ONCHE v. COP, BENUE STATE (2020)

ONCHE v. COP, BENUE STATE

(2020)LCN/15338(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/12C/2019

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

OCHEFIJE DANIEL ONCHE APPELANT(S)

And

COMMISSIONER OF POLICE, BENUE STATE RESPONDENT(S)

RATIO

ESTABLISHING THE OFFENCE OF CRIMINAL CONSPIRACY

To secure a conviction for the offence of criminal conspiracy, the prosecution is duty bound to prove the following beyond reasonable doubt:
1. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy. The burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence.
See the case of ORISA V. STATE (2018) LPELR – 43896 (SC). PER JAURO, J.C.A.

DUTY OF THE COURT IN RELYING ON CIRCUMSTANTIAL EVIDENCE

While evidence based on circumstances, otherwise called circumstantial evidence, could be very useful as circumstances hardly lie, the Court has to be watchful to ensure that such circumstantial evidence is not raised on speculation or suspicion. Circumstantial evidence must in all cases be narrowly construed and examined as it is easily capable of being fabricated to cast suspicion on an innocent person. In a charge of conspiracy, it is the duty of the prosecution to prove not only the rudimentary nature of the offence of conspiracy but also the meeting of the minds of the accused persons to commit a particular offence. Where the record does not reveal any agreement on the part of the alleged conspirators, the charge is not made out. See the case of BUKOLA V. STATE (2017) LPELR – 43747 (CA). PER JAURO, J.C.A.

WHETHER OR NOT THE COURT OF APPEAL CAN SPECULATE ON AN ISSUE

The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. See the case of UCHECHUKWU & ANOR V. BINCAN (2019) LPELR – 47779 (CA). PER JAURO, J.C.A.

STANDARD OF PROOF IN CRIMINAL TRIALS

The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused person innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57. PER JAURO, J.C.A.

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Benue State High Court sitting in Okpoga delivered on 23rd May, 2019. The lower Court sitting in its appellate jurisdiction upheld the decision of the trial Magistrate convicting the Appellant for the offence of criminal conspiracy punishable under Section 97(2) of the Penal Code Law, Cap. 124, Revised Edition, Laws of Benue State, 2004.

Dissatisfied with the decision of the lower Court and in exercising his right of appeal, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 9th August, 2019 and filed on 14th August, 2019. The said Notice of Appeal containing two grounds of appeal can be found at pages 68 to 71 of the record of appeal.

In line with the Rules of this Court, parties filed and exchanged their respective briefs. The Appellant’s brief is dated 28th December, 2019 and filed on 31st December, 2019. The said Brief was settled by E.O. SAMSON ESQ., who at paragraph 2.00 of the Appellant’s brief distilled two issues for the determination of the appeal as follows:

“1. Whether or not the lower Court properly evaluated the evidence placed before Court and come to the right decision that the Appellant was properly convicted for the offence of criminal conspiracy punishable under Section 97 (2) of the Penal Code Law, Cap. 124, Laws of Benue State, 2004. (Distilled from ground one)
2. Whether or not the ingredients of the offence of criminal conspiracy punishable under Section 97(2) of the Penal Code Law, Cap. 124, Laws of Benue State, 2004, were proved by the prosecution in order to warrant the lower Court to uphold the conviction and sentence of the Appellant.”

The Respondent’s brief on the other hand is dated 10th June, 2020 and filed on 11th June, 2020. The said brief was settled by S.I. IDI ESQ., ASSISTANT DIRECTOR, CIVIL LITIGATION, MINISTRY OF JUSTICE, BENUE STATE who for the determination of the instant appeal formulated a sole issue to wit:
“Whether or not from the record of proceedings of the trial Magistrate Court, the lower Court was right in affirming the conviction of the Appellant for the offence of conspiracy.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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APPELLANT’S ARGUMENTS AND SUBMISSIONS
On issue No. 1 distilled by the Appellant, counsel submitted that the lower Court failed to properly evaluate the evidence placed before it. He submitted further that the lower Court lumped up the findings on the offences of abatement with that of criminal conspiracy as if the offences were one and the same or as if there was no finding on the records in respect of the offence of criminal conspiracy. He referred this Court to pages 44 – 46 of the record of appeal. It is the submission of counsel that the failure of the Court to properly evaluate the evidence placed before it occasioned a miscarriage of justice to the Appellant. He submitted that there is no evidence on record to justify the findings of facts which the lower Court relied on in upholding the conviction and sentence of the Appellant. He submitted further that the lower Court ought to have been careful in convicting the Appellant on the testimony of PW3 at trial in view of the fact PW3 was not the only eye-witness and more so that the Appellant had asked PW3 under cross-examination that he was brought to bear false witness against him.

Counsel submitted that the evidence of PW1 contradicts that of PW3 on the material evidence that the Appellant used the key to his motorcycle on the ignition of the stolen motorcycle which makes it inconsistent with rationality to ground a conviction. On what amounts to contradiction, counsel referred the Court to the case of IKO V. THE STATE (2002) 3 LRCNCC P.15 AT 30.

On issue No.2, counsel submitted that the burden of proving the offence of conspiracy against the Appellant lies on the Respondent. He referred this Court to the cases of AKIBU V. STATE (2019) LRCN P.52 AT 75 Z; AKINSUWA V. STATE (2019) LRCN P. 87 AT 132 EE. Counsel submitted that in proving the offence of conspiracy, the Respondent relied on circumstantial evidence being one of the ways of proving the guilt of an accused person. He argued that the most important ingredient essential to the proof of the offence of conspiracy is “agreement” to commit the offence. He relied on the case of SULE V. STATE (2009) VOL. 7 LRCNCC P.1 AT 27 UEE. It is the submission of counsel that in view of the record placed before the lower Court, there was no inference of “agreement” between the Appellant and anyone to steal the motorcycle belonging to PW2. He submitted further that assuming but without conceding that there was inference, such inference(s) does not lead to irresistible and compelling conclusion that there was an agreement between the Appellant and anyone to steal the motorcycle. It is his contention that the only inference that could be drawn is that of suspicion. He submitted that the reliance on the account of PW3 alone without considering the account of PW1 will show that there is an inference that the Appellant conspired with someone at large steal the motorcycle. He further submitted that a consideration of the account of the event of PW1 shows that there is doubt as whether the Appellant committed the offence or there is ground upon which the Appellant could be convicted. It is the contention of counsel that the lower Court failed to consider the defence of the Appellant. In his final analysis of the second issue, counsel submitted that only the Appellant stood trial from the trial Court and that the other person ought to have been charged and found guilty of conspiracy before the Appellant could be convicted. He therefore urged the Court to allow the appeal.

RESPONDENT’S ARGUMENTS AND SUBMISSIONS
On the sole issue distilled by the Respondent, counsel submitted that the evidence of the Respondent witnesses especially that of PW1, PW2, PW3 and PW4 are littered with the fact that the Appellant who was at the locus criminis assisted and or helped the person at large who he alleged he did not know in stealing the motorcycle. He referred the Court to pages 19 – 20 of the record of appeal. It is his submission that after taking the evidence of the Respondent’s witnesses and the defence of the Appellant, the learned magistrate reviewed the evidence before and made specific findings of facts and evaluated same. He referred the Court to page 42 – 45 of the record of appeal. He submitted further that the lower Court upon the perusal of the record affirmed the findings of the learned trial magistrate. He referred the Court to pages 65 – 67 of the record of appeal. Relying on the case of AWUDU V. DANIEL (2005) 2 NWLR (pt. 909) 205 at 235 A – B & 238 A – B, Counsel argued that the duty and power to assess, evaluate and determine the credibility of witnesses is that of the trial Court. He submitted that the learned trial magistrate having had the opportunity of hearing witnesses and watching their demeanor in the witnesses box is entitled to select witnesses to belief of facts if found proved. He submitted further that it is not the duty of the Appellant to disturb the finding of facts by a trial Court which is exactly what the lower Court did when it agreed that the learned trial Magistrate painstaking evaluated the material evidence on conspiracy before him. He referred the Court to page 65 lines 15 – 20 of the record of appeal.

On the issue of contradictions, it is the submission of the Respondent’s counsel that the discrepancies in the evidence of the prosecution do not affect the ingredients of the offence of conspiracy. He cited the case ofIGABELE V STATE (2006) 139 LRCN 1831 at 1862 para F.

Relying on the case of UDO EBRE V. STATE (2001) 88 LRCN 2144 at 2159 para A – C, Counsel argued that a Court can choose and believe a portion of witness evidence that is neither called in doubt and has not prejudiced the witness’ testimony. He argued further that the Court can choose or pick which witnesses to believe if contradictions are not material to the prosecution’s case. He cited the case of UBANI V. STATE (2004) 115 LRCN 3143 at 3158 para. EE

It is the submission of counsel that conspiracy is inferable only from the facts of the cases as presented by the witnesses. He cited the case of IKWUNNE V. STATE (2005) 4 LRCNCC 268 at 280 & 281. Counsel submitted that at pages 44 – 46 of the record of appeal, the learned magistrate made specific findings of conspiracy against the Appellant. On the whole, he urged the Court to dismiss the appeal of the Appellant for lacking in merit.

RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial Magistrate in reaching the decision that is being challenged now.

Thus; having considered the issues so formulated by the Appellant and the Respondent, I am of the opinion that the understated issue would suffice in the determination of this appeal.
“Whether from the totality of the evidence adduced by the Respondent at trial, the lower Court was right to have affirmed the conviction of the Appellant for the offence of criminal conspiracy by the trial Court?”

The learned Magistrate after holding in its ruling that a prima facie case was established against the Appellant framed two count charges of criminal conspiracy and abatement punishable under Sections 97 and 88 of the Penal Code Law, Cap 124, Revised Edition, Laws of Benue State, 2004. After the close of trial, the Appellant was convicted for the two offences and convicted accordingly.

However, on appeal to the Court below, the Court below sitting in its appellate jurisdiction quashed the Appellant’s conviction and sentence for abetment. (See pages 64 – 65 of the record of appeal). In the absence of a cross-appeal by the Respondent in this regard, this Court is left with the Appellant’s conviction and sentence for the offence of criminal conspiracy under Section 97 of the Penal Code Law, Cap 124, Revised Edition, Laws of Benue State, 2004.

Whether the conviction of the Appellant for the offence of criminal conspiracy was rooted in the evidence placed before the trial Court is an issue to be decided after reviewing the evidence led by the Respondent. In a bid to discharge the burden of proof imposed on it by law, the Respondent called five witnesses and tendered the Appellant’s extra judicial statement which was admitted as “Exhibit A”.

From the facts and evidence adduced by the parties at trial, it is not in dispute that a criminal offence i.e. the stealing of PW2’s motorcycle was carried out. The issue that begs for answer is whether the Respondent established through any admissible evidence and beyond reasonable doubt that the Appellant conspired with another to steal PW2’s motorcycle?

I have said earlier that the Respondent called five witnesses in proof of its case. I have perused the evidence of the Respondent’s witnesses and it is clear that only PW1 and PW3 were eye witnesses to the motorcycle theft. In PW1’s testimony at pages 19 of the record of appeal, the said witness testified in evidence-in-chief as follows:
“I know the accused person. I also know the police informant. On the 20.8.2016 I sat down in our shop at Ugbokpo about 4-5pm when the accused person came with his friend. They rode on a lady’s machine/motorcycle to a cinema hall where they watch soccer. Both of them went inside the hall. In a space of a minute, the other person came out and reported (sic) the motorcycle they brought towards the road. He parked the motorcycle and took the key to the accused person. As soon as the second person gave the key to the accused person in the hall, he came out and carried another motorcycle. After about 10 minutes the accused person came out from the cinema hall. The accused person told me to allow one of my master’s junior apprentices to show where they sell condemn engine oil. I told him I don’t know where they sell condemn engine oil and that he should go down a little. When the accused person left with the motorcycle they brought, I went into the hall and told the owner of the hall that two men came on the same motorcycle but they left with two motorcycles. I also told the owner of the hall to ask people to check in case one of their motorcycles is missing. When they came out and checked, they discovered that the police informant’s motorcycle was missing.”

The said witness under cross-examination at page 20 of the record of appeal testified that:
“I saw you when you came to the cinema hall with your friend. I did not see you move any motorcycle from the place except the one you brought. I indeed said you came with a friend. I saw the friend you came with on the motorcycle…..”

PW2 is the owner of the stolen motorcycle and his evidence as to how the said motorcycle was stolen appears to be hearsay and he only came to know about the fact that his motorcycle was stolen when the owner of the viewing hall came to announce that a bike had been reportedly stolen.

Next is the evidence of PW3 whose evidence can be gleaned at page 24 to 26 of the record of appeal. The said witness in his evidence-in-chief at page 24 of the record off appeal, he testified that:
“I know the accused person. I know PW2. On 20. 8. 2016 about 2 – 3pm I stat (sic) with my friends in front of a view centre where there watch ball. I saw the accused person on a bike with another person. The bike they rode on was a lady’s motorcycle, red in colour. They went inside hall after packing the motorcycle outside. Almost immediately they came out of the hall the accused came out and left the place on his own motorcycle while the other person left the place with another motorcycle.”

PW3 under cross-examination at pages 25 – 26 of the record of appeal testified that:

“When you came to the front of the view hall you greeted us. Thereafter you went to the viewing hall with the person you came with. Both of you came out of the viewing hall together you left the place before the other person.
Immediately you came out you put your motorcycle on and left. You left there with a motorcycle the one you came with. I recognized you immediately. If the other person is brought to Court I can identify him. When you came out of the viewing hall, you removed a key from your pocket, put the ignition on the missing motorcycle on and left with your own motorcycle. Not long after, the other person you came with earlier also came out and started the motorcycle and left.”

The testimony of PW4 and PW5 (the IPO) is only in respect to the role they played after the Appellant was apprehended. In his defence, the Appellant testified as DW1 and his testimony can be gleaned at pages 32 to 35 of the record of appeal. In his evidence, the Appellant denied the commission of the offence and he also denied knowing the person who stole PW2’s motorcycle. He testified in his evidence-in-chief as follows: “On the 28/8/16 I was coming from Olojo to Ugbokpo with my motorcycle, Jiashe. On my way to Adija road somebody, a boy stopped me and I asked him where he was going to and he told me that he was going far but I can drop him anywhere convenient for me. I conveyed him to a view centre when I stopped though I came to Ugbokpo to buy fuel. When I dropped him at the junction he started going. I then went to the viewing centre where they watch football to watch the match between Chelsea V. Westborn (sic). I met the centre owner and bowler and asked him how much he collects per match and he told me it was N70. I paid N40 but he refused. While I was pleading with him, Westbron (sic) scored a goal against Chelsea and I came to support Chelsea so I decided not to watch the match again. Then I left with my motorcycle….

Given the very nature of the offence of conspiracy as one to do an unlawful act it is rarely carried out in the open. That necessarily means evidence in proof of it is seldom direct and is rather more commonly gathered from circumstances disclosed in the evidence. The evidence of PW1 and PW3 who were eye witnesses are at material variance in linking the Appellant to the commission of the offence. While PW3 testified that when the Appellant came out of the view centre, the Appellant removed a key from his pocket, put the ignition of the missing motorcycle on and left with his own motorcycle. PW3 also testified that not long after, the other person came out and started the motorcycle and left too. This piece of evidence is in material contradiction with the testimony of PW1 who told the trial Court that both the Appellant and the other person went inside the viewing centre and that in a space of time, the other person came out and re-parked the motorcycle they brought towards the road and took the key to the Appellant. PW1 also told the trial Court that as soon as the other person gave the key to the Appellant in the hall, he came out and carried another motorcycle and after about 10 minutes, the Appellant came out of the viewing centre.
While the Appellant denied knowing the other person who stole PW2’s motorcycle, PW1 and PW3 made efforts through their evidence to link the Appellant to the person who stole the motorcycle in trying to establish a criminal confederacy. Their evidence does not tally as to who left the viewing centre first and the role the Appellant played in the stolen motorcycle. More so, the Appellant was not apprehended in company of the person who stole PW2’s motorcycle neither was he caught in possession of the said motorcycle to warrant the inference of criminal confederacy.
While evidence based on circumstances, otherwise called circumstantial evidence, could be very useful as circumstances hardly lie, the Court has to be watchful to ensure that such circumstantial evidence is not raised on speculation or suspicion. Circumstantial evidence must in all cases be narrowly construed and examined as it is easily capable of being fabricated to cast suspicion on an innocent person. In a charge of conspiracy, it is the duty of the prosecution to prove not only the rudimentary nature of the offence of conspiracy but also the meeting of the minds of the accused persons to commit a particular offence. Where the record does not reveal any agreement on the part of the alleged conspirators, the charge is not made out. See the case of BUKOLA V. STATE (2017) LPELR – 43747 (CA).

The Respondent on one hand tried to establish that the Appellant left the viewing centre before the completion of the said match because of the Appellant’s intention to steal PW2’s motorcycle, the Appellant on the other hand maintained that he left because he had N40 when the owner of the viewing centre demanded for N70. He testified further that being a Chelsea fan, as soon as Westbrom scored Chelsea, he decided to not to watch the match again. The learned trial Magistrate at page 44 of the record of appeal held that:
“I observe that accused who came to Ugbokpo to watch match did not wait to see the end of the match on the flimsy excuse that his favoured team was scored a goal.”

The Appellant in his testimony at page 32 of the record of appeal testified that he conveyed the person who stole motorcycle to viewing centre when he stopped although he came to Ugbokpo to buy fuel. I am of the opinion that the learned trial magistrate speculated when he held that he observed the Appellant who came to Ugbokpo to watch a football match did not wait to see the end of the match on the flimsy excuse that his favoured team was scored a goal. The reason given by the Appellant for coming to Ugbokpo was to buy fuel and he stopped to watch the match and the excuse given by him for not waiting till the end of the match might not be flimsy as held by the trial magistrate but subjective to every fan of football who supports a team. The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. See the case of UCHECHUKWU & ANOR V. BINCAN (2019) LPELR – 47779 (CA). I am of the view that the decision of the learned magistrate above was not born out of the evidence placed before him and therefore perverse.

In the light of the contradiction in the testimonies of PW1 and PW3 who were the said eye witnesses to the incident leading to the stealing of PW2’s motorcycle, I am of the firm view that it would be unsafe to infer criminal confederacy between the Appellant and the individual who stole PW2’s motorcycle.

On the whole, I hereby resolve the sole issue distilled by this Court in favour of the Appellant and against the Respondent. The appeal has merit and same is hereby allowed. The decision of the lower Court delivered by T.A IGOCHE J. and O.E EJEMBI J. wherein the lower Court sitting in its appellate jurisdiction dismissed the Appellant’s appeal against his conviction and sentence for the offence of criminal conspiracy by the trial Magistrate is hereby set aside. The Appellant is hereby discharged and acquitted of the offence of criminal conspiracy punishable under Section 97(2) of the Penal Code Law, Cap. 124, Revised Edition, Laws of Benue State, 2004.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment of my Learned Brother, Adamu Jauro, JCA, in which this appeal was allowed. The issues arising for determination have been comprehensively resolved, and, I adopt these resolutions as mine. The appeal has merit.
I also allow this appeal and abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the lead Judgment of my learned brother, Adamu Jauro, JCA, and I agree with his lordship that this appeal has merit. I adopt the reasoning in the lead Judgment in allowing the appeal and setting aside the decision of the lower Court. I also discharge and acquit the appellant of the offence of criminal conspiracy.

Appearances:

E.O. Samson, Esq. For Appellant(s)

S.I. Idi, Esq. Assistant Director, Civil Litigation, Ministry of Justice, Benue State For Respondent(s)