MUSTAPHA v THE STATE

MUSTAPHA v THE STATE


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON TUESDAY, 1ST MARCH, 2016


Appeal No: CA/L/338/2009
CITATION:

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH, JCA

SAMUEL CHUKWUDUMEBI OSEJI, JCA

YARGATA BYENCHIT NIMPAR, JCA


BETWEEN

ADEKOLA MUSTAPHA

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. CRIMINAL LAW
1. Offence of Murder – Elements to be proven in a charge of murder
What the prosecution must prove in a charge of murder

“It is an established and trite principle of law that on a charge of murder under Section 319 (1) of the Criminal Code as in this case, it behoves the prosecution to prove beyond reasonable doubt:-(a) That the deceased died.(b) That the death of the deceased is as a result of the act of the accused person.(c) That the act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See IGAGO VS THE STATE (1999) 14 NWLR (PT 637) Page 1; GAJI VS THE STATE (1975) 5 SC (REPRINT) 55; ADEKUNLE VS THE STATE (2006) 14 NWLR (PT 1000) 717; GIRA VS STATE (1996) 2 NWLR (PT 428) 1; IGABELE VS THE STATE (2006) 6 NWLR (P 975) 100; OGBA VS THE STATE (1992) 2 NWLR (PT 222) 164.” Per OSEJI, J.C.A. read in context

2. Common Intention – Common Purpose Doctrine

**********Statutory provision as to common intention of two or more persons to commit crime

“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 the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deem to have committed the offence.” Per OSEJI, J.C.A. read in context

3. Common Intention – Elements of common intention

Ingredients of common intention

“In OKEKE VS STATE (1999) 2 NWLR (PT 590) 247 the following ingredients of the common intention are listed thus:- 1) There should be at least two persons.(2) They must have a common intention.(3) The common intention must be aimed at prosecution of an unlawful purpose.(4) In the prosecution of an unlawful purpose, an offence is committed.(5) The commission of the offence was a probable consequence of the prosecution of the purpose in 3 and 4 above. See also AKINKUNMI VS STATE (1987) 3 SC 152; OGBALI VS STATE (1983) 1 SCNLR 161.” Per OSEJI, J.C.A. read in context

4. Plea of Alibi – Obligation of the police to investigate when the defence of alibi is raised

Duty of police to investigate the defence of alibi when raised

“The law is trite that once an accused person puts up a defence of Alibi, it is imperative that such defence must be investigated by the police because failure to do so could raise reasonable doubt in the mind of the tribunal and lead to quashing of the33 conviction. See ONAFOWOKAN VS STATE (1987) 13 NWLR (PT 61) 538; ODILI VS STATE (1977) 4 SC 1. NWOGU VS STATE (1986) 4 NWLR (PT 35) 438.”Per OSEJI, J.C.A. read in context

5. Plea of Alibi – Effect of raising the defence of alibi after trial has commenced

Effect of defence of alibi raised during trial

“To raise the defence of Alibi for the first time during the defence of an accused person at the trial renders it ineffectual as the police cannot be faulted for failure to investigate same, having been raised too late in the day.” Per OSEJI, J.C.A. read in context

6. Plea of Alibi – When the defence of alibi will be vitiated

When is the defence of alibi demolished

“On the other hand, a defence of Alibi is demolished if the prosecution adduces sufficient evidence to fix the accused person at the scene of crime at the material time. See NJOVENS VS STATE (1973) 5 SC 17.”Per OSEJI, J.C.A. read in context

7. Conviction – What must be established for the offence of conspiracy to ground conviction

How can the offence of conspiracy ground conviction


“On the issue of conspiracy, for a conviction for the offence of conspiracy to be grounded, the prosecution must establish the element of an agreement to do something which is unlawful or to do something which is lawful by an unlawful means. Conspiracy is seen as an offence which is difficult to prove and hatched in secrecy. Thus, circumstantial evidence is often used to point to the fact that the confederates had agreed on the plan to commit the crime but there must be an over act from which to infer the conspiracy. See OMOTOLA VS STATE (2009) 7 NWLR (PT 1139) 148; TANKO VS STATE (2008) 16 NWLR (PT 1114) 591.”Per OSEJI, J.C.A. read in context

B. STATUTORY INTERPRETATION
8. Interpretation of Section 7 of Criminal Code – Classification of principal offenders under the Criminal Code

Interpretation of Section 7 of Criminal Code as to persons who can be classified as principal offenders

“In this regard, the provisions of Sections 7 of the Criminal Code will be considered. Section 7 provides that:-

“Section 7: When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to says:-(a) Every person who actually does the act or make the omission which constitutes the offence.(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;(c) Every person who aids another person in committing the offence;(d) Any person who counsels or procures any other person to commit the offence. In the fourth case, he may be charged either himself committing the offence or with counselling or procuring its commission. A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. Any person who procures another to do or omit to do nay act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.” The above provisions relates to persons who can be classified as having actually committed a criminal offence as principal offenders. The issue here is the doing or omitting to do something for the purpose of making it easier or possible to commit the substantive offence by another person. The Section envisages the complicity of a person not actually committing the substantive offence himself, but his action by commission or omission facilitated its commission. See IYARO VS STATE (1988) 2 SC 167; (1988) 1 NWLR (PT 69) 256 and STATE VS EDEDEY (1972) 1 SC 140. In ASHIMIYU VS STATE (1982) 10 SC (REPRINT) Page 1, it was held that it is trite law that a person who is present at the commission of an offence and who encourages the principal offender to commit the offence is liable for the offence committed by the principal offender by virtue of Section 7 of the Criminal Code. See also ALAO VS STATE (2011) LPELR (3700) CA” Per OSEJI, J.C.A. read in context


LEAD JUDGEMENT DELIVERED BY OSEJI, JCA


This appeal challenges the judgment of the Lagos State High Court sitting at Ikeja, Division and delivered by HON. JUSTICE J.O.K OYEWOLE on the 25th Day of January, 2005, wherein the Appellant and four other persons were convicted for the offences of conspiracy to commit murder and murder and sentenced to death by hanging.

The Appellant with four other accused persons were charged on two counts information for conspiracy and murder of one MRS JULIET IBADEN on or about the 26th day of October, 1999, contrary to Sections 516 and 319 respectively of the Criminal Code. Cap 32, Laws of Lagos State, 1994.

At the trial, the Appellant was the 4th accused person and the prosecution in proof of its case called 4 witnesses and tendered a number of exhibits including exhibits P1, P2, P3 P4 and P5. The Appellant in his defence gave evidence as DW5 and did not call any other witness.

The Prosecution’s case was that on the 26-10-1999, PW1 and his wife (now deceased) went to the evening market at Ikorodu to buy some soup ingredients which included a dried meat called “Tinko.” While waiting for his wife (the deceased) to concluded the purchase, he heard some noise at a distance and when he moved closer to know the cause, he saw his wife with a female “Tinko” seller who told him that his wife bought “Tinko” worth #10 (Ten Naira) and gave her #50 (Fifty Naira) note which turned out to be a counterfeit money. He offered the woman another #20(Twenty Naira) note but she refused and started shouting thief, thief, thief. Thereafter the Appellant with one Yahaya and the 1st accused appeared and insisted that the PW1 and his wife will be taken to the Police Station. The 1st accused used a rope and tied PW1’s hands behind his back and he and his wife were taken to a residential building and ordered to sit outside. PW1 then started shouting and this attracted a man from the building and he told him what happened, after which the man adviced that they should be set free or taken to the Police Station but the captors refused and instead took them to an uncompleted building and left them in the care of Yahaya while the Appellant and the 1st accused left only to come back later with 6 other persons including the 2nd and 3rd accused. The 1st accused person then search PW1 and collected the sum #1,000 (One Thousand Naira) he had on him. He also searched his wife with the support of the 2nd accused and they took her #450(Four Hundred and Fifty Naira). They were subsequently taken to a shrine and made to sit down side by side. PW1 then asked the Appellant to give him water to drink and he promised to do so but thereafter Yahaya shot his wife with a gun he was holding in the presence of all the accused persons. PW1 then kicked Yahaya with his legs as his hands were tied and as he did so, the Appellant also shot him (PW1) with a gun but he managed to escape from the place even as 3rd accused also shot at him with a gun. He later reported to the Police who then accompanied him to the scene where after a search, the severed head of his wife was found buried and same was removed by the police together with her body also found around the scene.

For the Appellant, he knew nothing about the conspiracy or murder, because on the fateful day he was at home when one Yahaya came to tell him that 2nd accused wanted to see him in front of the house of the 1st accused and on getting there he saw a crowd of persons and after being told the story of the counterfeit note involving the PW1 and his wife he adviced that they be taken to the Police. Three days later while coming back from where he went to collect native medication, he saw 2nd accused who told him that his wife has been arrested and while they were still talking, the Police met them and arrested both of them. He denied killing the deceased or conspiring to do so and that he was tortured before he signed his extra-judicial statement Exhibit P5 and was never taken to a Superior Police Officer to counter-sign Exhibit P5.

At the conclusion of trial, and address by counsel for the parties, judgment was delivered on the 25th January, 2005 wherein the Appellant and the other 4 accused persons were convicted for the offence of conspiracy and murder and sentenced to death by hanging.

The Appellant was aggrieved with the said judgment and consequently filed a notice of appeal with 11 grounds on the 24-2-2010.

Briefs of argument were thereafter filed and served by the parties who adopted same at the hearing of the appeal on the 1-2-2016.

In the Appellant’s brief of argument dated and filed on 12-4-2012 the following three issues were distilled for determination:-

(1) Whether the prosecution proved its case beyond reasonable doubt as required by law?

(2) Whether the Learned Trial Judge improperly appraised and evaluated the evidence adduced before it thereby occasioned a miscarriage of justice against the Appellant?

(3) Whether the finding of the Learned Trial Judge that the Appellant conspired and/or formed common intention with his co-accused person to murder the deceased was not latently speculative and based on conjecture and suspicion?

In the Respondent’s brief of argument dated and filed on 10-10-12 but deemed properly filed 14-10-15, two issues were formulated for determination as follows:-

(1) Whether the prosecution had proved the offence of conspiracy and murder against the Appellant beyond reasonable doubt as required by law and whether the finding of the Learned Trial Judge that the Appellant conspired and formed a common intention with his co-accused person at the trial Court to murder the deceased was not latently speculative and based on conjecture and suspicion?

(2) Whether the Learned Trial Judge improperly appraised and evaluated the evidence adduced before it thereby occasioned a miscarriage of Justice?

I observe that the Respondent’s issue 1 is a merger of the Appellant’s issues 1 and 2 while issues 2 is an adoption of

Appellants issue 2.

It will therefore be convenient to adopt the three issues formulated by the Appellant in the resolution of the appeal.

ISSUE ONE

Herein the Learned Counsel for the Appellant submitted that though from the evidence adduced before the Court, there is no doubt that the deceased died but the prosecution did not prove the second and third elements of the charge of murder which are, that it was the act of the accused that resulted to the death of the deceased and the act of the accused was intentional with the knowledge that death or grievous bodily harm will be the natural consequences.

He asserted that the testimony of PW1, the only eye witness regarding the cause of death did not link the Appellant as part of the killing of the deceased. He added that the only evidence against the Appellant is the allegation that he was present when the deceased was murdered but that the principle of law is clear to the effect that mere presence at the scene of crime without more cannot make a person an offender where he has not taken any positive step in the commission of the crime.

It was also submitted that the Trial Judge relied heavily on the confessional statement of the Appellant, Exhibit (P5) in reaching his verdict when infact the Appellant denied making the statement and raised a plea of non est factum in which case it ought to be treated as having been retracted and therefore follow the rules in R VS SYKES and ALAPERE VS STATE (2001) NWLR (PT 705) 79.

It was further contended that there was no other independent pieces of evidence tested on oath outside Exhibit P5 that corroborated the alleged extra-judicial statement. Also that the testimony of the Appellant was not contradicted by the prosecution as regards the way and manner Exhibit P5 was obtained from the Appellant. Therefore, having explained the reason for the discrepancy in Exhibit P5 and his testimony at the trial, the Appellant has discharged the burden placed on him by law. Therefore it behoves the trial Court to make proper finding in respect of the explanation by the Appellant.

Learned Counsel referred to the case of AIGUOREGHIAN VS STATE (2004) 3 NWLR (PT 866) 367 on the distinction between retracted confession and denial based on non est factum and which the trial Court must make clear finding on and which said principle the Learned Trial Judge failed to apply but hastily concluded that the Appellant retracted exhibit P5 and this occasioned miscarriage of justice.

On the effect of the confessional statement of a co-accused person, Learned Counsel referred to Section 27 (2) and (3) of the Evidence Act.
He then argued that the reliance by the trial judge, on the confessional statements of the co-accused persons in convicting the Appellant is an error in law which occasioned miscarriage of justice.

It was also submitted that while the evidence of PW2 at the trial did not connect the Appellant with the offence of murder, the evidence of PW3 on the other hand is nothing but hearsay which is not admissible in law.

Learned Counsel then contended that the evidence adduced by the prosecution witnesses did not prove the 2nd and 3rd ingredients of the offence of murder and as such failed to prove its case beyond reasonable doubt as required by law. Vide Section 138 of the Evidence Act, OBI VS STATE (1997) 7 NWLR (PT 513) 352 and IBEH VS STATE (1997) 1 NWLR (PT 484) 632.

ISSUE TWO

Dwelling on this issue, Learned Counsel for the Appellant submitted that the Trial Judge improperly appraised and evaluated the evidence adduced before him and this occasioned miscarriage of justice. He added that the erroneous identification of the Appellant by PW1,(the only eye witness for the prosecution) as part of the assailants of the deceased is the fulcrum of attack of the judgment by the Appellant.

He submitted that for a Court to ascribe any value to the evidence of an eye witness as to identification, the Court must consider the following issues:-

(a) Circumstances in which the eye witness saw the suspect or Defendant.

(b) The length of time the witness saw the Defendant.

(c) The lighting condition around the scene.

(d) The opportunity of close observation.

(e) The previous contacts between the two parties.

He added that the Learned Trial Judge failed to put the above guidelines into consideration while examining the evidence of prosecution witnesses, especially PW1, in order to see whether there is inherent weakness in their evidence capable of rendering worthless the process of identification of the Appellant.

He referred to the statement of PW1 in Exhibit P5, his testimony at pages 55 line 29 to 32 of the Record, as well as his response during cross-examination at page 64 and 67 to 68 to contend that the PW1 contradicted himself. Learned Counsel added that the same contradiction manifested in the PW1’s testimony and Exhibit P5 regarding who among the accused persons shot him and how many of them carried guns on the day of the incident.

He submitted that such contradictions when put together raise reasonable doubt as to the veracity of the testimony of PW1 as it relates to the Appellant.

It was also contended that the Trial Judge did not take into consideration the fact that there was no visibility from the moon or electricity on the night of the incident, moreso, that PW1 agreed that he never saw the Appellant until he was arrested by the Police, therefore, based on such inadequate evaluation of evidence, the Trial Judge arrived at an erroneous conclusion that the PW1 adequately identified the Appellant at the scene of crime and which also led the Court to reject the evidence of Alibi adduced by the Appellant and also made available to the Police at the time of his arrest. He further argued, that the Appellant having testified that he made available particulars of his Alibi to the Police at Ikorodu immediately after his arrest and this was not investigated, the trial Court ought to have believed his evidence in the absence of any contradiction and this, he submitted leads to the conclusion that the Learned Trial Judge failed to properly appraise and evaluate the totality of the evidence adduced at the trial and thus occasioned miscarriage of justice.

ISSUE THREE

That is whether the findings of the Learned Trial Judge that the Appellant conspired and or formed common intention with his co-accused persons at the trial Court to murder the deceased was latently speculative and based on conjecture and suspicion?

Herein, Learned Counsel for the Appellant referred to the testimony of PW1 at page 55 line 16 to 41 of the Record where the account of the death of the deceased was narrated and the Appellants evidence in denial at page 101 as well as the finding of the trial Court at page 229 to 240 of the record to submit that the conclusion of the trial Court falls short of rationality given the totality of the evidence available.

He added that the finding of the Learned Trial Judge in respect of the admission of the Appellant at the counterfeit money stage does not in any way improve the case of the prosecution moreso with the Alibi raised by the Appellant that he went back to his house after that stage when he adviced them to take the suspect s to the Police.

It was further submitted that, for the prosecution to prove the offence of conspiracy, it must be shown that:-

(1) Two or more parties agreed to prosecute an unlawful purpose or lawful purpose by unlawful means.

(2) An offence was subsequently committed in furtherance of the said agreement.

(3) The offence is a probable consequence of the said agreement.

It was then argued that applying the above factors, the findings of the Trial Judge that the Appellant was guilty of the offence charged by virtue of mere presence at the stage of the issue of counterfeit money is not supported by law because the use of gun which resulted in the death of the deceased was not within the joint contemplation of the co-accused persons as the killing was an unforeseen and spontaneous act of one person. Therefore, Section 8 of the Criminal Code cannot apply. The following case were relied on:-

AKINKUNMI VS STATE (1987) 1 NWLR (PT 52) 608; AKPAN VS STATE (1994) 8 NWLR (PT 361) 226; KWAGHSHIR VS STATE (1995) 3 NWLR PT 386) 691; OKONKWO VS STATE (1998) 8 NWLR (PT 561) 210; OKEKE VS STATE (1999) 2 NWLR (PT 590) 264.

On the rejection of the evidence of the Appellant by the Trial Judge on the ground that his confessional statement was corroborated by the evidence of PW1, PW2, PW3 and PW4 respectively. It was submitted that there was no credible evidence which the Trial Judge could have based his conclusion and this renders his findings perverse and ought to be set aside.

This Court was then urged to allow the appeal.

Replying to the Appellant’s issues 1 and 3 in their own issue 1, Learned Counsel for the Respondent submitted inter alia, that the Respondent has been able to prove beyond reasonable doubt:-

(1) That JULIET IBADEN DIED.

(2) That the act of the accused persons caused the death of JULIET IBADEN.

(3) That the accused persons intentionally killed JULIET IBADEN.

It was thus contended that all the essential elements of murder were proved through the consistent evidence of PW1, PW2 and PW3 coupled with the confessional statements of the accused persons. Also that the PW4 gave direct evidence that the cause of death is severe hemorrhage and shock, and it is consistent with that of a human head severed from the body and this shows a clear intention to kill or cause grievous bodily harm to the deceased and the PW4 was not subjected to any cross-examination.

Further referring to Section 8 of the Criminal Code, it was submitted that Respondent proved the cause of death by showing that there was conspiracy among the accused persons who had a common intention to kill the deceased as they were all there when she was shot and her head subsequently severed from here body. He cited the cases of AKPAN VS STATE (1994) 8 NWLR (PT 361) and ADIO VS STATE (1986) 2 NWLR (PT 24) 581.

He added that the PW1 who is the star eye witness mentioned all the accused persons and the role they all played in the whole transaction that led to the death of the deceased. On the import of Section 8 of the Criminal Code, Learned Counsel referred to GABRIEL OKEKE VS STATE (1999) 2 NWLR (PT 590) 247 at 250 where the essential ingredients of a common intention/purpose were spelt out to be that:-

(a) There should be at least two persons.

(b) The two persons must have a common intention.

(c) The common intention must be aimed at prosecution of the unlawful purpose.

(d) In the prosecution of an unlawful purpose an offence is committed.

(e) The commission of the offence is a probable consequence of the prosecution of the purpose in (c) and (d) above.

He asserted that all the above ingredients apply to this case and added to that is the application of Section 7 (a-d) of the Criminal Code and there was enough evidence before the trial Court to conclude that the Appellant and his cohorts are principal offenders. Therefore, the argument that the Appellant admitted that he was present only at the counterfeit money stage and knows nothing about the murder of the deceased is baseless because the deceased persons invited one another to the scene, they took the PW1 and the deceased from the market to a residence and then to the shrine where the deceased was killed and this clearly shows a case of common intention to execute an unlawful purpose. Citing the case of IKWUNNE VS STATE (2000) 5 NWLR (PT 658) 550 at 565. It was submitted that once a criminal act is committed by two or more persons acting in concert and in furtherance of their common intention each and every one of them is liable for the consequence of such act and it does not matter which of the accused person did what.

On exhibit P5 (confessional statement of the Appellant to the Police) it was submitted that it was properly admitted in evidence by the trial Court as a free and voluntary confession of guilt by the Appellant and was also corroborated by the evidence of the prosecution witnesses. It was also contended that the Appellant’s Counsel misconstrued the objection to voluntariness to non est factum because the Appellant never retracted his statement but only objected to its admissibility and allege that he was tortured before he signed the statement. This led to a trial within trial and a ruling by the trial Court before it was admitted in evidence.

On the charge and proof of the offence of conspiracy, Learned Counsel cited the following cases: – GBADAMOSI VS STATE (1991) 6 NWLR (PT 196) 182; OBIAKOR VS STATE (2002) 10 NWLR (PT 776) 612; USUFU VS STATE (2007) 3 NWLR (PT 1020) 94 and NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1.

He added that there is proof that the accused persons did meet to murder the deceased through all the testimonies of the prosecution witnesses.

On issue 2, that is whether the Learned Trial Judge improperly appraised and evaluated the evidence adduced before it and thereby occasioned a miscarriage of justice?

Learned Counsel for the Appellant herein, submitted that the PW1 never made a mistake in identifying the Appellant among the people that were lined up for identification and was also able to state that he requested for water to drink from the Appellant on the day of the incident.

On the issue of contradiction in the evidence of PW1 as alleged by the Appellant€™s Counsel, it was submitted that not every contradiction in the evidence of the prosecution witnesses will be fatal, except it relates to material facts and may lead to a miscarriage of justice, but in the instant case, the alleged contradictions are not material moreso that the shooting of the deceased was in the presence of the PW1.

On the effect of minor discrepancies in the testimony of a witness, he cited the following cases. ASHIRIYU VS STATE (1987) 12 SC 62 at 70; EKANG VS STATE (2001) 11 NWLR (PT 723) 1 at 24; DAGAYYA VS STATE (2008) 2 SCM 33 at 52; ANI VS STATE (2003) 1 NWLR (PT 830) 142 and OBIDIKE VS STATE (2001) 17 NWLR (PT 743) 601 at 627.

On the Appellant’s assertion that he raised an Alibi which was not considered by the trial Court. Learned Counsel for the Respondent submitted that no Alibi was raised by the Appellant when he was arrested and that such defence cannot avail him because there was credible evidence on record placing him at the scene of the crime on that particular day it happened. He added that the PW1 and PW2 also testified to that effect.

Thus relying on the case of SOWEMIMO VS STATE (2004) 11 NWLR (PT 885) 515, this Court was urged to dismiss the appeal.

I will now deal with the Appellants issue 1 and 3 as well as the Respondent€’s issue 1 together.

It is an established and trite principle of law that on a charge of murder under Section 319 (1) of the Criminal Code as in this case, it behoves the prosecution to prove beyond reasonable doubt:-

(a) That the deceased died.

(b) That the death of the deceased is as a result of the act of the accused person.

(c) That the act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

See IGAGO VS THE STATE (1999) 14 NWLR (PT 637) Page 1; GAJI VS THE STATE (1975) 5 SC (REPRINT) 55; ADEKUNLE VS THE STATE (2006) 14 NWLR (PT 1000) 717; GIRA VS STATE (1996) 2 NWLR (PT 428) 1; IGABELE VS THE STATE (2006) 6 NWLR (P 975) 100; OGBA VS THE STATE (1992) 2 NWLR (PT 222) 164.

In the instant case, the fact that the deceased died is not in dispute given the evidence of PW4, the medical doctor who performed the post-mortem examination on the deceased and whose testimony was not challenged or disputed by the Appellant. This position was also confirmed at page 6 of the Appellant’s brief where it was submitted thus:-

“It is evident from evidence adduced before the Court that the deceased died.”

Also, the Learned Trial Judge after a review of the evidence of the prosecution witnesses as shown at page 216 of the record came to the following conclusion.

“I accept the evidence adduced by the prosecution on this issue as credible and uncontroverted in anyway and manner. In the circumstances, I have no hesitation in holding that the deceased JULIET IBADEN actually died.”

From the above set out finding of the trial Court after a review of the evidence as presented before it, I am inclined to agree that the deceased MRS JULIET IBADEN actually died.

The other two ingredients for the proof of the offence of murder are however being challenged by the Appellant with the contention that they are not proved beyond reasonable doubt.

As to the requirement that the prosecution must prove that the act of the accused caused the death of the deceased. The Learned Trial Judge, after a exhaustive review of the testimony of the prosecution witnesses vis-a-vis that of the Appellant held at pages 229 to 230 of the Record that:-

“While substantially recanting exhibit P5, he at least admitted his presence at the counterfeit currency stage of the fateful night thereby corroborating his identification at that stage by PW1.

His confessional statement is consistent substantially with the evidence of PW1, PW3 and the medical evidence of PW4. It also corroborates the content of exhibit P3 to a reasonable extent.

I reject his evidence in Court as pure after thought and I consider the earlier confessional statement, consistent with the other pieces of evidence already accepted and therefore believable. I shall therefore act on the said confessional statement exhibit P5. In all I hold that the 4th accused was sufficiently identified and that his role in the murder of the deceased late JULIET IBADEN was well established by the prosecution.”

A careful perusal of the evidence of PW1 at pages 55 to 56 of the record show that it is direct and positive with regard to the role played by each of the five accused persons that culminated in the death of the deceased. With specific reference to the Appellant who was the 4th accused at the trial the PW1 testified that at the stage the woman selling “Tinko” meat start shouting “thief, thief, thief” in the local language, i.e (ole, ole), the 4th accused (Appellant) appear at the scene and called one sergeant Yahaya who was not one of the accused persons standing trial. The 1st accused person also came out and said they should all go to the Police Station but the three men took the PW1 and his wife to a residential building where they were asked to sit outside. PW1 testified further as follows:-

“One man then came out of the house and asked me what happened. I narrated everything to him. He then told the 4th accused, called captain by others, to release us or take us to the police station. Our captors however refused and now took us to an uncompleted building inside the bush. At the place, they asked the afore-said sergeant Yahaya to guard us, while the 1st and 4th accused persons, but this time with 6 people. One of the six people who came was the 3rd accused person,, the herbalist, he pointed a torchlight to my face and asked me where I came from. I told him I am from Edo State. 2nd accused person was also one of the 6. He asked me what I had on me. Whereupon 1st accused person searched me and took the #1, 000(One thousand Naira) cash *I had on me. The 1st and 2nd accused persons also searched my wife and took #450 (four hundred and Fifty Naira) from her. They now asked us to move along a narrow road. The 5th accused persons standing trial are among the 9 people that were with us as our captors. They took us to one shrine. I knew it was a shrine from the various fetish thing surrounding the place. At the shrine, the herbalist that is the 3rd accused gave us 2 chairs i.e. my wife and me, the 2 of us sat down side by side. I called to the 4th accused person (captain) to give me water before killing me. He asked me to hold on that he will give me. At about that time, the afore-said sergeant Yahaya shot my wife with a gun he was holding. All the accused persons and the others not here now who escaped were present when sergeant Yahaya grabbed her by the neck. I got up and gave Yahaya a kick since my hands were tied behind my back and whereupon the 4th accused person shot me with the gun he too was holding. The bullet hit me in the chest.”

The above set out testimony of the PW1 which was not discredited during cross-examination clearly linked the Appellant with the whole unfortunate incident.

Firstly, he was identified as the first person to appear when the “Tinko” meat seller shouted “thief, thief, thief”. Secondly, the Appellant with the 1st accused, person and Yahaya moved the PW1 and his wife to a residential building where they were asked to sit outside. The Appellant was also noted to have been called “captain” by the other persons.

Thirdly, the Appellant and the two others after refusing to involve the Police took the PW1 and his wife to an uncompleted building inside the bush where they asked Yahaya to guard them while the Appellant and 1st accused went to call the “D.C.O” only to come back later with six other persons amongst whom was the 3rd accused.

Fourthly, PW1 identified the Appellant as the person he asked for water to drink after they were moved to a shrine and made to sit on two chairs but the Appellant asked him to wait that all the accused persons including the Appellant were present when Yahaya shot the deceased and when the PW1 stood up and kicked Yahaya, the Appellant was noted to have shot him (PW1) with the gun he was carrying and the bullet hit him on the chest.

These chain of events involving the Appellant as narrated by the PW1 is not a flash in the pan scenario but rather protracted from one place to another, thereby giving room for the PW1 to properly recognise and identify the Appellant as one of the persons involved in the gory act that led to the death of his wife.

Though it is not shown that the Appellant directly shot the deceased or that he cut off her head but the circumstances of her death are such that the issue of an innocent onlooker or bystander cannot avail him.

In this regard, the provisions of Sections 7 of the Criminal Code will be considered. Section 7 provides that:-

“Section 7: When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to says:-

(a) Every person who actually does the act or make the omission which constitutes the offence.

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case, he may be charged either himself committing the offence or with counselling or procuring its commission.

A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do nay act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.”

The above provisions relates to persons who can be classified as having actually committed a criminal offence as principal offenders. The issue here is the doing or omitting to do something for the purpose of making it easier or possible to commit the substantive offence by another person. The Section envisages the complicity of a person not actually committing the substantive offence himself, but his action by commission or omission facilitated its commission. See IYARO VS STATE (1988) 2 SC 167; (1988) 1 NWLR (PT 69) 256 and STATE VS EDEDEY (1972) 1 SC 140. In ASHIMIYU VS STATE (1982) 10 SC (REPRINT) Page 1, it was held that it is trite law that a person who is present at the commission of an offence and who encourages the principal offender to commit the offence is liable for the offence committed by the principal offender by virtue of Section 7 of the Criminal Code. See also ALAO VS STATE (2011) LPELR (3700) CA.

In the instant case, it was shown through the evidence of PW1 duly accepted by the Learned Trial Judge as credible, that the Appellant was present throughout the whole transaction culminating in the death of the deceased and worse still, when Yahaya shot the deceased with a gun and the PW1 reacted by getting up from his seat to kick the said Yahaya, it was the Appellant that then also shot the PW1 on the chest with the gun he was holding. In this regard, it can be conveniently posited that the Appellant was in the circumstance caught by Section (b) and (c) of the Criminal Code.

Added justification for this stance is found in exhibit P5, which is his confessional extra-judicial statement wherein he clearly detailed the role he played in the macabre incident. I am inclined to reproduce a portion of the said confessional statement which at pages 14 and 15 of the record reads thus:-

“On the 26-10-99, I was coming from farm around 8:30 p.m, one Yahaya alias Sergeant told me that Gbeminiyi, the father’s name know and Alhaji Animashaun asked me to come. When I got there I met crowd I asked what happened. I was told that one woman spent fake Fifty Naira note. I then asked Alhaji Animashaun what to do with the husband and wife, Alhaji Animashaun told me that we should go and kill them. I called on Gbeminiyi to hear what Alhaji Animashaun has said but Gbeminiyi confirmed that since Alhaji Animashaun has given a judgment to go and kill them that we should obey. I replied them that this people should be taken to the police station but they refused. I then told them that they should remember that they are the one that gave order to kill the husband and wife.

I told the other vigilante that they should allow the people to move to the front. I then drove away the crowd.

I order Yahaya, Gbeminiyi and Animashaun to stay with them to enable me go come join them later. I later join them, as I am going I saw one Ajewesola and I asked him to follow me to go and see what was happening and he followed me and join other vigilantes. I blow whistle to the remaining vigilante who later join us.

I told them the order given by Alhaji Animashaun and Gbeminiyi that we should go and kill the victims. We are fourteen vigilantes in number. All of us left to Ajawesola’s shrine with the two victims inside the bush. The two victims were asked to sit down inside the bush.

Five among the vigilantes were armed with dane guns. Among whom are Yahaya, Babaeleran, Egisi and two other whom I don’t know their names. Yahaya, Egisi and Ajawesola fired their guns at the victims and they killed the wife. Immediately, while the husband escaped with bullet wounds.

He was pursed but we couldn’t get him. We the vigilantes later came back to where the woman was lying dead.

Yahaya took a cutlass from Babaeleran and severed the head of the woman. Ajawesola went and buried the head while the remaining body was thrown inside abandoned well.

I was all the time watching what was going on because there is nothing I can do after the order has been given by Gbeminiyi and Alhaji.”

The above set out portion of the Appellant’s confessional statement speaks for itself and confirms in no small detail that he was a participae criminis in the offence charged.

Learned Counsel for the Appellant had also challenged the reliance on Exhibit P5 by the trial Court on the ground that it was retracted by the Appellant during the trial.

I have gone through the Appellant’s evidence and failed to see anywhere the Appellant retracted his extra-judicial statement rather he asserted that it was not made voluntarily hence he testified thus at page 150 of the record:-

“I refused to do what he said he then pierced my shoulder with a bayonet. I can read and write very well.

I asked them to give me writing materials to make my statement but they refused, when I saw they wanted to kill me, I had to sign the statement. I was never taken to any Superior Police Officer. That statement is exhibit P5.

The said confessional statement of the Appellant was objected to on ground of lack voluntariness when it was tender during the trial. The trial Court then conducted a trial within trial at the conclusion of which the Court found that the statement was made voluntarily and it was accordingly admitted in evidence and marked exhibit P5.

For the Learned Counsel to have asserted that the trial Court did not consider the Appellant’s retraction of the said statement is therefore a misplaced contention because it is not so indicated anywhere in the record.

On the whole, I find that the Learned Trial Judge rightly relied on the said exhibit P5 in reaching the conclusion that the prosecution proved its case against the Appellant.

Added to that is the issue of common intention as manifested in the whole event resulting in the death of the deceased.

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 the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deem to have committed the offence.

In OKEKE VS STATE (1999) 2 NWLR (PT 590) 247 the following ingredients of the common intention are listed thus:-

(1) There should be at least two persons.

(2) They must have a common intention.

(3) The common intention must be aimed at prosecution of an unlawful purpose.

(4) In the prosecution of an unlawful purpose, an offence is committed.

(5) The commission of the offence was a probable consequence of the prosecution of the purpose in 3 and 4 above.

See also AKINKUNMI VS STATE (1987) 3 SC 152; OGBALI VS STATE (1983) 1 SCNLR 161.

In the instant case, going by the strong evidence of PW1 who witnessed the whole incident that led to the shooting of his wife before himself narrowly escape with gunshot wounds as well as the content of exhibit P5. There is no doubt that the Appellant and his cohorts acted in concert to attain their objective which is to kill the deceased and PW1 and each of them was jointly responsible for the cause of the act that led to not only the shooting of the deceased JULIET IBADEN to death but also to severe her head from her body.

The Appellant herein cannot therefore escape the consequence of such dastardly act even if he was not the person that directly pulled the trigger that led to the death of the deceased. See OLADIMEJI VS STATE (2001) 5 NWLR (PT 705) 79.

Learned Counsel for the Appellant had also weakly alleged that the trial Court did not consider the defence of Alibi raised by the Appellant in his defence.

To my mind, given the content of exhibit P5 in which the Appellant wholly and fully admitted to the fact that the deceased was killed in his presence and with the agreement of all those present at the scene that night, the issue of the defence of Alibi becomes moot, moreso that it was never raised at the earliest opportunity while making a statement to the police.

The law is trite that once an accused person puts up a defence of Alibi, it is imperative that such defence must be investigated by the police because failure to do so could raise reasonable doubt in the mind of the tribunal and lead to quashing of the conviction. See ONAFOWOKAN VS STATE (1987) 13 NWLR (PT 61) 538; ODILI VS STATE (1977) 4 SC 1. NWOGU VS STATE (1986) 4 NWLR (PT 35) 438.

In the instant case, Exhibit P5 is the extra-judicial statement of the Appellant and nowhere therein did he raise any defence of Alibi. Rather he confessed to all he was involved in right from when the Tinko meat seller shouted thief, thief and he came to the scene with others and took the deceased and her husband (PW1) away.

To raise the defence of Alibi for the first time during the defence of an accused person at the trial renders it ineffectual as the police cannot be faulted for failure to investigate same, having been raised too late in the day.

On the other hand, a defence of Alibi is demolished if the prosecution adduces sufficient evidence to fix the accused person at the scene of crime at the material time. See NJOVENS VS STATE (1973) 5 SC 17.

In the instant case, the evidence of the prosecution supported by Exhibit P5 transfixed the Appellant at the scene of crime where the deceased was murdered in cold blood in which case any defence of Alibi would not have availed the Appellant.

On the issue of conspiracy, for a conviction for the offence of conspiracy to be grounded, the prosecution must establish the element of an agreement to do something which is unlawful or to do something which is lawful by an unlawful means. Conspiracy is seen as an offence which is difficult to prove and hatched in secrecy. Thus, circumstantial evidence is often used to point to the fact that the confederates had agreed on the plan to commit the crime but there must be an over act from which to infer the conspiracy. See OMOTOLA VS STATE (2009) 7 NWLR (PT 1139) 148; TANKO VS STATE (2008) 16 NWLR (PT 1114) 591.

In the instant case, the evidence of the prosecution as strongly supported by the confessional statement of the Appellant (exhibit P5), as earlier set out in this judgment leads to no other conclusion that to agree with the Learned Trial Judge that the charge of conspiracy against the Appellant was proved by the prosecution.

On the whole, I resolve the Appellant’s issue 1 and 3 against him.

On issue No 2 which is whether the Learned Trial Judge improperly appraised and evaluated the evidence adduced before it thereby occasion a miscarriage of justice against the Appellant?

I had in the course of considering issue 1 and 3 dealt exhaustively with the evidence before the trial Court and findings of the Learned Trial Judge therefrom. Therefore, delving further into this issue will only elicit a repetition of my former discourse on the issue. In order words, the resolution of issues 1 and 3 have adequately covered issue 2 and a further consideration of same will amount to an unnecessary academic exercise.

On the whole, I find that this appeal has no merit and it is accordingly dismissed.

The judgment of the Lagos State High Court delivered by J.O.K OYEWO E J. on the 25th day of January, 2005, convicting the Appellant for the offences of conspiracy and murder under Section 516 and 319 (1) of the Criminal Code, Cap 32, Laws of Lagos State 1994 is hereby affirmed.

IKYEGH, JCA.

I was privileged to read in draft the comprehensive judgment prepared by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA. with which I agree with nothing useful to add.

NIMPAR, JCA.

I was afforded the privilege of reading in advance the judgment of my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment. He has dealt exhaustively with the issues distilled for resolution by the parties.

The appeal is lacking in merit. I too dismiss the appeal and abide by the consequential orders made in the leading judgment.