(2018) LPELR-45252(CA)

Transcription

1 STATE v. PIRAH CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Benin Judicial Division Holden at Benin MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO ON TUESDAY, 5TH JUNE, 2018 Suit No: CA/B/475C/2013 Before Their Lordships: Between THE STATE - Appellant(s) And MOFE PIRAH - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal

2 1. APPEAL - APPEAL AGAINST DECISION/FINDING OF COURT: Period of time within which to file an appeal under the Judicial, etc Officers and Appeal by Prosecutors Act No.10 of 1963 "In arguing the Notice of Preliminary Objection raised in this Appeal, learned Respondent's Counsel had referred this Court to the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of It is to be noted here that the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of 1963 is a Special legislation promulgated to limit and narrow the scope of application such as in cases involving sentence of death or verdict of guilty of manslaughter. By this piece of legislation, the period of Appeal has been constricted to only seven (7) days within which the Prosecutor can Appeal against such a sentence. In the recent decision of the Supreme Court, in the STATE vs. OMOYELE (2017) 1 NWLR (PT. 1547) 341 AT 352 the apex Court per AMIRU SANUSI, JSC had this to say on the subject; "It is aimed at encouraging a Prosecutor to be up and doing and to Appeal immediately if he is dissatisfied with the Judgment so that the Appeal is heard with minimum of delay. It is also to forestall the possibility of the offender or convict lingering in prison for a long period without his fate being determined finally and expeditiously. That is more so when the Act even prohibits the Court to grant or entertain application for extension of time in such situation. Once a prosecutor fails to Appeal within the seven (7) days stipulated by the Act that is the end of it." In the instant Appeal judgment was delivered by the Court below on the discharging and acquitting the Respondent who was the Accused person at the Court below for the offences of conspiracy and murder. The Appellant herein, who was Prosecutor at the Court below being dissatisfied with the lower Court's judgment did not Appeal within seven (7) days as prescribed by the provisions of the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of 1963, but brought a motion for extension of time to file its Notice of Appeal out of time. The Application was granted on the almost three (3) years after the lower Court's verdict. The apex Court, once again in the same case of STATE vs. OMOYELE (Supra) at page 370 of the Report para E-H had this to say on the subject; "By virtue of Section 4(3) of the Judicial etc., Officers and Appeal by Prosecutors Act No 10 of 1963, a Prosecutor has only seven (7) days within which to give its Notice of Appeal or to seek leave to Appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. The Act further provides that the seven (7) days period shall not be extended. In the instant case, being one in which the Respondent was acquitted of a murder charge, the Appellant which was the Prosecutor had the right to Appeal against such acquittal within seven (7) days only by virtue of the provisions of Section 4 of the Act. The Appeal was filed out of time and as such the late filing rendered it incompetent..." On the question as to whether the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of 1963, is still an extant provision of the law, this is what the apex Court had to say on the subject. "In 1989, the Supreme Court applied the provisions of the Judicial etc., Officers and Appeal by Prosecutors Act. No. 10 of 1963, in the case of STATE vs. ADILI (1989) 2 NWLR (PT. 103) 305. This shows that the Act is still extant and applicable till today as an existing law that has not been repealed or superseded." Arising from the foregoing, I cannot help but to hold in agreement with learned Counsel and SAN for the Respondent that the Counsel and SAN for the Appellant lacked the competence to apply for and obtain any order to amend the Notice of Appeal by filing additional Grounds of Appeal and to argue such Grounds. The Notice of Preliminary objection is hereby sustained by me because the Notice of Appeal was filed not within seven (7) days as prescribed by law but almost two (2) years, the Appellant being the Prosecutor. Against the background of this position, the Notice of Preliminary Objection is sustained and this Appeal is accordingly struck out."per OHO, J.C.A. (Pp. 8-12, Paras. F-C) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder "To begin with, for the Prosecution to succeed in establishing the offence of Murder, he must prove the following ingredients of murder beyond reasonable doubt: 1. That the deceased had died; and 2. That the death of the deceased was caused by the accused; and 3. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See the cases of: CHUKWU vs. STATE (2013) 4 NWLR (Part 1343) 1 at 15; OCHIBA vs. STATE (2011) 17 NWLR (Part 1277) Page 663; MBANG vs. STATE (2010) 7 NWLR (Part 1194) 431. It would be important to state that the offence of murder is provided for in Section 361 Cap. 48 of the Criminal Code, Laws of Bendel State of Nigeria applicable in Delta State at the material time."per OHO, J.C.A. (Pp , Paras. D-B) - read in context 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: How to establish/prove the offence of conspiracy "...There were other witnesses but the settled position of the law is that to get a conviction on a count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. Conspiracy as an offence is difficult to prove as the plot to commit crimes is usually hatched in secrecy by desperate men. It is for this reason that circumstantial evidence is often resorted to except that the only snag here is that there must be an overt act from which to infer conspiracy."per OHO, J.C.A. (P. 69, Paras. A-C) - read in context 4. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: Meaning and nature of the defence of alibi "In any case, what the defense of Alibi simply means is that at all times material to the commission of the offence, the accused person was nowhere near the locus criminis and ordinarily could therefore not be expected to be involved in the execution of the criminal offence alleged. See ADEDEJI vs. THE STATE (1971) 1 ALL NLR 75; BOZIN vs. THE STATE (1998) 1 ACLR 1 AT 9."Per OHO, J.C.A. (P. 71, Paras. D-F) - read in context

4 5. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: Duty of the prosecution and accused person where the defence of alibi is raised "Where the defense placed before the Court clearly demonstrates that the accused person seeks to rely on Alibi, the Prosecutor is duty bound to investigate same. Where the Prosecutor fails to investigate the defense and it is demonstrable that the failure would lead to a miscarriage of justice, then the order of conviction arising in the circumstance, would on Appeal be quashed and substituted with an order of discharge and acquittal. See UDOEBRE vs. STATE (2005) 4 LRCNCC 212, 216.?To take advantage of this defense the way the Respondent had done at the Court below, the accused person must give a detailed particularization of his whereabouts on the crucial day of the offence, which will include not just the specific place(s) where he was, but additionally the people in whose company he was and what, if any transpired at the said time and place(s). It is important that such comprehensive regime of information furnished by the accused person must be capable of investigation by the Police should they wish to do so. The settled position of the law is that where the defense is raised timeously and brought to the attention of the Police in the accused person's extra-judicial statement, thus affording the Police ample opportunity to carry out its investigation, the burden shifts on the Prosecution to disprove the defense of Alibi sought to be raised by the accused. See OCHEMAJE vs. THE STATE (2011) 9 LRCNCC 141, 145. The position of the law also is that there is no duty on the accused person to prove or establish his Alibi as contended by learned Appellant's Counsel in this Appeal. The position remains that as soon and as long as he has furnished particulars of his whereabouts lucidly to the Police, he has no other role to play in the direction of having to prove his Alibi. See the cases of OKOSI vs. THE STATE (1989) 1 SCLRN 29, 41; YANOR vs. THE STATE (1965) 1 ALL NLR 193. The foregoing notwithstanding, an accused person can still be convicted for murder where everything points to the accused as the murderer, but so long as the evidence in support of the conviction is not only cogent, complete and unequivocal but compellingly leads to the conclusion that the accused and no one else is the murderer. See the case of R. vs. ONUFREJEZYK (1955) 1 Q.B. 388; 39 Cr. App. R1."Per OHO, J.C.A. (Pp , Paras. A-F) - read in context 6. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: Effect of failure of prosecution to investigate and disprove the defence of alibi once raised "The position of the law is that where the Prosecution disregards a plea of Alibi and does not investigate it and leads no evidence as to its rebuttal, as it has been done in the instant case, the prosecution cannot in such circumstances be regarded as having proved its case beyond reasonable doubt. See BOZIN vs. THE STATE (Supra); YANOR vs. THE STATE (Supra)."Per OHO, J.C.A. (P. 74, Paras. E-F) - read in context 7. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: Duty of police to investigate the defence of alibi when raised "I only wish to observe by way of emphasis that whenever a defence of alibi is raised by an accused person, the prosecution has a duty to check on a statement of alibi and disprove the alibi. It will suffice if the prosecution adduces sufficient and accepted evidence to fix the accused person at the scene of crime at the material time in order to render such plea ineffective as a defence. See the case of Patrick Njovens & Ors. v. The State (1973) 1 NWLR 331. This was what the prosecution failed to do in the Instant case. The appeal therefore lacks merit and same is hereby dismissed." Per MUKHTAR, J.C.A. (P. 76, Paras. B-E) - read in context

5 8. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in a charge of murder "Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of Murder rests squarely on the shoulders of the Prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as corollary to the above, is the fact, and from which the prosecution gets a modicum of succor, that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law; a. Confessional statement. b. Circumstantial evidence c. Evidence of an eye-witness account. See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683; AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012."Per OHO, J.C.A. (Pp , Paras. C-A) - read in context 9. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Effect of failure to file a reply brief to a notice of preliminary objection "It is interesting to note that the Appellant herein filed no Reply Brief of Argument in this Appeal in answer in opposition of the points raised in the Notice of Preliminary Objection. The implication of this, legally speaking is that the Appellant is deemed to have conceded to the points raised in the Notice of Objection filed by the Respondent herein. See the cases of JOHN HOLT VENTURES LTD vs. OPUTA (1996) 9 NWLR (PT. 470) 101; ONYEJEKWE vs. THE NIGERIA POLICE COUNCIL (1996) 7 NWLR (PT. 463) 704; UBA PLC vs. AJILEYE (1999) 13 NWLR (PT. 653) 116; This being an Appeal, however, the Respondent still has the obligation to succeed or fail on the strength of his Application made to this Court. It is not in the character of the Court of Appeal to accept hook, line and sinker the allegations contained in the Respondent's Notice of Objection without critically examining whether or not the points raised therein are grantable or sustainable in view of the prevailing law and circumstances applicable to the case in question. That is exactly what this Court is out to do in this Appeal."Per OHO, J.C.A. (Pp. 7-8, Paras. D-C) - read in context 10. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Duty of Court where preliminary objection is raised against the competence of an action "The proper cause of action to take where there is a Notice of Preliminary Objection challenging the validity of the Notice of Appeal as in the very instance of this Appeal is for the Court to first deal with the Notice of Preliminary Objection and possibly dispose of same before dealing with the substantive issues raised in the Appeal. By so doing the Court is assured of the competence or jurisdiction to proceed with the determination of the Appeal on its merit or in the alternative to refrain from going forth with the Appeal at that stage."per OHO, J.C.A. (P. 8, Paras. C-F) - read in context

6 FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment). This Appeal is against the judgment of the Delta State High Court of Justice, sitting at the Asaba Judicial Division, Delta State delivered on the wherein the Respondent was discharged and acquitted of the offences of conspiracy and murder. The judgment of the trial Court is at pages of the Record of Appeal. Dissatisfied with the lower Court s judgment, the Appellant filed an Appeal to this Court against the judgment of the Court below. By an Amended Notice of Appeal filed on the and deemed filed on the a total of thirteen (13) Grounds of Appeal were filed. At the commencement of trial at the Court below, there were thirty-two (32) accused persons charged for the offences of Conspiracy and Murder. The 4th, 6th and 9th accused persons died during the course of the trial and the Appellant withdrew the charges against the 19th accused person and their names were struck out from the charge. At the trial of this case at the Court below, the Appellant called a total of fifteen (15) witnesses in proof of its 1

7 case. The Appellant also tendered exhibits. After the conclusion of the Appellant's case, the accused persons filed a no-case submission. The parties addressed the Court below on this issue and a ruling was delivered on the The Ruling on the no-case submission is at pages of the Record of Appeal. In the ruling on no-case submission the 3rd, 7th, 11th, 12th, 15th, 17th, 20th, 21st, 22nd, 23rd, 25th, 26th, 27th, 28th, 29th, 30th and 32nd accused persons were discharged and acquitted by the Court below. See pages of the Record of Appeal. The Respondent (31st accused person at the Court below) and 10 other accused persons were called upon by the trial Judge to enter their defense to the offences charged. The Respondent testified and called no witnesses in support of his case. See the evidence of the Respondent at pages of the Record of Appeal. The Respondent did not tender any Exhibits at the trial. The Exhibit tendered by the Appellant in support of its case is contained in the Record of Appeal. The Appellant tendered Exhibit 'S' (Statement of the Respondent to the Police). At the close of evidence, the 2

8 Appellant and Respondent addressed the lower Court. On the , the learned trial Judge delivered a well considered judgment. In the said judgment, the Respondent was discharged and acquitted. The judgment of the lower Court is at pages of the Record of Appeal. Dissatisfied with the judgment of the lower Court, the State Appealed against the judgment of the Court below and had issued a Fiat dated to Mr. IGHODALO IMADEGBELO, SAN (a private legal practitioner) to prosecute this appeal on behalf of the state. The Appellant s Brief of Argument in essence therefore is dated and filed on the but deemed filed on the was settled by Mr. IGHODALO IMADEGBELO, SAN; while the Brief of the Respondent dated but filed on the same date and deemed properly filed on the was settled by FAYE DIKIO, SAN. On the at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of Arguments and urge the Court to decide this Appeal in favour of their sides. ISSUES FOR DETERMINATION; Out of the thirteen (13) Grounds of Appeal filed in the 3

9 Appellant's Amended Notice of Appeal, two (2) issues were nominated for this Appeal to wit: 1. Whether or not the Appellant failed to prove the offences charged beyond reasonable doubt (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12). 2. Whether or not the learned trial judge was right in discharging and acquitting the Respondent (Ground 13). On the part of the Respondent, the two issues formulated by the Appellant were adopted but in addition, the Respondent raised a Notice of Preliminary Objection to the hearing of this Appeal. PRELIMINARY OBJECTION; The main grounds of the objection are as contained in the Notice filed on the 21st of August, The grounds can be reduced to four in number thus; 1. The Notice of Appeal was filed more than 7 days prescribed by the Judicial, etc Officers and Appeals by Prosecutors Act No. 10 of The Appeal was filed on grounds of facts without leave of the Court. 3. The Honourable Attorney-General of Delta State granted a Fiat to Ighodalo Imadegbelo (SAN) to prosecute the appeal on 31st March, 2009 but Arthur Alofoje Esq., of Counsel in the Chambers of Ighodalo Imadegbelo 4

10 & Co. sought and obtained an extension of time to file a Notice of Appeal on 11th March, Fourteen (14) days was granted for the filing of the Notice of Appeal but none was served on the Respondent. 4. The appeal was struck out on 1st December, 2011 and has not been restored. It was at this stage that the Appellant applied to transmit Record of Appeal by a Motion dated 16th October, 2013 and filed on 13th December, The Record was deemed transmitted and served on 22nd September, 2014 with Appeal No. CA/B/475C/2013. Out of the four (4) grounds of objection, one Issue for determination is couched for the consideration of this Court as follows: "Whether there is still an appeal existing and if yes whether the appeal is competent." The contention of Counsel is that the Appeal was filed outside the period prescribed under the Judicial Officers and Appeals by Prosecutors Act No. 10 of Counsel further contended that as at the time the application for extension of time was granted on the 11th March, 2010, the period prescribed by the Act had obviously elapsed. He cited the case of PAUL ADILI vs. THE STATE (1989) 2 5

11 NWLR (PT. 103) 305 where it was held that such a Notice of Appeal is a nullity. He further cited the case of STATE vs. OMOYELE (2017) 1 NWLR (PT. 1547) 341. In STATE vs. OMOYELE (Supra), Counsel submitted that it was held that once such an appeal was filed out of time; the late filing renders it incompetent and the period cannot be extended by virtue of Section 4(3) of the Act. Apart from this, Counsel argued that this Appeal is also incompetent for two other reasons: 1. As at the time Arthur Alofeje Esq., obtained an extension of time, he did not have any authority to apply for extension of time in view of the fact that Ighodalo Imadegbelo (SAN) had been issued with the Honourable Attorney-General's Fiat to prosecute the appeal which includes authority to personally do all such things connected with the prosecution of the appeal including applying for and obtaining an order enlarging time within which to file Notice of Appeal. He further argued thereafter, that even Ighodalo Imadegbelo (SAN) lacked the competence to apply for and obtain any order to amend the Notice of Appeal by filing additional grounds of appeal and to argue such grounds. He cited the case of 6

12 U. A. C. LTD vs. MACFOY (1962) A. C. 152 at page Counsel contended that any process filed in the appeal ought to have been served on the Respondent; that if there be any Amended Notice of Appeal containing additional grounds, such grounds are not capable of being argued as the Amended Notice of Appeal cannot stand on void Notice of Appeal. On this score, the Honourable Court has no competence and jurisdiction to determine this appeal based on an incompetent Notice of Appeal. Counsel urged the Court to strike out or dismiss this Appeal. RESOLUTION OF NOTICE OF PRELIMINARY OBJECTION It is interesting to note that the Appellant herein filed no Reply Brief of Argument in this Appeal in answer in opposition of the points raised in the Notice of Preliminary Objection. The implication of this, legally speaking is that the Appellant is deemed to have conceded to the points raised in the Notice of Objection filed by the Respondent herein. See the cases of JOHN HOLT VENTURES LTD vs. OPUTA (1996) 9 NWLR (PT. 470) 101; ONYEJEKWE vs. THE NIGERIA POLICE COUNCIL (1996) 7 NWLR (PT. 463) 704; UBA PLC vs. AJILEYE (1999) 13 NWLR (PT. 653) 116; This 7

13 being an Appeal, however, the Respondent still has the obligation to succeed or fail on the strength of his Application made to this Court. It is not in the character of the Court of Appeal to accept hook, line and sinker the allegations contained in the Respondent s Notice of Objection without critically examining whether or not the points raised therein are grantable or sustainable in view of the prevailing law and circumstances applicable to the case in question. That is exactly what this Court is out to do in this Appeal. The proper cause of action to take where there is a Notice of Preliminary Objection challenging the validity of the Notice of Appeal as in the very instance of this Appeal is for the Court to first deal with the Notice of Preliminary Objection and possibly dispose of same before dealing with the substantive issues raised in the Appeal. By so doing the Court is assured of the competence or jurisdiction to proceed with the determination of the Appeal on its merit or in the alternative to refrain from going forth with the Appeal at that stage. In arguing the Notice of Preliminary Objection raised in this 8

14 Appeal, learned Respondent s Counsel had referred this Court to the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of It is to be noted here that the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of 1963 is a Special legislation promulgated to limit and narrow the scope of application such as in cases involving sentence of death or verdict of guilty of manslaughter. By this piece of legislation, the period of Appeal has been constricted to only seven (7) days within which the Prosecutor can Appeal against such a sentence. In the recent decision of the Supreme Court, in the STATE vs. OMOYELE (2017) 1 NWLR (PT. 1547) 341 AT 352 the apex Court per AMIRU SANUSI, JSC had this to say on the subject; It is aimed at encouraging a Prosecutor to be up and doing and to Appeal immediately if he is dissatisfied with the Judgment so that the Appeal is heard with minimum of delay. It is also to forestall the possibility of the offender or convict lingering in prison for a long period without his fate being determined finally and expeditiously. That is more so when the Act even prohibits the Court to grant or entertain application 9

15 for extension of time in such situation. Once a prosecutor fails to Appeal within the seven (7) days stipulated by the Act that is the end of it. In the instant Appeal judgment was delivered by the Court below on the discharging and acquitting the Respondent who was the Accused person at the Court below for the offences of conspiracy and murder. The Appellant herein, who was Prosecutor at the Court below being dissatisfied with the lower Court s judgment did not Appeal within seven (7) days as prescribed by the provisions of the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of 1963, but brought a motion for extension of time to file its Notice of Appeal out of time. The Application was granted on the almost three (3) years after the lower Court s verdict. The apex Court, once again in the same case of STATE vs. OMOYELE (Supra) at page 370 of the Report para E-H had this to say on the subject; By virtue of Section 4(3) of the Judicial etc., Officers and Appeal by Prosecutors Act No 10 of 1963, a Prosecutor has only seven (7) days within which to give its Notice of Appeal or to seek leave 10

16 to Appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. The Act further provides that the seven (7) days period shall not be extended. In the instant case, being one in which the Respondent was acquitted of a murder charge, the Appellant which was the Prosecutor had the right to Appeal against such acquittal within seven (7) days only by virtue of the provisions of Section 4 of the Act. The Appeal was filed out of time and as such the late filing rendered it incompetent On the question as to whether the Judicial etc., Officers and Appeal by Prosecutors Act. No 10 of 1963, is still an extant provision of the law, this is what the apex Court had to say on the subject. In 1989, the Supreme Court applied the provisions of the Judicial etc., Officers and Appeal by Prosecutors Act. No. 10 of 1963, in the case of STATE vs. ADILI (1989) 2 NWLR (PT. 103) 305. This shows that the Act is still extant and applicable till today as an existing law that has not been repealed or superseded. Arising from the foregoing, I cannot help but to hold in 11

17 agreement with learned Counsel and SAN for the Respondent that the Counsel and SAN for the Appellant lacked the competence to apply for and obtain any order to amend the Notice of Appeal by filing additional Grounds of Appeal and to argue such Grounds. The Notice of Preliminary objection is hereby sustained by me because the Notice of Appeal was filed not within seven (7) days as prescribed by law but almost two (2) years, the Appellant being the Prosecutor. Against the background of this position, the Notice of Preliminary Objection is sustained and this Appeal is accordingly struck out. DETERMINATION OF SUBSTANTIVE APPEAL SUBMISSIONS OF COUNSEL; APPELLANT; ISSUE ONE; Whether or not the appellant failed to prove the offences charged against the respondent beyond reasonable doubt. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12) The submission of Counsel is that in the instant appeal, there are sufficient facts or circumstances of the case from which conspiracy can be inferred. He said that these facts or circumstances include direct and circumstantial evidence of the Appellant's witnesses. 12

18 Counsel told Court that the Appellant called PW1 - PW15 to prove the offences of conspiracy to commit murder and murder. Counsel drew attention to page 377 of the Record of Appeal, where he said that the learned trial Judge found that the candidature of late Mr. Samuel Metseagharun (deceased) did not gain popular support from some factions of Ugborodo Community, especially the youth segment and some elders including the Respondent; that the appointment of the deceased as the Chairman of the Ugborodo Community Trust was perceived by the aforesaid members of the community as a threat to their personal and selfish pecuniary interest and that this gave rise to bitterness against the deceased which eventually led to his attack by the Respondent and other accused persons resulting to the death of the deceased. Counsel reproduced in his Brief of Argument the lower Court s summary of the facts evidencing conspiracy at pages of the Record of Appeal. More specifically, Counsel said that evidence was tendered to the effect that: (a) On the 23/9/98 the deceased visited his friend (who testified as PW1 in this proceeding). 13

19 (b) As he was about to enter into his car parked by the side of King's Clinic (a medical centre in Warri where the 1st accused was at the material time alleged to be on Hospital admission) a group of youths descended on him beating and dragging him on the ground. (c) Apart from PW1 who though witnessed the incident but could not identify the deceased s assailants, there were other persons who came upon the incident by chance and were able to identify the following accused persons as being part of the crowd that attacked the deceased. 1. Sandys Uvwoh 1st accused 2. Austin Oborogbayi 2nd accused. 3. Thomas Metseagharun 8th accused. 4. Godwin Urowayino 6th accused 5. Atete Eliki 5th accused 6. Alfred Ebami 10th accused 7. Thomas Ereyetomi 13th accused 8. Isaac Botosan 14th accused 9. Jerry Boyikporo 18th accused 10. Wayne Agba 16th accused. According to Counsel, there was evidence that although 1st accused person was not immediately in the crowd as he was seen on the balcony of King s Clinic passing instructions to the deceased's assailants. Counsel submitted that the Appellant established by concrete 14

20 evidence at the Lower Court that the Respondent and the co-accused persons had common bitterness against the deceased who locked up the Community Trust office on the 23rd day of September, 1998 and that this bitterness was subsequently expressed in the beating of the deceased leading to his death on the 23rd day of September, He said that there is evidence on the record that the decision to assault the deceased was reached in the hospital room of the 1st Accused, who promoted and instigated the assault. He referred to the crucial evidence of the PW11 at pages of the Record of Appeal and the learned Judge's finding at page 389 of the Record of Appeal that the 1st accused person was passing instructions to the assailants of the deceased from the balcony of King's Clinic. To establish that the Appellant proved common intention between the Respondent and other accused persons to murder the deceased, Counsel also relied on the evidence of the PW11 (Mr. Wilson Eseyuwa) at pages of the Record of Appeal who said that he met a number of those accused of killing the deceased at the hospital room of the 1st Accused person, some of whose names, including 15

21 the Respondent herein as follows; Atete Eliki-5th accused; Alfred Ebami-10th accused; Austin Oboregbeyi- 2nd accused; Anthony Eliki-9th accused (now reported dead); Daniel Ejuetami-4th accused (now reported dead); Isaac Bothsan- 14th accused; Mofe Pirah -31st accused; Jerry Boyikporo-18th accused; Thomas Ereyilomi-13th accused; Thomas Metseagharun-8th accused; Godwin Urowayiro-6th accused and Wayne Agba-16th accused. He said that the witness further said that these persons were with the 1st accused both on the 19th and 23rd of September, 1998 when the witness visited him. The Court was also told how these persons rushed past the witness while he was descending the stairs and gathered around the deceased as he was about to enter his vehicle and began to assault him. Counsel also told Court how he saw the 31st, 2nd, 14th and 16th accused persons holding the deceased. The witness also saw the 1st accused along the corridor close to his room instructing that they should not allow the deceased to run and that they should beat him and take him to the trust office to open the door. Counsel told Court that the witness also saw the 31st, 2nd, 14th and 16

22 16th accused persons beating the deceased, hitting him with their hands. Learned Counsel also drew attention to the evidence of the PW15 (Mr. Emmanuel Meke) at pages of the Record of Appeal who also testified in respect of the events of the said 23/9/98. The submission of Counsel on these pieces of evidence is that they established beyond reasonable doubt that the locking of the office/secretariat of the Ugborodo Community Trust by late Mr. Samuel Metseagharun angered the Respondent (31st accused), 1st accused, 2nd accused, 8th accused, 5th accused, 10th accused, 13th accused, 14th accused, 16th accused and 18th accused at the trial Court on the 23rd day of September, 1998; at the King's Clinic, the Respondent with the aforementioned accused persons agreed to deal with the deceased for locking up the office of the Ugborodo community trust. Counsel contended that the learned trial Judge accepted the evidence of the PW11 establishing the common intention between the Respondent and other accused persons to commit the offence when he held at pages of the Record of Appeal in the following manner: "PW11 gave most significant clue to the questions 17

23 arising from Count 1 i.e. conspiracy. His evidence being evidence of an eye-witness (if they were to be believed) of the events of the 19th and 23rd day of September, 1998 leaves no room for conjecture or peradventure as to the common intention of accused persons which is to look for the deceased and retrieve the keys of the Community Trust office...the evidence of the prosecution in support of Count 1 is direct and does not admit of any inference. The submission of Counsel thereafter is that the learned trial Judge failed to act on the credible evidence of the PW11 merely on the ground that the Appellant did not adduce evidence to show that retrieval of keys to the Ugborodo Trust Office was to be executed with force of arms at page 526 of the Record of Appeal. Counsel also submitted that the decision of the learned trial Judge is a misdirection occasioning miscarriage of justice having regard to the weight of evidence adduced by the Appellant of the secret plan of the Respondent and the other co- Accused persons. He said that it is criminal or forbidden by law for the Respondent and other co-accused persons to plot to unlawfully retrieve the keys 18

24 from the deceased, the properly constituted Chairman of Ugborodo Trust and that amounted to self-help which is not allowed in law. Counsel cited the case of GOV. OF LAGOS STATE vs. OJUKWU (1986) 1 NWLR (Part 18) 621 at 636 on self help. It was further contended that the Court below overlooked the crucial point that conspiracy is an offence in the agreement by two or more persons to do or cause to be done an illegal or a legal act by illegal means and that the actual agreement alone constitutes the offence and it is not necessary to prove that the act in fact has been committed. Counsel said that Conspiracy is a matter of inference from certain acts of the parties and that all that is needed is the meeting of minds to commit an offence and this meeting of minds need not be physical. Counsel cited the cases of OBIAKOR vs. THE STATE (2002) 10 NWLR (Part 776) 612 at 628; SALAWU vs. STATE (2015) 2 NWLR (Part 1444) 595 at ; SHODIYA vs. STATE (1992) 3 NWLR (Pt. 230) 457 at 471; OKAFOR vs. THE STATE (2016) 4 NWLR (Part 1502) 248 at 265; CLARK vs. THE STATE (1986) 4 NWLR (Part 35) 381. It was also contended by Counsel that from the evidence 19

25 of the PW11 and PW15, the offence of conspiracy to murder the deceased could be inferentially deduced and that in addition, the PW11 gave unchallenged evidence that the 1st Accused person directed that the Respondent and the other accused persons to look for the deceased and take him to the Trust Office to open the door at page 289 of the Record of Appeal. This is nothing but the best and direct evidence of conspiracy. This tallied with the conclusion of the learned trial Judge at page 526 of the Record of Appeal that: PW11 gave most significant clue to the questions arising from Count 1 i.e. conspiracy. His evidence being evidence of an eye-witness (if they were to be believed) of the events of the 19th and 23rd day of September, 1998 leaves no room for conjecture or peradventure as to the common intention of accused persons which is to look for the deceased and retrieve the keys of the Community Trust office Counsel also contended that the learned trial Judge made a finding that the Appellant's witness' evidence in support of conspiracy (Count 1) was direct in the following terms at page 527 of the Record of Appeals: 20

26 "The evidence of the prosecution in support of Count 1 is direct and does not admit of any inference... However, Counsel argued that the learned trial Judge made a fundamental misdirection by making a contradictory finding at page 527 of the Record of Appeal that: If in the process of that recovery someone or some of them deviated from the original agreement, that one and those other ones will be accountable for his or their actions as was held in the case of Mohammed vs. The State (supra) Counsel further argued that the conflicting and contradictory findings by the learned trial Judge at pages 526 and 527 of the Record of Appeal amounts to gross misdirection and miscarriage of justice to the case of the Appellant; that indeed the findings and conclusions of the learned trial Judge at pages 526 and 527 of the Record of Appeal cancelled out the very evidence on which the success of the Appellant hinged. Counsel stated that the Supreme Court of Nigeria has deprecated such Judgments in the form of judicial parody in: NWOSU vs. THE STATE (1986) 2 NSCC Page 1029 at Page 1038 as per ANIAGOLU, JSC: 21

27 "Swinging like a pendulum, the judgment of the learned trial Judge would make a finding here and in the next breath would countermand that finding with a statement which had the effect of that earlier finding." According to Counsel the picture presented in the ultimate, was one of an inconsistent judgment devoid of any coherent pattern and incapable of synthesized analysis. He submitted in addition that the above conclusions of the learned trial Judge at pages 526 and 527 were at best conflicting and incomprehensible. He said that the lower Court s reliance on the case of MOHAMMED vs. THE STATE (1980) 3-4 SC 1 at 7 is distinguishable from the facts in the present appeal. Counsel said also that from the evidence of PW11 and PW15, the proper inference to be drawn is that the Respondent with other accused persons had common intention to cause harm to the deceased for locking up the secretariat of the community trust. The contention of Counsel is that in this appeal, the Appellant has established by credible evidence that the plot to commit the crime by the Respondent and other accused persons was hatched in the Clinic room at King's 22

28 Clinic of the 1st accused (the promoter and instigator of the beating of the deceased) who purportedly stated that he was receiving treatment for the purported stab wound he allegedly sustained at Agbor from one Dr. Arubi. (See page 382 of the Record of Appeal). He urged this Court to hold that the Appellant proved the offence of conspiracy to murder beyond reasonable doubt having regard to the character of evidence adduced by the Appellant in this case. On the offence of Murder and the death of Mr. Samuel Metseagharun, Counsel contended that it is not in doubt that the deceased was murdered as a result of the act of the Respondent and other accused persons against the deceased that took place on 23rd day of September, 1998 in Warri, Delta State. He also said that it is not in doubt that the murder of the deceased was unlawful. According to Counsel, the learned trial judge accepted the evidence of the PW1, PW2 and PW10 in that regard. He referred Court to page 521 of the Record of Appeal where the Court stated thus: "I have no difficulty in arriving at the conclusion that the deceased died. I accept the evidence of PW1, PW2 and PW10. PW10 is the Medical doctor who performed 23

29 the post mortem on the deceased". Against the backdrop of this position, Counsel said that the Appellant called PW1-PW15 who testified to the murder of the deceased by the Respondent acting in concert with other accused persons in establishing that the Respondent caused the death of the deceased. He further referred to the Appellant's witnesses thus; PW9 at page 281, PW11 at pages and PW13 at pages of the Record of Appeal who gave eye-witness' account of the assault which led to the death of the deceased. Arising from this position, Counsel submitted that eye-witness' evidence is usually the best evidence in criminal trials; that the importance of an eye-witness' evidence is underscored by the fact that it is admissible without the necessity of administering any special warning or about the need for corroboration. He cited the cases of ALIYU vs. STATE (2013) 12 NWLR (Part 1368) 403 at 426; EZEUGO vs. STATE (2013)9 NWLR (Part 1360) 508 at 555; OYAKHIRE vs. STATE (2005) 15 NWLR (Part 947) 159 at 180. Counsel argued that in this appeal, the Appellant's witnesses (PW9, PW11 and PW13) gave direct oral evidence 24

30 or eye-witness' account of the assault meted on the deceased by the Respondent on the 23rd day of September, 1998 and that the Respondent was the 31st accused person at the Lower Court. Counsel also argued that the PW11 and PW13 gave eye-witness evidence which fixed the Respondent to the scene of crime, assaulting/beating the deceased. The further argument of Counsel was that the learned trial judge found the evidence of PW11 and PW13 credible when he held at Page 378 of the Record of Appeal that: There was evidence that although 1st accused person was not immediately in the crowd, he was seen on the balcony of king's clinic passing instructions to the deceased's assailants... There was evidence coming from the mouth of PW11, one Wilson Esejuwa that he was invited to a meeting which took place at King's Clinic on the 23/9/98. The place where he was taken to at King's Clinic was the apartment occupied by the 1st accused who was then on hospital admission. He met the following people already waiting in the apartment... The 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 13th, 14th, 16th, 18th and 31st accused and others he could not recollect then as he gave evidence. 25

31 In his presence at the meeting, the 1st accused instructed them to go looking for the deceased anywhere and recover the Trust Office key from him. The contention of Counsel is that from the above, the direct evidence of the prosecution witnesses clearly established that the Respondent with other accused persons beat the deceased which led to his death. He said in addition that the evidence of the witnesses is consistent as to the commission of the crime by the Respondent and the evidence was not controverted by the Respondent at the trial. According to Counsel the learned trial Judge agreed that the evidence of PW11 and PW13 were consistent and not contradictory at page 512 of the Record of Appeal where he held as follows: I hold that before the extra-judicial statements of PW1, 9, 11 and 13 could be used to contradict their oral evidence in Court they must be tendered as legal evidence. I therefore refuse the invitation to hold that there is material contradiction in the evidence of the prosecution witnesses on the basis of the comparison... The submission of Counsel is that from the direct oral evidence of PW11 and PW13, the Appellant established 26

32 beyond reasonable doubt, the presence of the Respondent at the scene of crime in the assault/beating of the deceased on the 23rd day of September, 1998 which caused his death. On the question of circumstantial evidence adduced by the Appellant to establish the cause of death of the deceased against the Respondent, Counsel submitted that the Appellant, at the trial Court adduced credible circumstantial evidence to prove beyond reasonable doubt that the Respondent's act caused the death of the deceased. Counsel contended that the Appellant established at the Lower Court that the deceased's administration of Ugborodo Community Trust was opposed by some persons who called themselves "youth" and "elders" of the Ugborodo. He said that there is a finding of fact by the learned trial judge at page 377 of the Record of Appeal that the Youth and Elders such as the Respondent opposed the candidature of the deceased as the Chairman of Ugborodo Community Trust and that on the 23rd day of September, 1998, the deceased after writing Exhibit "A" (a letter dated 16th September, 1998) and copied same to the Police, locked up the office of the Community trust. See page 34 27

33 of the Record of Appeal. Counsel contended that it is on record that this act of the deceased by locking of the Ugborodo Trust office engendered hatred and anger from the Respondent and the other accused persons who perceived the deceased'sact as inimical to their pecuniary interest with respect to the office of Ughorodo Community Trust. It was further contended by Counsel that PW11 gave a vivid account of the meeting held by the Respondent and other accused persons at the King's Clinic on the 19th day of September, 1998 and in the morning of 23rd day of September, 1998 discussing in anger the action of the deceased in locking up the trust office and preventing them from using it; that on the instruction of the 1st accused, the Respondent with other accused persons, in fury, went in search of the deceased to confront him (deceased). (See page of the Record of Appeal). Counsel drew attention to page 288 of the Record of Appeal where the PW11 stated that the 10th and 14th accused persons invited him to King's Clinic to meet the 1st accused person to discuss how to retrieve the keys to the office of Ugborodo Trust office. 28

34 According to Counsel the PW15 also testified that he met some of the accused persons namely 10th, 13th and 14th accused persons at the office of Ugborodo Community Trust in the morning of 23rd day of September, 1998 and they wanted to break open the doors to the trust office but for his intervention. (See pages of the Record of Appeal). Counsel stated that the deceased was later found by the Respondent and other accused persons at the scene of crime in front of the King's Clinic where the 1st accused was hospitalized and that in a bid to force the deceased to open the Ugborodo Trust Office, the Respondent with other accused persons under the instigation of the 1st accused from the balcony of King's Clinic, beat up the deceased and dragged him on the ground towards the direction of the Ugborodo Trust Office at No. 34, Upper Erejuwa Road, Warri, a distance of about 500 meters away from the King's Clinic. (See pages and page of the Record of Appeal). The contention of Counsel in this Appeal is that it is beyond doubt that the Respondent's assault on the deceased was borne out of the Respondent's harboured hatred, anger and bitterness for the deceased whose 29

35 candidature as the Chairman of Ugborodo Community Trust, the Respondent, some elders and youth of the community opposed or resisted. He said that the eventual appointment of the deceased as the Chairman of the Community Trust and the locking of the office of the Ugborodo Community's Trust by the deceased prompted the Respondent to viciously attack the deceased with other accused persons, which led to the death of the deceased. This was the finding of the learned trial Judge at page 377 of the Record of Appeal. Having regard to all the circumstances surrounding this case and the evidence adduced by the Appellant, Counsel also contended that facts establishing a premeditated or predetermined mind by the Respondent to deal ruthlessly with the deceased, which act eventually led to the death of the deceased can reasonably be inferred. He submitted that the established facts are cogent, compelling and unequivocal to impute the commission of the crime. Counsel urged this Court to hold that from the Circumstantial evidence available on the record, the Respondent committed the offence. On the defense of Alibi put up by the Respondent at the 30

36 trial Court at pages of the Record of Appeal, Counsel also stated that the Respondent made a statement to the Police i.e. Exhibit "S" dated 19/10/98 at pages of the Record of Appeal and that in the said statement to the Police, the Respondent also raised the defense of Alibi. According to Counsel, like the other accused persons at the trial Court, the learned trial Judge upheld the defense of Alibi set up by the Respondent on the ground that the Respondent promptly raised the defense of Alibi and also gave sufficient particulars of the Alibi to the Police. He said that the learned trial Judge also held that the Police failed to investigate the defense of Alibi raised by the Respondent. Counsel referred Court to pages of the Record of Appeal where the learned trial Judge held as follows: "Lastly the 31st Accused told the Police on his first encounter that he was at Sapele undergoing a religious rite of fasting and prayers. He gave address of the place he visited in Sapele. Again there was no investigation of this claim. This appears to be the situation of the defense of alibi raised by the accused persons...what is the manner of evidence before 31

37 me? I have no doubts in my mind that the accused person not only promptly raised the defense of alibi but they properly gave sufficient particulars, which will enable the Police to investigate them. The few that the Police investigated were confirmed. For instance that of 2nd, 4th and 10th, 13th and 14th accused persons were confirmed. Others were not investigated for whatever reasons the Police gave. I think whatever doubts arising from the Police inability to investigate the alibi should inure to the accused." The submission of Counsel here is that the above finding by the learned trial Judge is erroneous in view of the evidence adduced in this case of the prosecution. He said that apart from the ipse dexit of the evidence of the Respondent, he did not call his aunt as a vital and material witness in whose house he claimed he went for fasting and prayers at the time the crime was committed. Counsel insisted that the Respondent's aunt is a vital and material witness for his defense and that failure of the Respondent to call his aunt as a witness has left a yawning gap in his defense of alibi because the Respondent's alibi remains 32