OROBOSA UKELEGHE v. THE STATE & ANOR (2015)

OROBOSA UKELEGHE v. THE STATE & ANOR

(2015)LCN/7949(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of July, 2015

CA/B/351CA/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHAT CONSTITUTES THE OFFENCE OF CONSPIRACY

What constitutes the Offence of Conspiracy has long been settled by the superior Courts of the land. The aggregate is that Conspiracy denotes an agreement of two or more persons to do an act which is an offence to agree to do; the bottom line being the meeting of the minds of the conspirators to commit an offence which need not be physical. The offence can therefore be inferred by what each person does in furtherance of the offence of conspiracy. See the following authorities: NWOSU VS. STATE (2004) 15 NWLR (PT 897) 466; ODUNEYE VS. THE STATE (2001) 2 NWLR (PT 697) 311; ADEJOBI VS. STATE (2001) 2 NWLR (PT 1261) 347; BUSARI VS. STATE 2015 LPELR SC 364/2012 PER MUNTAKA COMMASSIE JSC. It has equally been held that:- “Conspiracy to commit an offence is a separate and distinct offence which is independent of the actual commission of the offence to which the conspiracy is related. Consequently, the Offence of Conspiracy may be fully committed even though the substantive offence may be abandoned or aborted or may have been impossible to commit”. BALOGUN VS. A.G. OGUN STATE (supra) at Pg 531-532 par. G-B. per. PHILOMENA MBUA EKPE, J.C.A.

CRIMINAL LAW: CONSPIRACY TO COMMIT KIDNAPPING; WHAT THE COURT IS ENJOINED TO CONSIDER IN DECIDING THE CHARGE OF CONSPIRACY TO COMMIT KIDNAPPING

In deciding the charge of Conspiracy to commit Kidnapping, the court is enjoined to consider what evidence was led, and thereby to draw the necessary inference from the acts of the commission or non commission/omission attributable to the person being accused. See: ODUNEYE VS. STATE (supra) also cited in 5 NSCQR 1 at pages 25-26. per. PHILOMENA MBUA EKPE, J.C.A.

CRIMINAL LAW: THE OFFENCE OF MURDER; WHAT THE PROSECUTION MUST PROVE IN A CHARGE OF MURDER

It is the law, that in a charge of murder, it is the duty of the prosecution to prove the death of the victim, the responsibility of the accused by act or omission and the intentional act or omission of the accused with the knowledge that it could cause grievous bodily harm or death. The prosecution must go further to prove that the said act or omission indeed caused death, and not that it could have caused death. See: UBANI & ORS VS. STATE (2004) FWLR (PT.191) 1533; GODWIN IGABELE VS. STATE (2006) 3 SCM 142; JIMOH VS. STATE (2014) VOL. 235 LRCN 119 AT 160 PER ARIWOOLA JSC. per. PHILOMENA MBUA EKPE, J.C.A.

EVIDENCE: WAYS OF PROVING MURDER AND THE STANDARD OF PROOF

In the light of the ingredients of murder as established, the evidence would either be by direct evidence, confessional evidence or circumstantial evidence with the rider that the proof is beyond reasonable doubt. JIMOH VS.THE STATE (SUPRA) PER PETER-ODILI JSC. per. PHILOMENA MBUA EKPE, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHETHER THE COURT WILL DRAW A PRESUMPTION OR INFERENCE IRRESISTIBLY WARRANTED BY SUCH EVIDENCE WHERE STRONG CIRCUMSTANTIAL EVIDENCE IS LED AGAINST AN ACCUSED PERSON IN A CRIMINAL TRIAL

The position of the law is that where strong circumstantial evidence is led against an accused person in a criminal trial, and this gives rise to the drawing of a presumption or inference irresistibly warranted by such evidence, the court will not hesitate to draw such a presumption or inference so long as it is so cogent and compelling as to convince the court that on no rational hypothesis other than the inference can the facts be accounted for. See: TEPER VS. THE QUEEN (1952) A.C. 480; followed in the case of: PETER VS. THE STATE (1997) 12 NWLR (PT.531) 1 AT PG.42. per. PHILOMENA MBUA EKPE, J.C.A.

COURT: INTERFERENCE; WHETHER THE APPELLATE CAN INTERFERE WITH THE PERFORMANCE OF THE DUTY OF THE TRIAL COURT TO APPRAISE ORAL EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE TO SUCH EVIDENCE

It is settled that the appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a Court of trial, and the Court of Appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which the facts cannot and do not in themselves support: See the following authorities: WOLUCHEM VS. GUDI (1981) 5 SC 291; OKE VS. EKE (1982) 12 SC 218; FASHANU VS. ADEKOYA (1974) 6 SC 83; GBADAMOSI VS GOVERNOR OYO STATE (2006) 13 NWLR (PT.997) 363 AT 374 PER OGUNTADE JSC. per. PHILOMENA MBUA EKPE, J.C.A.

JUSTICES

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

OROBOSA UKELEGHE (M) – Appellant(s)

AND

1. THE STATE

2. ALEX OGALE OSIRIEJOR (M) – Respondent(s)

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): The facts generating this appeal are horrifying to say the least. They relate to Mrs Faith Ejemuta Akporoghene who is a trader, and a housewife. She is married to one Joseph Odhomor. On the 2nd of July, 2010, and in the course of her business, she visited the Warri City hotel in order to collect her money from one of the girls lodging in the hotel. At around 3.00 pm of the same date, while on her way home, the hotel Manager called and demanded that she bring back the girl she took from the hotel. She denied taking any girl from the hotel.

On the 12/7/2010, the said Mrs. Faith Ejemeta Akporoghene, (PW2) on her way to Oyede, while close to the Warri City hotel, one Orobor, and Onoma in the company of Rellingson Ogbor and other boys, accosted and dragged her from her motorcycle into the hotel led by one “Okrobodo” who was their Gang leader; and taken into the hotel, where she was locked up together with her baby. She later called her father in-law (PW1), to come with the sum of N16,500.00, demanded by her assailants and to bail her from the gang.

Her father in-law upon arrival was told that his daughter in-law aided the escape of a female prostitute from the hotel, and the sum of N16,500.00 demanded was meant to offset the expenses they incurred in trying to get the escaped girl. Following the pleas made to Okrobodo by her father in-law, the said Faith Ejemeta, his daughter in-law was released to him on the condition that the money would be paid by 4.00pm. Unfortunately, the money was not paid, and on the 11th of August 2010, Joseph Odhomor the husband of Faith was murdered.

In the course of investigation, the appellant OROBOSA UKELEGHE and ALEX OGALE OSIRIEJOR were apprehended and arraigned on a five count charge which reads as follows:

(1) Conspiracy to commit a felony to wit, Kidnapping, punishable under Section 516 of the Criminal Code Law C21, Laws of Delta State 2006.

(2) Kidnapping punishable under Section 364(2) of the Criminal Code Laws Cap C.21, Vol. 1 Laws of Delta State, 2003.

(3) Demanding with menaces punishable under Section 406 of the Criminal Code Cap. C21, Vol. 1, Laws of Delta State, 2003.

(4) Conspiracy to commit felony to wit: Murder punishable under Section 516 of the Criminal Code Law Cap C21 Vol. 1 Laws of Delta State, 2006.

(5) Murder punishable under Section 319(1) of the Criminal Code Laws Cap. C.21 Vol. 1. Laws of Delta State, 2006.

The two accused persons having pleaded not guilty to the Counts of the charge read to them, the prosecution on the 4th of October, 2011 opened its case, and in the course of trial, six witnesses testified for the prosecution, and Exhibits were tendered. The defence opened and closed their case on the 4th of December, 2012. At the close of addresses by the learned counsel, the vexed judgment was delivered on the 19th of March, 2013. In the said judgment, the appellant was found guilty of four of the five count charge, and sentenced to various terms of imprisonment, and also to death by hanging. This is at pages 68-94 of the records.

Being dissatisfied with the said judgment, appellant filed a notice of appeal dated the 18th of June 2013, and deemed filed on the same date, containing three grounds of appeal. This is at pages 103-105 of the records.

The grounds of appeal, shorn of their particulars, reads as follows:-

(a) The Delta State High Court coram: Fred O. Oho J. hereinafter referred to as the Lower Court erred in law when he held that “from the totality of the evidence in this case, along with “Okrobodo” the leader of the gang the 1st and 2nd accused persons played key roles at every turn of events and in all activities which began with the kidnap saga of PW2 and until it all culminated in the killing of the deceased Joseph Okhomor. I find the offences of conspiracy in counts 1 and 4 established… and thereafter convicted the appellant.

(b) The Lower Court erred in law when it held that the circumstantial evidence in this case points irresistibly to only one direction and that would be the offence of the murder of Joseph Okhomor, and that it was the appellant who committed it.

(c) The Lower Court erred in law when it convicted the appellant for the offence of murder the prosecution having failed to prove the ingredients of the offence.

The records were duly compiled and transmitted on the 26th of May, 2013. The appellant’s brief of argument was filed on the 23rd of June 2014, but deemed filed on the 1st of December, 2014. The respondents brief was thereafter filed on the 28th of November, 2014, but deemed properly filed on the 7th of May, 2015.

On the 12th of May 2015, being the scheduled hearing date, M.O. Sowole Learned appellant’s counsel relied and adopted the appellant’s brief settled by Pekun Sowole and urged upon the Court to allow the appeal by discharging and acquitting the appellant on all of the three counts charged.

Mr. Charles O. Abagwu, learned Chief State Counsel Delta State similarly relied and adopted the respondents brief settled by him and urged the court contrariwise to dismiss the appeal and to affirm the decision of the Lower Court.

In the appellant’s brief, and at page 2 thereof, three issues were formulated for the court’s determination. They are as follows:-

(1) Whether having acquitted the appellant of the Offence of Kidnapping, the charge of Conspiracy to Kidnap can still hold. (Ground 1).

(2) Whether the Offence of Conspiracy to commit Murder was proved against the appellant.

(3) Whether the Offence of Murder was proved against the appellant.

On his part, the respondent raised two issues for the determination of this appeal. They are as follows:-

(1) Whether the Offence of Murder was proved beyond reasonable doubt against the appellant.

(2) Whether the Offence of Conspiracy to commit Murder was proved beyond reasonable doubt against the appellant.

I have therefore given an insightful and thorough consideration to the issues raised by the two learned counsel on both sides, and I am of the view that the issues are for all purposes the same in intent and content. They all question the Lower Courts findings in respect of the charge of Murder and Conspiracy to Murder from the proof of evidence adduced by the prosecution at the court below. Appellants also raised the further question whether the appellant having been acquitted of the count of Kidnapping can still be held liable for the Offence of Conspiracy to Kidnap. In the determination of this appeal therefore, I adopt the issues as formulated by the appellants, having covered all the questions for determination.

ON ISSUE 1,

Whether having acquitted the appellant of the Offence of Kidnapping, the charge of Conspiracy to Kidnap can still hold.

Moving this issue, learned counsel submits, that to establish Conspiracy, two or more persons must have come together to agree to do an unlawful act, or agree to do a lawful act by unlawful means. On this, counsel relied on the authority of: BALOGUN VS.A.G.ONDO STATE (2001) FWLR (PT.78) 1144. It is the contention of learned counsel that pursuant to the charge against the appellant to wit; Conspiracy to commit Kidnapping, the prosecution and the learned trial judge must confine itself to the charge as proffered.

It is the further submission of learned counsel that the trial judge at page 85 of the records agreed with the appellant that they did not conspire to kidnap Faith Ejumeta. He maintains that the trial court having found at page 85 of the records that the appellant and his co accused did not kidnap the said Faith Ejumeta, but that appellant and the others rather abducted her, the resultant effect is that appellant could not have conspired with the 2nd accused person to kidnap the said Faith Ejumeta. He argued therefore that from the foregoing, the appellant in that regard should not have been convicted of Conspiracy to Kidnap.

Responding to the issue, learned Chief State Counsel argues that the conviction for Conspiracy does not become inappropriate merely because the substantive offence was not successfully established. He then argues further that Conspiracy to commit an Offence is a distinct and separate offence independent of the actual commission of the offence to which the conspiracy is related. Relying on the authority of: SHURUMO VS. THE STATE (2010) 16 NWLR (PT.1281) 65 AT 124, counsel posits that the Offence of Conspiracy may be fully committed even though the substantive offence may be abandoned, aborted or impossible to commit. He further refers to the case of: ATANO VS. A.G. BENDEL STATE (1988) 2 NWLR (PT.75) 201, and OGUGU VS. THE STATE (1990) 2 NWLR (PT.134) 539, and holds the view that where an offence has been committed and it has been found that the accused person committed same, he can be convicted of Conspiracy to commit that offence even though for good reasons he was discharged of the substantive offence.

Counsel yielded to the decision of: BALOGUN VS. A.G. OGUN STATE (2002) 6 NWLR (PT 763) 512 AT 531-532 per Uwaifo JSC, to the effect that the Offence of Conspiracy may be fully committed even though the substantive offence may be abandoned, aborted and or impossible to commit. He maintains therefore that from the foregoing the trial court in the circumstance was right to have convicted the appellant of the Offence of Conspiracy to Kidnap.

RESOLUTION

NWOSU VS. STATE (2004) 15 NWLR (PT 897) 466;

ODUNEYE VS. THE STATE (2001) 2 NWLR (PT 697) 311;

ADEJOBI VS. STATE (2001) 2 NWLR (PT 1261) 347;

BUSARI VS. STATE 2015 LPELR SC 364/2012 PER MUNTAKA COMMASSIE JSC. It has equally been held that:-

“Conspiracy to commit an offence is a separate and distinct offence which is independent of the actual commission of the offence to which the conspiracy is related. Consequently, the Offence of Conspiracy may be fully committed even though the substantive offence may be abandoned or aborted or may have been impossible to commit”. BALOGUN VS. A.G. OGUN STATE (supra) at Pg 531-532 par. G-B.

The pertinent question however raised from this issue is whether the Lower Court in his judgment having agreed with the appellants that they did not conspire to kidnap the PW2, could still find that Count One of the charge dealing will Conspiracy to Kidnap still holds.

I have therefore given serious and a dispassionate consideration to the issue, and I must agree with the learned appellant’s counsel that from the count of charge read against the appellant under consideration, the conspiracy alleged therein relates to the offence of kidnapping. For ease of reference, the count of the charge reads:-

“Conspiracy to commit a felony to wit: Kidnapping, punishable under Section 516 of the Criminal Code Law, C21 Laws of Delta State 2006”.

In the judgment of the learned trial judge, specifically at page 86 of the records, the learned trial judge held that the Offence of Kidnapping upon which the appellant was standing trial was not established, but that at best what could have been made against the accused persons is the Offence of Abduction. In other words, the learned judge was of the view, that the Offence of Kidnapping was not what the accused persons set out to do, but rather what they did could amount to abduction. It seems clear to me therefore that the appellant and the co-accused person couldn’t have been held guilty on a non contemplated offence. I do with humility state that the case of: BALOGUN VS A.G. OGUN STATE (SUPRA), which envisaged the existence of a conspiracy to commit an established offence, whether aborted, abandoned or frustrated, is distinguishable to the present circumstance.

The poignant evidence on the issue being contended upon is that given by PW1 and PW2. The aggregate of their evidence is that PW2 on the 12th of July, 2010 was accosted by one Okrobodo in company of the appellant and other members of the gang, forcefully dragged PW2 into the Warri Central hotel and held her there, on the condition that the sum of N16,500 be paid to secure her release. In the circumstance of this case and in view of the finding of the trial court on the issue, which is not being disputed, I tend to agree with the appellant that the charge of Conspiracy to Kidnap cannot in the circumstance stand against the appellant. This issue is resolved in favour of the appellant.

I shall now consider the third issue raised by the Appellant. It has been held that the proper approach to an indictment containing a conspiracy charge, and the substantive charge, is to first deal with the latter that is the substantive charge, and then proceed to see how far the conspiracy charge has been made out in answer to the fate of the charge for conspiracy. See: LUKMAN OSETOLA VS. THE STATE (2012) 12 SCM (PT. 2) 347; and JIMOH VS.THE STATE (2014) 235 LRCN 119 AT 159.

ISSUE 3

Whether, the offence of murder was proved against the appellant.

For determination here is, whether the prosecution proved beyond reasonable doubt that appellant committed the murder for which he was convicted by the Lower Court.

The argument of the appellant on this issue is at pages 6 to 12 of the appellant brief. Learned counsel submits that to establish the charge based on murder, the prosecution must prove the following ingredients of the charge beyond reasonable doubt.

(1) The fact of the death of the deceased;

(2) The act or omission of the accused which caused the death;

(3) That the act or omission of the accused was intentional and the act directly caused the death of the deceased. JIMOH VS. STATE (2011) 31 WRN PAGE 43 AT 72 TO 73.

Counsel submits that what the prosecution did in the case at hand was to establish suspicion which cannot ground a conviction no matter how grave.

Examining the ingredients of the offence in line with the evidence preferred by the prosecution, counsel concedes to the first ingredient to the effect that the death of Joseph Odhomo was duly established by the prosecution. On the second ingredient of the offence, however, counsel submits that the prosecution failed to establish the fact that it was the act of the appellant that caused the death of the deceased. Reviewing the evidence adduced at the Lower Court, counsel opines that nowhere was it established that it was the acts or omission on the part of the appellant which caused the death of the deceased. On the third ingredient of the offence, counsel submits that the onus on the prosecution is not only to prove the cause of death, but also to go further to prove that it was the intentional act of the accused person that caused the death of the deceased. He contends that the trial judge in arriving at his judgment relied wholly on circumstantial evidence, as there was no direct evidence elicited by the prosecution. Counsel referred the court to the type of circumstantial evidence that would ground a conviction as held in MOHAMMED VS. THE STATE (2007) 11 NWLR (PT.1045) 303 AT 327. He argues that the court placed heavy reliance upon the evidence of PW4, which was tainted with malice, and thereby unreliable. He further argued that the evidence before the Lower Court did not place the appellant at the scene of crime, consequently the findings of the trial judge was perverse having not been derived from evidence before it. He further submits that in a case of unlawful homicide as in the instant case, the prosecution must establish a nexus between the act of the accused and the death of the deceased. The case of: IGABELE VS. STATE (2004) 15 NWLR (PT 896) 314 AT 338 was referred to. In further submission, counsel states that a court cannot convict on circumstantial evidence especially in murder cases where the evidence points to more than one direction. For support, counsel cites the case of: THE QUEEN VS. IROMACHI (1956-84) 10 SCNJ Pg.34; IBO VS. THE STATE (1971) NMLR 245 and THE STATE VS. IFU (1964) 8 ENLR 28. He reiterates that the evidence in this case points to more than one direction.

The respondent’s response to this issue is contained from pages 2 to 15 of the respondents brief. He refers to the provisions of Section 135(1) of the Evidence Act on the duty placed on the prosecution to prove any criminal allegation beyond doubt, which however does not mean proof beyond any shadow of doubt: DIBIE VS. THE STATE (2004) 14 NWLR (PT 893) 251 AT 284-285. Counsel agrees with the defence on the ingredients necessary to ground a conviction for murder, and further submits that proof in criminal cases can be established by circumstantial evidence, as held in the case of: DURWODE VS. STATE (2001) 2 ACLR 503.

On the first ingredient of the offence, counsel points to the evidence of PW1, PW2, and PW6 to the effect that the death of Joseph Odhomo was established.

On the second ingredient of the offence, the learned counsel submits that prosecution proved the ingredient by circumstantial evidence as required by law. Counsel further alluded to the pieces of evidence rendered by the PW1, PW2, PW3, PW4, and PW6 and submits that the analysis of the evidence answered vital questions, which were cogent, compelling, unequivocal and all pointing to the guilt of the appellant.

On the third ingredient, counsel submits that from available evidence, the appellant shot the deceased on the head with a gun. He calls in aid the decision in AMAYO VS. THE STATE (2001) 18 NWLR (PT.745) 251, and submits that from the intentional act of injury committed, the probability of death resulting therefrom is very high, and the finding therefrom should be that appellant intended to cause death or inflict serious bodily harm sufficient in the ordinary cause of nature to cause death. The law, counsel postulates is that a man intends the natural and probable consequence of his acts, as held in ABOYEDE VS. THE STATE (1996) 4 SCNJ P.223.

RESOLUTION

From the hard facts laid before the Lower Court and as borne on the records, the fact that the deceased Joseph Odhomor died is not in contention. The issue was laid to rest by the evidence of PW1, who painfully identified the corpse of his son, before autopsy was undertaken, PW6, the Medical Doctor, who carried out the autopsy on the deceased, and PW2, the wife of the deceased who gave evidence that the deceased was killed on the 11th of August, 2010. This fact was conceded by the appellant, and consequently deemed as having been duly proved.

On the second ingredient, appellants contend that the act or omission of the appellant which caused the death of the deceased has not been established by the prosecution. The trial court in its judgment at pages 89-93 of the records dealt with the issue, arriving at the irresistible conclusion that circumstantial evidence in this case points irresistibly to only one direction, and that it was the offence of murder of Joseph Odhomor committed by the accused persons.

Evidently there is no eye witness account which conclusively points to the appellant as the murderer of the deceased Joseph Odhomor. The conviction of the appellant was predicated upon circumstantial evidence.

In the consideration of this issue, the learned trial judge looked at the statement of the 2nd accused person in Exhibit E, made on the 11th of August 2010, the evidence of PW4, who emphatically told the court that when the trio, Okrobodo, the first accused person also called Orobor, and one Biggy stopped at the place called Secretariat, a place where the rough boys usually congregate, the 1st accused (Appellant) whom he observed was sweating profusely and looking very rough, told him, “that they are just from an operation where they had gone; to fall one small boy who was playing with their intelligence”. This statement according to PW4 meant they had gone to kill someone. Further still under cross examination, the witness stated that appellant to his knowledge has no known job but a “hired killer” by profession. Apparently the evidence was not contradicted or controverted. The background of events leading thereto is as narrated by PW1, PW2, and PW3.

WOLUCHEM VS. GUDI (1981) 5 SC 291;

OKE VS. EKE (1982) 12 SC 218;

FASHANU VS. ADEKOYA (1974) 6 SC 83;

GBADAMOSI VS GOVERNOR OYO STATE (2006) 13 NWLR (PT.997) 363 AT 374 PER OGUNTADE JSC.

Having also perused the entire evidence adduced, and examined the Exhibits; I am in full agreement with the Lower Court that the evidence of circumstance against the appellant is cogent, unequivocal and irresistibly pointed at only one conclusion, which is that the deceased Joseph Odhomor was murdered by the appellant. I have no hesitation agreeing with the learned trial judge that this ingredient of the offence was proved against the appellant to the hilt, and I so hold.

This ingredient of the offence having been proved, the third ingredient naturally follows as having also been proved. This is against the background that a person intends the natural consequence of his action. See: ADAMU VS. KANO N.A. (1956) FSC 25; GIRA VS. STATE (1996) 4 NWLR (PT.443) 375; MOHAMMED VS. THE STATE (1997) 9 NWLR (PT. 520) 169. It leaves no one in doubt that a shot in the head is fatal, and that was what those that pulled the trigger intended. On the whole I find the offence of the murder of the deceased by the appellant as having been proved as required by law, and this issue is determined against the appellant.

ISSUE 2.

Whether, the Offence of Conspiracy to commit Murder was proved against the appellant.

On this issue, the appellants submit that the findings of the learned trial judge at page 83 of the records are not borne from the evidence before the court. Counsel alluded to portions of the Lower Courts judgement and submits that at times the evidence of the PW1 was inconsistent. He states that from the grave inconsistencies inherent in the evidence of the witness, particularly PW1, doubts have arisen in the prosecution’s case which ought to enure in favour of the Appellant. He anchors this submission on the case of: NWACHUKWU VS.THE STATE, 2000 FWLR (PT.28).

It is the response of the learned Chief State counsel, that a court can infer conspiracy and convict on it where it is satisfied that the accused persons pursued their acts, the same object, one performing one part of the act and the other performing some other part so as to complete their unlawful design. He further submits that generally, Conspiracy is a matter of inference deductible from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them. The case of: TANKO VS. THE STATE (2008) 16 NWLR (PT.114) 591 AT 638 was referred to.

RESOLUTION

The learned trial judge appreciated this position of the law, where he stated that the appreciation of whether the Offence of Conspiracy has been established needs a careful look at the evidence before it, thus drawing the correct inference or presumption. The Court below considered the pieces of evidence given by PW1, PW2, PW3 and PW4, concluding that the evidence placed the accused persons at the scene of the crime, and established what each of the accused persons did, and the role performed towards the commission of the offences alleged, and materially the Offence of Murder.

Commencing from the 12th of July 2010, when the PW2 was waylaid and detained at the Warri Central hotel by the appellant, commanded by Okrobodo, on the allegation that PW2 aided the escape of an inmate of the hotel, to the ultimate killing of the deceased; appellant and the other accused persons are seen participating in one action or the other. This is borne on the evidence on the record. The appellant in particular was fingered throughout on the 12th of July 2010, in company of Okrobodo, the mastermind of the killing. He later surfaced on the 11th of August 2010, when the deceased was murdered. I am satisfied that the trial court adequately evaluated the evidence before it, justifiably appraised the facts and took a specific decision on the credibility of the witnesses before it. It is therefore no business of this Court to interfere, substituting its view, the conclusions not having been shown to be perverse. I therefore hold that the prosecution has without doubt proved the Offence of Conspiracy to commit Murder against the appellant beyond doubt. This issue is likewise determined against the appellant.

The totality of the present appeal is that issue number one is resolved in favour of the appellant, and the appeal on same is allowed. The conviction and sentence, (i.e.) Conspiracy to Kidnap, is hereby set aside and appellant discharged and acquitted thereof. The 2nd and 3rd issues canvassed are without merit and I accordingly dismiss same.

The conviction of the appellant for Conspiracy to Commit Murder, and for Murder is hereby affirmed. Similarly the sentence of death passed on him is also affirmed. Appeal dismissed.

HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the judgment just delivered by my Lord PHILOMENA MBUA EKPE, JCA.

I totally agree with the reasoning and conclusions arrived at. I have nothing more useful to add. I abide by all the orders made in the lead judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, Philomena Mbua Ekpe, JCA. I agree with the reasoning and conclusion that the appeal is devoid of merit and ought to be dismissed.

Under our adversarial criminal justice system, the prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability 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. See MILLER vs. MINISTER OF PENSIONS (1947) 2 All E.R. 372 and MICHAEL vs. STATE (2008) LPELR (1874) 1 at 24.

From the Records of Appeal, even though the evidence against the Appellant is circumstantial evidence, it is cogent, strong and unequivocal that it leads to the conclusion that the act of the Appellant caused the death of the deceased: ILIYASU vs. THE STATE (2015) LPELR (24403) 1 at 39. The circumstantial evidence is such that only a remote probability is left in favour of the Appellant; which can be assuredly dismissed with the sentence; “of course it is possible, but not in the least probable”. I therefore agree with my Lord, Ekpe, JCA that an insightful and cognitive assessment of the evidence adduced discloses that the Respondent discharged the burden cast upon it of proving the offence charged beyond reasonable doubt.

In the light of the foregoing, I also join in dismissing the appeal. The judgment of the High Court of Delta State, Coram: F.O. Oho, J. (as he then was) in Charge No.HCO/5C/2011 delivered on 19th March, 2013 is hereby affirmed.

Appearances

M.O. Sowole, Esq.For Appellant

AND

Mr. Charles O. Abagwu, Chief State Counsel Delta StateFor Respondent