WARRI v. STATE (2022)

WARRI v. STATE

(2022)LCN/16608(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, February 23, 2022

CA/AS/549C/2019

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

TAIGA WARRI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN CRIMINAL CASES

The legal burden of proof in criminal cases lies on the prosecution and does not shift. The standard of proof is proof beyond reasonable doubt. See Sections 131 and 135 of the Evidence Act and Okogbue v. Commissioner of Police (1965) N.M.L.R. 232. PER EKANEM, J.C.A.

THE MEANING OF PROOF BEYOND REASONABLE DOUBT

THE POSITION OF LAW ON ESTABLISHING THE LINK BETWEEN DEATH AND THE ACT OF MURDER

In Oforlete v. State (2000) FWLR (Pt. 12) 2081, 2104 (also reported in (2000) LPELR – 2270 (SC), Achike, JSC, stated the law as follows:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved, in a criminal proceeding beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act (or omission) of the person alleged to have caused it. These are factual questions to be answered by consideration of the evidence.”
See also Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515, 534. PER EKANEM, J.C.A.

THE IMPORTANCE OF MEDICAL EVIDENCE IN DETERMINING THE CAUSE OF DEATH IN A MURDER

Medical evidence is desirable but not a sine qua non in determining the cause of death in a murder trial where there are other pieces of evidence or circumstances upon which the cause of death can be inferred to the satisfaction of the Court. An instant is where death was instantaneous or nearly so. See Oguntolu v. State (1996) 2 SCNJ 65, 69, Ben v. State (2005) 11 NWLR (Pt. 936) 355, 345 and 347, Okorie v. State (2018) 11 NWLR (Pt. 1629) 1, 24, Ukpong v. State (2019) 6 NWLR (Pt. 1667) and Dajo v. State (2019) 2 NWLR (Pt. 1656) 281, 297. PER EKANEM, J.C.A.

THE POSITION OF LAW WHERE TWO OR MORE PERSONS FORM A COMMON INTENTION TO PROSECUTE AN UNLAWUFUL PURPOSE

On a charge of murder, where the evidence established that a deliberate and unprovoked attack likely to endanger human life resulting as a probable consequence in the infliction of the grievous harm on one and the death of another was carried out in concert by all the defendant in circumstances pointing irresistibly to common design, it does not matter which of the defendant did what.”
It is indeed the law that when two or more persons form a common intention to prosecute an unlawful purpose and in the prosecution of such purpose an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose is committed, each of the persons is deemed to have committed the offence, and it is immaterial who did what. See Alarape v. State (2001) 5 NWLR (Pt. 705) 79, 102-103, Obidike v. State (2002) FWLR (Pt. 87) 783, Nwankwoala v. State (2006) 14 NWLR (PT. 1000) 663, Alao v. State supra 269 and Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238, 246.
For Section 8 of the Criminal Code to be applicable, there must be evidence:
1. That the accused persons formed a common intention to prosecute an unlawful purpose together.
2. That in furtherance of the unlawful purpose an offence was committed.
3. That the offence was a probable consequence of the prosecution of the unlawful purpose. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant was the 1st accused person out of the three accused persons who were charged before the High Court Of Delta State, Effurun Judicial Division (the trial Court) in charge No. UHC/31C/2014 for the offences of conspiracy to commit murder punishable under Section 324 of the Criminal Code and with three counts of murder punishable under Section 319 of the Criminal Code Law, Cap. C 21 (sic) Laws of Delta State, 2007.

The appellant along with the other accused persons pleaded not guilty to the charge and the respondent, to prove its case, called four witnesses and tendered three exhibits. After their no-case submission was overruled, the accused persons including the appellant testified for themselves and called one additional witness. They tendered three exhibits. Counsel on both sides filed written addresses. After the adoption of written addresses, the trial Court presided over by M. N. Obi, J. in a reserved judgment, found that the prosecution had proved its case against the appellant and the 2nd accused person. It sentenced them to death by hanging in all the counts of the information including the count on conspiracy. The trial Court found that the case against the 3rd accused person was not proved and so he was discharged and acquitted.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal which was amended by the order of this Court. The amended notice of appeal incorporates six grounds of appeal.

The facts of the case leading to this appeal as presented by the prosecution are that on 14/5/2011, the (Ododegho) community youth chairman announced that environmental sanitation exercise would hold. The appellant countered the announcement and warned that anyone who went out for the exercise would have himself to blame. Some persons however went for the exercise. One Paul Ovjoviwoia, who belongs to the same camp as the appellant, confronted those who went out for the exercise and asked them to stop working. The people who went for the exercise resisted him and he left but returned with the appellant (who was armed with a cutlass), the 2nd accused (armed with an axe) and the 3rd accused (armed with a gun). They started shooting and the persons who had turned up took to their heels. The 3rd accused person chased Alfred Omojebe while the remaining people were chased into a bush. At a point those who were chased into the bush stopped running. At that point, Royal Adode was shot in the stomach and was held by Godday Oghoba as he fell. Godday was shot, too. They were both shot by Phillip Ovjoviwoia.

The appellant testified that he did not commit the offences but that on the date when the offences were committed he was in Ughelli with his wife.

The trial Court, as I have already stated, found the appellant guilty of the offences with which he was charged and sentenced him as mentioned above.

In the appellant’s brief of argument settled by Patrick Mekako, Esq., four issues have been distilled from the six grounds of appeal for the determination of the appeal. The issues are:
1. Whether from the facts and circumstances of this case, the prosecution can be said to have proved its case beyond reasonable doubt to warrant the conviction and sentence of the appellant for conspiracy and murder. (grounds 1, 2 and 6)
2. Whether from the facts and circumstances of this case, the lower Court was right in rejecting the plea of alibi raised by the appellant. (grounds 1 and 5)
3. Whether the sentence of death imposed by the lower Court for the offence of conspiracy to murder was right in law (ground 4)
4. Whether the lower Court was right in convicting and sentencing the appellant when it discharged and acquitted the 3rd defendant on the same evidence. (ground 3)

For the respondent, one issue for determination was distilled in the respondent’s brief settled by Mrs O. Eyesio, Senior State Counsel, Ministry of Justice, Delta State, to wit:
“Whether in view of the evidence on record, there exist any legal or credible evidence upon which the lower Court relied to convict and sentenced (sic) the Appellant for the offences of conspiracy to commit murder and murder of the deceased persons.”

It is noticeable that ground 1 of the notice of appeal forms a common denominator in issues 1 and 2 of the appellant. One ground of appeal cannot be the fountainhead of two or more issues. An issue is formulated from a ground or combination of grounds of appeal having the same theme. Where one ground of appeal is used to formulate two or more issues, the result is that there is proliferation of issues as in this instance. Nevertheless, since this is a criminal appeal involving capital sentence, I shall formulate what I consider as the issues that arise from the grounds of appeal. See Atiku v. State (2010) 9 NWLR (Pt. 1199) 241, 264. This is especially because the single issue distilled by respondent’s counsel does not cover all the complaints embedded in the grounds of appeal. The issues for the determination of the appeal are therefore as follows:
1. Whether or not the trial Court was right in convicting the appellant.
2. Whether or not the trial Court was right in imposing the sentence of death on the appellant for the offence of conspiracy to commit murder.

ISSUE 1
Whether or not the trial Court was right in convicting the appellant.

Appellant’s counsel submitted that the commission of a crime by a person must be proved beyond reasonable doubt by the prosecution which must prove all the ingredients of the offence beyond reasonable doubt. It was his further submission that the prosecution failed to prove the essential ingredients of the offences of murder and conspiracy against the appellant beyond reasonable doubt. Counsel set out the ingredients of the offence of murder and contended that the prosecution must establish not only the cause of death but also that the act of the accused person caused the death of the deceased. He placed reliance on Omogodo v. State (1981) 5 SC 5, among other cases. He emphasised that the prosecution also has to prove causal link between the cause of death of the deceased and the act of the accused person. It was his contention that the prosecution failed to prove the cause of the death of the deceased persons and the causal link between the cause of death and the act of the appellant.

Counsel submitted that evidence of the cause of death of the deceased persons is unsatisfactory and shaky. He referred to a portion of the judgment of the trial Court to show that the trial Court relied heavily on the evidence of the PW2. It was his position that the trial Court erred in holding that no medical report was needed in respect of the cause of the death of Godday Oghoba and Royal Adode, while there was need for medical report in regard to the death of Alfred Omojebe. Counsel contended that the finding was doubtful and noted that the PW2 did not testify that the death of Royal and Godday resulted from the act of the appellant nor did he say that the appellant shot the deceased persons. He stressed that other than the evidence that the appellant went to stop the environmental sanitation exercise and had a cutlass, nothing was said about the appellant at the scene of the crime.

Furthermore, he posited that the evidence of the PW2 was contradictory and unreliable as he (the PW2) stated that 3rd accused chased Alfred Omojebe while he and others were chased into the bush, with them running in different directions, yet in cross-examination, he stated that they all ran in the same direction. He wondered how Royal was shot in the stomach when the evidence of PW2 was that they were being chased from behind. He noted that the PW2 did not state the part of the body that Godday was shot. He wondered why the witness was not killed. He raised several other queries about the evidence of PW2 including who helped him in the bush after he was allegedly beaten until he fainted and how he got to the Police station. Counsel stated that it was disturbing that it was clear that a post-mortem examination was conducted but the prosecution failed to tender the result of the same in evidence. He urged the Court to invoke Section 167 of the Evidence Act. He argued that though a Court may infer cause of death in the absence of medical report but, in this instance, there was no evidence linking the cause of death and the act of the appellant as it was in evidence that Royal and Godday were shot by Philip Ovjovwoia. It was his position that the finding of the trial Court that when they were shot by Philip, the two deceased persons died was not borne out by evidence on record. He posited further that there was no medical evidence to show that Royal and Godday died from gunshot wounds.

It was stated by him that the trial Court relied on Section 8 of the Criminal Code to make the act of Philip Ovjoviwoia the act of the appellant. He submitted that the provision is inapplicable to the facts of the instant case. He set out the elements of the provision and contended that there was no evidence that the appellant formed a common intention to prosecute an unlawful purpose with Philip Ovjoviwoia or any other person. Again, he argued that the act of trying to stop an environmental sanitation exercise is not an unlawful act as there is no law creating the exercise for which stopping it would amount to contravening the law. He emphasised that murder is certainly not an offence that is a probable consequence of trying to stop such an exercise.

Counsel thereafter contended that prosecution failed to prove the offence of conspiracy and that the mere fact that the Court believed that the appellant was in the company of Phillip was not sufficient to infer conspiracy.

Apparently arguing his issue 2 without so stating, appellant’s counsel stated the law regarding the defence of alibi and posited that the appellant discharged the onus put on him to raise the defence of alibi timeously. He referred to Exhibit P1, the extra-judicial statement of the appellant. He noted that there was no evidence that the alibi of the appellant was investigated by the Police and argued that the failure ought to create doubt in the mind of the Court. Counsel submitted that the trial Court was wrong when it held that the plea of being in Ughelli and not the community where the incident took place was only raised in the Court. This, he said, is because the appellant mentioned Ughelli in Exhibit P2.

Counsel lamented that the trial Court believed the evidence of the PW2 that placed the appellant at the scene of the crime though it disbelieved the evidence of the same witness in respect of the identification of the 3rd accused person. He submitted, without citing any authority in support, that a Court cannot pick and choose which part of the evidence of a witness to believe and which to disbelieve, and that the trial Court was wrong in rejecting the evidence of the PW2 as it relates to the 3rd defendant and accepting the same evidence against the appellant. He argued that when a Court discredits and rejects the evidence of a witness and refuses to use it as a basis to convict an accused person, the Court should decline to use the same evidence as a basis of convicting another accused person where the evidence linking the accused persons to the offence charged are interwoven and inseparable. He placed reliance on Ebri v. State (2004) 5 SCM 48 and Umani v. State (1988) 1 NWLR (Pt. 70) 274, and posited that the appellant ought to have been discharged as the evidence against him and the 3rd respondent who was discharged was in all material respects the same.

Respondent’s counsel stated the ingredients of the offence of murder and submitted that it was common ground that the first ingredient of the offence had been proved. She then contended that it is settled law that in the absence of medical evidence to decide the cause of death, the Court may decide the cause of death on the evidence before it unequivocally showing the nexus between the death and the unlawful act of the defendant. She placed reliance on Onwumere v. State (1991) 1 NSCC 620. She posited that where the deceased died instantaneously or nearly instantaneously after the unlawful act of the defendant, it can safely be presumed that the unlawful act of the defendant caused the death of the deceased. It was her argument that the deceased persons (Godday and Royal) died from gunshots fired by Phillip and that there was therefore no need for medical report.

She referred to Section 8 of the Criminal Code and stated that the appellant and his cohorts, in the process of carrying out the unlawful act of stopping the sanitation exercise on 14/5/2011, were armed with dangerous weapons and agreed on the act they carried out on that day. She therefore submitted that the conviction of the appellant was within Section 8 of the Criminal Code.

In respect of conspiracy, she contended that the appellant and others acted under circumstances from which conspiracy can be inferred. As regards the defence of alibi, counsel posited that when an accused person sets up the defence, he must prove that he was indeed somewhere else. She submitted that appellant’s evidence was riddled with contractions (sic: contradictions) and pinpointed what she viewed as such contradictions. She contended that the defence of the appellant that she was with his wife in Ughelli was an afterthought.

Counsel argued that the appellant stands on his own and that it was immaterial that the 3rd accused person was discharged on the same evidence: rather the most important thing was that the trial judge relied on evidence before him and applied the law when he came to the conclusion that the defence of alibi raised by the appellant did not avail him. She pointed out that the prosecution led evidence pinning the appellant to the scene of the crime.

The legal burden of proof in criminal cases lies on the prosecution and does not shift. The standard of proof is proof beyond reasonable doubt. See Sections 131 and 135 of the Evidence Act and Okogbue v. Commissioner of Police (1965) N.M.L.R. 232.

Proof beyond reasonable doubt does not mean proof beyond all doubts or all shadow of doubts. It simply means establishing the guilt of an accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. The law does not look for absolute certainty. Once the ingredients of a particular criminal offence are established by the prosecution beyond reasonable doubt then the burden becomes that of the accused person to show by credible evidence that he is not guilty. If at the end of the case there is reasonable doubt as to whether he committed the offence, the accused person is entitled to an acquittal. See Woolmington v. Director Of Public Prosecutions (1935) A.C. 426, Eyo v. State (2016) 7 NWLR (Pt. 1510) 183 and State v. Balogun (2018) 10 NWLR (Pt. 1627) 201.
The appellant was charged with the offences of conspiracy and murder. The correct approach in that situation is to deal first with the murder charge and then the charge of conspiracy. See Okanlawon v. State (2015) 17 NWLR (Pt. 1489) 445, 477. The trial Court found him guilty of the murder of Godday and Royal. To prove a case of murder, the prosecution is required to prove that:
1. The deceased died.
2. The death was caused by the act of the accused.
3. The act of the accused was intended to cause death or grievous bodily harm or was done with the knowledge that death or grievous bodily harm was the probable consequence.
See Durwode v. State (2001) FWLR (Pt. 36) 950 and Alao v. State (2015) 17 NWLR (Pt. 1488) 245.

It seems to be common ground that Godday and Royal died. The appellant however disagreed with the trial Court in its finding that the act of the appellant caused the death of the deceased persons. In Oforlete v. State (2000) FWLR (Pt. 12) 2081, 2104 (also reported in (2000) LPELR – 2270 (SC), Achike, JSC, stated the law as follows:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved, in a criminal proceeding beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act (or omission) of the person alleged to have caused it. These are factual questions to be answered by consideration of the evidence.”
See also Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515, 534.

The trial Court found in essence that the deceased persons died from gunshots that were fired at them by Phillip Ovjoviwoia. It relied on the evidence of PW2 in the absence of medical evidence on the cause of their death. The learned trial judge reasoned thus at page 122 of the record:
“It was the evidence of PW2 that Phillip Ovujohvwovwhi shot Godday Oghoba and Royal Adode with a gun and they died. Pw2 could not tell how Alfred Omojebe died as the said Alfred Omojebe ran to a different direction and he (PW2) did not see who killed Alfred Omojebe. For Godday Oghoba and Royal Adode, no medical report would be necessary. However, for Alfred Omojebe, the prosecution needed to call medical evidence …”

Medical evidence is desirable but not a sine qua non in determining the cause of death in a murder trial where there are other pieces of evidence or circumstances upon which the cause of death can be inferred to the satisfaction of the Court. An instant is where death was instantaneous or nearly so. See Oguntolu v. State (1996) 2 SCNJ 65, 69, Ben v. State (2005) 11 NWLR (Pt. 936) 355, 345 and 347, Okorie v. State (2018) 11 NWLR (Pt. 1629) 1, 24, Ukpong v. State (2019) 6 NWLR (Pt. 1667) and Dajo v. State (2019) 2 NWLR (Pt. 1656) 281, 297.

The PW2 gave eye-witness evidence of how Royal Adode and Godday Oghoba were fired at with a gun by Phillip Ovjoviwoia. Royal was shot in the stomach and Godday held him as he fell down and Godday was shot by the same Phillip. The PW1, an elder sister of Godday, testified that they found his body in the bush having not seen him for three days after the incident and identified it, and took it to a mortuary. The PW2 testified that he did not know who identified the corpses of the two deceased persons. The trial Court was therefore right in inferring the cause of the death of Godday and Royal from the facts and circumstances of the case as there was no whiff of any intervening cause.

It was the contention of appellant’s counsel that there was contradiction in the evidence of PW2 in that:
1. In his evidence–in–chief, he stated that the 3rd accused person chased after Alfred Omojebe while the rest were chased into the bush, that Alfred ran in a different direction but in cross-examination, he testified that they all ran in the same direction.
2. The PW2 testified that the crowd that chased them was chasing them from behind but Royal was shot in the stomach.
3. The PW2 did not state what part of the body Godday was shot.

I have carefully read the evidence of PW2 and I find that he did not expressly say that Alfred ran in a different direction. What he said was that the 3rd accused person chased Alfred while the rest of them were chased into the bush. In any event, if there was any difference in the witness’ testimony on this point, it amounted to a mere discrepancy or minor contradiction that did not go to the root of the case of the prosecution. I will return to this anon.

The amazement expressed by appellant’s counsel as to Royal being shot in the stomach though the evidence of PW2 was that they were being chased from behind is a contrived amazement. The PW2 testified that at a point, they stopped running. It was while they stopped running that Royal was shot in the stomach. Again, the failure of the witness to state what part of the body that Godday was shot is of no moment. The incontrovertible fact, which is what is important, is that he was shot with a gun. It is not every discrepancy or contradiction in the evidence of prosecution witness/es that would lead to the rejection of such evidence: it must be shown that the alleged contradiction or discrepancy is material and adequate enough to cast doubt on the case of the prosecution. See Onubogu v. State (1974) 9 SC 1, 20, Alao v. State supra 268 and Attah v. State (2010) 12 NWLR (Pt. 1201) 190, 212.

It was the contention of appellant’s counsel that there was no evidence that the death of the deceased resulted from the act of the appellant. He stressed that the appellant did not shoot the deceased persons and that nothing was said about him at the scene of the crime.
The learned trial judge gave an answer to this contention at page 122 of the record thus:
“It is the evidence of the PW2 that Phillip Ovujovwovwhi did the shooting. Be that as it may, Section 8 of the Criminal Code provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in prosecution of such a purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution such purpose, each of them is deemed to have committed the offence.
On a charge of murder, where the evidence established that a deliberate and unprovoked attack likely to endanger human life resulting as a probable consequence in the infliction of the grievous harm on one and the death of another was carried out in concert by all the defendant in circumstances pointing irresistibly to common design, it does not matter which of the defendant did what.”
It is indeed the law that when two or more persons form a common intention to prosecute an unlawful purpose and in the prosecution of such purpose an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose is committed, each of the persons is deemed to have committed the offence, and it is immaterial who did what. See Alarape v. State (2001) 5 NWLR (Pt. 705) 79, 102-103, Obidike v. State (2002) FWLR (Pt. 87) 783, Nwankwoala v. State (2006) 14 NWLR (PT. 1000) 663, Alao v. State supra 269 and Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238, 246.
For Section 8 of the Criminal Code to be applicable, there must be evidence:
1. That the accused persons formed a common intention to prosecute an unlawful purpose together.
2. That in furtherance of the unlawful purpose an offence was committed.
3. That the offence was a probable consequence of the prosecution of the unlawful purpose.
As was stated in Alao v. State supra. 266, it is difficult if not impossible to prove common intention by direct evidence. However, its existence can be inferred from the surrounding circumstances disclosed in a given case. It is pertinent for me to set out some of the facts and circumstances of this matter to determine if the trial Court was right in its conclusion that there was a common intention. The facts are stated hereunder:
i. The community youth chairman announced an environmental sanitation exercise.
ii. Appellant countered the announcement and warned that anyone who came out for the exercise would have himself to blame.
iii. PW2 went for the exercise along with some others.
iv. Phillip Ovjoviwoia, who is of the same camp with the appellant, confronted them and asked them to stop working but they resisted him.
v. Phillip Ovjoviwoia left and returned with the accused persons including the appellant.
vi. The appellant was armed with a cutlass, the 2nd accused person was armed with an axe.
vii. The deceased persons were shot with a gun by Phillip.
From the foregoing, it is easy to infer that the appellant and others had formed a common intention to prosecute an unlawful purpose, to wit; to stop the PW2 and others from engaging in the sanitation exercise by atta withcking them with dangerous weapons or by intimidating them dangerous weapons. The murder of the deceased persons in the process was a probable consequence of the prosecution of the unlawful purpose. The PW2 insisted that the appellant was in the group that attacked them. It was therefore immaterial who in that group did what or actually fired the fatal shots. The firing of the shots was attributable to all the members of the group including the appellant though there was no evidence that he personally fired the shots.

The questions raised by appellant’s counsel as to why the PW2 was not killed, who helped him, how he got to the police station and lack of medical report of his treatment are a mere flight in fanciful imagination that has nothing to do with proof beyond reasonable doubt. Proof beyond reasonable doubt is a postulation within the realm of reason and must not be stretched beyond limit which is what appellant’s counsel set out to do. See Igabele v. State (2004) 15 NWLR (Pt. 896) 314, 334.

The trial Court was therefore right in finding the appellant guilty of murder on the basis of the doctrine of common intention to prosecute an unlawful purpose.

As regards appellant’s defence of alibi, the learned trial judge rejected the plea. Alibi means elsewhere. An accused by raising a defence of alibi simply says that he was somewhere else from the scene of the crime and so removed therefrom as to make it impossible for him to have committed the crime. See Shehu v. State (2010) All FWLR (Pt.523) 1841. The law is that once an accused person raises at the earliest opportunity (usually in his statement to the police) the defence that he was somewhere else from the scene of the crime and furnishes the police with necessary particulars of the place that he was and the name/s of the person/s who were with him at the material time, the defence of alibi is complete and the Police have to investigate it. If the Police fail to investigate an alibi, it may cast some doubt on the case of the prosecution. It must be stated that the duty is not on the appellant to prove his alibi: rather it is on the prosecution to disprove it as part of the duty on it to prove the charge against the accused person beyond reasonable doubt. Though alibi is not investigated, where the prosecution has adduced sufficient and cogent evidence fixing the appellant at the scene of the crime, the alibi is logically and physically dislodged. See Gachi v. State (1965) NMLR 333, Njovens v. State (1973) 1 ALL NLR (Pt. 1) 441, Umani v. State (1988) 2 SC (Pt. 1) 88, Balogun v. Attorney-General of Ogun State (2002) 6 NWLR (Pt. 763) 512, Egunjobi v. FRN (2013) 2 NWLR (Pt. 1342) 534, Amodu v. State (2010) 2 NWLR (Pt. 1177) 47, Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423 and Wisdom v. State (2017) 4 NWLR (Pt. 1586) 446.
In a plea of alibi, time is material, for the issue is where the accused person was on the day and at the time of the incident. From the evidence of the PW1 and PW2, the incident occurred on 14/5/2011. In his extra-judicial statement (Exhibit P1), the appellant stated as follows:
“On the 11th day of May, 2011, in the morning one Isaac told me that Godday Oghoba went a flogged phillip Ovugohwovbie with the child, when I was passing to go and collect my clothes from a tailor at Afiesere, I branched and asked phillip what and he told me that Godday and his boys flogged him and his child, I advised him to forget the matter, but he promised not to forget. After some time, I heard that they were fighting. I did not join in the fight. My house is close to the bush, I heard someone shouting that they should not kill him, I recognize the voice to be that of peter Oghuvwu, I went there and rescued him. After that I left the community with my motorcycle, I left the community because I don’t want to be indicted. When I was at Ughelli, Blessing Igogo called me that night and told me that three people died in the community as a result of the fight, he mentioned Alfred, Roya and Godday Oghoba were the ones killed. After three days I was called by one Mr. Duncan Okotete that the youth burnt my property …”

From the foregoing, it is clear that the appellant stated where he was on 11/5/2011 and that he went to rescue Peter Oghuvwu (the PW2 is Peter Oghuvwu) on that date and was later told on that day that the deceased persons had been killed in the fight. The only mention of 14/5/2011, the day of the incident, in his statement is that three days after 11/5/2011, he was called and informed that his house had been burnt. What is clear from his statement is that he was in the village when the incident occurred though he said he was at home near the scene of the incident when it started. He did not say who was at home with him before he went out to rescue Peter Oghuvwu. Though he stated that he left the community after rescuing Peter, he did not state who was with him where he went to. Given these circumstances, it would have been foolhardy for the police to have embarked on a wild goose chase by attempting an investigation of the alibi that suffered a still birth.

The learned trial judge found that the defence of alibi set up by the appellant was contradictory. I see no reason to interfere with the finding. Furthermore, where an accused person sets up a defence of alibi but he is identified by an eye-witness, a straight issue of credibility arises. Where the prosecution witness is believed, the defence is legally demolished. See Olaiya v. State supra 435-436 and 437 and Attah v. State supra. 217 and 223. The learned trial judge assessed evidence before it and believed the evidence of PW2 identifying the appellant and fixing him to the scene of the crime at the relevant time.

Evaluation of evidence with the attendant duty of ascription of probative value to the same is primarily the responsibility of the trial judge that saw and heard the witnesses as they testified. An appellate Court will only interfere with that responsibility if there is compelling reasons to do so. See Ikem v. State (1985) 4 SC (Part 2) 30, 53 and State v. Oray (2020) 1 NWLR (Pt. 1722) 130, 151. In this instance, I see no reason to interfere with the trial judge’s evaluation of evidence and finding.

Counsel for appellant argued that having discharged the 3rd accused person, the trial Court ought to have discharged the appellant as the evidence against the two of them was inextricably tied together. The position of the law is that where two or more persons are charged with the commission of an offence and the evidence against them is the same or similar, to the extent that the evidence is inextricably woven around all the accused persons, the discharge of one must result in the discharge of others. See Umani v. State supra (also reported in (1988) 1 NWLR (Pt. 70) 274, Ebri v. State (2004) 5 SCM 48, and Abendejo v. FRN (2013) 7 NWLR (Pt. 1353) 285.
The PW2 testified in respect of all the accused persons. The three accused persons set up the defence of alibi in their statements to the police. The trial Court accepted the case of the prosecution against the appellant and 2nd accused person but discharged and acquitted the 3rd appellant. In other words, the trial Court believed the evidence of PW2 against the appellant but disbelieved his evidence in respect of the 3rd accused person. In Yav v. State (2005) 5 NWLR (Pt. 917) 1, 26 – 26 Nzeako, JCA, opined that:
“It is open to a trial Court upon due consideration of the totality of the evidence adduced before him, to accept parts of the evidence of a witness and reject the other part depending on the circumstances of the case.”
The trial Court rejected the case of the prosecution against the 3rd accused person because he was not arrested in 2011 though he was still in Ughelli and not away from the city as the appellant. The said accused person was arrested at the Police station, he apparently having gone there on the basis of the petition he wrote about the destruction of his property. Again, it was the evidence of the investigating police officer that when the case was transferred to the State C.I.D, he received the case file and two suspects, to wit; the appellant and 2nd accused person. Thus, the evidence and circumstances that the trial Court relied on to acquit the 3rd accused person did not apply to the appellant nor were they the same, and so the appellant cannot enjoy the benefit of the acquittal of the 3rd accused person. In Idiok v. State (2006) 12 NWLR (Pt. 993) 1, 32 Omokri, JCA, stated that:
“It is not in every case where the accused is tried jointly with another that the discharge of one must lead to the discharge of the other particularly so, when the evidence against one is different from that against the other. It all depends on the evidence.”
It is my view that the trial Court in the circumstances of this case was entitled to convict the appellant though it had acquitted the 3rd accused person.

I now turn my attention to the case of conspiracy.

Conspiracy is an agreement between two or more persons to do an unlawful or illegal act or to do a lawful act in an unlawful way. The prosecution, in order to establish the offence of conspiracy, is required to prove:

1. That there was an agreement between two or more persons to do or cause to be done some illegal act or an act which is not illegal but by an illegal means.

2. Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.

3. Specifically that each of the accused persons individually participated in the conspiracy.
See State v. Salawu (2011) 18 NWLR (Pt. 1279) 580, 604 and Agugua v. State (Pt. 2017) 10 NWLR (Pt. 1573) 254, 278.
Since conspiracy is often hatched in secret places, it is difficult to prove it by direct evidence, so it can be inferred from the surrounding circumstances of the case. See Njovens v. State supra, Egunjobi v. FRN supra and Agugua v. State supra. From what I have stated in respect of the substantive offence, it is my view that the trial Court was right in inferring conspiracy from the circumstances of the case.

Again, it has been held that where the ingredients of the substantive offence have been proved, conspiracy can be properly inferred. See Sale v. State (2016) 3 NWLR (Pt. 1499) 392, 412 – 413. This is the position in this matter.

In the light of what I have stated thus far, I enter an affirmative answer to issue 1 and resolve it against the appellant.

ISSUE 2.
Whether or not the trial Court was right in imposing the sentence of death on the appellant for the offence of conspiracy to commit murder.

Appellant’s counsel referred to Section 324 of the Criminal Code under which the appellant was charged and convicted and submitted that the trial Court was wrong in imposing death sentence on the appellant when the section provides for a term of imprisonment of 14 years. Respondent’s counsel seems to have conceded this issue at page 10 of her brief of argument. That is commendable practice.

In count 1 of the information, the appellant along with others was charged with the offence of conspiracy to commit murder under Section 324 of the Criminal Code Law Cap C 21 (sic: Cap 44) Vol. 1 (sic: Vol. 2) of the Laws of Delta State, 2007. The said section provides that:
“Any person who conspires with any other person to kill any person, whether such person is in Nigeria or elsewhere, is guilty of a felony, and liable to imprisonment for fourteen years.”
The appellant was found guilty as charged and in pronouncing sentence on him, the learned trial judge stated:
“On count 1, the sentence of the Court upon you Taiga Warri is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.”
In prescribing sentence, Section 324 of the Criminal Code supra uses the phrase “liable.” This gives the trial Court the discretion to impose the sentence prescribed or a lesser sentence. See Danso v. FRN (2013) LPELR – 20165 (CA) 16 – 17. However, it does not give any discretion or authority to the trial Court to impose a sentence that is above 14 years imprisonment, not to talk of death sentence. The trial Court therefore erred in imposing the sentence of death on the appellant in respect of count 1.

I therefore enter a negative answer to issue 2 and resolve it in appellant’s favour.

On the whole, the appeal succeeds in part and it is allowed in part. The sentence of death imposed on the appellant in respect of count 1 (count of conspiracy) is hereby set aside and, in its place, I hereby sentence the appellant to 10 years imprisonment for the said offence. The part of the appeal of the appellant in respect of the conviction of the appellant for the offences of conspiracy and murder fails and is hereby dismissed. The decision of the trial Court convicting the appellant for the Offences of conspiracy and murder is hereby affirmed along with the sentence imposed by the trial Court for murder.

MISITURA OMODERE BOLAJI YUSUFF, J.C.A.: I have read the lead judgment of my learned brother, EKANEM, JCA. I am in agreement with his reasoning and conclusion therein. I accordingly abide by the orders made therein.

ABIMBOLA OSARUGUE OBASEKI ADEJUMO, J.C.A.: I have read a draft copy of the judgment just delivered by my learned brother, JOESPH EYO EKANEM JCA and observe that he has exhausted and covered the fields adequately that I have nothing to add except to emphasize as follows that:
In success of a plea of Alibi in a defence, the procedure must be followed. In UKWUNNENYI & ANOR v STATE (1989) LPELR- 3353 (SC) the Court held thus:
“It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. It is a claim of absence of both actus; not only that it is not reus, but also that there was in fact no act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of act and mens rea. That he was not at the scene of the crime and was therefore neither in a position to have committed the offence not participated in its commission.”

Furthermore, this Court in RAPHEL UDE v THE STATE 2012) LPELR-14193(CA) held thus on when the plea of alibi will fail:
“It is now settled that even though it is the duty of the prosecution to check on a statement of alibi by the an accused person to disprove the alibi or attempt to do so, there is no flexible and or invariable way of doing this. If the prosecution adduces sufficient acceptable evidence to fix a person at the scene of crime at the material time his alibi is hereby logically and physically demolished and that would be enough to render such plea ineffective as a defence.” Per ABBA AJI JCA P 65.

In KOLADE v STATE (2017) LPELR – 42362 (SC), the apex Court held that the defence must be raised timeously at the earliest opportunity of contact with the investigating security agencies the Appellant must furnish the agencies with sufficient particulars about his whereabouts on the day in question. Thereafter, the duty shifts to the prosecution to investigate the alibi and affirm or disprove same. The defence is destroyed by a contrary evidence fixing the accused at the place crime. However, if successfully disprove the defence fails. See this Court in IKEMSON v THE STATE (1989) 3 NWLR (PT. 110) P 455 AT 479-780, NJOKU v STATE (2021) LPELR-53076(SC).
Also the apex Court in the case of NJOKU V STATE (2021) LPELR – 53076(SC) on when the plea of alibi will fail, held thus”
“…In the midst of his inescapable, direct and corroborated evidence, the Appellant still had guts to put up the defence of alibi must not be used as an afterthought to escape judgment and justice! Although it is the duty of the prosecution to check on the statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically demolished and that would be enough to render such plea ineffective as a defence. In other words, where there is strong and credible evidence which fixes a person at the scene of the crime, his defence of alibi must fail.” See per KUMAI BAYANG AKA’AHS, JSC in THE STATE V USEN UKON EKANEM (2016) LPELR-41304(SC).
From the precedents above to application to the case at hand, the statement of the accused on alibi was vague and bereft of any link to investigate and that as held in the leading judgment, any investigation will be a wild goose chase. The accused was identified and fixed at the scene of crime.
I agree and hold that the defence of alibi was just an afterthought to escape judgment and justice.

I allow the appeal in part and set aside the sentence of death and in its place sentence the Appellant to 10 years imprisonment. I affirm the judgment in offences of conspiracy and murder along with sentence imposed by trial Court for murder.