and District Heads could not resolve the matter he brought an action before the Grade II Area Court Korinye, which entered judgment in his favour.
On 23/4/97 on his return from Gboko where he had gone to purchase items for his business, he stated that his wife reported to him that one Mkav Yangeadue had told her that the motorcycle they loved to ride so much would be burnt. While offloading the items he bought he said he noticed a group of people coming from the (now deceased) 2nd accused person’s house with hoes and cutlasses. They came towards his house and began to dig ridges around his compound. He named the people he saw, which included the appellants. He then rushed to the police station to make a report. A police officer (PW3), accompanied him to his house. Upon his return some of the people, including the accused persons were making ridges while others were cutting down his orange trees. They taunted him for bringing only one police officer instead of 100. He stated that in the presence of PW3 someone opened the tank of his motorcycle and laid the motorcycle on the ground so that the fuel ran out and over the items he had just bought. They eventually burnt down his four thatched houses and one three-room zinc house along with cassava, maize, groundnuts, melon, and household furniture. They also burnt down his hut used as a provision store. They burnt everything he owned including the motorcycle. He and PW3 went back to the Tse-Agberagba police station and reported the matter to the DPO. By the time a team of policemen got back to his compound the accused persons had run away. Only the 1st accused (appellant herein) was arrested. On the second attempt, five persons were arrested.
All the accused persons denied involvement in the incident and raised a defence of alibi.
In arguing the appeal, learned counsel for the appellants submitted that by virtue of Section 138 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990, the burden of proof in criminal trials is on the prosecution and that in order to secure a conviction the prosecution must prove its case beyond reasonable doubt. He referred to: State V. Musa Danjuma (1997) 5 SCNJ 126.
On the charge of criminal conspiracy, he submitted that the prosecution failed to prove that each of the appellants individually participated in the act contrary to the mandatory requirement of Section 97 of the Penal Code. He submitted that the failure is fatal to the prosecution’s case. He argued that the finding of the learned trial Judge at page 62 lines 6 – 9 of the record is speculative and perverse and urged the court to so hold.
He submitted that in order to prove criminal trespass the prosecution must prove that:
(a) The complainant had possession of the property in question;
(b) That the accused entered into or upon the property or that he unlawfully remained there after having lawfully remained therein or thereto;
(c) That he entered or remained there with the intention:
(i) To commit an offence; or
(ii) To intimidate, insult or annoy the person in possession.
He argued that apart from possession the prosecution failed to prove any other ingredient of the offence. He referred to the evidence of PW1 and PW2 wherein they stated that all the appellants entered onto their land and that PW3 met them making ridges around the compound while some of the appellants were cutting down their economic trees. He submitted that PW3 made a statement to the police. He stated that in his testimony before the court he did not identify any of the appellants as being among those who trespassed on PW1’s land on the day in question. He submitted that this creates a doubt as to their guilt, which ought to have been resolved in their favour.
With regard to the offence of mischief by fire under Section 337 of the Penal Code he submitted that the prosecution failed to prove that it was the appellants who burnt down PW1’s property. He contended that from their testimony before the court it was evident that PW1 and PW3 were not present when the houses and motorcycle were burnt. He noted that in his statement to the police PW1 stated that PW3 ran away before the properties were burnt while PW2 in her statement said that the properties were burnt before PW3 got to the scene. He stated that PW3 on the other hand claimed to have witnessed the burning of the items. He stated that under cross-examination PW2 stated that the motorcycle was burnt together with the items PW1 brought from Gboko and that they were the first items to be burnt. He submitted that the court cannot pick and choose which evidence to believe. He submitted that Ioraor Angough, the person who was alleged to have burnt the motorcycle, was not arraigned before the court. He stated that PW3 testified that he met the said Ioraor Angough and seven others. He contended that the eight people he saw were boys and did not include the appellants. He urged the court to disregard PW3’s evidence because he did not mention in his statement to the police that he saw some other people cutting down economic trees. He contended that his oral testimony in this regard was an afterthought.
As regards the evidence of PW1 and PW2 he submitted that the lower court wrongly applied the case of Oduneye V. The State (2001) FWLR (38) 1203 @ 1218. He submitted that PW2 was not a witness of truth because in her testimony in court she stated that all the accused persons proceeded from the 2nd accused’s house while in her statement to the police she stated that messengers were sent to various persons to inform them that PW1 was back. He argued that if all the appellants were in one place there would have been no need for the messages. He urged the court to disbelieve her evidence in its entirety.
In reply, learned counsel for the respondent submitted that the prosecution duly established all the counts of the charge against the appellant and that the burden of proving reasonable doubt shifted to the appellant. He referred to Section 138 (3) of the Evidence Act. He noted that the appellants raised the defence of alibi and submitted that the evidence of PW1 and PW2 clearly fixed them at the scene of the crime.
On the count of criminal conspiracy he submitted that the prosecution specifically proved that each individual participated in the conspiracy. He submitted that the prosecution led evidence to show that the appellants, together with others at large, met at the compound of the 2nd accused and carried out offensive acts together by cultivating the premises, cutting down economic trees and burning houses. He submitted further that the acts carried out by the accused persons in PW1’s compound suggest that the appellants did not only agree to do an illegal act but caused same to be done in pursuance of such an agreement. He submitted that where it is established that two or more persons agreed to do an unlawful act or to do a lawful act by unlawful means, the requirement of proof under Section 97 (1) of the Penal Code is met. He submitted further that conspiracy can be proved by inference from the acts and conduct of the perpetrators forming the circumstance of the offence. He relied on: Oduneye V. The State (2001) FWLR (38) 1203 @ 1213.
On criminal trespass, he submitted that the prosecution proved all the ingredients of the offence as required by Section 348 of the Penal Code. He submitted that the evidence of PW1 and PW2 proved their possession of the property and the physical entry thereon by the appellants. He submitted that they remained on the property with the intention to commit an offence and to intimidate, insult and annoy the person in possession. He submitted that the evidence of PW3 supported the evidence of PW1 and PW2 on this issue.
On mischief by fire under Section 337 of the Penal Code he submitted that the prosecution proved beyond reasonable doubt that the appellants burnt down PW1’s property. He noted that PW1 and PW2 in their testimony identified all the appellants as being among those who participated in the various criminal acts that occurred on the fateful day. He noted further that PW2 gave a vivid account of how the houses were burnt and spelt out what the appellants did. He submitted that the evidence of a single witness is sufficient to prove a case. He referred to Oduneye V. The State (supra) at 1218 A. He submitted that the evidence of PW1 and PW3 corroborates the evidence of PW2 who remained at the scene throughout the commission of the various offences. He noted that PW1 witnessed some of the acts of the appellants before he left to call the police. He urged the court to dismiss the appeal.
Sections 96 and 97 of the Penal Code provide as follows:
96. (1) “When two or more persons agree to do or cause to be done –
(a) An illegal act; or
(b) An act which is not illegal by illegal means, such an agreement is called criminal conspiracy.
(2) Notwithstanding the provision of subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
97. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with fine or with both.”
In Obiakor V. The State (2002) 6 SC (Part II) 33 @ 39-40 the Supreme Court held per Kalgo, JSC:
“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 actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts.”
(Emphasis mine)
On the nature of proof required to establish criminal conspiracy, Achike, JSC had this to say in Oduneye V. The State (2001) 1 SC (Part I) 1 @ 6 – 7:
“A conviction for conspiracy is not without its inherent difficulties. First the offence of conspiracy is not defined under the Criminal or Penal Code. But perhaps, more importantly, a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is “evidence not of the fact in issue but of other facts from which the fact in issue can be inferred…Evidence in this connection must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused.”
(Emphasis mine)
His Lordship went on to quote the House of Lords’ decision in Mulcahy V. R (1868) 3 H.L. at p. 317 per Willes, J where the offence of conspiracy was defined thus:
‘A conspiracy consist not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.” (Emphasis supplied by Achike, JSC.) His Lordship Achike, JSC stated further:
“… 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; from the acts of the parties thereto which are focused towards the realisation of their common or mutual criminal purpose. ”
See also: Patrick Njovens V. The State (1973) 5 SC 17. Dabo & Anor. V. The State (1977) 5 SC 22; Kaza V. The State (2008) 1 – 2 SC 151 @ 164 – 165. It is therefore manifest from the authorities cited above that proof of conspiracy is usually based on circumstantial evidence. It is a matter of inference from the establishment of other relevant facts.
Learned counsel for the appellants referred to the finding of the learned trial Judge at page 62 lines 69 of the record where His Lordship held thus:
“Without an agreement such a large number of people would not have been able to execute such a monumental destruction in a single transaction.”
He argued that the finding is speculative and perverse. It is important to consider the above finding of the learned trial Judge in the context in which it was made. In considering the charge of conspiracy at page 61 of the record His Lordship noted thus:
“In the case at hand it is the evidence of PW1 and PW2 that while in their compound, they saw the accused persons alongside others now at large coming together from the house of Yohol Aku who was the 2nd accused in this Case, now deceased. They arrived at their compound and began to farm their premises and destroying their economic trees. PW1 called in the police and they were infuriated by the presence of the police and burnt down their property including their houses used for human dwelling. The nature of proof that is most readily available is to infer from the acts and conducts (sic) of the perpetrators forming the circumstances of the offence…
Applying this to the conduct of the accused persons together with the other perpetrators of the acts coming at the same time from Yohol Aku’s compound onto PW1’s compound and starting the offensive acts together’ shows the violent action was an organised one. It is my opinion that without an agreement such a large number of people would not have been able to execute such a monumental destruction in a single transaction. I therefore find the accused persons guilty of the offence of conspiracy under Section 97 of the Penal Code.” (Emphasis mine)
I have reproduced His Lordship’s findings in detail to show that his decision was not based on speculation as contended by learned counsel for the appellants. Not only did His Lordship consider the entire evidence before him before reaching that conclusion, he cautioned himself regarding the evidence of PW1 and PW2 having regard to the fact that they are husband and wife. He stated thus at page 62 lines 11-19 of the record:
“I must state at this juncture that in convicting the accused persons on the evidence of PW1 and PW2, I have taken the necessary precaution to see that the evidence adduced by them is not tainted by their relationship of husband and wife. The evidence adduced by each of them is so direct and positive and the truth in them as to the presence of the accused persons is so glaring as compared with the make believe alibi of the accused persons. The accused persons also agreed that all that were alleged to have happened in PW1’s house actually took place. They only made general denials of their movement.”
In the course of summarising the facts leading to this case earlier in the judgment I referred to the evidence of PW1 to the effect that there had been an existing dispute between him and one Kunde Jov, the son of his vendor regarding the land he bought from his father. Also that on the fateful day his wife reported to him that one Mkav Yangeadue informed her that his motorcycle would be burnt. At page 20 lines 15-25 of the record he testified thus:
“As I was still talking to my wife I heard some noises and I saw some people coming out of the second accused person’s house and were coming to my house. The people had hoes and cutlasses. When they came to my house about ten (10) of them started digging round my compound. They were making ridges. Those who came into my compound that day included Yangeadue Agoh, Mkav Yangeadue, Yohol Aku, Terkula Yohol, Kunde Jov, Aondona Kunde, Msugh Tyav, Shaiondo Tyav, Songu Vembe, Bem Songo, Terumbur Songo, Kyenge Ugbanem, Orngu Abo, Akpehe Angough, Ioraor Angough, Ayagwa Aku. When I saw the people making ridges round my compound I went to the police station at Mhambe and reported.” (Emphasis mine)
PW2 testified thus at page 23 lines 14 – 23:
“As I was reporting this to PW1 some voices started making noise and we saw some people coming out of the 2nd accused persons house. Some of them held hoes. Others were with cutlasses. The 2nd accused himself was coming with Terkula Yohol. Also coming with them were Kunde Jov, Aondona Kunde, Ayagwa Aku, Shiaondo Tyav, Msugh Tyav, Songu Vambe, Terumbur Songu, Bem Songu, Orngu Abo, Mkav Yangeadue, Yangeadue Agoh, Kyenge Ugbanem, Akpehe Angough, Ioraor Angough. When the people came to our houses they started farming our backyard and inside our compound. They were making ridges. PW1 left home and went to Mhambe to complain to the police.”
They later went on to testify as to how this group of people including the appellants went ahead and burnt PW1’s motorcycle, thatched huts, zinc house and property. The evidence clearly showed that PW2 was forewarned of the mayhem that was about to be unleashed on them. From the evidence of both PW1 and PW2, the informant, Mkav Yangeadue, although not arrested and arraigned before the court was part of the mob that descended on PW1’s compound.
Kunde Jov who had been disputing the land with PW1 was also one of the persons who came to the compound. The evidence of PW1 and PW2 also shows that the people who came to their compound acted in concert to carry certain illegal acts into effect. I am of the view and I do hold that the finding of the learned trial Judge on the count of conspiracy cannot be faulted, I decline to interfere with it.
Section 342 of the Penal Code defines criminal trespass thus:
342. “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property remains there with intent thereby to intimidate, insult or annoy such person or with intent to commit an offence, is said to commit criminal trespass.”
As submitted by learned counsel for the appellant, the ingredients of the offence of criminal conspiracy are:
(a) That the complainant had possession of the property in question;
(b) That the accused person entered into or upon the property or that he unlawfully remained there after having lawfully entered therein or thereto;
(c) That he entered or remained there with the intention:
(i) To commit an offence; or
(ii) To intimidate, insult or annoy the person in possession.
It is the appellant’s contention that the only ingredient of the offence proved by the prosecution is (a) above. He submitted that the prosecution woefully failed to prove ingredients (b) and (c). His argument was that PW3 failed to identify the appellants as being among the trespassers and that the doubt thereby created ought to have been resolved in their favour.
The learned trial Judge at page 62 lines 20 – 32 held:
“In the case of criminal trespass under section 348 of the Penal Code, there is no doubt that PW1 was in possession of his compound on the fateful day at the material time. It is clear from the evidence that the accused persons in company of other persons now at large when they entered PW1’s compound intimidated him and burnt down his property including houses and cut his economic trees which acts amounted to criminal mischief. Consequently I find the accused persons guilty of criminal trespass under section 348 of the Penal Code.
There is also evidence that the accused persons physically entered the zinc house of the PW1 with some quantity of petrol which they used in burning down that building. There is also evidence that PW1’s motorcycle and some provisions or items he bought from Gboko on the fateful day were burnt down.”
The findings of the learned trial Judge were fully borne out by the evidence before him. PW1 and PW2 who knew the accused persons personally identified them as being part of the group that descended on their compound. As observed by the learned trial Judge at page 62 lines 16 – 18 of the record, the accused persons themselves admitted the occurrences of that day except that they denied being involved. With the positive and unshaken evidence of PW1 and PW2, I agree with the learned trial Judge that the prosecution established the charge of criminal trespass against the appellant beyond reasonable doubt. I am of the view that the failure of PW3 to identify any of the accused persons as being among the trespassers does not in any way affect the cogency of the evidence of PW1 and PW2 whose evidence was unshaken under cross-examination.
PW3 was an outsider called to the scene in the course of his official duty. There was no evidence before the court to suggest that he was a member of the community or that he knew any of the perpetrators before the date of the incident. PW1 and PW2 on the other hand knew the accused persons personally and positively identified them. The duty of the prosecution is to prove its case beyond reasonable doubt but not beyond the shadow of a doubt. Proof beyond reasonable doubt means the prosecution establishing the guilt of the accused persons with compelling and conclusive evidence. It means a degree of compulsion that is consistent with probability. See: Shurumo V. The State (2010) 12 SC (Part I) 73 @ 108 – 109 per Rhodes-Vivour, JSC. I am of the view that on the count of criminal trespass the prosecution discharged the burden on them. The finding of the learned trial Judge in this regard could not be faulted.
On the charge of mischief by fire, the appellant contends that the prosecution failed to prove that the appellants burnt PW1’s property; that PW1 and PW3 were not present when the houses and motorcycle were burnt and that there were contradictions in the evidence of PW1, PW2 and PW3. After considering the evidence led on this count, particularly the evidence of PW2, the learned trial Judge held at page 63 lines 15-25 of the record:
“PW1 and PW2 had earlier in their evidence identified all the accused persons as among those who participated in the dastardly acts in their house on the fateful day. In a situation such as took place at the compound of PW1 on the fateful day, where several criminal acts were perpetrated by a large group of people jointly based on agreement, every person identified to have participated is jointly liable with the others for any criminal offence committed. It is unnecessary to particularly tie a participant to a particular criminal offence committed in the execution of the group’s common agreement or intention.
Therefore all the accused persons having been fixed at the scene of crime are found guilty of the offences for which they are charged. ”
I have considered the alleged contradictions in the evidence of PW1, PW2 and PW3. The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibie V. The State (2004) 14 NWLR (893) 257 at 280 A – D; Ikemson V. The State (1989) 2 NSCC (Vol, 20) 471; Onubogu V. The State (1974) 1 All NLR (Part II) 5; Okonji V. The State (1987) 1 NWLR (52) 659.Section 337 of the Penal Code provides:
337. “Whoever commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life or for any less term and shall also be liable to a fine.”
PW1 was vigorously cross-examined on his evidence regarding the burning of his houses, motorcycle and merchandise. He maintained his evidence that all the accused persons before the court collectively sprayed his house and set it on fire. He stated that the 2nd accused (now deceased) was the one who held the petrol but all the accused were present during the burning. PW2 also gave a vivid account of how the accused persons were annoyed that PW1 had gone to bring a police man and told PW1 that for doing so they were going to burn down his house. She stated thus:
“The said Ioraor Angough (not arraigned) opened the tank of PW1’s motorcycle and laid the motorcycle down so that the petrol in the motorcycle tank poured on the things PW1 bought from Gboko and Ioraor then set fire on the things. Terkula Yohol set fire on the thatched houses. The 2nd accused then sent Msugh Tyav to go and bring fuel from the house. When Msugh Tyav brought the fuel to 2nd accused, 2nd accused in company of 4th, 5th, Yangeadue, 3rd accused and one Kunde Jov went into PW1’s zinc house and spread the petrol there and set the house on fire. Some of the accused persons were outside dumping some of our property either in the burning fire or inside the well.”
Her testimony was unshaken under cross-examination. The law is that the evidence of a single witness is sufficient to prove a charge if such evidence is direct, cogent and points irresistibly to the guilt of the accused person. See Oduneye V. The State (supra). PW2 was the person who remained at the scene throughout the commission of the crime. In the circumstances of this case, therefore, the evidence of PW2 alone was sufficient to prove mischief by fire against the accused persons. The alleged contradictions regarding PW2’s oral testimony that all the accused persons proceeded from the 2nd accused person’s house and her extra judicial statement wherein she stated that messages were sent to inform people that PW1 had returned from his trip, are in my respectful view not material to the facts in issue. This is because the evidence before the court established the fact that all the accused persons along with those at large proceeded together from the house of the 2nd accused person to carry out their unlawful acts. It is immaterial how they got there. What is material is the fact that they all proceeded from that location to PW1’s compound. From the evidence before the lower court I hold that the prosecution established beyond reasonable doubt that the appellant caused mischief by fire to the dwelling house and places of custody of property belonging to PW1 intending to cause or knowing it to be likely to cause the destruction of the said property. I hold that the learned trial Judge who had the advantage of seeing and hearing the witnesses properly appraised the evidence before him and ascribed probative value thereto. His findings and conclusions are fully supported by the said evidence. I decline to disturb his findings.
In conclusion, I find no merit in this appeal and it is accordingly dismissed. The judgment of the High Court of Benue State sitting at Vandeikya in Suit No: VHC/3C/2002 delivered on 23/09/2003 is hereby upheld. The conviction and sentences passed on the appellant are affirmed.
Before concluding this judgment it is pertinent to observe that given the gravity of the offences committed by the appellant and the malice with which they were committed, he got off with a mere slap on the wrist. The learned trial Judge at pages 64-65 of the record admonished the 1st, 3rd and 4th accused persons being elderly members of the community who ought to have lived up to their role as umpires and mediators in communal disputes rather than being at the forefront of the mayhem. Notwithstanding their advanced age a stiffer sentence would no doubt have sent the correct message to the community that such wanton acts of destruction would be met with the full wrath of the law, no matter who the perpetrators might be. The original 2nd, 3rd and 4th appellants are now deceased. I shall therefore hold my peace.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have read before now the lead judgment just delivered by my learned brother, Kekere-Ekun, JCA. I agree that this appeal ought to be dismissed. It is accordingly dismissed by me for being totally devoid of any merit. Conviction and sentence of the Appellant by the lower Court is upheld and affirmed.
UCHECHUKWU ONYEMENAM, J.C.A: I had the opportunity of reading in draft the lead judgment just read by my learned brother, KEKERE EKUN, JCA. I entirely agree with the analysis of the law, the reasoning and the conclusion.
I will merely note that where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact that they acted in concert towards the commission of the crime renders all the accused persons guilty of the offence. See Patrick Ikemson & Anor V. the State (1989) ICLRN 1. In this case, as was rightly arrived at by the trial Judge: there was enough evidence that all the appellants acting in agreement entered into the compound of the complainant, intimidated him, cut down his economic trees, made ridges in his compound and burnt his properties. The trial Judge was therefore right in convicting the appellants for the offences charged.
Consequent upon this and the lead judgment I also dismiss the appeal. I uphold the judgment of the High court of Benue State, Vandeikya in Suit No: VHC/3C/2002. I affirm the conviction and sentences passed on the appellant.
Appearances
E.I. IAREN ESQ. For Appellant
AND
T.A. ESE, Principal State Counsel, Ministry of Justice Benue State For Respondent
