Omojola Akinlolu V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Akure Division – Coram: Mojeed A. Owoade, JCA, Mohammed A. Danjuma, JCA, James S. Abiriyi, (JCA) delivered on the 7th day of August, 2014, which dismissed the appellant’s appeal against the judgment of the Ondo State High Court, delivered on the 5th day of August, 2005, Coram: F. O. Aguda-Taiwo, J. which convicted and sentenced the appellant to death by hanging.

The facts of this case are as follows:- Sometime on the 26th day of February, 2007, the appellant and two others Segun Akinsuwa and Ayo Omoduyilemi had been arraigned before the Ondo State High Court, at the Ore Judicial Division on two count charge of conspiracy to commit murder punishable under Section 516 and for Murder contrary to Section 316 and punishable under Section 319(i) both of the Criminal Code, Cap 30 volume II, Laws of Ondo State of Nigeria, 1978; now Volume I, Cap 37, Laws of Ondo State, 2006.

The appellant and the other two accused persons had pleaded not guilty to the charge. The prosecution called four (4)

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witnesses and tendered Exhibits 1-10A and ID 1-9. The appellant as the 2nd accused testified for himself but called no other witness in defence.

The case for the prosecution was that on or about the 3rd day of June, 2003, the appellant had conspired with the two other accused, lured to the farm, raped and killed one Mrs. Silifatu Rahman, otherwise known as Mama Lekan.

The defence by the appellant was a total denial in his oral testimony in Court. He had maintained that he knew nothing about the killing of the deceased, let alone participating in the murder. However, in his extra judicial statement earlier made to the police, the appellant had admitted that he actively participated in the raping of the deceased. It is interesting to note that the said extra judicial statement when tendered without objection was admitted and marked Exhibit 6.

It is note worthy that before the 3rd accused opened his defence, the prosecution informed the Court that the 3rd accused had been released from custody on the ground of ill health by the State Committee on Administration of Criminal Justice headed by the State Chief Judge, and upon the application

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of the prosecuting counsel, the name of the 3rd accused person was accordingly struck out.

In the considered judgment, the trial Court expressed the Court’s displeasure over the development and recommended the re-arrest and prosecution of the 3rd accused. The appellant was found guilty as charged, convicted and sentenced to death.

Being dissatisfied, the appellant, by an amended Notice of Appeal filed on 13/09/2012 appealed to the Court below. In its unanimous decision, the Court below on 7/8/2014 dismissed the appellant’s appeal and affirmed his conviction and sentence. That has led to the instant further appeal to this Court via his Notice of Appeal filed on 22/9/2014 which was later amended on 28/10/2014.

Parties subsequently filed and exchanged their respective brief of argument. In the appellants of argument settled by Adekunle Ojo, Esq. the following three issues were distilled for the determination of the appeal.

Issues for Determination

1. Whether the Court of Appeal erred in law to have affirmed the conviction of the appellant of murder when the evidence adduced by the prosecution did not lead to the

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irresistible conclusion that the appellant in collaboration with others killed Mrs. Silifatu Rahman. (Grounds 2, 3, 4, 6 and 7).

2. Whether or not the learned Justices of the Court of Appeal erred in fact and in Law in affirming the decision of the High Court that the prosecution proved the offence of Conspiracy to commit murder beyond reasonable doubt against the appellant. (Grounds 1 and 5).
3. Whether in view of the learned trial Judge’s failure to comply with Section 215 of the Criminal Procedure Laws of Ondo State and Section 36 of the Constitution of the Federal Republic of Nigeria, the arraignment and subsequent proceedings including the conviction of the appellant are nullities. (Ground 8).

In the respondent’s brief of argument settled by Tunde Babalola, Esq. which was deemed filed on 13th April, 2017, the following three issues were formulated from the eight (8) Grounds of Appeal contained in the appellant’s amended Notice of Appeal.

1. Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved its case beyond reasonable doubt at the trial Court. (Grounds 2, 3, 4 and 5).
2. Whether

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the learned Justices of the Court of Appeal misapplied the provisions of Sections 7(b) and 8 of the Criminal Code, Cap 37 Vol. I, Laws of Ondo State, 2006, thereby occasioning a miscarriage of justice. (Grounds 1, 6 and 7).

3. Whether the appellant was not properly arraigned at the trial Court, thereby resulting in lack of fair hearing. (Ground 8).

There is no doubt, a close look at the respective three issues formulated by both appellant and respondent from the eight grounds of appeal contained in the Amended Notice of Appeal filed by the appellant, shows that they are saying the same thing though differently couched.

In arguing issue No.1, learned appellant’s counsel submitted that the decision of the Court below which upheld the conclusions of the trial Judge that the appellant had common intention with the 1st accused to murder the victim is perverse and occasioned a miscarriage of justice to the appellant.

Learned counsel contended that from the confessional statements admitted by the trial Court and the findings of the Court below and the trial Court, the following assertions can be successfully made:

(a) That the

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appellant, the 1st accused and the 3rd accused persons had carnal knowledge of one Silifatu Rahman.

(b) That the 1st accused person killed the said Silifatu Rahman.

(c) That in view of the confessional statements, the appellant and the 3rd accused person were forced by 1st accused person to have carnal knowledge of the deceased.

(d) That the death of the deceased did not result from the act of the appellant.

(e) From the medical evidence, the deceased did not die due to any proved act of the appellant.

Learned counsel contended that since the appellant did not act in any manner with the knowledge that the deceased was going to die, he cannot be found culpable of murder under Section 316 of the Criminal Code, Cap.30 Vol. II, Laws of Ondo State. He submitted that the prosecution did not prove beyond reasonable doubt that:

(a) The death of the deceased resulted from the act of the appellant; and

(b) The act of the appellant was intentional, with knowledge that death was probable consequence of his act or acts.

Learned counsel referred to the findings of the trial Judge in his judgment on the cause of death and who was

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responsible. He referred to Exhibits 5, 6 and 7 and the trial Court’s conclusion that the death of the deceased was caused by the 1st accused who stabbed the deceased with a knife on her throat, neck and jaw.

Learned counsel contended that the said findings by the trial Court were never challenged by the prosecution at the Court below and the Court below did not find anything to the contrary. He submitted that the killing of the deceased was actually caused by the 1st accused but not the appellant.

Learned counsel contended that on the facts of this case, there was no sufficient evidence of culpability which the law requires before an accused can be convicted of murder. He contended further that since the deceased died from a cause which was not an act of the appellant, he submitted that the prosecution did not establish a case of murder or conspiracy to murder against the appellant. He relied on Udosen v. State (2007) 4 NWLR (Pt. 1023) 125; R v. Nwokocha (1949) 12 WACA 453; R v. Owe (1961) 2 SCNLR 354; Rex v. Samuel Abengore 3 WACA 85; Joseph Lori v. State (1980) 8 SC 52 at 61.

Learned counsel contended that it has been shown by the

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concurrent findings of the Court below that the deceased died as a result of the act of the 1st accused but not that of the appellant. He however submitted that the concurrence of the two Courts below that there was common intention to kill the deceased and thereby invoked the provisions of Sections 7 & 8 of the Criminal Code of Ondo State to convict and uphold the conviction of the appellant. He submitted that the said concurrence is perverse and unsupportable by the evidence on record.

Learned counsel referred to the findings of the Court below and submitted that they are unfounded in law and not supported by the evidence on record. He concluded that the appellant was not a party to the crime of murder of the deceased.

Learned counsel contended that from the decisions of both Courts below, the conviction of the appellant was premised on the fact that though they lured the deceased to the farm so that they could rape her but that the appellant was present and did not stop the 1st accused from killing the deceased. He submitted that the position taken by the two Courts below was perverse and not in consonance with the successive

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interpretation of Sections 7 and 8 of the Criminal Code by the Apex Court and the facts on record. He relied on Lori v. State (supra); Akinkunmi v. The State (1987) 3 SC 99.

Learned counsel referred to Exhibit 6 – the alleged confessional statement of the appellant and Exhibits 5 and 7 being the Statements allegedly obtained from the 1st and 3rd accused persons. He contended that the facts on record did not point irresistibly to the fact that the appellant had a common object with the 1st accused to kill the deceased.

Learned counsel conceded that the appellant with the 1st and 3rd accused may be guilty of rape but definitely the appellant should not have been convicted for the offence of conspiracy to commit murder and the murder of Silifatu Rahman.

He submitted that the appellant could not be said to be caught by the provisions of Sections 7 and 8 of the Criminal Code as prosecuting a common object with the 1st accused person to kill the deceased. He contended that there was nothing done by the appellant for the Courts below to have concluded that he aided and abetted the killing of the deceased. He relied on Mohammed v. State (1980) 3-4 SC 56.

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Learned counsel contended further that the appellant cannot, in law be found culpable of the offence of murder just because he did not rescue the deceased when the 1st accused attacked her. He argued that whereas, the appellant and the 3rd accused may be validly tried for aiding and abetting the commission of the offence of rape but not for the offence of murder which was beyond the common object of the trio. He submitted that where the crime committed eventually is different from the one which the appellant abetted, the appellant cannot be validly convicted of the crime which was eventually committed. He relied on R v. Bainbridge (1960) 1 QB 129. He submitted further that there was no evidence led by the prosecution to show that the appellant wanted the deceased dead.

Learned counsel referred to the testimony of PW4 the medical doctor and contended that his testimony that the deceased was raped before she died is in consonance with the alleged confessional statements of all the accused persons including the appellant. He contended further that the unlawful purpose that can ever be ascribed to the accused persons as their

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common object and intention was rape; but not to kill. He submitted that the appellant is not guilty of murder by virtue of Section 8 of the Criminal Code. He relied on the analysis of Section 8 by this Court, per Eso, JSC in Akinkunmi & 3 Ors v. State (1984) 3 SC 99 at 107.

Learned counsel contended that the intention to kill the deceased was not proved against the appellant. He argued that neither the general nor specific intention was ever traced to the appellant. He contended further that where two or more persons are charged with the offence of murder, in order to secure the conviction of all the accused persons, the prosecution must prove common intention between the accused persons by leading convincing and credible evidence to that effect. He relied on Mbang v. State (2007) All FWLR (Pt. 372) 1862. He submitted that the prosecution did not lead any tangible evidence against the appellant from which the Court may infer that he collaborated with any other person to kill or for which he could be said to have common intention, in order for him to be liable for murder.

Learned counsel submitted that the appellant was coerced and

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intimidated by the 1st accused person after he stabbed the victim. He referred to the alleged confessional statement of the 3rd accused, Exhibit 7 where he stated that the 1st accused – Segun threatened to kill him and the appellant if they refused to have sex with the deceased. He argued that these facts were not controverted by the prosecution at the trial. He submitted that where an accused person leads an uncontradicted evidence that he was intimidated and or coerced to witness the commission of a crime he cannot be guilty of aiding the commission of such crime. In such a circumstance, common intention was not disclosed in evidence and could not be inferred from the circumstances of this case. He urged the Court to hold that there was neither a common object nor a common intention between the appellant and the 1st accused who is alleged to have stabbed the deceased, as to hold the appellant guilty of murder either as a joint principal or as an abettor.

Learned counsel submitted that the use of the knife by the 1st accused on the deceased which resulted in her death was outside the common intention of the parties and the mere presence of the

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appellant at the scene when the injury was inflicted on the deceased cannot amount to his aiding and abetting the killing of the deceased. He urged the Court to resolve the issue in favour of the appellant.

In arguing this issue one, learned counsel for the respondent submitted that the learned Justices of the Court of Appeal (herein referred to as the Court below), were right in holding that the prosecution proved its case beyond reasonable doubt before the trial Court, in view of the fact that the ingredients of the offences of conspiracy and murder were established against the appellant through compelling circumstantial evidence and the appellant’s confessional statement which was admitted without objection at the trial and had been proved to be true and sufficiently corroborated by the evidence of prosecution witnesses.

He gave the ingredients which the prosecution is required to establish, either directly or circumstantially, to prove conspiracy. He relied on Omojola & Ors v. The State (2009) 3 SCM 127; Gbadamosi v. The State (1991) 5 NWLR (Pt. 196) 182.

He referred to the confessional statement of the appellant – Exhibit 6

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which was admitted in evidence without objection and contended that the said statement become part of the prosecution’s evidence. He relied onPrince Will v. The State (1994) 7-8 SC (Pt. 11) 226 at 240.

Learned counsel quoted from the extra-judicial statement of the appellant at page 17 of the record and submitted that the thrust of the said statement is an agreement between the appellant and the other two accused persons to commit an unlawful act of rape.

Learned counsel also referred to pages 121 and 318 of the record of proceedings for the findings of both Courts below and contended that the appellant and his cohorts conspired to rape the deceased and in the process, death ensued. He contended that it did not matter which of them committed the particular act which caused the deceased’s death. Learned counsel contended that since the appellant and the other accused acted in concert, he submitted that they all committed conspiracy and murder. He urged the Court to so hold that the prosecution proved beyond reasonable doubt that the appellant committed the offence of conspiracy as charged. He relied on State v. Olatunji (2003) NWLR (Pt. 175)

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395 at 409-410.

Learned counsel referred to the ingredients of murder and relied on Ndukwe v. The State (2009) 2 SCM 147; Okeke v. The State (1999) 2 NWLR (Pt. 590) 246 at 273.

He referred to the bundle of evidence adduced by the prosecution through PW2, PW3 and PW4. He contended that it is not in dispute that one Mrs. Silifatu Rahman died and that she did not commit suicide. He submitted that with Exhibit 9 which was the medical report tendered through PW4 – the pathologist, the death of the deceased was established and he urged the Court to so hold.

Learned counsel referred to the extrajudicial statements made by the accused persons and contended that they corroborated each other to the effect that the deceased died while the appellant and his cohorts were taking turns in raping her. He relied on Section 7(b) of the Criminal Code, Cap 32, Vol. I Laws of Ondo State, 2006, which requires that every person who does or omits to act for the purpose of aiding another person to commit the offence is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing the offence.

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He referred to the confessional statements of the appellant and the cohorts and submitted that it will be contrary to reason for the appellant to maintain that he raped the deceased in obedience to the 1st accused instruction after he had admitted that he had earlier been informed by the 1st accused that their main reason for going to the farm with the deceased on the fateful day was to rape her.

Learned counsel referred to the testimony of the pathologist – PW4 on the cause of death of the deceased. He submitted that from the testimony of PW4, it could rightly be deduced that the deceased died as a result of the combined effects of the physiological trauma of the injuries inflicted on her by the 1st accused, which the appellant tacitly approved and the psychological effect of being raped in her critical condition in which the appellant actively participated. He submitted further that it is not in all cases of prosecution of murder that medical evidence solely determines the cause of death. He relied on Onwumere v. The State (2009) 8 ACLR 411 at 442; Omoruju v. State (1976) 5 SC 1.

Learned counsel contended that from Exhibit 6

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the confessional statement of the appellant which was properly admitted and to which probative value was ascribed, the appellant, he submitted, did not only implicitly consented to the infliction of a fatal injury on the deceased’s neck, not her leg, by not fleeing from the repulsive scene, but also approved of the same by raping the victim in this helpless and miserable situation.

He submitted further that it can thus be rightly inferred that the act of the appellant and others was intentional with the knowledge that death or grievous bodily harm was its probable consequence. He citedEhiot v. The State (1993) 4 NWLR (Pt. 29) 644 at 663; The State v. Usman (2007) 5m ACLR 34 at 68.

He urged the Court to resolve issue one against the appellant.

There is no doubt that the first issue of the appellant which was said to have been distilled from five grounds – 2, 3, 4, 6 and 7 of the grounds of appeal seems to be all embarrassing and as argued by both learned counsel may have been sufficient enough to dispose of the appeal. However, after dealing with the issue, if need be, the other issues may also be addressed. In my view, the issue is

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mainly whether the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offences of conspiracy to murder and murder with the bundle of evidence adduced by the prosecution as to who and how the deceased was killed.

As earlier stated, the appellant and two others were charged with the offences of conspiracy to murder and murder of one Silifatu Rahman on the 3rd day of June 2003 after luring her away to the farm to rape her. But the appellant’s defence was a total denial in his oral testimony in Court.

Generally, and this is already established by decided cases that in a prosecution on a charge for murder under our Criminal Code as in this instant case, the prosecution is required to prove beyond doubt the following:

(i) That the deceased had died;

(ii) That the death of the deceased resulted from the act of the appellant;

(iii) That the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See; Richard Tgago v. The State (1999) 14 NWLR (Pt. 637) 1 (1999) 10-12 SC 84.

However, these three conditions must co-exist

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and none must be missing or absent. But where one is absent or tainted with doubt, then the charge is said not to be proved by the prosecution against the accused standing trial. See; Godwin Igabele v. The State (2006) 6 NWLR (Pt. 975) 100; (2006) SCM…… Ogba v. The State (1992) 2 NWLR (Pt. 222) 164 at 198; Abainta O. Ubani & Ors v. The State (2003) 18 NWLR (Pt. 851) 224; (2003) 12 SC (Pt. 11) 1; (2003) 12 SCM 310; Silas Sule v. The State (2009) 18 NWLR (Pt. 1169) 33; (2009) 8 SCM 177.

In Joseph Idowu v. The State (2000) 12 NWLR (Pt. 680) 48; (2000) 7 SC (Pt. 11) 50; (2000) 10 WRN 1, this Court, per Ogundare, JSC held that, to secure a conviction for murder pursuant to Section 316 of the Criminal Code, the prosecution must prove that the death of the deceased was caused by means of an act done in the prosecution of an unlawful purpose and that the act is of such a nature as to be likely to endanger human life.

However, it has been held that in order to secure 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 but by

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unlawful means. See; Adesina Kayode v. The State (2016) 7 NWLR (Pt. 1511) 119; Omotola & Ors v. The State (2009) 7 NWLR (Pt. 1139) 148; (2009) 2-3 SC 7; (2009) 3 SCM 127.

It is clear on the record of proceedings that at the trial of the appellant and other co-accused, the prosecution called four (4) witnesses and tendered couple of Exhibits. There is no doubt that there was no direct eye witness. It is noteworthy, that the prosecution relied on the extra judicial statements of the appellant which was alleged to be confessional and was admitted without objection. And was said to be corroborated by the testimony of other witnesses.

The extrajudicial statement of the appellant was admitted by the trial Court without objection and was marked Exhibit 6. The following was from the appellant’s statement as stated on pages 14-17 of the record:

“On the 5th day of June, 03 at about 4.30p.m. Segun Akinsuwa ‘M’ (1st accused) came to inform me and Ayo Duyilemi ‘M’ (3rd accused) to meet him in Ayo’s father’s farm, that there is a woman call (sic) Iya Lekan by name Silifatu Rahman ‘F’ that we want to have sexual intercourse with. He later went and

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call (sic) the woman having deceiving (sic) the woman that he has colanut to sell for the woman and that the woman should follow us to meet him in the farm. That was how self (the appellant), Ayo (3rd accused) and the woman went to the farm.

On getting to Ayo’s father’s farm we met Segun who is (sic) already waiting for us, the woman then asked for the colanut but Segun replied that we only deceived her that we tricked her to his farm to have sexual intercourse with (sic).” (Brackets supplied)

Generally, and this is already settled, that the guilt of an accused person charged with the commission of a crime, can be proved by:

(a) The confessional statement of the accused person;

(b) Circumstantial evidence; or

(c) Evidence of eye witness of the crime.

See; Emeka v. The State (2001) 9 SCM 34; (2001) 14 NWLR (Pt. 734) 668 at 683.

As earlier stated, the prosecution in this case before the trial Court, relied mainly on both the confessional statement of the appellant – Exhibit 6 and evidence of the circumstances surrounding the commission of the crime.

On the record, the trial Court had found, on the evidence adduced

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as follows:

“There was evidence in Exhibits 5, 6 and 7, the confessional statements of three accused persons respectively describing a situation where a knife was used by the 1st accused person in her neck region showing that the death of the deceased was caused by the 1st accused person. Exhibit 9 in addition states that there was evidence of manual strangulation on the neck of the deceased. The cause of death of the victim in Exhibit 9 was not challenged by the defence. I therefore find that the death of the deceased was a direct result of the vicious attack on her by the 1st accused person. I also find that the act of the 1st accused person was intentional knowing that death or physical bodily harm was its probable consequence.”

See; page 126 of the record of appeal.

There is no doubt and it is trite law that in a charge of murder, the cause of death must be established by the prosecution, failure of which must lead to the discharge of an accused. See; Joseph Lori v. State (1980) 8-11 SC 52 at 61.

In this case, the trial Court found that the appellant, along with his co-accused, conspired to rape the deceased during which the 1st

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accused brought out a knife and attacked their victim, from which attach, death resulted. This had led to the appellant’s conviction and sentence by the trial Court.

As rightly alluded to by the appellant’s counsel in affirming the conviction and sentence of the appellant for murder, the Court below, relying on Sections 7 and 8 of the Criminal Code, opined inter alia, as follows:

“….. having gone through the records and the arguments and submissions of counsel on both sides, I agree and hold that Exhibits 6, 7 and 5 which are confessional statements of the appellant and the co-accused persons are consistent and unambiguous. Section 7 of the Criminal Code Cap 37 Vol. I, Laws of Ondo State, 2006 provides that:

“When an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and they may be charged with actually committing it.”

Section 7 (b) of the above provision states thus:

“every person who does or omits to aiding any act for the purpose of enabling or aiding another person to commit the offence.” Relying on the above provisions of the law

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therefore the appellant herein having admitted in his confessional statement that he took part in luring and raping the deceased who was killed in his presence is deemed to have taken part in committing the offence and to be guilty of the offence charged which is conspiracy and murder pursuant to Section 516 and 316 of the Criminal Code, Cap 30 Vol. 21 Laws of Ondo State, 1978.”

It is interesting to note that in arguing that the appellant was not involved in the murder of the deceased but only in the act of rape, learned appellant’s counsel in his brief of argument contended that the following facts can be deduced from the evidence available:

1. The appellant, with the 1st and the 3rd accused persons planned to rape the deceased, sole reason for which the deceased was lured to the farm.
2. The appellant with the 3rd accused did not know that the 1st accused was with any sharp object until the 1st accused brought same out at the scene of the crime.
3. The 1st accused had already carried out the act of raping the deceased before he brought out the sharp object which he used to injure the deceased as a result of which the deceased died.

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Although there was agreement among the trio that they will rape the deceased, the appellant and the 3rd accused were reluctant to have sex with the woman, apparently because of the injury inflicted on the deceased by the 1st accused person after the intercourse with the 1st accused.

5. It is a result of their reluctance that the 1st accused threatened the appellant and the 3rd accused with the same knife which made them to reluctantly have sex with the woman.
6. The appellant with the 1st & 3rd accused persons may be guilty of Rape but definitely the appellant should not have been convicted for the offence of conspiracy to commit murder and the murder of Silifatu Rahman.

See; para 4.23 on page 10 of the appellant’s brief of argument.There is no doubt, and it is clear from the above summation of learned appellant’s counsel that the appellant conceded to the following facts:

1. That he was involved in the persons that lured the deceased to the farm for the sole purpose of raping her.
2. That he (the appellant) was present and watching the 1st accused when he stabbed the deceased with a knife he brought out from his pocket.

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That the appellant had carnal knowledge of the deceased after she had been stabbed on her throat, neck and jaw;

4. That the deceased later had her last breath after the appellant and 3rd accused had had sexual intercourse with her.It is also very clear from the record that in his extra judicial statement – Exhibit 5, which corroborated the other evidence adduced by the prosecution, the 1st accused stated categorically that he stabbed the deceased in order to prevent her from going back home to narrate the act of their raping her. And that it was after stabbing her on the neck, jaw and throat that the appellant and 3rd accused had sexual intercourse with the deceased.

It is however amazing to hear the learned appellants counsel argued that the appellant neither “aided nor abetted the killing of Mrs. Silifatu.” One wonders what more the learned counsel expected, to appreciate the involvement of the appellant in the act that led to the death of the deceased. It was certainly much more than mere physical presence that involved the appellant. It was after the deceased was stabbed by the 1st accused on her throat, neck and jaw that

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the appellant had sexual intercourse with her. And it was after this act and the deceased died that her corpse was disposed off to the nearby river by the trio.

There is no doubt that the deceased was killed to conceal the act of raping her, which was planned and jointly carried out by the three accused persons including the appellant.

From the bundle of evidence adduced by the prosecution, with the confessional statement of the appellant and the other documentary evidence such as Exhibits, the prosecution proved that the appellant and other co-accused had conspired either directly or indirectly to commit the murder of the deceased and murder. In other words, the prosecution proved that the deceased died, that the death resulted from the act of the appellant and that the act was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

The Court below was therefore correct in affirming the conviction of the appellant for murder of the deceased Silifatu Rahman, in that the appellant in collaboration with others killed her. Accordingly, this issue one is resolved against the appellant.

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The second issue is whether the Court of Appeal erred in law and fact in affirming the decision of the trial Court to wit: that the prosecution proved beyond reasonable doubt that the appellant is guilty of the offence of conspiracy to commit murder.

In arguing this issue, learned appellant’s counsel referred to what is meant by conspiracy as an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. He relied on Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 at 462.

Learned counsel contended that in order to succeed on a count of conspiracy, the prosecution must prove the conspiracy as described in the charge, and that the accused were engaged in it or prove the circumstances from which the Judge may presume or infer same. He relied on Shodiya v. State (1992) 3 NWLR (Pt. 230) 457 at 460.

Learned counsel submitted that there was nothing in evidence on record to support the conviction of the appellant of conspiracy to commit murder and the affirmation of the said conviction by the Court below.

Learned counsel contended that from the evidence on record, it may be imputed that the

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appellant with the 1st and 3rd accused persons were adidem to rape the deceased, but there was nothing on record to show that they agreed to cause grievous bodily harm to her.

Learned counsel referred to the alleged confessional statement of the 3rd accused – Exhibit 7 on how the 1st accused stabbed the deceased on her neck and throat after he had forcefully had sexual intercourse with her and later forced both the appellant and himself to do the same with a threat that if they refused to do so he was going to kill both of them.

Learned counsel contended that from Exhibit 6, the alleged confessional statement of the appellant, it is clear that the appellant might have conspired with the 1st and 3rd accused persons to rape the deceased, and that was the only purpose for which they lured the deceased to the farm. He contended further that the appellant never agreed with the 1st and 3rd accused persons to cause the deceased any grievous bodily harm that could have resulted in death. He stated that it was not proved that the deceased died as a result of the rape. He submitted that the trial Court wrongly convicted the appellant of the offence of

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conspiracy to commit murder. That the only offence which the appellant could be implied to have agreed with the 1st and 3rd accused persons to commit was rape and nothing more but that the appellant was not convicted of conspiracy to commit rape rather to commit murder. He submitted that the prosecution failed to prove the charge. Urged the Court to resolve the issue in favour of the appellant.

On this issue, learned counsel for the respondent referred to the provisions of Sections 7 and 8 of the Criminal Code, Cap 37 Vol. I, Laws of Ondo State 2006, he contended that the required common intention in the provision of Section 8 of the Code can be inferred from circumstances disclosed in the pieces of evidence adduced by the prosecution. He referred to the testimony of PW2 on page 48 of the record of appeal, that he had seen the deceased earlier on the day of the incident when the deceased told him that she was going with the appellant to the farm of the 3rd accused to buy kolanuts. He referred to the confessional statements of the appellant, 1st and 3rd accused – Exhibits 6, 5 and 7 respectively as being consistent in this regard as they confessed that

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they had agreed to lure and they indeed lured the deceased to the farm under the guise of selling kolanuts to her but with a common intention to rape her on the farm. He submitted that this evidence was not controverted by the defence, hence the appellant was correctly convicted and sentenced for the offence of conspiracy to murder the deceased. He submitted further that the Court below was right in affirming the conviction and sentence. He urged the Court to resolve issue two against the appellant.

Generally, conspiracy is said to be an agreement between two or more persons to do or carry out an unlawful act. It is a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly are ever confined to one place. However, being in itself a separate and distinct offence which is independent of the actual offence conspired to commit, failure to prove a substantive offence does not make conviction for conspiracy inappropriate. See; Balogun v. A.G. Ogun State (2002) 4 SCM 23, (2002) SC (Pt. 11) 89; (2002) 2 SCNJ 196. Folorunsho Atufohai v. The State

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(2014) 12 SCM (Pt. 2) 122; (2015) 3 NWLR (Pt. 1445) 172; (2015) All FWLR (Pt. 765) 198.

On criminal liability, when commission of a crime is imputed, this Court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature, that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. See; The State v. Moshood Oladimeji (2003) 14 NWLR (Pt. 839) 57 (2003) 7 SC 108.

Conspiracy is ordinarily not defined under either the Criminal or Penal Code. But a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is evidence not of the fact in issue, but rather of other facts from which the fact in issue can be inferred. See; Dr. Segun Oduneye v. The State (2001) 2 NWLR (Pt. 697) 311; (2001) 2 SCM 81; (2001) 1 SC (Pt. 1) 1.

In the instant case, from the available bundle of evidence adduced by the prosecution, there was indeed an agreement between the appellant and the 1st and 3rd

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accused persons to lure the deceased to the farm for the purpose of raping her. The learned appellant’s counsel has however argued that, if at all, the offence that the appellant could be connected with was rape but not murder. One wonders whether forcefully having carnal knowledge of a woman by several persons known to the victim is a mere tea party or play of game of ludo or draft. It should be borne in mind that both the deceased and all her rapists live in the same community. It cannot be imagined that after the gang rape by the trio, including the appellant, the deceased would be left to return home clean. Therefore, the act of the 1st accused in stabbing the deceased on the neck, jaw and throat before the others took their turn in having carnal knowledge of the deceased, in order to prevent her from returning home to narrate the story, was the act of only the 1st accused. It is a necessary foreseeable act of the three accused as none would have expected to allow her safely return home without telling the story of her ordeal.

In DSP Godspower Nwankwoala & Anor v. The State (2006) 12 SCM (Pt. 2) 267 this Court opined as follows:

“Where

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more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused person in the group guilty of the offence. See; Patrick Ikemsons & Ors v. The State (1989) 3 NWLR (Pt. 110) 455 at 466; Where common intention is established, a fatal blow or gun shot though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating.”

Section 7 (a) and (b) of the Criminal Code provides as follows:-

S.7 – “when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it.

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.”

With the

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above provisions of the law, I agree entirely with learned counsel for the respondent in his submission that since there is uncontroverted evidence that the appellant and the other co-accused had the common intention to rape the deceased and in the process, one of them inflicted fatal injuries on the deceased with a view to concealing the rape committed by the gang members including the appellant, the injury inflicted by one of the accused is deemed, in the eye of the law to have been inflicted by all those present and aiding. As I stated earlier, bearing in mind, as shown on records that the appellant and the 3rd accused only took their turns in forcefully having carnal knowledge of the deceased after the 1st accused had stabbed her on the throat, jaw and neck when she should be struggling for her life, there is no doubt that the appellant is covered by the law of conspiracy. Accordingly, issue two is resolved against the appellant.

Issue No.3 is whether in view of the learned trial Judge’s failure to comply with Section 215 of the Criminal Procedure Law of Ondo State and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, the

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arraignment and subsequent proceedings including the conviction of the appellant are nullities.

Learned counsel for the appellant submitted that the conviction of the appellant is a nullity in view of the fact that his arraignment was unconstitutional.

He referred to Section 215 of the Criminal Procedure Law and contended that for a valid and proper arraignment of an accused person, the following conditions must be satisfied:

(a) The accused shall be placed before the Court unfettered unless the Court shall see cause to otherwise order;

(b) The charge or information shall be read over and explained to him to the satisfaction of the Court by the Registrar or other officer of the Court; and

(c) He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law).

He submitted that the failure to comply with any of the above conditions renders the whole trial a nullity. He relied on Samuel Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385.

He referred to Section 36 (6) (a) of the 1999 Constitution as amended and contended

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that the issue of proper arraignment of an accused person is a constitutional issue, which cannot be brushed aside. He submitted that the arraignment of the appellant was not properly done, hence the whole trial is a nullity and should be set aside.

Learned counsel referred to the record of the proceedings of the trial Court on the 26th day of February, 2007 when the appellant and others were arraigned and their plea taken. He contended that the proceedings of the arraignment fell short of the requirements of Section 215 of the Criminal Procedure Law; hence he submitted that it deserves to be set aside.

Learned counsel contended that there was nowhere in the record where the charge was read and explained to the appellant before his plea was taken. He submitted that in view of the way his arraignment was made which did not comply with the provisions of the law, and the Constitution, the appellant cannot be said to have had a fair trial. He urged the Court to resolve this issue in favour of the appellant. He further urged the Court to allow the appeal, quash the conviction of the appellant for the offences of conspiracy to murder and

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murder.

In responding to issue No.3, learned respondent’s counsel referred to the provisions of Section 215 of the Criminal Procedure Law and page 45 of the record of appeal. He contended that it shows that on the 26th day of February, 2007, the appellant and the other two accused persons were brought before the Court unfettered. The record also shows that the appellant was represented by counsel – one Kunle Adetowubo, Esq. along with his junior colleague – A. M. Ibitoye, Esq.

Learned counsel contended that there was no indication of any irregularity and no objection whatsoever. He referred to Section 168 (1) of the Evidence Act, Cap. E.14, 2011, and submitted that since it is not in dispute that the appellant who was brought to Court unfettered on the day he was arraigned pleaded not guilty to the offences against him in the presence of his counsel, without any objection, it raises a presumption that the appellant understood the charges read over to him to the satisfaction of the Court. He submitted that the appellant’s arraignment substantially complied with the provisions of Section 215 of the Criminal Procedure Law. He submitted further

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that if there was any omission at all, it did not occasion a miscarriage of justice. He relied on Michael Peter v. The State (2007) 5 ACLR 192 at 352-353; Madu v. The State (1997) 1 NWLR (Pt. 73) 721.

Learned counsel urged the Court to hold that there was substantial compliance with the statutory provisions in respect of the appellant’s arraignment, as Section 215 of the Criminal Procedure Law must not be stretched to such a ridiculous degree as to rob the trial Court of its dignity and defeat the course of justice. He relied on Olabode v. The State (2009) 7 SCM 96 at 116.

Learned counsel contended that the appellant’s arraignment was never objected to at the trial Court nor was it made an issue before the Court below on appeal. He urged the Court to discountenance the appellant’s contention in this regard.

Learned counsel contended that, fair hearing means fair trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause. He referred toAriori v. Elemo (1993) 1 SCNLR 1, Oyewole v. Akande & Anor (2009) 10 SCNM 1256. He submitted that the instant case of the appellant was conducted

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according to all legal rules.

Learned counsel referred to the proceedings of 24th June, 2008 when the appellant opened his defence and closed same. He was duly cross examined and the case was adjourned at the instance of his counsel.

He urges the Court to hold that the appellant’s arraignment was proper and that he was accorded sufficient opportunity of fair hearing by the trial Court. He further urged the Court to resolve the third issue against the appellant as it is settled that the Court will not disturb the concurrent findings of facts by the two Courts below where there is sufficient evidence and there was no miscarriage or perversion of justice. He relied on Aliyu v. The State (2014) 10 ACLR 208 at 237; Kalango v. Governor, Bayelsa State & Ors (2009) 2 SCM 100; Alimi v. The State (2009) 4 SCM 40.

He finally urged the Court to affirm the concurrent findings of the two Courts below and dismiss the appeal for lacking in merit.

The third issue concerns the arraignment of the appellant before the trial Court. On this, Section 215 of the Criminal Procedure Law, Cap.38, Vol. 2, Laws of Ondo State 2006 provides as

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follows:

S.215 “The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explain to him to the satisfaction of the Court by the registrar or other officer of the Court and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.”

In compliance with the above Section 215 of the Criminal Procedure Law for the arraignment of an accused person to be valid, the following three essential requirements must be met:-

(a) The accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order;

(b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court; and

(c) The accused shall then be called upon to plead thereto unless of course there exists any valid reason to do otherwise such as objection to want of service where the accused

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is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.

See; Oguniye v. The State (1999) 5 NWLR (Pt. 604) 548 at 555; Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202 at 203; Sabina C. Madu v. The State (2012) 15 NWLR (Pt. 1324) 405; (2012) 6 SCNJ 129; (2012) 6 SC (Pt. 1) 80; (2012) 50 NSCQR 67.

There is no doubt that the fundamental issue in the matter of arraignment of an accused is that the charge or information shall be read over and explained to the accused person in the language he understands before the plea is taken. Where there is clearly no valid arraignment of an accused, the proceedings are a nullity and the question of a subsequent defence does not arise. In Oyediran v. The Republic (1967) NMLR 122; it was held that an arraignment consists of charging the accused or reading over the charge to him and taking his plea thereon. Therefore, a valid arraignment presupposes compliance with the enabling constitutional and procedural provisions. See; Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).In Andrew

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Idemudia v. The State (supra), in situation where the trial Court failed to comply with the requirement of recording the reading and explaining of the charge to an accused, this Court had opined as follows:-

“It is not disputed that it is perfectly useful and necessary for the Court to record the fact of arraignment and that the charge was read to the accused in the language he understands, where this is different from the language of the Court, which is English language. Where the accused person understands the language with which the charge was read, it becomes unnecessary to record that fact specifically. It seems to me not possible for the Court to know whether the accused understood the charge read and explained to him. Even though he may appear to do so. It is good practice to ask the accused the question whether he understood the charge as read and explained, and to record his answer. It does not seem to me that the omission to do so by itself merely could constitute a non-compliance with the constitutional and procedural requirements, unless it is the lack of understanding of what is read that is apparent from the record of the trial. Finally, the

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satisfaction of the Court on the compliance with the procedure on arraignment is not to me a requirement which need be express on the record. It is a requirement for the guidance of the trial Court, which should feel satisfied that the procedure has been complied with.”

In Okoro v. State (1998) 14 NWLR (Pt. 584) 181, this Court went further on the Court’s recording of the facts of arraignment of an accused to state that the provision of Section 215 of the Criminal Procedure Law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the Judge to do that, as no Judge will take the plea of an accused if he is not satisfied that the charge was read and explained to his satisfaction.

On whether or not the accused understands the language in which the trial is being conducted, it has been held not to be the duty of the Court to seek to know. In Durwode v. The State

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(2000) 82 LRCN 3038 at 3065; (2001) FWLR (Pt. 36) 950 at 971-2; this Court inter alia opined as follows:-

“In the realm of criminal justice, it is the cardinal principle of our criminal jurisprudence that it is the duty of the accused or his counsel acting on his behalf to bring to the notice of the Court the fact that he does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause of complaint.”

See; also Adeniji v. State (2001) FWLR (Pt. 57) 809 at 817.

Earlier, this Court, per Adio, JSC in Mallam Madu v. The State (1997 1 NWLR (Pt. 482) 306 at 402, had stated thus:

“The fact that the accused does not understand the language which the trial Court is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity or as soon as the situation has arisen. If he does not claim the right at the proper time he may not be able to have valid complaint afterwards, for example on appeal.”

In this case,

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the appellant had argued that there was nowhere on the record where the charge was read and explained to the appellant before his plea was taken, meaning that he pleaded to a charge that was never read and explained to him. This, to say the least, is a misconception.

There is indication on the record of appeal that the arraignment of the appellant and the other two accused took place on Monday the 26th day of February, 2007. Page 45 reflects the proceedings of that day, before the Honourable Justice F. O. Aguda-Taiwo. There is indication that when the matter was first called, counsel for the State, prosecuting was in Court but the accused were not represented. Their counsel was said to be in another Court and the case was stood down for him. By 10.55a.m. when the Court resumed sitting, one Kunle Adetowubo appeared with A. B. Ibitoye for the accused persons. The record shows that the appellant pleaded “not guilty” to each of the two counts. There is nothing on record to show that there was any objection by either the appellant or his learned counsel, to his arraignment.

On what is the proper and valid way of an arraignment of an accused – The

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question is said to be “Was there a proper or valid arraignment on which the trial was based” The answer is said to lie in the entire circumstance of the case. Each case must be dealt with on its own peculiarity. The accused must be placed before the Court unfettered, the charge must be read to him in the language the accused person understands, and if he is represented by counsel, there is no objection to the charge and a plea is taken from the accused person. The charge must be read and explained to the accused, and if there is no objection by counsel or the accused person, then there is clear presumption of regularity that all that must be done to let the accused know the charge against him has been done. In that situation, the accused is presumed to have understood the charge which has been read and explained to him and the Court was equally satisfied that the charge was understood by the accused. See; Gozie Okeke v. The State (2003) 15 NWLR (Pt. 842) 25; (2003) 2 SC 63; (2003) LPELR 2436 (SC).

In Okeke v. State, (supra) this Court, per Ogundare, JSC observed as follows:

“There appears to be fairly rigid and flexible approach to the question

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of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of citizen. Equally, the Court should not ignore the nature of the rights protected and the preservation of the Courts in the discharge of their sacred and solemn duty to do justice. There is clearly observable, the distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affect the justice of the trial, in the latter case, it will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with, if there is evidence on record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie. It is conceded that subsequent validity of the procedure rests on the validity of the plea on arraignment. However, where there is counsel in the case defending the accused person, the taking of the plea

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by the Court, it ought to be presumed in favour of regularity, namely, that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken.”

In the instant case, there is no doubt that it was not recorded by the trial Judge that the charge was read and explained to the appellant. But it is also not being suggested that an objection was raised at the trial by either the appellant or his counsel who was made sure was in Court when the appellant’s plea was taken. I am of the firm view that the presumption of regularity should avail the respondent in this case. In other words, it is to be safely presumed that the appellant was fairly treated in his arraignment and subsequent trial. In the circumstance and without any further ado on this point, issue 3 is resolve against the appellant.

The totality of all that has been said is that this appeal is devoid of merit. It deserves to be dismissed and is hereby accordingly dismissed, all the three issues raised by the appellant having been resolved against him.

In the final analysis, the decision of the Court below is affirmed

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which had earlier affirmed the appellant’s conviction and sentence by the trial Court.

Appeal dismissed.

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SC.587/2014