CORAM

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Muhammed Lawal Shuaibu- Justice, Court of Appeal

Muslim Sule Hassan-Justics, Court of Appeal

Hadiza Rabiu Shagari-Justics, Court of Appeal

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PARTIES

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VICTOR OKORO

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW AND PROCEDURE, EVIDENCE, APPEAL, MURDER, CONSPIRACY TO COMMIT MURDER, KIDNAPPING, CONFESSIONAL STATEMENT, COMMON INTENTION, BURDEN OF PROOF, PROOF BEYOND REASONABLE DOUBT, CO-ACCUSED STATEMENT

 

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SUMMARY OF FACTS

By an amended information dated 6th December 2016, the Appellant, Victor Okoro, along with other co-defendants, was charged with offences of conspiracy to commit kidnapping, conspiracy to commit murder, kidnapping, and murder contrary to and punishable under Sections 516, 324, 364, and 316 of the Criminal Code, Cap 37 Vol. I, Laws of Ondo State 2006. All defendants pleaded not guilty and the matter proceeded to trial. The Appellant testified as DW3 and also called another witness in his defence.

The facts disclosed that on 6th July 2019 at about 10:00pm, a group of about four armed men stormed the residence of PW1 — a Personal Assistant to the Managing Director of Ore-Irele Oil Palms, Chief Richard Awofisayo — and commandeered PW1 to the latter’s residence at gunpoint. Both PW1 and the deceased (Chief Richard Awofisayo) were kidnapped; PW1 was released that night but the deceased was taken away. A ransom of N5 million was subsequently collected by the kidnappers at Oluku Junction, Benin City. The deceased was thereafter killed, his body burnt to ashes, and his remains thrown into a river.

At trial, the prosecution led oral and documentary evidence including the confessional statement of the 6th defendant, Ismaila Bakare (Exhibit V), and the Appellant’s own extra-judicial statement (Exhibit U), which were both admitted following trial within trial. The confessional statement of the 6th defendant detailed how the group transported the deceased, how the decision to kill him was made within the group, and how the Appellant participated in the overall scheme. The 6th defendant’s statement narrated that the group took the victim to a bush track along the Ile-Oluji road, and after a gunshot was heard, they emerged from the bush without the victim. The Appellant received N200,000 as his share of the ransom.

PW4, an Investigating Police Officer, testified that the 1st, 2nd, 5th, and 6th defendants admitted to having killed the deceased, took PW4 to the scene of crime at Oluji, and described how the deceased was killed. PW4 also testified that the Appellant was the first person arrested in connection with the offences and that the Appellant confirmed receiving N200,000 as his share, which he used to study computer science.

Notably, the Appellant did not contest his conviction for conspiracy to commit kidnapping and the substantive offence of kidnapping — only his conviction for conspiracy to commit murder and murder. The trial Court found all relevant defendants guilty on all counts and sentenced them to 7 years (conspiracy to kidnap), 10 years (kidnapping), 14 years (conspiracy to murder), and death by hanging (murder). The Appellant appealed against the convictions for conspiracy to commit murder and murder. The Court of Appeal dismissed the appeal.

 

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HELD

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The Court of Appeal dismissed the appeal and affirmed the judgment of the trial Court. The court held that while the confessional statement of a co-accused (Exhibit V) cannot alone ground the conviction of another accused, it may serve as corroborating evidence in support of other pieces of vital evidence, including the Appellant’s own confessional statement (Exhibit U) and the evidence of PW4. The court held that having established common intention to kidnap and murder, all members of the gang were liable for the murder, irrespective of who delivered the fatal blow — the person actually delivering the blow being regarded as the hand by which the others all strike. The court further held that since the Appellant did not contest his conviction for kidnapping, the same evidence that established his guilt for kidnapping and conspiracy to kidnap equally established his guilt for conspiracy to murder and murder of the same victim who died in the hands of his captors. The conspiracy offence was separately established by the surrounding circumstances and the interlocking pieces of evidence. The court found no merit in the appeal.

 

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ISSUES

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1. Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the offence of murder?

2. Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the offence of conspiracy to commit murder?

3. Whether the trial Court was right to rely on the confessional statement of the 6th defendant (Exhibit V) in convicting the Appellant?

4. Whether the Appellant’s own confessional statement (Exhibit U), having been retracted, could be relied upon by the trial Court?

5. Whether the doctrine of common intention applies to make the Appellant liable for the murder committed by his co-defendants during the kidnapping?

 

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RATIONES DECIDENDI

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PROOF BEYOND REASONABLE DOUBT — DOES NOT MEAN PROOF BEYOND ALL SHADOW OF DOUBT BUT PROOF THAT LEAVES ONLY A REMOTE AND FANCIFUL POSSIBILITY IN FAVOUR OF THE ACCUSED

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“Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt or proof beyond unreasonable fanciful doubt. If after an examination of the evidence led by the prosecution and the accused person, the judicial mind of the Court is affected only by some fanciful doubt which does not play reasonably on the mind of the Court, the prosecution would have met the threshold of proof beyond reasonable doubt as required by law. If the evidence is so strong against a man 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 but nothing short of that will suffice.'” — Per Muhammed Lawal Shuaibu, JCA

 

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CO-ACCUSED CONFESSIONAL STATEMENT — CANNOT ALONE GROUND CONVICTION OF ANOTHER ACCUSED BUT MAY SERVE AS CORROBORATING EVIDENCE TO SUPPORT OTHER VITAL EVIDENCE

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“A statement made by an accused person to the Police may amount to an admission of the offence for which he is charged and such a statement and the facts admitted therein are admissible only against the maker of the statement and not against a co-accused. But where the accused goes into the witness box and repeats on oath the contents of his statement to the Police, they become evidence for all purposes, admissible in law and can be acted upon by the Court against a co-accused.” — Per Muhammed Lawal Shuaibu, JCA

 

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COMMON INTENTION — WHERE TWO OR MORE PERSONS FORM COMMON INTENTION TO PROSECUTE UNLAWFUL PURPOSE AND MURDER IS COMMITTED AS PROBABLE CONSEQUENCE, EACH IS DEEMED TO HAVE COMMITTED THE OFFENCE

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“Once it is established that two or more persons formed the necessary common intention to prosecute an unlawful purpose and in the prosecution of such purpose an offence of such nature that its commission was probable consequence of the prosecution of purpose is committed, each of them is deemed to have committed the offence. In such circumstances, once the execution of the common intention or decision is established, the Court would be right in asserting that it did not matter on such facts which of the accused persons did what. A fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have been given by the rest of his co-accused persons. The person actually delivering the blow is regarded to be no more than the hand by which the others all strike.” — Per Muhammed Lawal Shuaibu, JCA

 

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CONSPIRACY TO COMMIT MURDER — MAY BE INFERRED FROM CIRCUMSTANTIAL EVIDENCE AND FROM INTERLOCKING EVIDENCE ESTABLISHING MEMBERSHIP OF A GANG WITH COMMON PURPOSE

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“Conspiracy generally is an agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement, objective and action or conduct that further the agreement. In order to establish the offence of conspiracy it is therefore not necessary that the conspirators should know each other, so long as they know of the existence and intention or purpose of the conspiracy. Conspiracy to commit an offence is quite often inferred from circumstantial evidence.” — Per Muhammed Lawal Shuaibu, JCA

 

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CONVICTION FOR KIDNAPPING NOT APPEALED — DEEMED ACCEPTED AND SAME EVIDENCE ESTABLISHING KIDNAPPING ALSO ESTABLISHES CONSPIRACY TO MURDER AND MURDER OF VICTIM WHO DIED IN CAPTIVITY

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“The Appellant had no qualm on the evidence being relied by the trial Court that convicted him for conspiracy to commit kidnapping and the substantive offence of kidnapping the very victim who was killed in the hands of his captors, then one wonders what complain does he have against the same piece of evidence that establish his guilt for conspiracy to commit the murder of the same victim.” — Per Muhammed Lawal Shuaibu, JCA

 

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RETRACTED CONFESSIONAL STATEMENT — RETRACTION DOES NOT RENDER STATEMENT INADMISSIBLE WHERE ADMITTED AFTER TRIAL WITHIN TRIAL AND FOUND TO BE VOLUNTARY

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“Both Exhibits U and UI were admitted after a trial within trial and the Court may convict an accused person on his extra-judicial statement which is voluntary and true but inconsistent with his evidence in Court.” — Per Muhammed Lawal Shuaibu, JCA

 

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JUDGMENT NOT APPEALED AGAINST — DEEMED ACCEPTED AS CORRECT, CONCLUSIVE, SUBSISTING AND BINDING ON THE PARTIES

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“The law is settled that judgment not appealed against means that same is accepted as correct, conclusive, subsisting and binding on the parties to the case.” — Per Muhammed Lawal Shuaibu, JCA

 

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ELEMENTS OF MURDER — PROSECUTION MUST PROVE DEATH OF A HUMAN BEING, CAUSED BY ACT OR OMISSION OF ACCUSED, WITH INTENTION TO CAUSE DEATH OR GRIEVOUS BODILY HARM

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“For an offence of murder to be proved beyond reasonable doubt, the prosecution must lead evidence to establish the following essential elements: (a) that the death of human being has occurred; (b) that the death was caused by an act of or omission of the accused; and (c) that the act or omission was done with the intention of causing death or grievous bodily harm or that the accused knew that death or grievous bodily harm was a probable result of his act or omission.” — Per Muhammed Lawal Shuaibu, JCA

 

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WAYS OF PROVING CONSPIRACY — BY DIRECT COMMUNICATION, HUB AND SPOKE, OR CHAIN OF CONSPIRACY WHERE EACH PARTICIPANT IS RESPONSIBLE FOR DISTINCT ACT IN OVERALL PLAN

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“Conspiracy may be formed in any of the following ways: (a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design. (b) There may be one person who is the hub around whom others resolve like the Centre of a circle and the circumference. (c) A person may communicate with (A) and with (A) with (B) who in turn communicate with another and so on. This is called a chain of conspiracy. That is, a single conspiracy in which each person is responsible for a distinct act for the overall plan. All participants are interested in the overall scheme and liable for all other participant’s act in furtherance of that scheme.” — Per Muhammed Lawal Shuaibu, JCA

 

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COMMON INTENTION AND MURDER IN FURTHERANCE OF KIDNAPPING — PARTICIPATION IN KIDNAPPING WHICH RESULTS IN MURDER RENDERS ALL PARTICIPANTS LIABLE FOR MURDER

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“The common intention to participate in the kidnapping and the participation of the Appellant in the kidnapping; automatically made him a party to the murder and conspiracy, as it is the intention to kidnap that ultimately led to the murder of the Appellant to which he was compensated with N200,000.00.” — Per Muhammed Lawal Shuaibu, JCA

 

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BURDEN OF PROOF IN CRIMINAL CASES — LIES PERMANENTLY ON THE PROSECUTION TO PROVE EACH ELEMENT OF EVERY OFFENCE BEYOND REASONABLE DOUBT

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“By virtue of Section 135 of the Evidence Act, 2011 the prosecution bears the onerous burden of proving the guilt of an accused person in Criminal case beyond reasonable doubt. The duty of the prosecution to prove the commission of the offence against the accused person beyond reasonable doubt extends to proving each element or ingredient of each offence charged against the accused person beyond reasonable doubt. Failure to prove the essential elements or ingredients of the offences charged beyond reasonable doubt will undoubtedly lead to failure of the charge in respect of that particular offence.” — Per Muhammed Lawal Shuaibu, JCA

 

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CONSPIRACY — OFFENCE IS SEPARATE AND DISTINCT FROM THE SUBSTANTIVE OFFENCE WHICH IS ITS OBJECT AND IS PROVED BY AGREEMENT BETWEEN TWO OR MORE PERSONS WITH INTENT TO ACHIEVE THE UNLAWFUL OBJECTIVE

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“Conspiracy generally is an agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement, objective and action or conduct that further the agreement. It is therefore a separate offence in itself from the crime that is the object of conspiracy.”— Per Muhammed Lawal Shuaibu, JCA

 

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CO-ACCUSED CONFESSIONAL STATEMENT AS CORROBORATION — WHERE ACCUSED’S OWN STATEMENT AND EVIDENCE OF INVESTIGATING OFFICER ARE IN ACCORD, CO-ACCUSED STATEMENT LENDS CREDENCE AND CORROBORATES GUILT

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“The Appellant having himself confessed to playing pivotal role in kidnapping the victim which resulted in his death while he remained in their captivity, such confessional statement of a co-accused can be used as corroborating evidence to support other pieces of vital evidence, pointing to the fact that the co-accused committed the offence. Although, the 6th defendant cannot confess for the Appellant, his confessional evidence however lends credence to his own confessional statement in Exhibit U as well as the evidence of PW4, an investigating Police officer, which together pointed to the fact that the Appellant committed the offence of murder charged.” — Per Muhammed Lawal Shuaibu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended) — Section 36(5)

• Evidence Act 2011 — Section 135

• Criminal Code, Cap 37 Vol. I, Laws of Ondo State 2006 — Sections 8, 316, 324, 364, 516

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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1. OLUWATOSIN IYAYIFor Appellant(s)

2. R. T. OLUBODUN, DPP, with him, ALABA USIOYE, SLO, MINISTRY OF JUSTICE ONDO STATEFor Respondent(s)