PETER v. STATE

CITATION: (2018) LPELR-44357(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 4TH MAY, 2018Suit No: SC.787/2015

Before Their Lordships:

IBRAHIM TANKO MUHAMMAD Justice of the Supreme CourtOLUKAYODE ARIWOOLA Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme CourtPAUL ADAMU GALINJE Justice of the Supreme Court

BetweenOGUNDARE OJO PETER - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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1. CRIMINAL LAW AND PROCEDURE - INTENTION: How intention is inferred in murder cases"My lords, it has been an old dictum in the English Law that even "the devil himself knoweth not the intention ofa man" (per Bryan C. J. of the Medieval English Courts): Bowen L. J. in 1995, stated further that the state of aman's mind is much a fact as the state of his digestion. See: Edgington v. Fitzmaurice (1985) 29. Ch.D. 459, at483. It is simple! lt is correct that no one is capable of seeing into another's mind and of being able to state withabsolute certainty what is his intention. Only when a man himself confesses what it was he intended or foresawdo we come close to being sure of what it was, although even then, we may not be always certain, because wemay misunderstand him, or he may consciously deceive us or unconsciously deceive himself as to what his realstate of mind was. Be that as it may, we must, on a given situation, infer intention from the facts of anyparticular situation. Intention is not capable of positive proof, it can only be implied from overt acts: See: SetrenaV. R. (1951) 13 WACA 132. An intention to kill, for instance, may be inferable from the severity which a matchetblow is struck, as held in: R. V. Omori (1961) 1 AIINLR 33. An intention to prevent a document from being used asevidence, can be inferred from the deliberate destruction of the document. See: Okuyemi v. C.O.P. (1946) 12WACA 3. Thus, it is the job of the Courts to get as close as possible to discovering, by such implication, what theaccused himself intended.My lords, it is only through the facts and evidence laid, that we may come much closer to the real intent of theappellant and his cohorts in killing the deceased. There is a finding by the trial Court that one OlusegunOlufowobi died, gruesomely murdered in the presence of his wife and children. The trial Court made further, thefollowing findings, inter alia:"From the evidence adduced by the prosecution all the circumstantial evidence points to the guilt of the accusedpersons. I disbelieve their evidence given in Court.1st accused & 3rd accused claimed to have heard that someone was shot and they helped to take the victim(their church member - 2nd accused), 1st to police station, then to different hospitals and finally to TeachingHospital, Ile-Ife where they were eventually arrested while the 2nd accused claimed to have been shot by somecultists.I believe that their evidence is a carefully, constructed concocted lies which cannot hold water.Again in the confessional statements of the 1st, 2nd and 3rd accused they clearly stated what happened on theday of the incident.See Exhibit "E" the Confessional Statement of 1st accused. See also Exhibit "G" and Exhibit "I" ConfessionalStatements of 2nd and 3rd accused respectively.I have carefully considered the evidence adduced on this 4th count i.e. murder charge, from the circumstantialevidence adduced and the confessional statements of the 1st, 2nd and 3rd accused, I find and hold 1st, 2nd and3rd accused guilty of murder as charged."In fact, it is the law that in appropriate cases, an accused person can properly be convicted on his or herconfessional statement alone. Ojegele v. The State (1988) 1 NSCC 276. Although it is always preferable to havesome evidence outside the confession in further proof of the offence, the absence of such additional proof wouldnot necessarily prevent a Court from convicting on the confessional statement alone provided the statementsatisfies other conditions such as being positive, direct and unequivocal. Queen v. Obiasa (1962) 1 All NLR 651.Furthermore, a careful look at the evidence of PW1 , as contained in the Record of Appeal, explicitly portrays aneye witness account of what transpired on the eventful day:"My children said they wanted tea; (l) went out and pour(ed) away the water I used to cook. I didn't lock the door.I just shut it. I suddenly heard banging on the door. When they entered the(y) asked for my husband, myhusband had removed his uniform and was with his children. When they asked me I was shouting in Yoruba:"Segun Kilose" "Segun Kilose" meaning "Segun, what has he done" what has he done." He must have heard myvoice because I heard him trying to cock his gun. When I know he must have prepared, I replied them that hewas inside. Two of them remained with me in the kitchen while one went inside and shot him. He also shot backat his assailant. only three people entered into the kitchen that night. The light from the sitting room extended tothe kitchen so that I could clearly see..."From the above quoted evidence alone, which remains unchallenged, one can easily infer that the only purposefor entering into PW1's house was no other thing than to kill the deceased. This is what the Court below found aswell:"The evidence of PW1 before the lower Court is simple and straight forward. lt is that three persons, one of themarmed with gun (and who the circumstantial evidence before the lower Court have established to be appellantand the other two persons charged along with him; and that it was the 2nd accused person that carried/held thegun) invaded the house wherein she lived with the deceased. These persons who were clearly not at PW1's houseon a social visit asked for her husband, the deceased... PW1 never gave evidence that these persons asked herfor anything or took anything away from her or from her house. The picture created by the evidence of PW1 orirresistible inference from her evidence, in my considered view, is that appellant and the two other accusedpersons were in her house on that day (i.e. 20/7/2011) to kill the deceased."It is clear from the above that the primary aim of the appellant (if there was any hidden aim at all) was to kill andnot rob PW1's husband. I am in total agreement with the Court below when it held, inter alia, that:"The picture created by the evidence of PW1 or irresistible inference from her evidence, in my considered view, isthat appellant and the two other accused persons were in her house on that day (i.e. 20/7/2011) to kill thedeceased."Per MUHAMMAD, J.S.C. (Pp. 13-18, Paras. C-C) - read in context

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2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: Meaning and nature of the offence ofConspiracy"Conspiracy, without more, is always taken to be an agreement entered by two or more persons acting in concertor in combination to accomplish or commit an unlawful/illegal act or to do or commit an act which, per se, islegal/lawful through an illegal/unlawful means.The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commitan unlawful act, or do or commit a lawful act by unlawful/illegal means. In Omotola & Ors v. The State (2009) 8ACLR 29 at 147, this Court reiterated the point that:"Where more than one accused persons are accused of jointly commission(sic) of a crime, it is enough to provethat they participated 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 rendereach of the accused persons in the group guilty of the offence."Thus, it is immaterial whether the person accused had knowledge of its unlawfulness. The conspirators do noteven need to be in direct communication with each other in respect of the offence. A Court can thus, infer, fromthe criminal acts of the parties including evidence and complicity. See: Bolaji v. The State (2010) All FWLR(Pt.534) 100. All that is required by way of proof is either by leading direct evidence in proof of the commoncriminal design or it can be proved by inference derived from the commission of the substantive offence..."PerMUHAMMAD, J.S.C. (Pp. 21-22, Paras. B-D) - read in context

3. CRIMINAL LAW AND PROCEDURE - PARTIES TO AN OFFENCE: Who are participles criminis"This Court, stated in the case of Agwuna v. Attorney General of the Federation (1995) LPELR 258, as follows:"The law is settled that all persons who are participes criminis, whether as principals in the first degree or asaccessories before or after the fact to a crime are guilty of the offence and may be charged and convicted withthe actual commission of the crime. Parties, participes criminis to a crime, include inter alia every person whoactually does the act or makes the omission which constitutes the offence, person who aid, abet or assist them inthe commission of the offence or who counsel or procure others to commit the offence or knowingly give succouror encouragement to the commission of the crime or who knowingly facilitate the commission of the offence. SeeSection 7 of the Criminal Code."Per MUHAMMAD, J.S.C. (P. 28, Paras. A-E) - read in context

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IBRAHIM TANKO MUHAMMAD, J.S.C.(Delivering the

Leading Judgment): The appellant herein, was one of the

defendants arraigned before the High Court of Justice,

holden at Ado-Ekiti, Ekiti State (trial Court) on a 4 count

charge of conspiracy to commit murder, murder (in two

instances) and Armed Robbery alleged to have been

committed on different dates, contrary to Sections 324, 316

respectively, of the Criminal Code Act, Cap C38 Vol. 14,

Laws of the Federal Republic of Nigeria, 2004 and Section

1(2)(a) of the Robbery and Firearms (Special Provisions)

Act, Cap R11 Vol. 14, Laws of the Federal Republic of

Nigeria, 2004. Each of the defendants pleaded not guilty to

any of the charges. Full trial was conducted and at the end,

the learned trial judge discharged and acquitted the

appellant in respect of the offences of armed robbery in

counts 1 and 2. He found each of the two other

accused/defendants charged along with the appellant,

guilty as charged. He sentenced them to death by hanging.

The learned trial judge also found the appellant and each of

the other two defendants guilty as charged on counts 3 and

4. He sentenced each of them to death

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by hanging.

The appellant appealed to the Court below against his

conviction and sentence. After reviewing the proceedings

of the trial Court, the Court below affirmed the decision of

the trial Court.

Dissatisfied further, the appellant filed his appeal to this

Court on seven (7) Grounds of Appeal.

Having filed and exchanged briefs of argument in this

Court, issues were set out in each party's brief of

argument.

Learned counsel for the appellant formulated the following

issues for determination of the appeal:

i. "Whether the learned Justices of the Court of

Appeal were right to have found that the appellant

and his co-accused invaded the premises of the

deceased with the sole intention to kill and not to

rob?

ii. If issue one is answered in the negative, whether in

the light of the evidence led before the trial Court,

the learned justices of the Court of Appeal rightly

affirmed the appellant's conviction for the offences of

murder and conspiracy to murder? Grounds 3, 4, 5, 6

and 7."

Learned counsel for the respondent formulated two issues

for determination. They are as follows:

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a) "Whether the learned justices of the

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Court of Appeal were right to have found that the

appellant and his co-accused invaded the premises of

the deceased with the sole intention to kill and not to

rob.

b) Whether in light of evidence led before the trial

Court, the learned justices of Court of Appeal rightly

affirmed the appellant's conviction for the offence of

murder and conspiracy to murder."

My noble lordships, it is my belief that it is always better to

have a comprehensive understanding of the facts giving

rise to a dispute at the initial stage of the case, thus

affording one a clear picture of what really took place in its

relationship with the law and evidence applied or to be

applied. At the initial stage and on the information sheet,

names of four (4) accused persons were presented to the

trial Court: (i) Kolade Olajide Fowosere (ii) Owhoorise

Blessing (iii) Ogundare Ojo Peter and (iv) Sunkanmi Falaye.

On the first day of arraignment, 1st - 3rd accused persons

were present in Court. The 4th accused, Sunkanmi Falaye,

was absent. Learned counsel for the prosecution Mr.

Oluwaseun Fasote (a legal officer for the State) informed

the trial Court that the 4th accused was granted bail

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in the Magistrate Court.

The 1st - 3rd accused were reproduced from the prison

custody. Learned counsel for the accused person Mr.

Omokhafe then applied for adjournment to enable him to

cross-check at the Magistrate Court to know what had

become of the 4th accused. The case was adjourned to

10/07/2012 for hearing. On the 10/07/2012, 1st - 3rd

accused were in Court. The 4th accused was again absent.

The learned prosecuting counsel, Mr. Fasote, applied to

withdraw the charge against the 4th accused person so as

to allow prosecution to proceed against the 3 accused

persons. Application was granted by the trial Court and the

name of 4th accused person - Sunkanmi Falaye was struck

out from the information sheet.

Trial commenced on the 11th day of February,2013 with

PW1 giving her evidence. She gave an eye witness account

of what happened on the 20th day of July, 2011. A cursory

glimpse at the facts narrated by PW1, is enough to lay the

factual foundation of the case. Olufowobe Segun (Mr.

Segun for short) was the husband to PW1 Sherifat

Oluwofobe. They were living at Moferere, Ado-Ekiti. Mr.

Segun was a policeman attached to Okesho Police Station.

On the

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20th of July, 2011, she was at home cooking in the kitchen.

Mr. Segun and the children were in the parlour, waiting for

food to eat. PW1 continued:

"My children said they wanted tea; I went out and

poured away the water I used to cook. I didn't lock

the door. I just shut it. I suddenly heard banging on

the door. When they entered they asked me to kneel

down. I knelt down; there is a door that links our

parlour to the kitchen so I opened so that I can see

the kitchen.

They asked for my husband, my husband had removed

his uniform and was with his children. When they

asked me I was shouting in Yoruba: "Segun Kilose"

"Segun Kilose" - meaning "Segun? What has he done?

"Segun? What has he done?

He must have heard my voice because I heard him

trying to cock his gun. When I know he must have

prepared, I replied them that he was inside.

Two of them remained with me in the kitchen while

one went inside and shot him. He also shot back at

his assailant.

Only three people entered into the kitchen that night.

The light from the sitting room extended to the

kitchen so that I could clearly see.

I knelt down at the door of the kitchen when the two

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robbers who were with me heard my husband's

gunshot they ran away. The one my husband shot in

return also staggered out.

They wore face mask that night. I could only see their

eyeballs. I could not recognize them. I could only see

their eyes.

There was nobody I could call. I went out and asked

my son to stay with his father, I shouted for help,

nobody came out but I went to a policeman living

nearby, I explained to him and returned home.

I can't recollect his name but he was a senior to my

husband. The name of my first born is Olufowobi

Bolanle.

A man offered to help us carry him to hospital; the

police parade came and asked that he should be put

in their vehicle. He was not dead then, I was with him.

When we got to the State Hospital, they were on

strike. He was not breathing well. I was telling the

policeman in the front that "Ahmed, he was not

breathing well."

As I was speaking to him he was gesticulating to me.

We went to two other different hospitals. I can't

remember their names. They refused. We then came

back to State Hospital. When we got there I don't

know if the police knew then that my husband had

died. They asked me

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to get out. I went and plead with those on duty at the

hospital that they should help.

I didn’t know he had died. The gateman asked us to

go the Teaching Hospital, lfe. I kept on begging. The

gateman now told us that some people just came now;

they brought a man who was alleged to have been

shot with a policeman and were asked to go to ldo. I

asked how the people looked like. They described that

two of them are tall and one short. I then told a

policeman behind me that those were the people that

shot my husband.

The gateman told me that three people came. The

Supol who came when they didn't want to allow us

into the hospital then asked where that other person

was shot, the gateman replied that the man was shot

in the chest which tallied with what I had already told

him earlier on.

The police officer then called his superior. I heard

instructions been given that those people should be

traced to Teaching Hospital, Ife.

Before that time, the gateman told me that the people

who brought the gunshot victim said they had already

gone to Ido before. After, I took my children to the

house of the policeman living near our house. I can't

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remember his name because my husband was always

calling him "Oga."

After we left the State Hospital, the police took me to

Ologede Police Station. When we got there it was

around 1a.m.

At Ologede, I made a statement the next day they

went to my house and looked at everything. They saw

blood on the pillow and asked me what happened. I

replied that I was the one who collected the gun from

my husband. They collected the gun and searched our

house. They took me back to Ologede station,

newsmen came and Supols came from their

headquafters, and again went to the scene of the

crime.

At Ologede, they asked me several questions what the

people looked like, whether they asked any question

from my husband before they shot him. After he was

shot, he bled a lot. When I wanted to carry him, he

said I should leave him. When my husband shot the

robber, he fell down and tried to take my husband's

gun but could not. I later grabbed the gun.

The police took the pictures of the scene of crime.

The next day after my husband was buried; the police

invited me to Ado having arrested two of the accused.

I had heard earlier on that the one my husband shot

had died,

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I later heard he did not die.

At the police headquarters the Accused admitted that

they were the one who killed my husband.

It was the IPO who invited me. I can't remember his

name. I was there when they questioned the accused.

The people I saw at the CID that day, I saw the third

accused that day."

After the completion of trial, the learned trial judge

delivered his judgment. He found the appellant guilty of the

offences charged i.e. conspiracy and murder. He sentenced

the appellant to fourteen years imprisonment and death by

hanging, respectively. On appeal to the Court below, that

Court affirmed the decision of the trial Court. Appellant's

issue No.1 which corresponds with respondent's issue

No.(a) is on whether the Court below was right to have

found that the appellant and his co-accused invaded the

deceased's premises with the sole intention to kill and not

to rob him.

Learned counsel for the appellant submitted that the Court

below was wrong in its conclusion that the sole intention of

the appellant and his co-accused was to kill the deceased.

This error, he argued further, has serious implication on

the eventual decision of the Court

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to affirm the conviction of the appellant for murder.

Learned counsel clarified his submission by the following

points:

a) evidence of the prosecution witnesses contradicts the

proposition the appellant and his co-accused went to kill

and not to rob.

Learned counsel stated further that of the 7PWs, only the

testimony of three of those witnesses were relevant. Two of

the three stated by learned counsel for the appellant are

PW1 Olufowobi Sherifat and PW3 - Corporal John

Ebegbuma (page 8 of the appellant's brief) were unanimous

to the characterisation of the appellant and his co-accused

robbers. Learned counsel submitted that the totality of the

evidence of the above (2) PWs goes to show that in

establishing the charges of conspiracy to murder and

murder against the appellant and his co-accused, the

prosecution proceeded on the premise of a robbery - gone

wrong not an assassination. That there is no evidence from

the prosecution to establish any other purpose but the

commission of an armed robbery. He cited and relied on

the case of Abdul Hamid Ojo v. Primate E. O. Adejobi &

Ors (1978) LPELR 2381.

b) Exhibits E - G and I relied upon by the

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trial and Appeal Courts clearly indicate the accused

persons' intention to rob. Learned counsel for the appellant

submitted that in convicting the appellant and the other

accused persons tried together with him, the learned trial

judge relied on the circumstantial evidence and the

confessional statement of the accused persons which was

affirmed by the Court below. He argued that the

circumstantial evidence was weak and the appellant's

statement was not confessional. He invites this Court to

examine the statements of the accused persons and see if

the conclusion of a pre-determined assassination can be

drawn therefrom. Learned counsel analysed all the

evidence E - I. He came to the conclusion and did submit

that the statements of the accused person (appellant) and

his co accused, relied on by the trial Court and affirmed by

the Court below, clearly paints a picture of a robbery, not a

premeditated/pre-planned murder. The Court below was

therefore in grave error to have held otherwise.

c ) C o u r t o f A p p e a l m a d e a c a s e f o r t h e

prosecution/respondent that it did not make at trial.

Learned counsel for the appellant submitted that while

affirming the conviction

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of the appellant based on his confessional statement, the

Court of Appeal chose to pick only those aspects of the said

confessional statement which supported their conclusion

while ignoring those aspects of it which negated it. He

argued further that it was not open for the Court below to

pick and choose which part of the said confessional

statement to believe. He urged this Court to resolve issue 1

in favour of the appellant.

Learned counsel for the respondent while responding to

issue No.1, relied heavily on the evidence of PW1 from

which he quoted extensively. It is his submission that from

the evidence of PW1, it is clear that the assailants came for

the deceased and no other thing. The evidence of PW1 was

unchallenged which the trial Court believed and the Court

below rightly, he argued, upheld. On the insinuation of

learned counsel for the appellant that the appellant was

there to rob, learned counsel for the respondent submits

that this is contrary to the evidence of PW1 as contained on

page 52 of the Record of Appeal.

d) concurrent findings of the lower Courts, learned counsel

for the respondent submitted, that it is not the attitude of

this

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Court to disturb the concurrent findings of the lower

Courts when it has not been shown to be perverse. He cited

in support, the case of Ebeinwe v. The State (2011) 45

NSCQLR 1206 at 1229.

Appellant's issue No.1 is on whether the appellant and his

co-accused invaded the premises of the deceased with the

sole intention to kill (the deceased) and not to rob.

My lords, it has been an old dictum in the English Law that

even "the devil himself knoweth not the intention of a man"

(per Bryan C. J. of the Medieval English Courts): Bowen L.

J. in 1995, stated further that the state of a man's mind is

much a fact as the state of his digestion. See: Edgington v.

Fitzmaurice (1985) 29. Ch.D. 459, at 483. It is

simple! lt is correct that no one is capable of seeing into

another’s mind and of being able to state with absolute

certainty what is his intention. Only when a man himself

confesses what it was he intended or foresaw do we come

close to being sure of what it was, although even then, we

may not be always certain, because we may misunderstand

him, or he may consciously deceive us or unconsciously

deceive himself as to what his real state of mind

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was. Be that as it may, we must, on a given situation, infer

intention from the facts of any particular situation.

Intention is not capable of positive proof, it can only be

implied from overt acts: See: Setrena V. R. (1951) 13

WACA 132. An intention to kill, for instance, may be

inferable from the severity which a matchet blow is struck,

as held in: R. V. Omori (1961) 1 ALL NLR 33. An

intention to prevent a document from being used as

evidence, can be inferred from the deliberate destruction of

the document. See: Okuyemi v. C.O.P. (1946) 12 WACA

3. Thus, it is the job of the Courts to get as close as

possible to discovering, by such implication, what the

accused himself intended.

My lords, it is only through the facts and evidence laid, that

we may come much closer to the real intent of the

appellant and his cohorts in killing the deceased. There is a

finding by the trial Court that one Olusegun Olufowobi

died, gruesomely murdered in the presence of his wife and

children. The trial Court made further, the following

findings, inter alia:

"From the evidence adduced by the prosecution all

the circumstantial evidence points to the guilt of the

accused

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persons. I disbelieve their evidence given in Court.

1st accused & 3rd accused claimed to have heard that

someone was shot and they helped to take the victim

(their church member - 2nd accused), 1st to police

station, then to different hospitals and finally to

Teaching Hospital, Ile-Ife where they were eventually

arrested while the 2nd accused claimed to have been

shot by some cultists.

I believe that their evidence is a carefully,

constructed concocted lies which cannot hold water.

Again in the confessional statements of the 1st, 2nd

and 3rd accused they clearly stated what happened on

the day of the incident.

See Exhibit "E" the Confessional Statement of 1st

accused. See also Exhibit "G" and Exhibit "I"

Confessional Statements of 2nd and 3rd accused

respectively.

I have carefully considered the evidence adduced on

this 4th count i.e. murder charge, from the

circumstantial evidence adduced and the confessional

statements of the 1st, 2nd and 3rd accused, I find and

hold 1st, 2nd and 3rd accused guilty of murder as

charged."

In fact, it is the law that in appropriate cases, an accused

person can properly be convicted on his or

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her confessional statement alone. Ojegele v. The State

(1988) 1 NSCC 276. Although it is always preferable to

have some evidence outside the confession in further proof

of the offence, the absence of such additional proof would

not necessarily prevent a Court from convicting on the

confessional statement alone provided the statement

satisfies other conditions such as being positive, direct and

unequivocal. Queen v. Obiasa (1962) 1 All NLR 651.

Furthermore, a careful look at the evidence of PW1 , as

contained in the Record of Appeal, explicitly portrays an

eye witness account of what transpired on the eventful day:

"My children said they wanted tea; (l) went out and

pour(ed) away the water I used to cook. I didn't lock

the door. I just shut it. I suddenly heard banging on

the door. When they entered the(y) asked for my

husband, my husband had removed his uniform and

was with his children. When they asked me I was

shouting in Yoruba: "Segun Kilose" "Segun Kilose"

meaning "Segun, what has he done" what has he

done." He must have heard my voice because I heard

him trying to cock his gun. When I know he must

have prepared, I replied them that he was

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inside. Two of them remained with me in the kitchen

while one went inside and shot him. He also shot back

at his assailant. only three people entered into the

kitchen that night. The light from the sitting room

extended to the kitchen so that I could clearly see..."

From the above quoted evidence alone, which remains

unchallenged, one can easily infer that the only purpose for

entering into PW1's house was no other thing than to kill

the deceased. This is what the Court below found as well:

"The evidence of PW1 before the lower Court is

simple and straight forward. lt is that three persons,

one of them armed with gun (and who the

circumstantial evidence before the lower Court have

established to be appellant and the other two persons

charged along with him; and that it was the 2nd

accused person that carried/held the gun) invaded the

house wherein she lived with the deceased. These

persons who were clearly not at PW1's house on a

social visit asked for her husband, the deceased...

PW1 never gave evidence that these persons asked

her for anything or took anything away from her or

from her house. The picture created by the evidence

of PW1 or

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irresistible inference from her evidence, in my

considered view, is that appellant and the two other

accused persons were in her house on that day (i.e.

20/7/2011) to kill the deceased."

It is clear from the above that the primary aim of the

appellant (if there was any hidden aim at all) was to kill and

not rob PW1's husband. I am in total agreement with the

Court below when it held, inter alia, that:

"The picture created by the evidence of PW1 or

irresistible inference from her evidence, in my

considered view, is that appellant and the two other

accused persons were in her house on that day (i.e.

20/7/2011) to kill the deceased."

Issue 1 (one) is decided against the appellant and in favour

of the respondent.

Issue No.2

This issue is on whether the Court below was right when it

affirmed the trial Court's conviction of the appellant on the

offences of conspiracy and murder.

Learned counsel for the appellant submits that there is no

evidence indicating that the appellant was in form of

agreement with 2nd accused person to achieve the result of

the murder of the deceased policeman.

Learned counsel went on to argue that:

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"We however, under this issue seek to impress upon

your Lordships, the point that the specific intention

of the appellant during the events of 20th July, 2011

was to assist in the commission of the offence of

armed robbery and not murder."

Learned counsel pointed out circumstances in highlighting

his submissions.

Learned counsel for the appellant argued further that the

Court below was wrong to hold that the appellant did not

challenge finding of trial Court on circumstantial evidence.

The trial Court, he argued, relied on circumstantial

evidence in convicting the appellant. A complaint against

the evidential basis for the conviction of the appellant is

thus a complaint against the trial Court's reliance on

circumstantial evidence. The learned Justices of the Court

of Appeal, therefore, misdirected themselves when they

held that there was no complaint against the trial judge's

reliance on circumstantial evidence in the conviction of the

appellant. The circumstantial evidence relied upon by the

trial Court falls short of the standard of the law. He cited

the case of Shehu v. The State (2010) LPELR 3041.

Learned counsel argued further that the

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appellant did not in Exhbit ‘I’ admit or confess to the

ingredients of murder as the appellant made no

confessional statement upon which the Courts rely. He

cited the cases of Azabada v. State (2014) LPELR 2304;

Haruna v. Attorney General of the Federation (2012)

LPELR 7821; State v. Enabosi (1966) 2 All NLR 116.

Learned counsel urged this Court to resolve this issue in

favour of the appellant.

Learned counsel for the respondent submitted on this issue

that the Court below was right in holding that the

prosecution proved the case of conspiracy against the

appellant by adducing sufficient evidence to establish the

ingredients of the offence of conspiracy to murder and

murder against the appellant. He submitted that the Court

below rightly inferred conspiracy from the oral testimony of

PW1 about the activities of the appellant and his co-

accused persons on how they saw PW1 alone in the kitchen.

Further, in conspiracy charges, nobody, except the

conspirators themselves, can give direct and positive

evidence of the agreement. He cited the case of Aminu

Tanko v. The State (2008) 16 NWLR (Pt.1114) 597 at

638.

On the murder charge the learned

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counsel for the respondent argued that the prosecution

proved the ingredients of murder by credible evidence of

PWs 1 - 5. Learned counsel set out the ingredients thereof.

He made an indepth analysis of the evidence of PW1. He

urged the Court to resolve this issue in favour of the

respondent.

The criminal offences of "conspiracy" and "murder" have

fully been recognised by our Penal Law systems.

Conspiracy, without more, is always taken to be an

agreement entered by two or more persons acting in

concert or in combination to accomplish or commit an

unlawful/illegal act or to do or commit an act which, per se,

is legal/lawful through an illegal/unlawful means.

The essential ingredients of the offence of conspiracy lies in

the bare agreement and association to do or commit an

unlawful act , or do or commit a lawful act by

unlawful/illegal means. In Omotola & Ors v. The State

(2009) 8 ACLR 29 at 147, this Court reiterated the point

that:

"Where more than one accused persons are accused

of jointly commission(sic) of a crime, it is enough to

prove that they participated in the crime. What each

did in furtherance of the commission of the crime is

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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."

Thus, it is immaterial whether the person accused had

knowledge of its unlawfulness. The conspirators do not

even need to be in direct communication with each other in

respect of the offence. A Court can thus, infer, from the

criminal acts of the parties including evidence and

complicity. See: Bolaji v. The State (2010) All FWLR

(Pt.534) 100. All that is required by way of proof is either

by leading direct evidence in proof of the common criminal

design or it can be proved by inference derived from the

commission of the substantive offence. There is a finding by

the trial Court that a careful look at the confessional

statements of the accused shows that three of the accused

persons worked in tandem to pursue a common purpose(s)

to commit crime. For instance, the 1st accused in Exhibit

"E" (his Confessional Statement) stated:

"The herbalist collected a lot of money about

N200,000.00 from me. I was taken into the bush for

(money rituals) for 2 days but money didn't

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come. It was after that I called Blessing (2nd

accused) and he came to Osi in the house of the

herbalist. I narrated my ordeal to Blessing and he

discouraged me about rituals. He then opined that if

we gone (SIC) we will get money…"

In Exhibit "G" the 2nd accused stated:

"I and Kolade gang up to be operating as armed

robbers about 3 months ago."

Exhibit “I” is the Statement of the 3rd accused where in

hestated:

"After some days, Kolade and his friend came to me

and told me that they are hustlers and wanted me to

join them by conveying them to places. They actually

opened to me that they do rob."

So, what else can be more vivid in informing us that the

three accused persons were in agreement to pursue an

unlawful act? Certainly none. Thus, whatever the learned

counsel for the appellant would want to call that motive,

whether "common intention'' or “common object/objective”

to me, they mean same thing in this case and that is the

unison or agreement entered by the three accused persons

to commit an illegal act to wit: robbery and murder. I fail to

see any extenuating circumstance as the learned counsel

for

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the appellant would want this Court to believe. To make the

picture clearer, it was in evidence that the appellant and

the 1st accused rushed to the woman in the kitchen and

held her hostage and the 2nd accused person rushed into

the sitting room and shot the deceased, who later died. The

trial Court found this piece of evidence corroborating the

oral testimony of PW1.

I am in complete agreement with the two lower Courts that

the offence of conspiracy against the appellant was well

established.

On the offence of murder, the submission of learned

counsel for the appellant is that as far as the event of

20/7/2011, could be related to the appellant and his co-

accused, the appellant manifested no intention to commit

murder. Indeed the conduct of the appellant shows that he

had no intention whatsoever to participate in a murder.

Learned counsel for the appellant cited and relied on

almost all the exhibit tendered at the trial Court.

Learned counsel for the respondent argued that the

appellant was at the centre stage of the scene through out

the commission of the offence of murder of the deceased.

He cited the evidence of PW1 which, he said, was not

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challenged. Learned counsel cited Exhibit "I" where the

appellant made some confessions in relation to the murder

of the deceased. He cited the case of lkemson v. State

(1989) 1 CLRN I at page 22 Paragraph C

The learned trial judge after his evaluation of the evidence

placed before his Court, came to the following conclusion:

"I have carefully considered the evidence adduced on

this 4th count i.e. murder charge, from the

circumstantial evidence adduced and the confessional

statements of the 1st, 2nd and 3rd accused, I find and

hold 1st, 2nd and 3rd accused persons guilty of

murder as charged."

Reviewing the proceedings of the trial Court, the Court

below, in a comprehensive manner throws more light on

the whole episode. It observed in the following words:

"The evidence of PW1 before the lower Court is

simple and straight forward. lt is that three persons,

one of them armed with a gun (and who the

circumstantial evidence before the lower Court have

established to be appellant and the other two persons

charged along with him; and that it was the 2nd

accused person that carried/held the gun) invaded the

house wherein she lived with the

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deceased. These persons who were clearly not at

PW1's house on a social visit asked for her husband,

this deceased. While appellant and another of the

accused persons restrained PW1, 2nd appellant went

into the parlour in which the deceased was and shot

him. The deceased who PW1 gave some time to cock

his gun before pointing to where he was, equally shot

the 2nd accused person. PW1 never gave evidence

that these persons asked her for anything or took

anything away from her or from her house. The

picture created by the evidence of PW1 or irresistible

inference from her evidence, in my considered view, is

that appellant and the two other accused persons

were in her house on that day (i.e. 20/7/2011) to kill

the deceased. This is the only inference given the fact

that appellant and the two other accused persons

never asked for any other thing than the whereabouts

of the deceased with the 2nd accused person

proceeding to the parlour where he was and shooting

him right away. The narration of PW1 and particularly

the role placed by the 1st and 3rd accused persons

respectively, in restraining PW1 and thereby allowing

the 2nd accused person unhindered access to the

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deceased for the purpose of achieving their objective

of murdering the deceased, in my considered view

made each of them a principal offender turn to shoot

the deceased with the same gun or each of them

shoots the deceased with his own gun that they

become principal offenders. There are no two way to

it, but that when a group of persons all armed with

guns or one of then being armed with a gun enter into

another person's house and simply guns him down

without more, all that they have done is the execution

of their set objective or intention to kill the person in

question and where the death of the person shot

occurs from the gun shot as in the instant case, I

simply do not see how any of the persons who set out

with the intention to kill can be heard to say he had

no intention of killing the person that died or causing

him any grievous bodily harm. All that I am saying is

that the evidence of PW1 (and indeed the gist of the

offence in respect of which she testified) does not go

to remotely suggest that the appellant and the two

others charged along with him were at her house for

some other unlawful purpose apart from killing her

husband."

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This Court, stated in the case of Agwuna v. Attorney

General of the Federation (1995) LPELR 258, as

follows:

"The law is settled that all persons who are participes

criminis, whether as principals in the first degree or

as accessories before or after the fact to a crime are

guilty of the offence and may be charged and

convicted with the actual commission of the crime.

Parties, participes criminis to a crime, include inter

alia every person who actually does the act or makes

the omission which constitutes the offence, person

who aid, abet or assist them in the commission of the

offence or who counsel or procure others to commit

the of fence or knowingly give succour or

encouragement to the commission of the crime or

who knowingly facilitate the commission of the

offence. See Section 7 of the Criminal Code."

Thus, PW1 said it all. The appellant and his co-accused

certainly went for the deceased and nothing else! They did

not say anything or show anything to suggest anything

contrary. Although learned counsel for the appellant was

suggesting and coming up with new terminology which he

called "robbery gone - wrong not an assassination." He

failed to educate the

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Court on what that jargon means. In the first place, there

was no charge against the appellant on any "robbery - gone

wrong." And whether a robbery has gone wrong or not it

still remains a criminal offence under the laws of this

country. Robbery gone - wrong, whatever it means, cannot

take the p lace o f murder known to our Pena l

systems. Luckily, the prosecution kept to its duty of proving

the known offences of conspiracy and murder which were

both established against the appellant. Both were proved

beyond reasonable doubt. The appellant must be prepared

to bear the consequences of his acts.

I find no reason to tamper with the concurrent decisions of

the two lower Courts which I affirm. The appeal certainly

lacks merit and it is hereby dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity

of reading in draft the lead judgment of my learned brother

I. T. Muhammad, JSC just delivered, I agree entirely with

the reasoning and conclusion that the appeal is devoid of

any merit and should be dismissed. The appellant was

properly convicted as charged and rightly sentenced. In

other words, the appellant's conviction and sentence by

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the trial Court were correctly affirmed by the Court below

and same is hereby affirmed by me.

Appeal dismissed.

KUMAI BAYANG AKA'AHS, J.S.C.: I was privileged to

read before now the leading judgment of my learned

brother, I. T. Muhammad JSC whereby he dismissed the

appeal for lack of merit.

It cannot be a defence or a mitigating factor for learned

counsel to argue that the appellant and his co - accused

initially set out to rob, armed with guns, but the robbery

went wrong and in the process the deceased was shot and

killed. No other inference can be drawn, from the accepted

facts, that the appellant and the other accused went

looking for the deceased and shot him without taking

anything from the house, than to conclude that the

intention was to murder the deceased. I too find no merit in

the appeal and it is hereby dismissed. I further affirm the

conviction and death sentence passed on the appellant by

the trial Judge and affirmed by the Court below.

AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead

Judgment delivered by my learned brother, I. T.

Muhammad, JSC, and I agree entirely with

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his reasoning and conclusions, and find no reason to

tamper with the concurrent decisions of the two lower

Courts. The appeal totally lacks merit and it is hereby

dismissed.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege

of reading in draft, the judgment just delivered by my

Learned brother I. T. Muhammad, JSC and I entirely agree

that this appeal lacks merit and ought to be dismissed. I

accordingly dismiss it.

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Appearances:

O. O. Ogundare with him, O. O. Owotumi, O. A.Ademipekun and B. F. Adeyeye For Appellant(s)

Kolapo Kolade (A. G. Ekiti State) with him, JustinOmogbemeh, Esq. For Respondent(s)

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