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IN THE COURT OF APPEAL
(BENIN JUDICIAL DIVISION)
ON TUESDAY, THE 16TH DAY OF JULY, 2013
SUIT NO: CA/B/339CA/2012
BEFORE THEIR LORDSHIPS
HELEN MORONKEJI OGUNWUMIJU, JCA
SIDI DAUDA BAGE, JCA
AYOBODE OLUJIMI LOKULO-SODIPE, JCA
NOSIKE IBOJI – Appellants
THE STATE – Respondents
Ayo Asala Esq. – For the Appellants
Delta State: High Court (T. O. Diai J- Presiding)
CRIMINAL LAW AND PROCEDURE – MURDER:- Proof of – Murder arising from a an unlawful act like a fight which was premeditated and planned – Whether the agreement or conspiracy to fight does not amount to conspiracy to murder – Whether in the course of doing an illegal act like fighting which is likely to result in grievous bodily harm on the person fought with, it stands to reason that an appellant cannot escape from the probable consequence of his action
CRIMINAL LAW AND PROCEDURE – CONSPIRACY TO COMMIT MURDER:- Meaning – How determined – Whether it is the actual agreement alone which constitutes the offence and it is not necessary to prove that the illegal act has in fact been committed – Whether must be inferred from the circumstances of the case – Whether the evidence of conspiracy to murder must be specifically proved beyond peradventure – Whether offence of conspiracy to murder can be proved even where the substantive offence was not proved
CRIMINAL LAW AND PROCEDURE – CONSPIRACY TO COMMIT MURDER:- Ingredients of the offence of conspiracy – Whether not all the ingredients are needed to prove the offence of conspiracy – Whether it is desirable but not mandatory that persons charged with conspiracy be also proved to have been engaged in it – Difficulty of proving the actual agreement – Whether courts usually consider it sufficient if it be established by evidence the circumstances from which the court would consider it safe and reasonable to infer or presume the conspiracy
WORDS AND PHRASES:- “Offence of Conspiracy” – Meaning and nature
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State sitting at Ogwashi-Uku delivered by Honourable Justice T. O. Diai on 23rd May 2012, wherein the lower court found the appellant guilty of the offence of conspiracy to commit murder and sentenced him to 10 years imprisonment without an option of fine.
The facts which led to this appeal are as follows:
The appellant and three other persons were originally arraigned before the lower court on 1st December, 2010 upon information filed on 19th August, 2010. The original information was subsequently substituted by a four count information on 12th December, 2011.
In the information filed by the State, the 1st, 2nd and 3rd appellants were charged with the following offences:
STATEMENT OF OFFENGE: COUNT 1
Conspiracy to commit felony to wit: murder, punishable under S. 324 of the Criminal Code Law Cap C.21 Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwashi-Uku Judicial Division did conspire to commit murder.
STATEMENT OF OFFENCE: COUNT II
Murder, punishable under S. 319(1) of the Criminal Code Law Cap C.21 Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March 2010 at Otulu, in Ogwashi-Uku Judicial Division murdered one SMART OKUTE
STATEMENT OF OFFENCE: COUNT III
Membership of unlawful society punishable under S.64 of the Criminal Code Law Cap C.21 Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (m) AND OTHERS NOW AT LARGE ON OR ABOUT THE 21st DAY OF March 2010 at Otulu, in Ogwashi-Uku Judicial Division belong to the Unlawful Society known as Jurice.
The 4th accused was also charged as follows:
STATEMENT OF OFFENGE: COUNT IV
Accessory after the fact to murder punishable under S.322 of the Criminal Code Law Cap C.21 Vol.1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
MEKWUNYE HEZEKIAH, well knowing that one Onyeka and Onyebushi Mekwunye did on the 21st day of March 2010 murdered one Smart Okute, did on the 21st day of March, 2010 in Ogwashi-Uku Judicial Division and on other days thereafter receive, comfort, harbor, assist and maintain the said Onyeka and Onyebushi Mekunye.
At the trial, the prosecution called 5 (five) witnesses and each of the accused persons testified in their own behalf and called no witness. The respondent’s case was that the appellant along with the 1st and 3rd accused at the trial were members of an unlawful society known as ‘Jurice’ and that they conspired to murder and indeed murdered the deceased person on the 21st day of March, 2010. The case against the 4th accused was that his sons were members of the said ‘Jurice’ and that they were involved in the murder of the deceased to the knowledge of the 4th accused who assisted them to flee from justice.
The appellant testified for himself and called no other witness. He denied being a member of the ‘Jurice’ and further denied being a part of any conspiracy to murder the deceased. Each of the other accused persons also testified for themselves individually without calling any other Written addresses were subsequently exchanged and adopted on behalf of the parties.
In a considered judgment delivered on 23rd May, 2012, the 1st, 2nd and 3rd accused persons were discharged and acquitted in Counts II and III but were convicted on Count I and each sentenced to 10 years imprisonment without option of fine while the 4th accused person was discharged and acquitted in count IV.
The 1st, 2nd and 3rd accused being dissatisfied with the conviction and sentence filed separate notices of appeal against the said decision.
The appellant’s brief was settled by Ayo Asala and therein he identified the sole issue for determination as follows:
Whether having regard to the circumstances of this case and the totality of the evidence on record, the learned trial judge was right to have convicted the appellant for conspiracy to commit murder.
A similar issue was couched by the respondent’s counsel, Mr. Enenmo DDPP, Delta State. I will adopt the issue as couched by learned appellant’s counsel for the determination of this appeal.
Learned appellant’s counsel argued that for a charge of conspiracy to be established by the prosecution, it must prove that
(i) There must be two or more persons;
(ii) They must form a common intention;
(iii) The common intention must be toward prosecuting an unlawful purpose;
(iv) An offence must be committed in the process; and
(v) The offence must be of such a nature that its commission was a probable consequence. He cited Akinwemi v. State (1987) 1 NWLR Pt. 52 Pg. 608; Sodiya v. The State (2011) All FWLR Pt. 560 Pg. 1357.
He submitted that the law is well settled that where the evidence on record does not reveal any agreement on the part of the accused persons, the charge of conspiracy is not made out. He cited Oladejo v. State (1994) 6 NWLR Pt. 348 Pg. 101 at 127, paras. G-H. He submitted that state of the law is that where an accused has been acquitted on a charge of the substantive offence, he cannot at the same time be found guilty of conspiracy to commit the same offence unless where one of the co-accused admits the conspiracy or where there are other evidence to sustain the conspiracy charge. He cited Oladejo v. State supra at 127, paras. F-G.
Counsel argued that Exhibit C, the statement of the appellant did not indicate that the appellant stated that he was present at the scene of crime or within the vicinity on the day the incident at Otulu village or that he participated in the fight. The appellant was quite emphatic that he did not participate in the fight which occurred on the day of the incident. Counsel also submitted that where the appellant was charged with the specific offence of conspiracy to murder, it must be proved. He cited Oladejo v. The State (1994) 6 NWLR Pt. 348 pg. 101 at 126. Counsel argued that the conviction of the appellant predicated on Exhibit C should not be upheld.
In reply, learned respondent’s counsel Mr. Enenmo urged the court to hold that the offence of conspiracy was proved by the prosecution. He argued that the appellant and members of his secret cult met at Otulu where the dispute between the late Smart Okwuta and two of their members was reported. Although the appellant did not say the outcome of the report in his statement Exhibit C. There was a fight after the meeting and the deceased Smart Okwute was killed in the fight. The trial court rightly inferred that there was conspiracy to murder Smart Okwute from the aforementioned facts. Conspiracy is a matter of inference, deduced from certain criminal acts of the parties done in pursuance of an apparent criminal purpose common between them. See Haruna & Ors. v. The State (1972) All NLR 738 at 754.
He further argued that although the appellant did not specifically say in Exhibit C that he was at the scene of crime, his graphic description of what happened can only be narrated by somebody who was at the scene of crime. He then submitted that the learned trial court was right when it held that the appellant participated in the fight at Otulu on the date the incident took place.
Counsel referred us to the opinion of Uwaifo, J.S.C. in Balogun v. Attorney-General, Ogun State (2002) 94 LRCN 260 at 270 where he stated that:
“The conviction for conspiracy does not become inappropriate simply because the substantive offence has not been successfully proved. It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related.”
I have to say that I agree with the learned appellant’s counsel on the first three ingredients of the offence of conspiracy as set out by him but I have to say that the last two ingredients are not needed to prove the offence of conspiracy. “Lord Justice Udo Udoma, J.S.C. in Daboh v. The State (1977) All NLR 146; (1977) 5 S.C. 122 held as follows on proof of criminal conspiracy:
“It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the persons charged be also proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, courts usually consider it sufficient if it be established by evidence the circumstances from which the court would consider it safe and reasonable to infer or presume the conspiracy.”
The authorities are agreed that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The peculiarity of the offence of conspiracy is that it is the actual agreement alone which constitutes the offence and it is not necessary to prove that the illegal act has in fact been committed. See Omotola v. State (2009) 2-3 SC; (2009) 7 NWLR Pt. 1139 Pg. 148. Therefore according to the legal definition of conspiracy it is of no moment that the substantive offence was not proved as in this case. The argument of learned appellant’s counsel that because the substantive offence was not proved, the conspiracy afortiori was not proved and thus the finding of the trial court is perverse is completely misconceived.
Much was made by appellant’s counsel of the finding of the trial judge on Pg. 65 of the record which states as follows:
“The case of the 2nd and 3rd accused persons deserve special mention. Their counsel submitted that having regard to the evidence of the PW3 that he did not see them in the group who pursued the deceased into the bush, they ought not be convicted. I have checked my records. Under cross-examination the witness testified that when the boys came out of the bush, some of them started to move away. He testifies further that the 1st accused, Onyeka and Buchi were in the group that stopped. He testified that he knows the 2nd accused person and that he was not in that group. He testied that he did not recognize the 3rd accused person in that group. My understanding of his evidence is that the group referred to by this witness is the group that stopped to challenge him and not the group which pursued the deceased into bush. Be that as it may, it is not the evidence of this witness that it was all those who participated in the fight who pursued the deceased into the bush. Having regard to the statement of the 2nd accused person that the group had prior meeting where the matter of the deceased was discussed and the statements of both accused persons where each of them stated that he was at Otulu and participated in the fight on the date material to this charge, the court finds the charge of conspiracy proved against each of them, as the 1st accused person.”
Learned appellant’s counsel argued that since the appellant in his statement Exhibit C never stated that he participated in the fight, the finding of the learned trial judge that he so stated was perverse and led to a wrong decision of the trial judge. Let me set out the contents of Exhibit C below:
“My names are Nosike Ebojiam of Otulu village Delta State, I am a native of Ogwashi-Uku in Aniocha South Local government Area, Delta State. I was born in Otulu village in the year 1981, I attended Okwudiogor primary school; Otulu village, Delta State, I also attended Akuku-Igbo Secondary School; Akuku-Igbo, Delta State. Presently, I am a farmer, on the 21/3/2010 at about 1600hrs about 16 boys from my secret cult kindom namely Jurees came to Otulu village for fight and the name of those I know their names are one Onyeka (m), Onyebuchi (m), Sparker (m), and Chaplet (m), and others which I don’t know their names but if seen I can identify them on that process of the fight one Smart Okwute was shot dead then after the fight incident everybody now ran away. I am a member of Jureers secret cult. I am the number two man in the secret cult at Otulu branch. The person that short (sic) Smart Okwute is Chaplet and Onyeka (m), was the person that reported the late Smart Okwute in our secret cult meeting before the fight operation took place. Onyeka (m) and Chaplet were the people that iniiciated (sic) me to the secret cult since 2004 at Otulu branch, and since I joined I have attended three secret cult operation in Otulu and other places and I always go with cutlass to any operation I attended. Onyeka is the person that is in charge of our secret cult weapons. As a number two man of the secret cult they always give me drinks as the number two man. Since I joined the secret cult I only reported one woman to them to treat, his foke (sic) up in Otulu village. I did not joined to short (sic) him but I am told member of the secret cult member and I am the number two man to secret cult in Otulu village. This is all truth about my statement, I still know one Saka (m) of Otulu camp that is all what I know.”
It is clear from Exhibit C that the appellant did not own up to being present at the scene of crime on the date of the incident. The only portion of the statement which can indicate premeditation or a previous agreement is stated as follows:
“… The person that short (sic) Smart Okwute is Chaplet and Onyeka (m), was the person that reported the late Smart Okwute in our secret cult meeting before the fight operation took place….”
It is clear that the deceased had been reported to members of the society before the day of the incident before the “fight operation” took place.
Apparently, it was the method of society members to report persons they had quarrel with for “treatment” and to go on “operation to effect such “treatment”.
It is irrelevant in my view that the appellants had been acquitted of belonging to a secret society because they could not be charged with belonging to a society not recognised as being “secret” according to the legal definition of “secret society”.
Deciding to do something in concert, with the same mind set or purpose amounts to conspiracy.
Thus the “fight” was not a spontaneous one. It is not a good argument as posited by learned appellant’s counsel that the agreement or conspiracy to fight does not amount to conspiracy to murder. In the course of doing an illegal act like fighting which is likely to result in grievous bodily harm on the person fought with, it stands to reason that the appellant cannot escape from the probable consequence of his action. I have to agree with the learned trial judge when he stated at Pg. 65 of the record as follows:
“All the accused persons are not from Otulu. Was it then a mere coincidence that the members of the group came to Otulu on 21/3/2010 (sic) to fight? In Exhibit C the statement of the 2nd accused person, he stated that one Onyeka had reported the late Smart Okwute in their secret cult meeting before the fight operation took place. It appears the fate of the deceased was sealed at that meeting. In the light of the evidence before the court, it does not appear to be a coincidence that members of the group invaded Otulu on the date material to this charge and participated in a fight, in the course of which the deceased was killed. Though the prosecution did not successfully establish that it was the act of the accused persons which caused the death of the deceased, the offence of conspiracy to murder the deceased can be inferentially deduced from the above facts.”
I am convinced that the appellant and other members of the secret society know that there was in existence or coming into existence the scheme to go to Otulu to fight the deceased which could result in the death of the deceased. See Oguntade, J.S.C. in Omotola v. The State supra. In Oladejo v. The State (1994) 6 NWLR Pt. 348 Pg. 101 at 126, the court held that the specific offence of conspiracy to commit murder must be inferred from the circumstances of the case. The evidence of conspiracy to murder must be specifically proved beyond peradventure. I am satisfied that it has so been proven in this case.
In the circumstances, I affirm the judgment of the learned trial judge delivered on 23/5/2012 in charge No. O/4c/2010. I also affirm the conviction and sentence. Appeal Dismissed.
SIDI DAUDA BAGE, J.C.A.:
I read in draft the leading Judgment of my learned brother H. M. Ogunwumiju, J.C.A. I agree with the Judgment. I affirm the conviction and sentence of Appellant. Judgment of the lower court affirmed. I dismiss the appeal.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.:
I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt incisively with the Issue raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing to add to the Judgment. Indeed I hereby adopt the lucid lead Judgment as mine.
Accordingly, I too, resolve the Issue in the appeal in the same manner it has been resolved in the lead Judgment and dismiss the appeal. The judgment of the lower court delivered on 23/5/2012 in Charge O/4C/2010 is affirmed. I also affirm the conviction and sentence passed on the Appellant by the lower court.