OLADIRAN V THE STATE

OLADIRAN V THE STATE


IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 24TH DAY OF JANUARY, 2014


APPEAL NO: CA/B/269C1/2010

CITATION: CA (2014) 1 LLIR 3

Before Their Lordships

SOTONYE DENTON WEST, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.


BETWEEN

OMONIYI OLADIRAN

 

(APPELLANTS)

AND

THE STATE

RESPONDENTS

 


LEAD JUDGEMENT DELIVERED BY OWOADE, J.C.A.


 

This is an appeal against the judgment of W. A. Akintoroye, J delivered on 27/11/2008 in the Ondo Judicial Division of the High Court of Justice, Ondo State.

One Mustapha Tijani (as 1st accused) and the appellant (as co-accused) person were arraigned before an Ondo state High Court sitting at Ondo on a two – count charge of conspiracy to commit murder contrary to and punishable under section 516A of the Criminal Code Law, Cap. 30 vol. 11 Laws of Ondo State, 1978 and murder, contrary to Section 316 and punishable under Section 319 of the Criminal Code Law, Cap. 30 Vol. 11 Laws of Ondo State 1978.

The appellant was the 2nd accused at the trial while one Mustapha Tijani was the 1st accused at the trial. The case of the prosecution is that on the 9th day of February 2006 at about 6 pm, the deceased one Gbenga Ojo, while in company of a friend on their way to Sabo in Ondo, met one Friday. The deceased had a discussion with the said Friday, while the discussion was going on, the Appellant alleged that the two, that is, the deceased and Friday, insulted his chairman, that is, the 1st Accused person. The Appellant then held on to the deceased and started beating him. The 1st accused person then used a plank or wood to hit the deceased on the head after which he (the deceased) fainted and fell down as a result. The deceased was later rushed to the Hospital that night. The following morning the incident was reported to the police it was at the Police Station that the news came that the deceased had died.

The Appellant gave evidence as DW2 at the trial Court. He denied the offences for which he is charged. In his defence however, he said that in the course of the fight, the deceased ran to a shop, took a bottle, broke it on his own head and was later taken to the hospital.

At the close of evidence from both sides and addresses by counsel, the learned trial judge found the Appellant guilty of conspiracy to commit murder and murder and convicted and sentenced accordingly.

Dissatisfied with this judgment, the appellant first filed a Notice of Appeal before this Court on 12-12-2008 and later filed additional grounds of appeal on 4/3/13.

Appellant’s brief of argument dated 6th March 2013 was filed on 24/4/13. Respondent brief of argument dated 23/8/13 was filed on 28/8/13. Learned counsel for the appellant distilled two (2) issues from the eight (8) grounds of appeal filed in this Court.

They are:

  1. Whether the learned trial judge was right when he convicted and sentenced the Appellant of murder.
  2. Whether the conviction and sentence of the Appellant for conspiracy to kill was proper in law.

These issues were equally adopted for determination in this appeal by the learned counsel for the Respondent.

The complaints of the learned counsel for the appellant in relation to issue No. 1 could be broadly categorized into three parts, arms or segments.

(a) Contradictions in the evidence led by the prosecution.

(b) Evidence of PW3 required warning in law.

(c) Failure to consider Appellant’s defence.

On item (a) of Issue No.1, Learned counsel for the Appellant submitted that there were material contradictions in the evidence of prosecution witnesses.

He explained the judicial meaning of “contradictions” through the cases of Uwagboe v. The State (2008) 12 NWLR (Pt. 102) 621, Ayo Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457 at 468 to 469. Asanya v. The State (1991) 3 NWLR (Pt. 180) 422, at 1172. Onubogu v. The State (1974) NSCC 365 at 366, Ubani v. The State (2003) 18 NWLR (Pt. 51) 224 at 246 Oladejo v. State (1987) 3 NWLR (Pt. 61) 419 and Emoga v. The State (1997) 1 NWLR (Pt. 483) 615.

He submitted that at page 67 of the record, the learned trial judge considered the issue of contradictions in the evidence of prosecution witnesses and said “the so called conflicts or contradictions in the Prosecution’s case (if at all they exist) are not fundamental and/or substantial”.

These findings, said counsel, were clearly perverse because there were material contradictions in the evidence of PW3 and PW5 and the evidence of PW3 on oath and his extra judicial statement (exhibit D). That, even the evidence of PW1 contained contradictions. Learned counsel submitted that in his evidence on oath recorded at page 18 of the record, PW3 said “Mustapha i.e. 1st accused person took a stick with which he hit the late Gbenga Ojo on the head.”

That, at page 19 of the record, PW3 said under cross-examination;

“…….. I begged Mustapha, but he did not listen to me. I kept on begging him up to the time he hit the deceased on the head with the wood (stick)…..” That in his hand written extra judicial statement, exhibit D at page 82 of the record he said “Omoniyi ran and picked up a wood and hit Gbenga Ojo on his hand”

Again that at page 32 of record, PW3 said “during the beating Mustapha used one of the wood to hit Late Gbenga on the head and he fainted.”

That, finally at page 84 of the record, PW3 said “The two wood used to hit Gbenga Ojo were seen and handed over to the Police.”

Learned counsel submitted that PW5 said at page 20 “At the scene of crime PW3 made me realize that the wood (Plank) used in beating the deceased was the one we met at the scene. This is the plank.”

Thereafter, the planks hitherto marked 1DW – 1DW1 were admitted in evidence as Exhibits G and G1.

Learned counsel argued that an analysis of these testimonies would show that the evidence of PW3 on oath consistently referred to a stick. In exhibit D he initially referred to “a stick” (one) and later in the same exhibit D referred to two wood. PW5 said PW3 showed him the wood that was used to commit the crime and the two wood admitted in evidence as exhibit G and G1. He submitted that these pieces of evidence raise a doubt as to whether one or two woods were used in hitting the deceased. While the evidence on oath says it was one, the other evidence exhibit D initially says one and changed to two. If there was one wood, the evidence ought to be unequi vocal given its implication to the cause of death. If there were two, then the latter testimony cancels out the one that says there was one. This issue, said counsel, is contradictory.

Learned counsel submitted further that in convicting the accused persons for murder, the learned trial judge believed that there were two pieces of wood. That, at page 60 of the record, he referred and relied on the evidence of PW3 where he said that “the two wood were used to kill Gbenga Ojo” That His Lordship proceeded to examine the evidence of PW1 to the effect that the deceased died from injuries on his head. He then said “injuries on the hand (where the 2nd accused hit the deceased with a wood) and on the head (where tie 1st accused hit with another wood) and concluded at page 62 of the record that it was in the course of the fight that the deceased sustained the injuries both on his head and left arm.”

Learned counsel submitted that the summation of the evidence relating to the wood was confusing to the learned trial Judge. That at page 37 of the record, the learned trial Judge said that PW3 said “He told the Court how the 1st accused person went to pick a wood (a plank) with which he hit the deceased on the head, and he fell down as a result”.

This, counsel said is an obvious reference to the viva voce testimony of PW3. That, a look at the reproduced testimony of PW3 at pages 18 and 19 of the record shows that he did not say this:

What he said at pages 18 – 19 of the record was that;

“…… Both the said Omoniyi 2nd accused person and Mustapha i.e 1st accused person held the Late Gbenga Ojo and they started beating him. Mustapha i.e. 1st accused person took a stick with which he hit the Late Gbenga Ojo on the head. Gbenga Ojo fainted as a result of the blow…”

Learned counsel submitted that the cause of death going by the evidence of PW1 is “head injury with intra cranial heamorrhage” (pages 15 and 78 of the record). That, at page 60 the Learned trial Judge accepted this testimony. Learned counsel submitted that on the authority of the cases of Oche v. The State (2007) 5 NWLR (Pt. 1027) 214 and Oforiete v. The State (2000) 12 NWLR (Pt. 631) 415 that in a murder trial, the prosecution must link the cause of death to the act of the accused. Therefore, that, if the deceased was killed by the blows of a stick (wood) on the head, following the decided cases, the prosecution must prove which accused person delivered the blow that killed the deceased with the stick. If this is established, the next thing, according to counsel, is whether as in Nwankwoala v. The State (2006) 14 NWLR (Pt. 1000) 663, the accused that delivered the blow acted on behalf of both parties. This, counsel said, will undoubtedly lead the Court to a consideration of whether both parties had a common intention to kill.

He submitted that the evidence relating to stick/wood or sticks/woods raises a doubt as to whether there were two sticks (pieces of wood) or one stick (a piece of wood). If there was one, then the Court should not have admitted and believed that they were two. This should have raised a doubt in the mind of the Learned trial Judge. The law, he said is trite that any doubts in the evidence of the prosecution ought to be resolved in favour of accused persons.

He referred to the cases of Nwokearu v. The State (2010) 15 NWLR (Pt. 1215) 1 State v. Edo (1991) 7 NWLR (Pt. 201) 98, Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349.

Learned counsel furthered that if these doubts were resolved in favour of the appellant, it would mean that the trial judge would not have admitted and acted on exhibits G and G1. The exclusion of exhibit G and G1 would weaken the case of the prosecution built on the fact that it was exhibits G and G1 that were used to cause the death of the deceased by the accused persons. The impact is that the prosecution would have failed to link the cause of death with the act of the accused.

Still on contradictions, learned counsel also submitted that while PW3’s evidence on oath categorically stated that only the 1st and 2nd accused persons were engaged in the fight, his extra judicial statement says that other people were also involved. Specifically, in exhibit D reproduced at pages 83 – 84 of the record, he said:

“Mustapha later called his boys whom I don’t know them by names but can be identified to beat Gbenga Ojo. During the beating….”

Learned counsel submitted that though this evidence was not given on oath, the learned trial Judge ascribed it to PW2 and relied on it. That, at page 29 of the record, his Lordship said:

“Going through the evidence of PW2 i.e. the I.P.O. he said PW3 the victim (the deceased) the accused persons and others at large were all involved in a fight.”

Learned counsel argued that if other people were involved, it would lead the Court into examining the role played by each person. The Court would also have to consider, whether in delivering the blow to the head, Mustapha Tijani (1st accused) acted on behalf of all those engaged in the fight. If the answer is yes, then the Court would apply the rule that all were guilty of the act of Mustapha Tijani (1st accused).

He referred to Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455 Akinwunmi v. The State (1987) 1 NWLR (Pt. 52) 608.

But, that on the other hand, if it can be shown that the others engaged in the fight did not intend to kill, then the Court would exculpate all those who participated in the fight except Mustapha Tijani (1st accused).

Still on contradictions, but on another wicket, learned counsel submitted that in his evidence on oath PW3 said, that when the deceased fainted, he ran away for fear and went to call the father of the deceased. Both of them returned to the scene and took the deceased to the hospital. However, that in his extra judicial statement, exhibit D he said that he waited at the scene and then took the deceased to the hospital.

Learned counsel conceded that though this evidence on the face of it would not amount to a material contradiction, when viewed from the angle of belief in the testimony of a witness, its implication would become profound. That, when a witness gives evidence, the learned trial judge’s function is to determine the veracity of the testimony, and come to a conclusion whether the testimony is worthy of belief or not. Once the statement contains tissues of lies then the Judge must be circumspect in the weight to be attached to it.

Learned counsel submitted that where as in the instant case, a witness says in one breath that he was afraid and ran away to call the father of the deceased, and in another breath, states that he remained at the scene and carried the deceased to the hospital, then the contradiction goes to the weight to be attached to his testimony. Also, that when it is remembered that this witness is a relation of the deceased, whose evidence should be received with caution, then the trial court should have regarded this contradiction as to the account of the events as one that casts a doubt on the veracity of the witness and refused to believe him.

He referred to the cases of Ndukwe v. The State (2009) 7 NWLR (Pt. 1139) 43, Amaremor v. The State (2010) 7 NWLR (Pt. 1193) 317.

Also, said counsel, in his statement to the Police exhibit D, PW3 said Friday was an in Indian hemp smoker. Under cross examination he said he knew Friday as a hemp seller. That, this knowledge obviously predates the day of the incident.

Furthermore, that in Exhibit A, PW1 said that there were “abrasions on the left arm” (Page 78 of the record) but on oath he said there were “mild bruises on the shoulder of the deceased” (Page 35 of the record). That in convicting the 2nd accused for murder, the learned trial Judge relied on this evidence. And, that he combined it with the extra judicial statement of PW3 to come to the conclusion that the Appellant used the wood to hit the deceased on the arm.

On the second arm of issue No. 1, learned counsel submitted that in his evidence on oath at page 18 of the record, PW3 referred to the deceased as “friend and housemate” and at page 19 under cross-examination that “I was the only relation of the Gbenga Ojo at the scene of crime on that day…”

Counsel submitted that the pieces of evidence produced above shows that PW3 was a relation and bosom friend of the deceased. The deceased met his death while in his company. His actions leave no one in doubt that he wanted to rope in the accused persons so that he would not have the moral guilt of luring his friend and brother to death.

Learned counsel submitted the learned trial judge believed the evidence of PW3, lock stock and barrel, he did not advert his mind to the possibility that PW3 is a tainted witness and warn himself.

Counsel referred to the cases of R. V. Pratter (1960) 44 CR. APP. R. 83, William Idahosa & Ors. v. R. (1965) NWLR 83 and Mailayi v. The State (1968) 1 All NLR 116 that in cases where a person may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given.

Learned counsel added that if these contradictions are expunged from the evidence, then the bottom of the evidence it supports would be knocked off and the conviction of the appellant cannot stand.

On the third arm of issue No. 1, learned counsel conceded that the learned trial judge correctly stated the law when he said, that a trial court was bound to examine the defence raised by an accused person or available to him even if he did not raise it.

He referred to the cases of Takida v. The State (1969) 1 All NLR 270, Apishe v. State (1971) 1 All NLR 50.

The Courts, said counsel have gone further to hold that the trial Court must examine the defence raised by an accused person, even if it is stupid.

After referring to the Supreme Court decision (per Mustapher, JSC) in the case of Uwaekweghiyin v. The State (2005) NWLR (Pt. 930) 227. Learned counsel submitted that in the exercise of this duty, the learned trial judge examined the evidence led by the accused persons to the effect that it was the deceased who deliberately inflicted the wound on himself and wrongly asserted that the accused person want the court to believe that the deceased committed suicide.

Counsel argued that from the facts as narrated by DW1 and DW2, the act of the deceased in smashing a bottle on his head in order to use the broken bottle to stab the accused persons is not uncommon in street fights. A person doing that cannot be said to have the intention of killing himself. At best, he had the intention to intimidate his adversary. He submitted that the accused persons did not raise the defence of suicide.

Learned counsel submitted that the defence of the appellant is simply that the actus reus of the offence in this case is not traceable to him. And, that having found that the accused persons were engaged in a fight with the deceased, the learned trial judge ought to have examined the consequences of killing in the course of a fight.

Learned counsel referred to the provision of Section 318 of the criminal code and a host of cases including R. v. & (1942) 8 WACA 13, R. v. Amponsah & Ors, (1988) 4 WACA 120, Nungu v. Queen (1953) 14 WACA 379, Musa v. State (2009) 15 NWLR (Pt. 1165) 467. Offorlete v. The State (2000) 12 NWLR (Pt. 681) 145 and State v. Edo (1991) 7 NWLR (Pt, 2O1) 98 all to show that killing in the course of a fight amounts to manslaughter and not murder.

Learned counsel submitted that from the evidence of PW3, the deceased and accused persons engaged in a fight when Mustapha Tijani used a stick to strike the deceased on the head. The learned trial judge believed that the deceased died from the fatal blow to the head.

Learned counsel submitted that though these pieces of evidence are contradictory, the only evidence the Court can act on is the evidence on oath.

He referred to the book “Modern Nigeria Law of Evidence” by Fidelis Nwadialo, SAN (of blessed memory) 2nd Ed. (1999) and also to the cases of Esanghedo v. The State (1989) 4 NWLR (Pt. 113) 57, State v. Edo (1991) 7 NWLR (Pt. 201) 98 Attah v. The State (2010) 10 NWLR (Pt. 1201) 190 and Layonu & others v. The State (1967) All NLR 210 all to demonstrate that the only use that could have been made of extra-judicial statement of a witness to the Police is to impeach the credibility of the witness.

Learned counsel submitted that the next issue to examine in relation to the appellant is whether he and the Mustapha Tijani had a common intention to kill or cause grievous harm on the deceased.

Learned counsel referred to the provision of Section 8 of the criminal code and the cases of Ikemson v. The State (Supra) and R V. Offor & Offor 1955 15 WACA 4.

He submitted that for accused persons to be said to have common intention, Eso, JSC said in Akinkunmi v. The State (1987) 1 NWLR (Pt. 52) 608 at 615 that:

(1) There must be two or more persons.

(2) They must form a common intention.

(3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another.

(4) An offence must be committed in the process.

(5) The offence must be of such nature that its commission was a probable consequence of such purpose.

Learned counsel repeated his earlier submission that in a murder trial, the prosecution must link the death of the deceased person to the act of the accused persons. He added that the evidence believed by the learned trial judge is that Mustapha Tijani hit the deceased with a plank on the head. Then the cause of death will be linked to Mustapha Tijani.

Learned counsel submitted that the evidence on record is that the fight started when Mustapha Tijani arrived at the scene. The fight was spontaneous. There was no evidence of premeditation. All that is on record is that the Appellant called Mustapha Tijani. There is no evidence of how this call was made. There is no evidence of what was said when the call was made. The courts, counsel said; do not embark on speculation but act on the evidence before it.

He referred to the cases of Olalomi Ind. Ltd. v. NIDB Ltd. (2009) 16 NWLR (Pt. 1167) 266. Our Line Ltd. v. S.C.C. Nig. Ltd. (2009) 17 NWLR (Pt. 1170) 382 Olu Feagbu v. Abdm Raheem (2009) 18 NWLR (Pt. 1173) 384 Bamgbehin v. Oriare (2009) 13 NWLR (Pt. 1159) 370.

Learned counsel further submitted that if the fight was spontaneous, it means that there was no common intention to cause grievous bodily harm formed by both accused persons and others engaged in the fight. That, in the circumstances, the appellant cannot be convicted of the offence of using wood to smash the head of the deceased since it cannot be said that both had a common intention to commit the crime.

He referred to the cases of

(1) R. V. Alo 8 WACA 13 (Supra)

(2) R. V. Amponsah 4 WACA 120 (Supra)

(3) Nungu V. Queen 14 WACA 379 (Supra)

(4) Akinkunmi V. The State (1987) 1 NWLR (Pt. 52) 608.

Learned counsel tried to place the facts in the instant case on the same pedestal with the facts in Akinkunmi v. The State (Supra) and argued that if the Appellant participated in the fight, he cannot be held to have had a common intention to use the stick and hit the deceased on the head and submitted that on the authority of Akinkumi v. The State (Supra) the Appellant did not form a common intention to kill with Mustapha Tijani.

Counsel submitted further that in their evidence they (accused persons) stated that in the course of the disagreement between the deceased and the first accused person, the deceased ran to the shop of Friday’s wife, took a bottle broke it on its head and blood started to gush out. That the learned trial judge disbelieved the testimony, he said “I am of the opinion that it is not possible for the deceased to have broken open his own skull with the empty bottle of the magnitude described by PW1 and exhibit ‘A’. A much heavier object coupled with much force must have caused the injury described by PW1.”

Learned counsel opined that the above conclusion is not based on evidence before him. Exhibit ‘A’ says the circumference of the wound is 5cm, there are many bottles which measure 5cm or above. That, PW1 did not give evidence relating to the weight of an object that can cause the injury. The trial judge did not show that he weighed exhibits G and G1 to conclude on the required weight to cause the type of wound on the head of the deceased.

Learned counsel submitted based on the above that the disbelief of the evidence of DW1 and DW2 is not because they were not consistent with their extra judicial statement or that they were discredited in cross examination but because the learned trial judge conjectured, that their evidence cannot be true.

Learned counsel for the Respondent submitted that the learned trial judge was right to have convicted and sentenced the Appellant for murder in spite of the purported contradictions in the prosecution’s evidence since the said contradictions are not material and therefore pale into insignificance. Respondent’s counsel re-stated the essential ingredients which the prosecution must prove to succeed on a charge of murder. That, they are:

(a) that the deceased has died

(b) that the death of the deceased was caused by the accused person; and

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

On this, counsel referred to the cases of Nwachukwu v. The State (2002) 12 NWLR (Pt. 782) 543 at 568-569, Adava v. The State (2006) 9 NWLR (Pt. 984) 152 at 167.

On the first ingredient, he submitted that the fact of death of the deceased was proved by the evidence of both the prosecution witnesses and that of the Defence as well as Exhibits A, D and E – E2.

Learned counsel submitted further that the prosecution established the necessary causal link between the act of the appellant and the death of the deceased through the evidence of prosecution witnesses especially PW1 and PW3 the latter being an eye witness to the incident. He added that none of the witnesses for the prosecution was challenged nor their evidence controverted in the trial.

On the third ingredient of the offence of murder, Learned counsel submitted that the deceased’s death was intentionally caused by the appellant with the knowledge that death or grievous bodily harm was its probable consequence, this he said, is because, the probability of death resulting from the acts of the appellant high in view of the fact that the injury inflicted on the deceased was such that death was inevitable.

Counsel referred to the cases of R. v. Arubi (1933) 11 NLR 27, and Ibikunle v. The State (2007) All FWLR (Pt. 354) 209 at 230 that the law presumes that a man intends the natural and probable consequences of his act and that the test to be applied is the objective test namely, the test of what a reasonable man would contemplate as the probable result of his act.

Reacting, specifically on the issue of contradictions in the evidence of the prosecution, learned counsel referred to the case of Ikue Penikan v. The State (2011) 1 NWLR (Pt. 1229) 449 and submitted that a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in details between two pieces of evidence. In effect, two pieces of evidence contradict one another when they are themselves inconsistent. But a discrepancy in evidence occurs when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains some minor difference in details. Learned counsel submitted that in the instant case, the extra judicial statement and evidence on oath of PW3 are not contradictory because the events leading to the offence are the same and very consistent.

He submitted further that before a contradiction in the previous statement and the evidence of a witness can be said to be established, the contradiction must be pointed out to the witness so as to give him an opportunity to explain. That, in the instant case there was nowhere in the cross-examination of PW3 by the appellant, that reference was made to the previous statement of PW3 to the Police and such contradictions pointed out between it and his evidence in Court. Counsel submitted that in the circumstance, the Appellant having denied the PW3 the opportunity of explaining the contradiction (if any) whilst in the witness box could not turn around and raise any issue on them.

Still on the contention of the learned counsel for the Appellant that there were contradictions in the evidence of PW3, it is not justifiable to draw inference from the use of English words as recorded by the trial Court particularly when they are translated from another language. As a result, where the conflict or inconsistencies in the evidence of witnesses for the prosecution merely relates to the translation in the words used into English words recorded by the trial Court and are not material in proving or disproving the case or do not raise doubt as to the guilt of the deceased, they only amount to minor inaccuracies not fatal to the prosecution’s case.

In the instant case, said counsel, PW3 gave evidence in Yoruba language. The difference in the translated words used by him in the trial Court were no more than minor discrepancies which did not affect the substance of the evidence given by the witness on the charge against the Appellant.

Consequently, these minor discrepancies were not fatal to the case of the Respondent and not sufficient to vitiate the decision of the trial Court.

He referred to the cases of Eke v. The State (2011) 3 NWLR (Pt. 1235) 589 at 593, Atiku v. The State (2010) 9 NWLR (Pt. 1199) 241 at 252. Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139 and Azu v. The State (1993) 6 NWLR (Pt. 299) 303.

On the contention of the learned counsel for the Appellant that there were other people involved in the fight that resulted in the death of the deceased, learned counsel for the Respondent submitted that in Exhibit ‘D’ which is the statement of PW3 to the Police and in his evidence on oath, PW3 consistently stated that it was the Appellant and his co-accused person who beat up the deceased. That, the appellant did not cross-examine PW3 on the previous statement he made to the Police especially as regards whether Mustapha Tijani told his boys to beat up the deceased.

Learned counsel submitted further that it is obvious from the evidence of PW3 that what ensued between the appellant, his co-accused and the deceased was a ‘beating’ and not a ‘fight’ or ‘street fight’ as contended by Appellant’s counsel. That the deceased was beaten by the Appellant and his co-accused person with objects identified as Exhibits G and G1 for ‘insulting’ Mustapha Tijani. (1st accused).

He submitted that the deceased could not have inflicted the injury on himself in the course of the beating.

Learned counsel added that from the uncontroverted evidence of PW3, an eye witness, the Appellant brought the wood and hit the deceased on his arms and shoulders. Mustapha Tijani (1st accused) delivered the deadly blow on the deceased’s head.

Learned counsel submitted that the appellate court will not ordinarily disturb the findings of a trial Court unless the findings are perverse, not supported by credible evidence and have occasioned miscarriage of justice as evaluation of evidence is the preserve of the trial Court. He referred to the cases of Ebienwe v. The State (2011) 1 SCNJ 90 at 101 and Hyacinth Anyanwu v. Aduit Mbave (1992) 5 NWLR (Pt. 242) 401.

Learned counsel added that the contradictions referred to by the Appellant’s counsel in the evidence of the prosecution witnesses are not such which will raise any doubt as to the guilt of the appellant and the trial Court in its judgment was right in overlooking them.

He referred to the cases of Atano v. The State (2005) 4 ACLR 25 at 30, Ejigbadero v. The State (1978) 9 – 10 SC 81 at 110 – 111, Onubogu v. The State (1974) 9 SC 1 at 20.

On the contention of the Appellant that there was an interregnum between the time PW3 fled the scene and when the deceased died and also the identity of Friday, Learned counsel for the Respondent submitted, first that, the evidence of PW1 and Exhibit ‘A’ has sufficiently linked the death of the deceased to the act of the Appellant and his co-accused (Mustapha Tijani). Secondly, that the identity of Friday, does not relate to any issue before the Honourable Court. Also, that the purpose of postmortem examination was to establish the cause of death of the deceased.

And, that, in the instant case, Exhibit ‘A’ and the evidence on oath of PW1 is that the cause of death of the deceased was head injury and not abrasions on the arm or bruises on the shoulder of the deceased.

The second arm of Appellant’s Issue No. 1 is the contention that PW3 should be regarded as a tainted witness. On this, learned counsel for the Respondent submitted that the Appellant’s argument is that PW3 was a relation and bosom friend of the deceased and that since the deceased met his death while in his (i.e. PW3’s) company, his action leads no one in doubt that he wanted to implicate the appellant and his co-accused to the murder of the deceased and clear his conscience.

Learned counsel submitted that the Supreme Court has held in a long line of cases that the term “tainted witness” should be confined to one who is either an accomplice or whose evidence could be regarded as having some purpose of his own to serve.

He referred to the case of State v. Okolo (1974) 2 SC 73. Counsel argued that what emerges from the authorities is that where a witness has been proved to be tainted, his evidence must be accepted with considerable circumspection and caution and a trial Court should not readily convict upon it without corroboration.

Learned counsel submitted that the mere fact that the PW3 is a relation or bosom friend of the deceased does not by itself, without more make him a tainted witness and render his evidence unreliable. There must be evidence that he had an interest to serve.

Counsel referred to the case of Akalonu v. The State (2002) 6 SCNJ 332 and added that such evidence should have been made timeously in the extra judicial statement of the Appellant to the Police.

That, the Appellant in this case did not describe the PW3 as a relation or bosom friend in his statement to the police.

Learned counsel submitted further that as PW3 cannot be regarded as a tainted witness, there would be no need for the learned trial judge to look for corroboration of that evidence or to warn himself in the absence of such corroboration.

He referred to Ogunlana v. The State (1995) 5 NWLR (Pt. 395) 266 at 285, Oteki v. A.G. Bendel State (1986) 2 NWLR (Pt. 24) 648.

Respondent’s counsel justified the inference of common intention to cause grievous bodily harm in between the appellant and his co-accused which probable consequence was the death of the deceased. He referred to the evidence of PW3 and argued relying on the cases Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 at 466 and Ala v. The State (2006) 7 SCNJ 566 at 579 that “a fatal blow given by one of the parties is deemed in the eyes of the law to have been given by all those present and participating.” Learned counsel submitted further that the learned trial Judge copiously considered the defence raised and possible defences for the Appellant at pages 66 – 67 of the record. That he rejected the defence raised by the Appellant that the injury that led to the death of the deceased was self inflicted and also considered that the defences of provocation, accident insanity etc were not available to the Appellant.

The items of contradictions complained of by the learned counsel for the Appellant under the first arm of Issue No. 1 could be broadly classified into two categories. Under the first category are:

(i) Whether it was a stick that was used by on the deceased as described by PW3 in evidence or wood as stated by him (PW3) (in exhibit D) his extra-judicial statement to the Police.

(b) In spite of the admission of exhibits G and G1 whether the evidence relates to 1 (one) stick/wood or 2 (two) sticks/woods.

(ii) The inconsistency (if any) between abrasions on the left arm or shoulder. The identity of Friday and the action of PW3 when the deceased fainted, in other words, whether he went to call “Daddy” immediately or waited at the scene until the deceased was taken to the hospital.

I do not have any doubts in my mind in classifying this category of purported contradictions as mere discrepancies. This is largely for the reason of the vivid and unchallenged evidence of the eye-witness to the incident, PW3. The unchallenged and uncontroverted evidence of PW1 together with Exhibit ‘A’ which linked the blow inflicted by the stick/wood by Mustapha Tijani, the co-accused as the cause of death of the deceased.

And, perhaps also the unchallenged testimony and the tendering of Exhibits G and G1 by the PW5.

From all these circumstances, the alleged contradictions in the first category “pale into insignificance” to borrow the words of the learned counsel to the Respondent.

As the learned counsel for the appellant himself would concede from his exposition of the law “…….. two pieces of evidence are inconsistent when they are mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies abrogation or abandonment of the other in other words, two pieces of evidence are inconsistent when they are in essence mutually exclusive such that if one is true the other must be false because they are essentially contradictory.” See Nnaemeka-Agu, JSC in Asanya v. The State (1991) 3 NWLR (Pt. 180) 422 at 446.In the instant case, it is not only that the pieces of evidence identified above are not material in the light of the substance of the case but the admission of each one of them does not present any falsity in the other.

Thus in the case of Uwagboe v. The State (2008) 12 NWLR (Pt. 102) 621, Onnoghen, JSC relied on the case of Ayo Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457 at 468 to 459 to say;

“two pieces of evidence contradict one another when they are by themselves inconsistent” and that a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains, some minor differences in detail …. On the other hand, minor discrepancies between a previous written statement and subsequent oral testimony….. do not destroy the credibility of witness.”The second category of the alleged contradiction by the Appellant is simply that while the evidence on oath of PW3 consistently talked of beating of the deceased by the Appellant and his co-accused, Exhibit D, the extra-judicial statement of PW3 at pages 83 – 84 of the record mentioned “Mustapha later called his boys whom I don’t know them by names but can identify them to beat Gbenga Ojo. During the beating Mustapha used one of the wood to hit Gbenga on the head and he fainted…….” Undoubtedly, whether from the evidence on oath of PW3 or Exhibit D itself, PW3 remained consistent on the idea that while Mustapha Tijani and the Appellant beat up the deceased, that the Appellant hit the deceased on his arm with wood but that it was Mustapha Tijani that dealt the fatal blow on the deceased.

However, to limit ourselves to the inquiry in this portion, the question is whether the learned counsel for the Appellant could now take any advantage of Exhibit D when in fact the alleged statement therein was never used in cross-examination to impeach as it were the credibility of PW3 on the alleged statement and/or contradictions in the evidence of PW3.

This is because the position of the law is that the statement of a witness, that is his statement to the Police, is not evidence, its sole use or consequence is that of discrediting the testimony of the witness.

In Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57 at 66, Nnaemeka-Agu, JSC stated the law thus:

“Even in the court of trial the only proper use that could have been made of those extra judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony to show that their testimony in court was unreliable. In that case, it would have been necessary to tender the statements, to draw the attention of each witness to the portion of his previous statements that is in conflict with his instant testimony” (Emphasis supplied)

The court of appeal accepted the same principle of law in State v. Edo (1991) 7 NWLR (Pt. 201) 98 at 109 when Ejiwunmi, JCA (as he then was) said:

“It must be borne in mind that the only proper use that could have been made of the extra-judicial statement was to have used it for Cross – examination of the witness in order to discredit her testimony, and therefore show that her evidence in court is unreliable”

More recently, in Attah v. The State (2010) 10 NWLR (Pt. 1201) 190 Musdapher, JSC endorsed the view of Brett, JSC in Layonu & Others v. The State (1967) ALL NLR 210, on the same point that:

“In our experience, the principle has always been applied as it was in R. V. Adebanjo (1935) 2 WACA 315, any written statement in the possession of the prosecution which was made by a witness and caused by the prosecution and relates to any matter on which the witness has given evidence. Such a statement is not evidence of the facts contained in it and the only use to which the defence can put it is to cross-examine the witness on it and then if it is intended to impeach his credit….”

In the instant case, the length and breadth of the cross examination of PW3 and on Exhibit D is contained at page 19 of the record. There is nowhere where any reference, question or allusion was made to the statement now complained of in Exhibit D by PW3 that “Mustapha later called his boys whom I don’t know them by names but can be identified to beat Gbenga Ojo….”

In the circumstances, the learned counsel for the appellant could not be heard to complain of contradictions (if any) in between the statement of PW3 in Exhibit D and his evidence on oath on whether “other boys” joined the appellant and his co-accused in the beating of the deceased.

This is because, the appellant did not cross examine PW3 as regards whether the appellant told his boys to beat up the deceased.

I believe that the learned counsel for the respondent has given adequate answer to the contention in the second arm of the appellant’s issue No. 1 that PW3 should be regarded as a tainted witness.

Clearly, a relation, even a blood relation of a deceased or victim in a criminal trial could not be regarded as a tainted witness solely for the reason of his being related to the victim or deceased.

The Supreme Court has maintained that the term “tainted witness” should be confined to one who is either an accomplice or whose evidence could be regarded as having some purpose of his own to serve.

See: State v. Okolo (Supra).In the instant case, there is no evidence that PW3 had an interest to serve. He could not be described as a tainted witness merely because as a relation, he witnessed the incident that led to the death of the deceased and gave an account of it.

Indeed it would be nigh impossible to prosecute criminal cases if the relations of victims are otherwise handicapped to offer themselves as witnesses to crimes that they have witnessed for reason of their closeness to the victims of such crimes.

I therefore also agree on this score with the learned counsel for respondent that PW3 is not a tainted witness and his evidence does require any corroboration, caution or warning whatsoever.

Learned counsel for the appellant was equally not right either on account of his statement that common intention could not be inferred from the concerted action of the appellant and his co – accused because it was Mustapha Tijani that dealt the deadly blow on the deceased or because the fight was spontaneous.

Section 8 of the Criminal Code dealing with common intention provides:

“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 deemed to have committed the offence”.

In the instant case, the learned trial judge was right to have inferred common intention from the concerted effort of the appellant and his co – accused (Mustapha Tijani) on the basis that they at least intended to cause grievous harm to the deceased from the evidence of PW1, and PW3.

In Ikensom v. The State (Supra) at page 466 the court said of Section 8 of the Criminal Code (per Belgore, JSC) that.

“If they participated, that is enough, for it does not matter what each one did in furtherance of the commission of the crime. The mere fact of common intention to commit armed robbery and manifesting at the scene of crime to execute that object in law rendered all the appellants guilty of armed robbery.”

In the latter decision of the Supreme Court in the case of Ala v. The State (2006) 7 SCNJ 566 at 579 – 580 Tabai, JSC held inter alia that:

“Where more than one person are accused of joint commission of a crime, it is enough to prove their participation in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455 at 466”

The Supreme Court also held thus:

“Where common intention is established, a fatal blow or gunshot though, given by one of the parties, is deemed in the eyes of the law to have been given by all those present and participating. The person who actually delivered the fatal blow; is, in such a case, no more than the hand by which the others also struck…”

Learned counsel for the appellant relied on the Supreme Court decision (per Eso, JSC) in Akinkunmi v. State (Supra) where the appellant was held to have formed a common intention to steal but not to kill with the co-accused. The decision in Akinkunmi v. The State (Supra) followed the old decision of the West African Court of Appeal in R. V. Offor and Offor (1955) 15 WACA 4. With due respect to learned counsel for the appellant the cases of Akinkunmi v. The State (Supra) and R. V. Offor and Offor are distinguishable from the facts and circumstances in the instant case.

In the instant case, the appellant and the co-accused have a common intention to cause grievous bodily harm to the deceased. They are thus both liable for murder on the ground that the offence of murder was a probable consequence of their common intention.

The position is the same in English Law. Thus if several persons pursue a common unlawful object, and one of them does a criminal act within the scope of the common purpose, all are responsible for that act whether it was originally contemplated or not.

See: Mohan v. R (1967) 2 AC 187, (1907) 2 ALL ER 58 PC R. V. White Field (1983) 79 CR. APP. R. 36, CA.

Where, however, one of them does an act which was not contemplated by t he others and which is outside the common purpose, the others are not criminally liable in respect of that act.

R. v. Anderson, R. v. Morris (1966) 2 Q B 110, 50 CR. App. REP. 216 CCA R. v. Lovesey, R. v. Peterson (1970) 1 Q B 352 CR. APP. Rep. 461 CA.Also, in the instant case, the learned trial judge did not only consider the defence as it were of “non est factum” raised by the appellant and his co-accused (Mustapha Tijani) but duly and appropriately considered the possibility of other defences that could be available to the appellant and his co-accused.

Still on defences, I observed that the learned counsel for the appellant in his brief of argument also suggested the possibility of the consideration of a defence of sudden fight, the learned trial judge having accepted that there was indeed a ‘fight’ between the appellant and his co-accused and the deceased.

Perhaps, for the records there is no defence of sudden fight under the Criminal Code. Both the Criminal Code and the Penal Code in Nigeria provide for the defence of provocation. However, the defence of sudden fight is contained only in the penal Code.

The ingredients of the defence of provocation under the provision of Section 318 of the Criminal Code and Section 222 (1) of the penal Code are similar, so are the consequences of a successful plea of the defence of provocation in reducing the offence of murder to manslaughter, the provisions of both codes following closely to the position under the common law.

In addition, the Penal Code Law (applicable in the Northern States of Nigeria and the FCT) provides for a defence of sudden fight in Section 222 (4) which says that culpable homicide is not also punishable with death.

“….if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner”

Undoubtedly, the provision of Section 222 (4) of the Penal Code provides an additional leeway in cases of sudden fight for an accused person separately from the defence of provocation in its Section 222 (1) but an accused person charged under the provision of the Criminal Code (applicable in the Southern States of Nigeria) as in the instant case could not avail himself of the defence of sudden fight.In this appeal, all the arms of appellant’s issue No. I have been resolved against the appellant. Issue No. 1 is accordingly resolved against the appellant.

In treating Issue No. 2 learned counsel for the appellant espoused the law of conspiracy with cases old and new from the highest courts in the land.

He referred amongst others to the cases of Majekodunmi V. R. (1952) 14 WACA 64 Mulcahy V. R. (1368) LR 3 H. L. 306 at 317, Omotola v. The State (2009) 7 NWLR (Pt. 1139) 148 Gabriel v. The State (2010) 6 NWLR (Pt. 1190) 280 Clark v. State (1986) 4 NWLR (Pt. 35) 381, Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455, Njovens v. The State (1973) 5 SC 17, Garba v. C.O.P. (2007) 16 NWLR (Pt. 1060) 378 Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112 at 143 – 144.

He submitted that the charge before the court was for conspiracy to commit murder. That, the learned trial judge examined the law on conspiracy to commit murder.

That, the learned trial judge examined the law on conspiracy and concluded at page 53 of the record:

“Though there is no direct evidence of an agreement to commit felony between the two accused persons, yet conspiracy could be inferred”

Learned counsel submitted that the learned trial judge did not give any basis for the inference before coming to the conclusion. This, counsel said, is contrary to the accepted judicial proposition that:

“Belief and disbelief in the context of judicial pronouncement must be based on a proper and sound evaluation of evidence before a judge employs these words” per Galinje, JCA in Usufu v. The State (2007) 3 NWLR (Pt. 1020) 94 at 120. He also referred to the cases of Adamu v. The State (1991) 4 NWLR (Pt. 187) 530 at 538. Aworeju v. The State (2001) 18 NWLR (Pt. 745) 430. Counsel submitted that the learned trial judge appears to have grounded his finding from the inability of the accused persons to rebut the presumption that they conspired. In his own words, he said at page 53 of the record:

“The accused persons in this case have not been able to rebut the presumption that they conspired”

Learned counsel argued that there is nothing like presumption of conspiracy in our law. That, having assumed that there is a presumption of conspiracy the learned trial judge erroneously placed the burden of rebutting that presumption on the accused persons.

Learned counsel submitted that from the facts found by the learned trial judge, the appellant joined the fight between the 1st accused (Mustapha Tijani) and the deceased. That for the avoidance of doubt, the finding can be seen at page 62 of the record where the learned trial judge said”

“From all these, I am of the firm view that there was a fight between the deceased and accused person I am also of the view that the 2nd accused person joined the fight, it was the fight that led to death”

Learned counsel submitted that since an “agreement” to commit a felony is a vital ingredient of the offence of conspiracy, and having found that the two people were fighting and the appellant joined, it means that the action of joining the fight was not premeditated. That it was not in execution of a pre-arranged agreement to fight the deceased. In other words, there was no evidence of an agreement by the two accused persons to fight the deceased. This material evidence, counsel said, cannot be presumed. There was also no basis for such an inference.

Learned counsel submitted that before the fight, even on the evidence of PW3 that the trial judge believed, the appellant was alleged to have called Mustapha Tijani (1st accused). The method of making this call or what was said was not in evidence. It would be preposterous to assume in the absence of empirical proof, that the plan to fight was hatched when the call was made. There is evidence that when the 1st accused, Mustapha Tijani arrived the scene, a fight ensued. That the fight was spontaneous. It was not preceded with a plan to fight. The lower court cannot infer conspiracy from this spontaneous action.

Learned counsel submitted that assuming it was the blow of the 1st accused (Mustapha Tijani) that caused the death, the appellant cannot be held culpable for the rash action in the absence of a pre-arrangement to fight. If that submission is upheld, and it is held that the appellant did not kill then the conviction for conspiracy cannot stand, because, the appellant cannot conspire with himself. No one person can be convicted of a charge of conspiracy against himself.

Learned counsel referred to t he cases of Garba v. C.O.P. (supra) and State v. Osoba (2004) 21 W.R.N. 113 at 114 and submitted that the facts of this case underscores the need not to charge conspiracy with the substantive offence as it may occasion a miscarriage of justice.

Learned counsel concluded that without coming to a conclusion based on proved facts to substantiate the offence of conspiracy the learned trial judge delved into the offence of murder. That, it was after examining the facts of the murder that he went on to hold them guilty of conspiracy. He urged us to discharge the appellant for the offence of conspiracy and quash the sentence.

Learned counsel for the respondent also referred to a number of cases to demonstrate the ingredients of conspiracy. He said that where two or more persons agree to commit a crime, they are nevertheless guilty of conspiracy whether the crime was committed or not, or it would have been even impossible to commit same. That, from the decided authorities, the essence of the offence of conspiracy is the consensus ad idem of the co-conspirators to commit a crime even though they had not assembled at a particular venue to hatch the intention to execute the unlawful purpose. The prosecution must therefore establish the meeting of minds for the purpose of the offence.

Learned counsel referred to the cases of Yahaya Garba v. C.O.P. (2007) 16 NWLR (Pt. 1060) 378 at 400. Gbadamosi v. The State (1991) 5 NWLR (Pt. 196) 182 Shodiya v. The State (1992) 3 NWLR (Pt. 230) 457 at 379-480.

He summed up from the above authorities that for the prosecution to succeed in a charge of conspiracy, it must establish the following ingredients.

(a) An agreement between two or more persons to do or cause to be done some unlawful act or some act which is not unlawful, by unlawful means.

(b) Individual participation in the conspiracy by each of the accused persons.

In other words, the prosecution must prove the conspiracy as described in the charge and that the accused were engaged in it or prove the circumstances from which the judge may infer or presume same.

Counsel added that the gist of the offence of conspiracy is therefore, embedded in the agreement or plot between the parties, that it is rarely capable of direct proof. But, that it is predicated on circumstantial evidence which is evidence not of fact in issue but of other facts from which fact in issue can be inferred.

He referred to the cases of Oduneye v. The State (2001) FWLR (Pt. 37) 1203 at 1213, Gbadamosi v. The State (1991) 5 NWLR (Pt. 196) 182, Erim v. The State (2012) ACLR 344 at 367.

Learned counsel submitted that in the instant case, though there was no direct evidence that the conspirators met at a pre-determined place to hatch their plan, there are sufficient facts from which common intention can be inferred and which were actually inferred by the trial court to convict the appellant and his co-accused for conspiracy to murder and the murder of Gbenga Ojo.

Learned counsel referred to Exhibit ‘D’ the extra judicial statement of PW3 and his evidence on oath and said that they were not successfully destroyed or discredited in the course of cross examination by the defence. That, according to PW3, the appellant confronted the deceased for insulting his Chairman, that is Mustapha Tijani (1st accused) who dealt a fist blow on the deceased. Thereafter, the appellant brought Exhibits G and G1 gave it to the co-accused who used it to hit the deceased on the head.

Learned counsel submitted that the learned trial judge properly evaluated the evidence placed before him which was the basis for inferring that the appellant and his co-accused person conspired to murder the deceased. That, from the circumstances of the case, there are sufficient evidence which irresistibly and unequivocally led to the guilt of the appellant. And, that, the trial court was right to have inferred that the appellant and his co-accused person did what they did towards a common intention and a common purpose.

Learned counsel submitted further that where the evidence adduced by the prosecution in a criminal matter is tested, scrutinized and accepted by the trial court and it conclusively points to the accused person as the perpetrator of the offence charged, it is for the accused person to, at least, cast a reasonable doubt on the prosecution’s case by a preponderance of probabilities.

He referred to the case of Igabele v. The State (2006) 6 NWLR (Pt. 978) l00 at 120-121, Learned counsel submitted that the prosecution proved the offence of conspiracy against the appellant beyond reasonable doubt and the trial court rightly convicted for the offence.

As early as 1952, the West African Court of Appeal (per Foster-Sutton, PJ) defined the offence of conspiracy by adopting the definition of conspiracy by Willes J in Mulcahy v. R. (1868) LR 3 H L 306 at 317 and said:

“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act itself”. punishable if for a criminal object for the use of criminal means”

And the court added that:

“The gist of the offence of conspiracy lies, not in doing the act of effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement ‘ between the parties”

Also in Omotola v. The State (2009) Oguntade, JSC endorsed the view in Achbold – Criminal pleadings Evidence and Practice, 38th Edition para 4070 at page 1540 to wit:-

“It must be proved that the alleged conspirators were acting in pursuance of a criminal purpose held in common between them and that each conspirator knew that there was in existence a scheme which went beyond the illegal act which he agreed to do. R. v. Griffths (1966) 1 Q B. 589, 49 CR APP. R.279”

See also Gabriel v. The State (2010) 6 NWLR (Pt. 1190) 280 Njovens v. The State (1973) 5 S.C. 17.

As a matter of law, I do agree with the learned counsel for the respondent when he relied on the decision of the court of appeal in Shadiya v. The State (Supra) at pages 471-472 to state that:

“For the prosecution to succeed it must prove the conspiracy as described in the charge and that the accused were engaged in it or prove the circumstances from which the judge may presume or infer same. It may not always be proved by direct evidence as it generally as a matter of inference deduced from certain criminal acts and conducts of the parties accused, done or carried out in pursuance of an apparent criminal purpose in common between them. Clark v. State (1936) 4 NWLR (Pt. 35) 381, Ikemson v. State (1989) 3 NWLR (Pt. 110) 455″However, from the facts and circumstances in the instant case, I do not think that the learned trial judge was right to have inferred an agreement for the purpose of the conspiracy charged i.e. conspiracy to murder.

I think the learned counsel for the appellant was right when he said that:

“there was no evidence of an agreement by the two accused persons to fight the deceased. This material evidence cannot be presumed. There was also no basis for such an inference”.

The mens rea which is an essential element of the common law offence of conspiracy consists in the intention of executing the unlawful elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct unlawful.

Thus, a person cannot be a party to an agreement by virtue of an uncommunicated intention to enter into that agreement neither will the accused be guilty of conspiracy to commit that offence unless he and at least one other person to the agreement intend or know that fact or circumstance will exist at the time when the conduct constituting the offence is to take place.

See: Churchill v. Walson (1967) 2 AC 225, 51 CV APP. REP 212, R. V. Clayton (1943) 33 CR. APP REP. 113 CCA, R. V. Jacobs (1994) KB 417, 30 CR. APP. REP, 1 CCA. Kamara v. D.P.P. (1974) AC 104 at 895, HL Per Lord Hailsham of St. Marylebone LC, R. V. ALLSOP (1976) 64 CR. APP. REP. 29.In the instant case, the learned trial judge seemed to have inferred the agreement for the purpose of conspiracy from the concerted action in the beating of the deceased by the appellant and the co-accused. This approach, with due respect to the learned trial judge is wrong.

This is because A and B may form separate and independent intention to kill C. The fact that A and B acted in concert in the execution of such a purpose may be useful to the judge of facts in coming to the conclusion that there was common intention as for example envisaged under the provision of Section B of the Criminal Code. That same evidence of concerted action of A and B would not necessarily be or always be evidence of an agreement between A and B to kill C.

This is because, unlike the inference of common intention, an agreement for the purpose of the law of conspiracy or that would ground a charge of conspiracy to murder whether it is direct or circumstantial must be a priori to the execution of the unlawful purpose.

In order to make the point clearer, it became obvious from the summation of the learned trial judge in his judgment starting from page 51 of the record that there was indeed a mix up in between the idea of an agreement in conspiracy and the concept of liability through common intention. Listen to the learned trial judge: (pages 51 – 54 of the record):

“by its nature conspiracy is a separate charge which does not merge. All its elements must be proved to be in existence by the prosecution before conviction would be secured. If I may ask, has the prosecution been able to prove or establish successfully these elements of the offence? I. O. Olorunfemi Esq. Learned Principal State Counsel contended that the prosecution succeeded in establishing the elements of the offence in that it was proved that both accused persons hit the deceased with plank marked Exhibit G and G1″

An at pages 53 – 54 His lordship held thus:

” from the foregoing, it is open to this court to infer that these two accused persons did what they did towards a common intention and a common purpose. Though there is no direct evidence of an agreement to commit felony between the two accused persons, yet conspiracy may be inferred. In the case of Gbadamosi v. The State (1991) 6 NWLR (Pt. 196) 182, it was held that the crime of conspiracy is usually hatched with utmost secrecy and the law recognized the fact that in such a situation, it might not always be easy to lead direct and distinct evidence “.

Before us in this appeal, learned counsel for the respondent also fell into the same error of equating inference of common intention with the inference of an agreement in conspiracy.

In para 4.53 at page 20 of the respondent’s brief of argument, learned counsel argued thus:

“We submit that through there was no direct evidence that the conspirators met at pre-determined place to hatch their plan, there are sufficient facts from which common intention can be inferred and which were actually inferred by the trial court to convict the appellant and his co-accused for conspiracy to commit murder and the murder of Gbenga Ojo”

At this juncture, I would like to point out that the intent and purpose of the draftsman of the criminal code for the offence of conspiracy and the liability of parties via common intention are not the same.

The offence of conspiracy under Section 516 of the Criminal Code as it is the case with the offence of “Attempt” is an inchoate offence and the aim of the law is to nip criminality in the bud before the plans of such criminal conspirators proceeded too far. On the other hand, the purpose of the rule as to common intention under Section 8 of the Criminal Code is to secure liability for concerted criminality and to ease the duty of the prosecution in the identification and proof of offences committed in concert by two or more persons.

The ingredients of the offence of conspiracy are quite distinct and different from the requirements of deemed liability in Section 8 of the Criminal Code. And, even when factual situations look alike, the judge of facts must be careful in making sure that one set one facts do not dovetail into the other, otherwise there could be miscarriage of justice.

Circumstances such as the one presented in this case or perhaps this appeal must have necessitated our courts to admonish that:

“Generally, it is undesirable to charge the offence of conspiracy along with a charge of the substantive offence which the conspiracy is said to have led to especially where there is no independent evidence of conspiracy. In particular, where the inclusion has the effect of working injustice against the accused”

See: State v. Osoba (2004) 21 WRN 113 at 114 Garba v. C.O.P. (2004) 16 NWLR (Pt. 1060) 378.From the aforegoing, I am of the opinion that the prosecution did not prove the charge of conspiracy against the appellant. Issue No. 2 is resolved in favour of the appellant.

In this appeal, the first issue is resolved against the appellant while the second issue is resolved in favour of the appellant.

The appeal succeeds in part. The conviction and sentence of the appellant in count I for the offence of conspiracy to commit felony to wit: murder is accordingly quashed.

The conviction and sentence of the appellant in count 2 for the offence of murder is hereby affirmed.

DENTON WEST, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. I agree entirely with all the reasoning and conclusions set out by him in the judgment. I feel compelled to stress that PW3 should not be regarded as tainted witness by reason only that as a relation of the deceased, he witnessed the incident that led to the death of the deceased and testified to that effect at trial.

A tainted witness is one who is either an accomplice or whose testimony shows that he has some purpose of his own to serve. Effiong v. The State (1998) 8 NWLR (Pt. 562) 362 @ 369; Okoro v. State (1998) 14 NWLR (Pt. 584) 181 @ 215 – 216. In the instant case, there is nothing to justify that PW3 has any personal purpose to achieve. He was with the deceased on the day of the incident resulting in the death of the deceased. He is in fact the only eye witness apart from the Appellant and his co-accused. It would be impossible for the prosecution to prove criminal cases if the relations of victims are prevented from testifying as witnesses to crimes that they were eye witnesses for reason of their affinity to victims of such crimes. See: Udo v. Eshiet (1994) 8 NWLR (Pt. 363) 483 @ 502-503.

Nevertheless, I equally feel constrained by the global clamour against death sentence and the sanctity of life to reduce the sentence to life imprisonment. To this end, I am not unaware that the law does not give me any discretion in capital offence cases, but the society we live in is dynamic and it only accords with reason and natural justice that we move with the tide of time. Abolition of death sentence due to its inherent disadvantages is enjoying much ovation. Human reasoning is undoubtedly fallible. It is better to let go off one thousand men than to send one innocent man to the gallows. The recent decision of the Supreme Court in a corruption case involving Chief Olabode George and others gave credence to this clamour for abolition of capital punishment. See: Suit Nos. SC/180/2012 (per John Afolabi Fabiyi, JSC) and SC/217/2012 (per Kumai Bayang Akaahs, JSC). Chief Olabode George and his co-accused were convicted and sentenced to prison for corruption offences. They have finished serving their prison term only to be found innocent of the said offence by the Supreme Court. Had same being sentence of death and they were sent to the gallows, regrets and apologies would not have brought them back to life. It is always better to err on the side of caution.

No human can create life.

On the strength of the above, I commute the death sentence to life imprisonment. I abide by all other reasoning and conclusions reached in the lead judgment by my learned brother, Mojeed Adekunle Owoade, JCA.

JOMBO-OFO, J.C.A.: I read before now the draft copy of the lead judgment just delivered by my learned brother, OWOADE, JCA and I adopt the reasoning and conclusion reached therein as mine.
I abide by the consequential orders made as to costs.

Appearances

Uche C. Ihediwa Esq. For Appellant

A. O. Adeyemi – Tuki (Mrs.) Director of Public Prosecutions, Ondo State Ministry of Justice, Akure For Respondent