(2018) LPELR-45566(CA)

Transcription

1 AINA v. STATE CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos MOHAMMED LAWAL GARBA JOSEPH SHAGBAOR IKYEGH JAMILU YAMMAMA TUKUR ON FRIDAY, 18TH MAY, 2018 Suit No: CA/L/504C/2011 Before Their Lordships: Between SIKIRU K. AINA - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal

2 1. APPEAL - PROLIFERATION OF ISSUES: Position of law on proliferation of issues for determination "As may be observed, from the formulation of issues by the Appellant's Counsel, Issues 1 and 3 are shown to have been distilled from grounds 2 and 1 respectively, while there is no indication of whether the issues 2 and 4 were distilled from any of the grounds of the appeal.?the established principles of law on practice and procedure in the appellate Courts, see Anuakutuna v. Ohia (1985) 5 NWLR (40) 150; UBN Ltd v. Odusote (1995) 9 NWLR (421) 577-8; Ezeja v. State (2006) ALL FWLR (309) 7535; Akinlagun v. Oshoboja (2006) ALL FWLR (325) 82, require that Counsel should clearly indicate and identify the grounds of appeal from which each issue is distilled, in their briefs of argument. The law is also known that issues submitted for decision in an appeal cannot be more, in number, than the grounds of appeal from which they are supposed to be distilled. As mentioned earlier, there are three (3) grounds of appeal on the Amended Notice of Appeal, but as seen above, four(4) issues are submitted for determination thus, more in number, than the grounds of appeal. With two (2) issues indicated to have been formulated from two (2) of the 4 grounds, the other two (2) issues; i.e., 2 and 4 are left without any relation or connection with the grounds of the appeal. However, looking calmly at the issues 2 and 4, they are of the same substance on the question of proof of the installation of the Appellant as Oba of Igbo Elerin without approval. The question is easily traceable to ground 3 of the Amended Notice of Appeal and because this is a criminal appeal, I am prepared to take Issue 4 as being derivable from the said ground and has subsumed Issue 2."Per GARBA, J.C.A. (Pp. 6-7, Paras. C-E) - read in context 2. APPEAL - BRIEF OF ARGUMENT: Whether failure of the respondent to file brief of argument will make the appeal of the appellant to succeed "I would now consider the arguments of the Appellant on the uncontested appeal and issues submitted for determination. Perhaps, I should restate the law that the Court still has the duty to consider and determine whether the appeal is sustainable in law even in the absence of a challenge or contest from the Respondent since the appeal is not to succeed merely on the absence of the Respondent's brief to contest the issues canvassed by the Appellant. See Akpan v. State (1992) 6 NWLR (248) 439; Onyejekwe v. Nig. Police Council (1996) 7 NWLR (463) 704; Salu v. Para-Koyi (2001) 13 NWLR (731) 602."Per GARBA, J.C.A. (Pp. 7-8, Paras. F-B) - read in context

3 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: Meaning of conspiracy; How it can be inferred "Put simply, the offence of conspiracy is the agreement by two (2) or more persons to do an unlawful act or a lawful act by unlawful means, ways or manner. It is the agreement, consensus or meeting of the minds, and not merely their hidden intention, that constitutes the offence and because it is very rare, if at all, to have direct evidence of expressed agreement between conspirators, the offence is usually inferred from the peculiar facts and circumstances of a given case. Okeke v. State (1999) 2 NWLR (590) 246, Obiakor v. State (2002) 10 NWLR (776) 612, Aje v. State (2006) 8 NWLR (982) 345, Kaza v. State (supra), Tanko v. State (2008) 16 NWLR (1114) 591. Due to its nature, the law is that the conspirators need not physically meet or know each other or even that the agreement between them to commit an unlawful act be actually carried out before the offence of conspiracy can be sustained against each of them. Garba v. COP (2007) 16 NWLR (1050) 378, Nwosu v. State (2004) 15 NWLR (897) 466, Oyakhere v. State (2005) 15 NWLR (947) 159, Ikwunne v. State (2000) 5 NWLR (658) 550."Per GARBA, J.C.A. (Pp , Paras. B-B) - read in context

4 4. EVIDENCE - HEARSAY EVIDENCE: Whether hearsay evidence is admissible; meaning and nature of an hearsay evidence "Undoubtedly, by the provisions of Section 37 and 38 of the Evidence Act, 2011, evidence; oral or documentary, given or made by a person who is not called as a witness in the proceedings of a Court of law, is hearsay and inadmissible in evidence, if its purpose is to prove the truth of what is contained therein. The provisions are as follows:- "37. Hearsay means a statement- (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Bill, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. 38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act. Statements may by Persons who cannot be called as Witnesses." Similar provisions of earlier Evidence Acts were interpreted in many judicial authorities which stated and restated the above position on the definition and admissibility of hearsay evidence that was based on the statement in the famous case of Subramanian v. Public Prosecution (1956) 1 WRN, 969 wherein, the Privy Council stated that- "Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made." Among the legion of our judicial authorities in which the position was stated and restated are Kasa v. State (1994) 6 SCNJ 1, Abadom v. State (1997) 1 NWLR (479) 1, Kala v. Potiskum (1998) 3 NWLR (1998) 3 NWLR (540) 1, Ijioffor v. State (2001) 4 SC (Pt.II) 1, Jolayemi v. Alaoye (2004) 12 NWLR (887) 322, Buhari v. INEC (2008) 19 NWLR (1120) 246, Osuoha v. State (2010) 16 NWLR (1219) 364, Ifegwu v. UBN, Plc (2011) 16 NWLR (1274) 555, FRN v. Usman (2012) 8 NWLR (1301) 141. The underlying principle of the position of the law on hearsay evidence is that it is evidence which does not derive its value solely from the credibility of the witness himself, but also rests in part, on the veracity, credibility and competence of some other person who does not appear in the proceeding before the Court as a witness. Thus, it is a tale, retold and retorted that is unreliable for the purpose of proving the truth of the content."per GARBA, J.C.A. (Pp. 9-11, Paras. B-C) - read in context

5 5. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; when is same discharged "The evidence law is also elementary that the burden of proving the allegation of the commission of a crime is on the person making the allegation and the standard of proof is beyond reasonable doubt. See Sections 135(1) & (2) of the Evidence Act as well as among others, Ameh v. State (1978) 6-7 SC, 27, Ugo v. C.O.P. (1972) 11 SC, 37, Edamine v. State (1996) 3 NWLR (438) 530, Obri v. State (1997) 7 NWLR (513) 352, Ubanatu v. COP (1999) 7 NWLR (611) 512, Aigbadion v. State (2000) 7 NWLR (666) 686, State v. Olatunji (2003) 14 NWLR (839) 138, Udo v. State (2006) 15 NWLR (1001) 179, Ani v. State (2009) 16 NWLR (1168) 443, Awosika v. State (2010) 9 NWLR (1198) 49. It may be recalled that the primary argument of learned counsel for the Appellant is that the evidence of the PWs was hearsay and inadmissible for the discharge of the burden of proving the offences the Appellant was convicted for, beyond reasonable doubt. The burden of proof placed on the Respondent to prove the offences for which the Appellant was charged can only be satisfactorily discharged with the calling and production of relevant, admissible, credible and sufficient evidence to prove each and all the essential elements or ingredients constituting the offences. Dibie v. State (2007) 3 SC (Pt.1) 176, (2007) 9 NWLR (1035) 30, Alabi v. State (1993) 7 NWLR (307) 523, Ekanem v. State (2009) LPELR-4105) (CA), Onafowokan v. State (1987) 3 NWLR (2001) 538), Ubani v. State (2003) 18 NWLR (851) 224, Namsoh v. State (1993) 6 SCNJ (Pt.1) 09, Akono v. Nigerian Army (2000) 14 NWLR (687) 318."Per GARBA, J.C.A. (Pp , Paras. C-E) - read in context 6. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person "The evidence of the PWs on the offence in count 2 of the charge for which the Appellant was convicted, is in the above circumstances, not hearsay since the witnesses did not give evidence of what other persons who were not called as witnesses in the case, told them on the truth of the existence and the assumption of the title in question by the Appellant. Even without the evidence of the said PWs, Exhibit "P1" by the Appellant, which in law constituted as admission and a confession under Sections 19 and 27(1) of the Evidence Act, 2004 (applicable to Exhibit "P1") respectively, was sufficient in law to warrant and ground the conviction of the Appellant for the said count of the offence. See Kaza v. State (2008) 7 NWLR (1085) 1-25, Osuagwu v. State (2009) 1 NWLR (1123) 523, Shurumo v. State (2010) 19 NWLR (1226) 73, Dele v. State (2011) 1 NWLR (1229) 508, Igir v. State (2012) 16 NWLR (1327) 522."Per GARBA, J.C.A. (P. 14, Paras. B-G) - read in context

6 7. EVIDENCE - EVIDENCE OF A SINGLE WITNESS: Whether a court can convict on the evidence of a single witness "The offence in count 4 for which the Appellant was convicted is for unlawful procession contrary to Sections 88(1)(b),(c) and (2) of the Criminal Code, Cap 17, Laws of Lagos State, 2003, the evidence of PW3; the Baale of Igbo-Elerin that he personally saw the Appellant dressed in the regalia of an Oba, with a crowd of people surrounding him, beating drums and dancing in the Street, was direct cogent, unchallenged and so credible and enough to ground the conviction of the Appellant. See Ubani v. State (2003) 4 NWLR (809) 57, Joshua v. State (2000) 5 NWLR (658) 597, Chukwu v. State (2007) 13 NWLR (1052) 430, Nkebisi v. State (2010) 5 NWLR (1188) 471, on the law that the evidence of a single witness can be used and relied on for conviction of an accused person. This position of the law as it is, the evidence of PW3 was fortified and expressly supported by Exhibit 'P1' made by the Appellant in which he admitted the procession in question and has made the argument of the Appellant's counsel on the conviction of the Appellant for the offence in count 4 of the Amended Charge, untenable."per GARBA, J.C.A. (P. 15, Paras. A-F) - read in context

7 MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was initially arraigned before the High Court of Lagos State sitting at Ikeja, on a four (4) counts charge No. ID/24C/2008 dated 28th February, 2008 which later amended by the Amended Charge No.115c/2007 dated 3rd October, 2008 containing five (5) counts of offences, the statements and particulars of which are as follows: - "STATEMENT OF OFFENCE 1ST COUNT Conspiracy to commit felony to wit: Unlawful Creation and assumption of customary chieftaincy title contrary to Section 516 of the Criminal Code Cap C17 Volume 2 Laws of Lagos State PARTICULARS OF OFFENCE SIKIRU AINA KOLAWOLE and other still at large on or about the 30th day of December 2007 at Igbo- Elerin town in the Ikeja Judicial Division conspired with one another to forcefully confer on and install the said SIKIRU KOLAWOLE AINA as the OBA of Igbo Elerin Town. STATEMENT OF OFFENCE 2ND COUNT Unlawful creation and Assumption of a customary chieftaincy Title: OBA OF IGBO ELEKIN without approval of the Commissioner of Chieftaincy Affairs of Lagos State 1

8 Contrary to Section 25(1) & (2) of the Obas and Chiefs of Lagos State Law, Cap 02 Volume 6 Laws of Lagos State PARTICULARS OF OFFENCE SIKIRU AINA KOLAWOLE and other still at large on or about the 30th day of December 2007 at Igbo- Elerin town in the Ikeja Judicial Division did create and assume a customary Chieftaincy title OBA OF IGBO ELERIN TOWN without the written approval of the Commissioner for Chieftaincy Affairs Lagos State. STATEMENT OF OFFENCE 3RD COUNT Unlawful installation and Appointment as OBA OF IGBO ELERIN without approval of the Commissioner of Chieftaincy Affairs of Lagos State Contrary to Section 25(1) & (2) of the Obas and Chiefs of Lagos State Law, Cap 02 Volume 6 Laws of Lagos State PARTICULARS OF OFFENCE SIKIRU AINA KOLAWOLE and other still large on or about the 30th day of December 2007 at Igbo-Elerin town in the Ikeja Judicial Division did install and appoint the said Sikiru Kolawole as OBA OF IGBO ELERIN TOWN without the written approval of the Commissioner for Chieftaincy Affairs Lagos State. STATEMENT OF OFFENCE 4TH COUNT Unlawful processions contrary to Section 88(1) (b) & (c) 2

9 and Section 88(2) of the Criminal Code Cap C.17 Volume 2 Laws of Lagos State PARTICULARS OF OFFENCE SIKIRU AINA KOLAWOLE and other still at large on or about the 30th day of December 2007 at Igbo- Elerin town in the Ikeja Judicial Division assembled together publicly exhibiting symbol and accompanied by music and beating of drums calculated to promote animosity between different factions in the town. STATEMENT OF OFFENCE 5TH COUNT Personation Contrary to Section 484 of the Criminal Code Cap C.1.7 Volume 2 Laws of Lagos State 2003 PARTICULARS OF OFFENCE SIKIRU AINA KOLAWOLE on or about 30th day of December 2007 at Igbo-Elerin town in the Ikeja Judicial Division did falsely represent yourself as the OBA OF IGBO ELERIN TOWN." The Appellant pleaded not guilty to all the offences and the case proceeded to trial during which four (4) witnesses each were called by the Respondent and the Appellant in proof and defence of the case. In the judgment dated 15th February, 2010 on the heading, but indicated to have been signed by the learned trial Judge; on the 9th April 2008, the Appellant was convicted for the offences in counts 2 and 4 3

10 of the charge as well as misdemeanor under count 1 and sentenced to two (2) years imprisonment with an option of One (1) Million Naira (N1,000,000.00) fine; which he paid. However, being dissatisfied with his conviction and sentence, the Appellant brought this appeal by the Notice Appeal dated 28th March, 2012 which was amended by the Amended Notice of Appeal filed on 5th April 2016, but deemed on 16th January, 2017, containing three (3) grounds of appeal. Both Notices of Appeal are against the judgement delivered by the High Court on 15th February, Apparently, the date of 9th April, 2008 indicated under the name of trial Judge at the end of the judgment, was in error since the Amended charge on which the Appellant was tried and convicted, was dated the 3rd October 2008; a date six(6) months later than that date. I observed that in the introduction on page 3 of the Appellant's brief, the brief is said to be in respect of an appeal against the judgment delivered on 9th April, 2008 by the High Court when in fact, there is no record of such judgment or a Notice of Appeal filed against it, since both the initial and amended notices of appeal are against the 4

11 judgment delivered by the High Court on 15th February 2010, as indicated above. In the Appellant's brief filed on the same date with the Amended Notice of Appeal, four(4) issues are submitted for determination as follows: "ISSUE NO. 1. Whether the Prosecution/Respondent proved beyond reasonable doubt the offence of unlawful procession contrary to S.88(1) of the Criminal Code against the Appellant (Distilled from ground 2 of the Notice of Appeal). ISSUE NO.2 Whether the trial Court was right when it held that, that was conclusive inference that there was installation ceremony of the Appellant that was covered and aired by LTV for 3 days consecutively. ISSUE NO. 3 Whether there was sufficient evidence of conspiracy of misdemeanor contrary to S.517 of the Criminal Code to warrant conviction of the Appellant for the offence (Distilled from ground 1 of the amended Notice of Appeal) ISSUE NO. 4. Whether the learned trial judge was right when she held that there was conclusive inference that the defendant was unlawfully installed as Oba of Igbo Elerin which has not been approved by the Governor of the State."

12 5

13 The record of the Court shows that the Respondent was duly served with the material processes of the appeal including the Record of Appeal, Amended Notice of Appeal, Appellant's brief and the Hearing Notice of the appeal, but it has not filed any process; particularly the Respondent's brief for the purpose of the determination of the appeal, and was not represented at the hearing of the appeal on 9th April, The appeal was therefore heard on the Appellant's brief alone. As may be observed, from the formulation of issues by the Appellant's Counsel, Issues 1 and 3 are shown to have been distilled from grounds 2 and 1 respectively, while there is no indication of whether the issues 2 and 4 were distilled from any of the grounds of the appeal. The established principles of law on practice and procedure in the appellate Courts, see Anuakutuna v. Ohia (1985) 5 NWLR (40) 150; UBN Ltd v. Odusote (1995) 9 NWLR (421) 577-8; Ezeja v. State (2006) ALL FWLR (309) 7535; Akinlagun v. Oshoboja (2006) ALL FWLR (325) 82, require that Counsel should clearly indicate and identify the grounds of appeal from which each issue is distilled, in their briefs of argument. 6

14 The law is also known that issues submitted for decision in an appeal cannot be more, in number, than the grounds of appeal from which they are supposed to be distilled. As mentioned earlier, there are three (3) grounds of appeal on the Amended Notice of Appeal, but as seen above, four(4) issues are submitted for determination thus, more in number, than the grounds of appeal. With two (2) issues indicated to have been formulated from two (2) of the 4 grounds, the other two (2) issues; i.e., 2 and 4 are left without any relation or connection with the grounds of the appeal. However, looking calmly at the issues 2 and 4, they are of the same substance on the question of proof of the installation of the Appellant as Oba of Igbo Elerin without approval. The question is easily traceable to ground 3 of the Amended Notice of Appeal and because this is a criminal appeal, I am prepared to take Issue 4 as being derivable from the said ground and has subsumed Issue 2. I would now consider the arguments of the Appellant on the uncontested appeal and issues submitted for determination. Perhaps, I should restate the law that the 7

15 Court still has the duty to consider and determine whether the appeal is sustainable in law even in the absence of a challenge or contest from the Respondent since the appeal is not to succeed merely on the absence of the Respondent's brief to contest the issues canvassed by the Appellant. See Akpan v. State (1992) 6 NWLR (248) 439; Onyejekwe v. Nig. Police Council (1996) 7 NWLR (463) 704; Salu v. Para-Koyi (2001) 13 NWLR (731) 602. Issue One (1): The submissions by the Appellant are that the Respondent had the duty to prove the offences against him beyond reasonable doubt on the authority of Orji v. State (2008) 3-4 SC, 213 and that the High Court relied on the evidence of the prosecution witnesses (PWs) and Exhibit 6 which were hearsay and inadmissible in law to convict the Appellant. Section 37 of the Evidence Act, 2011, page 357 of 4th Edition of Cross Evidence and A, G., Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (1248) 31; JAMB v. Orji (2008) 2 NWLR (1072) 552; Nwobosi v. A.C.B. Ltd (1995) 6 NWLR (404) 658 were referred to on the meaning and admissibility of hearsay evidence. Evidence of the PWs were cited and it is maintained that the evidence was 8

16 hearsay since only PW3 gave direct evidence of what he said he saw, but not on the alleged coronation of the Appellant, relying on Hashidu v. Goje (2003) 15 NWLR (228) 662. Once more, the High Court was said to have erred in relying on the hearsay evidence of the Respondent to convict the Appellant. Undoubtedly, by the provisions of Section 37 and 38 of the Evidence Act, 2011, evidence; oral or documentary, given or made by a person who is not called as a witness in the proceedings of a Court of law, is hearsay and inadmissible in evidence, if its purpose is to prove the truth of what is contained therein. The provisions are as follows:- 37. Hearsay means a statement - (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Bill, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. 38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act. Statements may by Persons who cannot be called as Witnesses." 9

17 Similar provisions of earlier Evidence Acts were interpreted in many judicial authorities which stated and restated the above position on the definition and admissibility of hearsay evidence that was based on the statement in the famous case of Subramanian v. Public Prosecution (1956) 1 WRN, 969 wherein, the Privy Council stated that- "Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made." Among the legion of our judicial authorities in which the position was stated and restated are Kasa v. State (1994) 6 SCNJ 1, Abadom v. State (1997) 1 NWLR (479) 1, Kala v. Potiskum (1998) 3 NWLR (1998) 3 NWLR (540) 1, Ijioffor v. State (2001) 4 SC (Pt.II) 1, Jolayemi v. Alaoye (2004) 12 NWLR (887) 322, Buhari v. INEC (2008) 19 NWLR (1120) 246, Osuoha v. State (2010) 16 NWLR (1219) 364, 10

18 Ifegwu v. UBN, Plc (2011) 16 NWLR (1274) 555, FRN v. Usman (2012) 8 NWLR (1301) 141. The underlying principle of the position of the law on hearsay evidence is that it is evidence which does not derive its value solely from the credibility of the witness himself, but also rests in part, on the veracity, credibility and competence of some other person who does not appear in the proceeding before the Court as a witness. Thus, it is a tale, retold and retorted that is unreliable for the purpose of proving the truth of the content. The evidence law is also elementary that the burden of proving the allegation of the commission of a crime is on the person making the allegation and the standard of proof is beyond reasonable doubt. See Sections 135(1) & (2) of the Evidence Act as well as among others, Ameh v. State (1978) 6-7 SC, 27, Ugo v. C.O.P. (1972) 11 SC, 37, Edamine v. State (1996) 3 NWLR (438) 530, Obri v. State (1997) 7 NWLR (513) 352, Ubanatu v. COP (1999) 7 NWLR (611) 512, Aigbadion v. State (2000) 7 NWLR (666) 686, State v. Olatunji (2003) 14 NWLR (839) 138, Udo v. State (2006) 15 NWLR (1001) 179, Ani v. State (2009) 16 NWLR (1168) 443, Awosika v. State (2010) 9 NWLR (1198)

19 It may be recalled that the primary argument of learned counsel for the Appellant is that the evidence of the PWs was hearsay and inadmissible for the discharge of the burden of proving the offences the Appellant was convicted for, beyond reasonable doubt. The burden of proof placed on the Respondent to prove the offences for which the Appellant was charged can only be satisfactorily discharged with the calling and production of relevant, admissible, credible and sufficient evidence to prove each and all the essential elements or ingredients constituting the offences. Dibie v. State (2007) 3 SC (Pt.1) 176, (2007) 9 NWLR (1035) 30, Alabi v. State (1993) 7 NWLR (307) 523, Ekanem v. State (2009) LPELR-4105) (CA), Onafowokan v. State (1987) 3 NWLR (2001) 538), Ubani v. State (2003) 18 NWLR (851) 224, Namsoh v. State (1993) 6 SCNJ (Pt.1) 09, Akono v. Nigerian Army (2000) 14 NWLR (687) 318. The witnesses who testified for the Respondent at the trial of the Appellant were: - (1) The investigating Police Officer (IPO) who recorded the statement of the Appellant which was admitted in 12

20 evidence as Exhibits P1 after a trial within trial. He was PW1, through who Exhibits P1-P9 were tendered in evidence. (2) The Permanent secretary, Lagos State Ministry of Local Government & Chieftaincy Affairs who was PW2. (3) The Baale of Igbo-Elerin; Alhaji Mohammed Taofik Aina who testified as PW3 and (4) Oba Yishau Ori Ola Oseni; the Oniba Ekun of Iba land, as DW4. All these witnesses gave evidence as to the individual actions and steps they took in respect of the alleged offences committed by the Appellant based on the information received by them in their respective official capacities. At the end of the trial, the Appellant was found guilty and convicted of the offences in counts 2 and 4 of the Amended charge for the creation and assumption of the customary title of the Oba of Igbo-Elerin without approval and unlawful procession. The evidence of PW2, PW3 and PW4 on the non existence of the customary title of Oba of Igbo-Elerin as well as the assumption of the said title without approval from the appropriate authorities by the Appellant was direct evidence from their personal and individual knowledge of duly created, approved 13

21 and recognized customary titles in Igbo-Elerin. The statement of the Appellant Exhibit P1 unequivocally support the evidence of the witnesses on the non existence of the customary title of Oba of Igbo-Elerin and the Appellant's assumption of the said title on the 30th December, The evidence of the PWs on the offence in count 2 of the charge for which the Appellant was convicted, is in the above circumstances, not hearsay since the witnesses did not give evidence of what other persons who were not called as witnesses in the case, told them on the truth of the existence and the assumption of the title in question by the Appellant. Even without the evidence of the said PWs, Exhibit "P1" by the Appellant, which in law constituted as admission and a confession under Sections 19 and 27(1) of the Evidence Act, 2004 (applicable to Exhibit "P1") respectively, was sufficient in law to warrant and ground the conviction of the Appellant for the said count of the offence. See Kaza v. State (2008) 7 NWLR (1085) 1-25, Osuagwu v. State (2009) 1 NWLR (1123) 523, Shurumo v. State (2010) 19 NWLR (1226) 73, Dele v. State (2011) 1 NWLR (1229) 508, Igri v. State (2012) 16 NWLR (1327)

22 The offence in count 4 for which the Appellant was convicted is for unlawful procession contrary to Sections 88(1)(b),(c) and (2) of the Criminal Code, Cap 17, Laws of Lagos State, 2003, the evidence of PW3; the Baale of Igbo- Elerin that he personally saw the Appellant dressed in the regalia of an Oba, with a crowd of people surrounding him, beating drums and dancing in the Street, was direct cogent, unchallenged and so credible and enough to ground the conviction of the Appellant. See Ubani v. State (2003) 4 NWLR (809) 57, Joshua v. State (2000) 5 NWLR (658) 597, Chukwu v. State (2007) 13 NWLR (1052) 430, Nkebisi v. State (2010) 5 NWLR (1188) 471, on the law that the evidence of a single witness can be used and relied on for conviction of an accused person. This position of the law as it is, the evidence of PW3 was fortified and expressly supported by Exhibit 'P1' made by the Appellant in which he admitted the procession in question and has made the argument of the Appellant's counsel on the conviction of the Appellant for the offence in count 4 of the Amended Charge, untenable. 15

23 Learned counsel has also strenuously argued that Exhibit P6; the photographs of the coronation at the Appellant's house used by the High Court to infer guilt against the Appellant though the photographer was not called as a witness. To start with, Exhibit P6 does not qualify and is not a statement oral or written in respect of which any of the PWs gave evidence in proof thereof, to constitute hearsay evidence as defined and provided for under the Evidence Act. PW1 merely tendered the Exhibit as part of the pieces of evidence he received in the course of his investigation of the allegations against the Appellant from people who saw what happened, but did not give evidence to establish or show the truth of the context of the Exhibit to render it inadmissible in evidence as hearsay. In any case, since the Appellant was not convicted for the offence of unlawful installation and appointment in count 3 of the charge, Exhibit P6, provided yet, another support and confirmation of the evidence of PW2, PW3, PW4 and Exhibit 'P1' to ground the conviction of the Appellant for assumption of a customary title without approval. 16

24 In the result, there is no merit in the arguments of the Appellant that the evidence of the PWs and Exhibit P6, was hearsay and inadmissible in evidence. The issue is resolved against the Appellant. Issue Two (2): The arguments of the counsel for the Appellant are on the alleged holding by the High Court that the Appellant was guilty of the offence of conspiracy of misdemeanor contrary to Section 517 of the Criminal Code. Relying on Onochie v. Republic (1966) ALL FWLR, 82 and Njovens v. State (1973) NSCE (sic) 280, it is submitted that the offence of conspiracy can only be made out from the facts and circumstances of a case since it is usually inferred from the conduct of the parties in the case. According to counsel for the Appellant, because no eye witness to the installation of the Appellant was called to testify, there was no evidence of conspiracy on the part of the Appellant to warrant his conviction for the offence and that since the Appellant was the only eye witness, evidence given by another/other person/s would be hearsay and inadmissible, citing Ahmed v. State (1999) 7 NWLR (612) 67. It is the further argument of counsel that the Respondent had failed to prove the essential elements of the 17

25 offence of conspiracy as set out in Kaza v. State (supra) also reported in 33, NSCQR, (Pt.2) 1391, Akpa v. State (2007) 2 NWLR (1019) 503 and Ogbu v. State (2007) 27 WRN, 1, against the Appellant. The case of Nwankwoala v. State (2006) ALL FWLR (339) was also referred to and the Court is urged to allow the appeal. Put simply, the offence of conspiracy is the agreement by two (2) or more persons to do an unlawful act or a lawful act by unlawful means, ways or manner. It is the agreement, consensus or meeting of the minds, and not merely their hidden intention, that constitutes the offence and because it is very rare, if at all, to have direct evidence of expressed agreement between conspirators, the offence is usually inferred from the peculiar facts and circumstances of a given case. Okeke v. State (1999) 2 NWLR (590) 246, Obiakor v. State (2002) 10 NWLR (776) 612, Aje v. State (2006) 8 NWLR (982) 345, Kaza v. State (supra), Tanko v. State (2008) 16 NWLR (1114) 591. Due to its nature, the law is that the conspirators need not physically meet or know each other or even that the agreement between them to commit an unlawful act be 18

26 actually carried out before the offence of conspiracy can be sustained against each of them. Garba v. COP (2007) 16 NWLR (1050) 378, Nwosu v. State (2004) 15 NWLR (897) 466, Oyakhere v. State (2005) 15 NWLR (947) 159, Ikwunne v. State (2000) 5 NWLR (658) 550. The evidence before the High Court in proof of the offences of assumption of a customary title of Oba of Igbo-Elerin without requisite approval and the unlawful procession by the Appellant and other people in respect of the said assumption of the title, clearly shows the Appellant did not and could not have acted alone, but in concert, connivance with and agreement between him and other people for him to do so as he had indicated in Exhibit "P1.", wherein he said:- "In respect of the complaint that I installed myself on the Oba of Igbo-Elerin Ojo Lagos. I wish to state my family called Otetuwon Ajose Chieftaincy family of Igbo-Elerin from Ojo meet and nominated me as an Oba of the town which we did the ceremony on 30th of December, 2007 along with the youth carnival day, I did not get any approval from Lagos State Government." 19

27 Even though the Appellant was not charged along with any of the coconspirators, the above evidence by him leaves no doubts that there was an agreement between him and "others still at large" as stated in the particulars of the offence of conspiracy, to install him as the Oba of Igbo- Elerin, which agreement was eventually carried out on the 30th December, 2007 as expressly admitted by the Appellant in Exhibit "P1". There was therefore, sufficient evidence from the Appellant himself to support his conviction for the offence of conspiracy in respect of the assumption and installation as Oba of Igbo-Elerin. I find no merit in the arguments of the issue and it is resolved against the Appellant. Issue Three (3): The submissions are that the Respondent did not prove the offence of unlawful procession beyond reasonable doubt as defined in the case of State v. Onyekwu (2004) ALL FWLR (221) 475. Judicial authorities on a variety of principles on criminal law and proof were set out and it is, once again, argued that the evidence of the PW3 along with Exhibit P6 did not prove the offence against the Appellant as required by law. It is also said that DW3 contradicted himself on whether he saw the Appellant during the procession. 20

28 I have under issue 1 found and held that the evidence of PW3 and Exhibit 'P' by the Appellant was sufficient, cogent and credible evidence, supported by Exhibit 'P6' to warrant the conviction of the Appellant for the offence of unlawful procession. I do not find any viable arguments from the Appellant's Counsel under this issue, to warrant a further consideration of whether the offence was in law, proved beyond reasonable doubt or that the High Court was right to have convicted the Appellant for the said offence. There is no merit in the issue and it is resolved against the Appellant. Issue Four (4): The arguments are that the High Court was wrong to have convicted the Appellant for the offence of installing himself as the Oba of Igbo-Elerin when there was no evidence before it to prove the offence as required by the law. The issue and arguments by counsel are not borne out by the judgment of the High Court because the offences for which the Appellant 1 was found guilty and eventually convicted are those in counts 1, 2 and 4 of the Amended Charge. 21

29 This was the decision by the High Court on the said offences:- "Consequently since the offences which have been proved against the Defendant are counts 2 and 4 which carry punishments of 2 years and 2 months respectively. It is clear that the Defendant is only guilty of a misdemeanor and a simple offence respectively and cannot validly be convicted of a conspiracy to commit a felony, Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. It may be proved by the existence of direct evidence or by leading evidence from which the Court could draw an inference from certain criminal acts of the parties accused done in pursuance of an apparent criminal purpose in conviction between them. See BALOGUN VS. A.G. OYO STATE, 2001, FWLR PT.78, 1144 at From the facts and evidence before this Court particularly again from Exhibit P6, the offence of conspiracy between the Defendant and others to install the Defendant as Oba of Igbo-Elerin when none exists is an offence captured not by Section 516 but by Section 512 of the Criminal Code Law. Section 517 provides that, "Any person who conspires with another to commit any 22

30 offence which is not a felony, or And which is an offence under the laws in force in... Where it is proposed to be done, is guilty of a misdemeanor and is liable to imprisonment for 2 years. This is what has in my view been proved against the Defendant and which this Court finds him guilty of and is accordingly convicted hereunder. The maximum punishment of the three counts on which the Defendant is herein convicted is 2 years and the sentences will normally run concurrently." Undoubtedly, since the Appellant was discharged and acquitted of the offence in count 3 on unlawful installation, the issue and arguments of counsel are clearly misconceived and deserve no further consideration for being irrelevant on ground that it did not arise from the judgment appealed against. The portion of judgment quoted in the Appellant's brief under the issue 1 was in respect of the offences of assumption of the title in question by the Appellant under count 2 of the charge for which the Appellant was convicted as stated earlier. In any case, Exhibit 'P1' puts it beyond reasonable doubt and is sufficient in law to ground the conviction of the Appellant for the unlawful installation 23

31 expressly admitted and confessed to by him to have, in fact and deed, taken place. For lacking in merit, the issue is resolved against the Appellant. In the final result, this appeal is devoid of merit and it is dismissed. In consequence, the judgment delivered by the High Court on the 15th February, 2010 in the charge against the Appellant is hereby affirmed. JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the lucid judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A. (Hon. P.J.), which I had the privilege of reading in draft. JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother MOHAMMED LAWAL GARBA JCA afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the judgment and join my learned brother in dismissing the appeal for being unmeritorious. 24

32 Appearances: Yemi Adeshin with him, Louis Okudo and Kakeem Keshiro For Appellant(s) Respondent not represented For Respondent(s)