CORAM

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PARTIES

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CPL ENOBONG UDO

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THE STATE

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Appellant with 3 others were arraigned before the Akwa Ibom High Court, on a two count charge of conspiracy and murder. They were alleged to have killed a commercial motorcyclist while on patrol along Abak Road. That three Police men from the “C” Division of the State Police command on that day opposite the Federal Secretariat, seized 3 motorcycles belonging to some persons, amongst which was the deceased. Almost immediately, a police car arrived the scene with the Appellant (3rd accused) on the wheels, he met the cyclists struggling with the Policemen who impounded their motorcycles and two cyclists were able to wrestle their motorcycles from the policemen and escaped, leaving the deceased behind with his motorcycle. The 2nd accused, a senior officer, was Inspector Akpaette Moses sat at the front passenger seat of the police car. It was in evidence that the 2nd accused fired some shots to scare the crowd that had gathered and the third shot was aimed at the deceased who was hit on the thigh. He died on his way to the teaching hospital. The 3 other police men joined their colleague in the car and drove away from the scene of crime. The trial court after hearing of witnesses and consideration of counsel closing addresses, found the Appellant guilty of the two offences charged; namely conspiracy and murder. He was accordingly sentenced to 14 years for conspiracy and death by hanging for murder. Dissatisfied with the conviction and sentence, the Appellant appealed to the Court of Appeal, holden at Cabalar via his Amended Noticed of Appeal contending that the evidence presented by the Respondent was deficient and could not have been strong enough to ground his conviction.

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HELD

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Appeal Allowed

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ISSUES

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Whether from the totality of evidence adduced at the trial, the prosecution had proved the two count charge of conspiracy to murder and murder against the Appellant and others beyond reasonable doubt, and had clearly debunked the defence of self-defence as contained in Force Order 237 relied upon by the Appellant.

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RATIONES DECIDENDI

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ACCESSORY AFTER THE FACT – DEFINITION OF AN ACCESSORY AFTER THE FACT

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“The struggle for the motor cycle did not involve other members of the Police team but was between the deceased and the 3rd convict. The participation of the appellant was when he held no gun. The evidence of PW1 and PW4 was that he went to the car to collect a gun. However, it was the 2nd convict who shot. The Appellant could at best be an accessory after the fact. Abacha Vs. State (2002) LPELR-16(SC) Accessory after the fact was defined as follows:
“An accessory after the fact is defined in “The Criminal Law and Procedure of Lagos, Eastern Nigeria and Western Nigeria” by Brett and Mclean as follows: “A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.”
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OFFENCE OF MURDER- DUTY ON THE PROSECUTION TO ESTABLISH THE ELEMENTS OF THE OFFENCE OF MURDER

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“The trial court did not consider this aspect because the Appellant was found guilty of the principal offence. The offence of murder and elements the prosecution must, as a matter of duty must be establish, see Okoro Vs. The State (2018) LPELR-444272(CA) where my learned brother Mbaba, JCA restated thus:
“The legal ingredients of offence of murder are well known; that to establish the offence of murder, there must be evidence of death (of the deceased); that the death of the deceased resulted from the act/omission of the accused person(s), and that the said act/omission of the accused person intended the death of the deceased, or to cause him grievous bodily harm; that is, the accused did the act/omission, intentionally, with the knowledge that death or grievous bodily harm would be its probable consequence. See Omotola Vs. The State (2009) 7 NWLR (PT.1139) 148; (2009) LPELR – 2663 SC; Ndukwe Vs. The State (2009) 37 NSCQR 425 at 459 – 460; Nwachukwu Vs the State (2002) 3 FWLR (PT.123) 321; Obasi Vs. The State (2014) LPELR – 24013 (CA); Sule Vs. State (2009) 19 NWLR (PT.1169) 33; Akpa Vs. State (2008) 14 NWLR (PT.1106) 72; Musa Vs the State (2014) 1 LPELR – 22912 (CA).”
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OFFENCE OF MURDER- WAYS OF ESTABLISHING THE OFFENCE OF MURDER

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“It is also the law, that offence of murder can be established by any one of the following 3 ways:
(1) By positive, direct evidence of an eye witness of the murder. See Chukwunyere Vs. The State (2014) LPELR – 23779 (CA); Galadima Vs. The State (2013) LPELR – 20402
(2) By cogent circumstantial evidence which points, directly, unmistakably and conclusively at the Accused person, as the one from whom the guilt for the murder can be inferred. See Nasiru Vs. The State (1999) 2 NWLR (pt.589) 82; Chiokwe Vs. The State (2005) NWLR (pt.918) 424; Obasi Vs. The State (2014) LPELR – 24013 (CA);
(3) By confessional statement of the accused person, must be adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs. A.G. of the Federation (2012) (2009) LRCN 70 at 96; (2012) 32 WRN 1; (2012) 9 NWLR (pt.1306) 419; Obasi Vs the State supra. –

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OFFENCE OF CONSPIRACY- DEFINITION OF CONSPIRACY AND ITS NATURE

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“On the nature of conspiracy, the apex court in the case of Awosika Vs. State (2018) LPELR-44351(SC) said:
“It is pertinent to say that the word “conspiracy” has been described in Mulcahy vs R (1968) 3 HC at 377 when Willes J of House of Lords stated thus: – “A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So being as a design rest in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus centra acins, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. (emphasis supplied by me) See also cases of Patrick Njovens & Ors vs The State (1973) 5 SC 17; Dabo & Ors vs The State (1994) 5 NWLR (Pt.346) 535.
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OFFENCE OF CONSPIRACY- WHETHER THE OFFENCE OF CONSPIRACY CAN BE PROVED BY DIRECT EVIDENCE

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“It is now settled law, that the offence of conspiracy can most of the time, be established through inferences of common design or agreement by two or more persons to do or not to do a criminal act. The offence of conspiracy is seldomly capable of being proved through direct evidence, but is largely established through inferences from the act or action of the parties thereto, which said act was focused towards realization or achieving a common or natural criminal purpose. See. Oduneye vs. The State (2001) 1 SC (Pt.1) 1 at 617. Godwin (Isienei) Chianugo vs. State (2001) FWLR (Pt.74) 242 at 251; Kenneth Clark & Anor vs The State (1986) 4 NWLR (Pt.35) 381; Musa vs. The State (2005) FWLR (Pt.262) 343 at 353/354.” Per Sanusi, JSC”.

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OFFENCE OF CONSPIRACY – PROPER APPROACH TO AN INDICTMENT CONTAINING CONSPIRACY CHARGE AND SUBSTANTIVE CHARGES

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“I must state that the proper approach to an indictment containing conspiracy charge and substantive charges is to deal with the later, that is, the substantive charges first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. Conspiracy being an agreement between two or more persons is either to do a lawful act by unlawful means or to do an unlawful act. Failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence, independent of the actual offence conspired to commit. See: Segun Balogun vs. Attorney General Ogun State (2002) 2 SC (pt.11) 89, (2002) 4 SCM 23, (2002) 2 SCNJ 196. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. It is, therefore, the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complicity of any of those charged with that offence.” See Coker J.S.C in Njovens Vs. The State (1972) LPELR- 2042(SC)”. –

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CASES CITED

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STATUTES REFERRED TO

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