KAZEEM SOMEFUN v. THE STATE

“It is abecedarian law that the evaluation of evidence and ascription of probative value thereto is in the province of the trial Court, which had the opportunity of hearing the testimony of the witnesses and observing their demeanour and that an appellate Court would not generally interfere with the findings of a trial Court in this regard, unless the same is shown to be perverse: see Onogwu vs. The State (1995) 6 NWLR (PT 401) 276 at 552. Put differently, an appellate Court will not ordinarily interfere with the findings of facts made by a trial Court on credibility of witnesses unless it is shown that such findings are perverse or are not the result of proper evaluation of the evidence. See Sanyaolu vs. The State (1976) 5 SC 37, Rabiu vs. The State (1980) 8-11 SC 130, Adelumola vs. The State (1988) 1 NWLR (PT 73) 683; Sugh vs. The State (1988) 2 NWLR (PT 77) 475 and The State vs. Nnolim (1994) 5 NWLR (PT 345) 394. The findings of facts and conclusions reached on the evidence by the lower Court are definitely not perverse. The Appellant’s failure to show that the findings are perverse signifies the lack of merit in this appeal. See Sande vs. The State (1982) 4 SC 41, The State vs. Aibangbee (1998) 3 NWLR (PT 84) 548 and Dibie vs. The State (2007) ALL FWLR (PT 353) 83 at 102 and 110. In conclusion, the lower Court rightly held that the substantive charge of murder was proved beyond reasonable doubt and was correct to also hold, flowing therefrom, that the count of conspiracy was equally proved beyond reasonable doubt. See Ogogovie vs. The State (2016) LPELR (40501) 1 at 23-26.-

“It is exoteric that in criminal trials, the burden is on the prosecution to prove the offence charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where the evidence adduced is strong as to leave only a remote probability in favour of the defendant, then the case is proved beyond reasonable doubt. In the words of Oputa, J.S.C. (of most blessed memory) in Bakare vs. The State (1987) 3 S.C.1 or (1987) LPELR (714) 1 at 12-13: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373:- ‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence-“of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.” Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. –

“It is rudimentary law that, there are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are: 1. By reliance on a confessional statement of an accused person voluntarily made; 2. By circumstantial evidence; and 3. By the evidence of eyewitnesses. See Emeka vs. The State (2001) 32 WRN 37 at 49, Okudo vs. The State (2011) 3 NWLR (PT 1234) 209 at 236 and Olaoye vs. The State (2018) LPELR (43601) 1 at 13.

“As recognised by the parties and indeed as held by the lower Court at pages 141-142 of the Records, there was no eyewitness testimony in this matter, so it was only on the basis of the Appellant’s confessional statements and circumstantial evidence that the lower Court arrived at a conviction. The legal position seems to be that for circumstantial evidence to amount to proof of a case beyond reasonable doubt, such circumstantial evidence must prove the proposition which it seeks to establish with the accuracy of mathematics: Fatoyinbo vs. A-G Western Nigeria (1966) NMLR 4 and Aigbadion vs. The State (2000) 7 NWLR (PT 666) 686. In Nweke vs. The State (2001) LPELR (2119) 1 at 11, the apex Court held that: “Circumstantial evidence is very often the best. It is evidence of surrounding circumstances, which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.” See also Adie vs. The State (1980) 1-2 SC 116 and Ukorah vs. The State (1977) 4 SC 167. ?In order for circumstantial evidence to secure a conviction in a criminal trial, it must be cogent, complete and univocal. The evidence must be compelling, conclusive and strong and it must lead to the irresistible conclusion that the accused person and no one else must have committed the crime. Indeed, the facts must be incompatible with the innocence of the accused person and incapable of explanation upon any reasonable hypothesis other than that of his guilt: Nweke vs. The State (supra) at 18. –

OFFENCE OF CONPIRACY – WHAT CONSTITUTES THE OFFENCE OF CONSPIRACY? “Now, conspiracy as an offence is the agreement by two or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In Haruna vs. State (1972) 8 – 9 SC 108 or (1972) LPELR (1356) 1 at 23-24, Fatayi-Williams, J.S.C. (as he then was) stated as follows: “Conspiracy as an offence is nowhere defined in the Criminal Code….It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.” The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act, had in fact been committed. Actual commission of the offence may however show the common intention formed before the offence was committed and therefore be proof of the conspiracy: John vs. The State (2016) LPELR (40103) 1 at 10. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. This is so because, persons who agree to do an illegal act or achieve a legitimate end by illegal means do not invite a witness or witnesses to attest to their agreement. See John vs. The State (supra) at 10, Obiakor vs. The State (2002) 36 WRN 1 at 10, Egunjobi vs. FRN (2001) 53 WRN 20 at 54 and The State vs. Osoba (2004) 21 WRN 113.

“Since by its very nature, the offence of conspiracy consists in the meeting of minds for a criminal purpose, whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inference drawn from the surrounding circumstances. See Sule vs. The State (2009) 17 NWLR (PT 1169) 33 and Adejobi vs. The State (2011) LPELR (97) 1 at 36. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence not of the fact in issue, but of other facts from which the fact in issue can be inferred. The evidence in this connection must be of such quality that irresistibly compels to make an inference as to the guilt of the accused person. See Oduneye vs. The State (2001) 13 WRN 88”.

“The general principle of law is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. See Lawson vs. The State (1975) 4 SC 115 at 123, Akano vs. A-G Bendel State (1988) 2 NWLR (PT 201) 232, Amachree vs. Nigerian Army (2003) 3 NWLR (PT 807) 256 at 281 and Nwosu vs. The State (2004) 15 NWLR (PT 897) 466. The focal point of the authorities is that for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose. See Kazeem vs. The State (2009) 29 WRN 43 and Salawu vs. The State (2010) LPELR (9106) 1 at 35-36. –

“I will follow the approach of the lower Court by first considering the substantive offence of murder: Osetola vs. The State (2012) 12 SCM (PT 2) 347 at 365-366 and Jimoh vs. The State (2014) 10 NWLR (PT 1414) 105 at 135-136. The learned counsel on both sides of the divide have redacted the essential ingredients to establish in a charge for murder, id est, 1. That the deceased is dead 2. That the death of the deceased is the result of the act or omission of the accused person (the Appellant herein) 3. That the act or omission of the accused person (Appellant) which has caused the death of the deceased is intentional with full knowledge that death or grievous bodily harm is the probable consequence. See Ilodigwe vs. The State (2012) LPELR (9342) 1 and Uwagboe vs. The State (2008) LPELR (3444) 1 at 29. In order to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused person. The prosecution has to establish not only that the act of the defendant caused the death of the deceased but that in actual fact the deceased died as a result of the act of the defendant to the exclusion of all other possibilities. –

“It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See Adebayo vs. A.G Ogun State (2008) 7 NWLR (PT 1085) 201 at 221, Usman vs. The State (2011) 3 NWLR (Pt 1233) 1 at 11 and Oseni vs. The State (2012) 5 NWLR (PT 1293) 351 at 387. The free and voluntary confessional statement of an accused person alone is enough to sustain the conviction where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See Yesufu vs. The State (1976) 6 SC 167 at 173, Idowu vs. The State (2000) 7 SC (PT II) 50 at 62-63, Dibie vs. The State (2007) 9 NWLR (PT 1038) 30 at 51 and 636, Kaza vs. The State (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195, Oseni vs. The State (supra) at 374 and Egboghonome vs. The State (1993) 7 NWLR (PT 306) 385”. –

“The Appellant retracted the said statements; however, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See Alarape vs. The State (2001) 14 WRN 1 at 20, Kareem vs. FRN (2001) 49 WRN 97 at 111, Ehot vs. The State (1993) 5 SCNJ 65, Egboghonome vs. The State (supra) at 431 and Obisi vs. Chief Of Naval Staff (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement: Hassan vs. The State (2001) 7 SC (PT II) 85 at 93”. –

“An appellate Court will therefore, only interfere to ensure that justice prevails only where the trial Court failed to draw the correct inferences from the evidence or arrived at a finding consequent upon its consideration of extraneous matters. See Lasisi vs. The State (2013) 9 NWLR (PT 1358) 74 at 95 and Bolanle vs. The State (2005) 7 NWLR (PT 925) at 431. In his contribution in Lasisi vs. The State (supra) at 96-97, Onnoghen, J.S.C. (later CJN), quipped: “Once a confessional statement is admitted, following a trial within trial proceeding, it becomes very difficult for an appellate Court to intervene on an appeal against its admissibility as the evaluation of the evidence adduced at the said trial is based on the credibility of witnesses, which duty is solely that of the trial Court as the appellate Court is not privileged to have seen the witnesses testify nor watch their demeanour, etc.” I kowtow. It was the lower Court that saw the witnesses testify; it was satisfied that the evidence adduced at the voir dire established that the confessional statements were voluntarily made and it admitted them in evidence. This Court does not have the same unparalleled advantage which the lower Court had of seeing and watching the witnesses testify; accordingly, there is no basis on which this Court can intervene to hold that the statements were not made voluntarily. –

“In Ogidi vs. The State (2002) 9 NWLR (PT 824) 1 at 23-24 which was followed in Wachukwu vs. Owunwanne (2011) LPELR (3466) 1 at 27-28, contradiction was given the following meaning: “The word ‘contradiction’ is a simple English word. It derives from two Latin words. ‘Contra’ and Deco-ere-dixi-dictum’ meaning ‘to say the opposite’ hence ‘contradictum’: A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains, some minor differences in details.” In the light of what a contradiction is in law, I have examined the confessional statements and they do not affirm the opposite of each other. They are not in themselves inconsistent. Exhibit J1 merely contains a little more than what is in Exhibit G, it is a minor discrepancy and a minor difference in details which is not fatal. The nature of the contradiction and inconsistency which will cast a slur on the evidence or the contradiction which would upturn the decision of a Court has to be material contradictions and not minor discrepancies. This is not the position with the contradiction the Appellant has latched on to in this matter. –

“Coming back to what the law enjoins a Court to do when it is faced with a retracted confessional statement; the law is that a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. Sykes (1913) 1 Cr. App. R 233 has been applied in numerous cases including Ifeanyi vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, Nwaebonyi vs. The State (1994) 5 NWLR (PT 343) 138, Akinmoju vs. The State (2000) 4 SC (PT I) 64 at 81, Ubierho vs. The State (2005) 7 MJ.S.C. 168 at 188- 189 and Alarape vs. The State (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether: 1. There is anything outside the confession to show that it is true. 2. It is corroborated. 3. The facts stated in the confession are true as far as they can be tested. 4. The accused person had the opportunity of committing the offence. 5. The accused person’s confession is possible. 6. The confession is consistent with the other facts ascertained and proved. –

“Now, the doctrine of last seen, which is also known as the last seen theory in some jurisdictions, means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and the circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the accused person to give an explanation relating to how the deceased person met his death in such a circumstance or explaining that he could not be responsible for the death of the deceased. When there is no satisfactory explanation, the trial Court and the appellate Court will be justified in drawing the inference that the accused person killed the deceased. See Igabele vs. The State (2006) 6 NWLR (PT 975) 100 and Haruna vs. A-G Federation (2012) LPELR (7821) 1 at 30-31. In Madu vs. The State (2012) LPELR (7867) 1 at 51 – 52, Ariwoola, J.S.C. stated as follows: “This doctrine is indeed of global application. In some other jurisdictions, it is called ‘the last seen theory.’ In the India case of Rajashkhanna vs. State of A.P. (2006) 10 SCC 172, the India Supreme Court noted as follows: ‘The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.’ However, in S. K. Yusuf vs. West Bengal (2011), the same Supreme Court, after referring to its earlier stand above, further held that where there is a long time gap between ‘last seen together’ and the crime, and there is possibility of other persons intervening, it is hazardous to rely on the theory of ‘last seen together’. Even if time gap is less, and there is no possibility of others intervening, it is said to be safer to look for corroboration.” –

“Howbeit, if arguendo the lower Court was not correct in applying the doctrine of last seen, it will not be fatal where the decision it arrived at is correct, since an appellate Court interrogates whether the correct decision was arrived at and not whether the reason for arriving at the decision is correct. While it is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions, a judgment will not be set aside just because the reasons given were bad, if the judgment itself is right. See Daudu vs. FRN (2018) LPELR (4367) 1 at 42-43, The State vs. Ogbubunjo (2001) LPELR (3223) 1 at 26, The State Of Lagos vs. Omotayo (2020) LPELR (50101) 1 at 7 and Dolor vs. The State (2020) LPELR (52445) 1 at 10”. –

“The law remains that an accused person can be convicted solely on his confessional statement freely and voluntarily made: Saidu vs. The State (1982) 4 SC 41, Tope vs. The State (2019) LPELR (47837) 1 at 12, Imoh vs. The State (2016) LPELR (47989) 1 at 11 and The State vs. Ahmed (2020) LPELR (49497) 1 at 27-28. In the confessional statements, Exhibits G and J1, the Appellant himself, provided material evidence of all the ingredients of the offences he was convicted for and sentenced by the lower Court: Lasisi vs. The State (supra) at 95 and Lase Vs. The State (2017) LPELR (42468) 1 at 17-20. Even though, the Appellant retracted the statements, the lower Court, after due obeisance to the legal prescriptions in that regard, held the confession to be true. So, even without resort to the doctrine of last seen, the Appellant’s confessional statement alone is sufficient to ground his conviction”. –

“The lower Court, having found the substantive offence of murder proved equally convicted for the offence of conspiracy to commit murder. See page 153 of the Records. The lower Court is correct in its decision that the evidence established that the Appellant and the 1st accused person “acted sequel to their common objective or purpose to kill the deceased person”. It is effulgent from the confessional statements and circumstantial evidence that the actions of the Appellant and the 1st accused person, which resulted in the death of the deceased person, were focused towards the realization of their common or mutual criminal purpose: Kazeem vs. The State (supra), Salawu vs. The State (supra) and John vs. The State (supra). In splice, the essential ingredients of the offence of conspiracy, id est, the agreement between two or more persons, in the sense of the meeting of the minds, to carry out an unlawful or illegal act, which is an offence; the bare agreement to commit an offence suffices and the actions showing that the persons involved were engaged in accomplishing a common object or objective: Kaza vs. The State (2008) LPELR (1683) 1 at 56-57, Adekunle vs. The State (1989) LPELR (108) 1 at 22 and Abdullahi vs. The State (2008) LPELR (28) 1 at 20, were established by inference from the surrounding circumstances of the manner in which the deceased was killed. See Sule vs. The State (supra) and Adejobi vs. The State (supra). –