OGBEMUDIA OMORUYI
V.
THE STATE
IN THE COURT OF APPEAL OF NIGERIA
ON TUESDAY, THE 22ND DAY OF MARCH, 2016
CA/B/368CB/2010
LN-e-LR/2016/47 (CA)
OTHER CITATIONS
(2016) LPELR-40133(CA)
BEFORE THEIR LORDSHIPS
JIMI OLUKAYODE BADA, J.C.A
MUDASHIRU NASIRU ONIYANGI, J.C.A
UGOCHUKWU ANTHONY OGAKWU, J.C.A
BETWEEN
OGBEMUDIA OMORUYI Appellant(s)
AND
THE STATE Respondent(s)
REPRESENTATION
Mrs. S. N. Ebojele with Mrs. E. Bello For Appellant
AND
Chief V. E. Otomiewo with him, D.O. Jarikre, Esq. and E. D. Otomewo, Esq. For Respondent
[EDITORS:
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
MAIN JUDGMENT
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment):
EXORDIUM
Before the High Court of Edo State in Charge No. B/57C/2006, the Appellant and eight others were arraigned on a three count charge of conspiracy to commit murder and the murder of two persons. In the course of the trial at the Lower Court the 1st, 2nd and 9th accused persons were discharged at the close of the case for the prosecution, upon the success of their no case submission. The remaining six accused persons entered upon their defence and in its judgment delivered on 23rd July, 2010, the Lower Court Coram: C. O. Idahosa, Chief Judge, discharged and acquitted three of the accused persons while the Appellant, who was the 4th accused person at the trial and two other accused persons were convicted as charged and sentenced to death by hanging. The judgment of the Lower Court is at pages 394 - 471 of the Main Records of Appeal.
Miffed at the judgment, the Appellant appealed against the same on 27th July, 2010. The said Notice of Appeal is at pages 488 - 492 of the Main Records. In addition to the Main Records of Appeal, there is a First Supplementary Record of Appeal and a Second Supplementary Record of Appeal. The said Records which were transmitted in respect of a sister appeal were by Order of Court made on 11th November, 2014 directed to be used for this appeal.
As disclosed by the Records, the facts on which the Appellant and others were arraigned and tried are as follows:
On the fateful day of the incident which resulted in the Charge, one of the deceased persons, Chief Sunday Ahanor, went to the Palace of the Oba of Benin and while he was there, the PW4 his driver, came to report to him about a padded red Mercedes Benz 190 which was parked close to the Obaýs Palace and in which he saw the Appellant and one other accused person, among some other persons who covered their faces with handkerchief. Chief Sunday Ahanor instructed him to observe the said vehicle and its occupants. Later Chief Ahanor arranged for another Chief (PW1) who was at the Palace to take him to the office of the Asst. Inspector General of Police (AIG) so that he could lodge a report. After the deceased left the ObasPalace for the AIGs
Office one of the accused persons left the said padded red Mercedes Benz car and walked into the Palace to spy if Chief Ahanor was still there. The PW4 then called Chief Ahanor at the AIGs Office to inform him about this and he, the deceased Chief Ahanor, instructed him to charter a commercial bus and come to meet him at the AIGs Office.
A commercial bus, driven by the PW2 was duly chartered and they met the deceased, Chief Ahanor at the AIGs Office where they were given five police officers to follow Chief Ahanor and arrest the persons in the padded red Mercedes Benz 190. Upon their arrival at the point where the vehicle was parked, the vehicle was no longer there and they then decided to retrieve Chief Ahanors Sport Utility Vehicle from the Obas Palace where it was parked so that they could escort him to his house. The Sport Utility Vehicle was driven by the PW4 who was joined by a Police Officer while the deceased Chief Ahanor and the other Police Officers remained in the chartered commercial bus.
As they approached the Street where Chief Ahanor lives, the PW4 saw the said padded red Mercedes Benz 190 coming from the opposite direction and he pulled over and called the attention of the occupants of the commercial bus to the said vehicle. As the padded red Mercedes Benz 190 drove past them, they decided to turn and pursue the said vehicle. In the course of the pursuit, they lost sight of the vehicle after which there was a sudden burst of gunfire which it was claimed came from the occupants of the padded red Mercedes Benz 190 and as a result of the shooting, Chief Sunday Ahanor and one of the Policemen with him in the chartered commercial bus, Corporal Ibrahim Adukwu, were killed while others sustained injury. These are the facts which led to the conviction of the Appellant by the Lower Court and the provenance for this appeal.
The Records having been regularised and in obeisance to the Rules of Court, the parties filed and exchanged briefs of argument. The extant Appellants Brief is the Amended Appellants Brief filed on 5th February, 2015 and deemed as properly filed and served on 20th January, 2016, wherein the Appellant distilled three issues for determination as follows:
1. Whether the Learned Trial Judge properly evaluated the evidence led in this case.
2. Whether the Learned Trial Judge was not wrong in dismissing the defence of alibi which was raised by the 4th accused/appellant.
3. Whether the charges against the Appellant were proved beyond reasonable doubt to warrant a conviction."
The Respondents Brief of Argument was filed on 13th February, 2015 and a sole issue was therein formulated for determination, namely:
"Whether the evidence adduced by the Prosecution is cogent, convincing, compelling, admissible and sufficient to justify the verdict of guilt returned by the learned trial judge at the end of the trial of the Appellant for murder."
At the hearing of the appeal, Mrs. S. N. Ebojele, learned counsel for the Appellant adopted and relied on the Amended Appellant's Brief in urging the Court to allow the appeal. On his part, Chief V. E. Otomiewo, of counsel for the Respondent adopted and relied on the Respondent's Brief and he urged the Court to dismiss the appeal.
I have considered the issues for determination as distilled by the parties and it is limpid that the core of the issues as formulated is whether the prosecution discharged the onus of proving the offences charged against the Appellant beyond reasonable doubt to warrant the conviction of the Appellant by the Lower Court. Accordingly, a distensible issue under which the issues distilled by the parties would be subsumed will suffice for the determination of this appeal. The issue which I find apt and bespoke and on the basis of which I would consider the submissions of learned Counsel and resolve this appeal is:
''Whether the Prosecution proved the offences charged against the Appellant beyond reasonable doubt so as to warrant his conviction by the Lower Court.''
SUBMISSIONS OF THE APPELLANT'S COUNSEL
The Appellant set out the elements to prove in a charge of murder which are that there was a killing, that the killing was unlawful and that the act or omission of the accused person caused the death of the deceased. The cases of IDIOK v. THE STATE (2008) 6 MJSC 36 at 45-46 and UWAGBOE v. THE STATE (2008) Vol. 163 LRCN 92 at 109 were referred to.
It was submitted that there was no evidence emanating from the prosecution to the effect that the Appellant had a common intention with others to commit the offence resulting in conspiracy. It was contended that there was no evidence on which the Appellant could be convicted for conspiracy as the only reference to the Appellant was by the PW4 who said that he saw him in a Mercedes Benz in front of the Obas Palace and that there was no credible evidence to prove that it was the same Mercedes Benz 190 seen in front of the Obas Palace that was used in committing the crime, since the prosecution evidence in that regard was contradictory. The contradictions in the testimony of the PW4, PW5 and PW7 were highlighted on Paragraphs 5.10 - 5.13 of the Appellants Brief and it was posited that the Lower Courts explanation of the doubt created by the testimony of the prosecution witnesses did not arise from the evidence proffered by any of the witnesses. The Lower Court, it was contended, consequently descended into the arena especially as a Court should not substitute its opinion for the evidence adduced. The case of AHMED v. THE STATE (1999) 7 NWLR (PT 612) 641 was relied upon.
The Appellant maintained that the discrepancies in the evidence of the PW2 and PW4 on the one hand and PW5 and PW7 on the other hand which the prosecution did not explain created substantial doubt in the case. It was stated that it was not for a Court to pick and choose which set of prosecution witnesses to believe and which to reject in the light of contradictory evidence. The cases of ONUBOGU v. THE STATE (1974) 9 SC 1 and ASANYA v. THE STATE (1991) 3 NWLR (PT 180) 422 at 446 were cited in support. The said material contradictions, it was submitted ought to have been resolved in favour of the Appellant.
It is the further contention of the Appellant that the findings of the Lower Court were based on speculation and wrong conjecture and it was asserted that assumption is not proof of crime. The case of MOHAMMED v. THE STATE (1991) 5 NWLR (PT 192) 438 at 456 was referred to. The Appellant submitted that there was no evidence to support the finding of the Lower Court that it was the red Mercedes Benz 190 car earlier seen opposite the Oba's Palace that was also at the scene where the incident took place later in the day. It was stated that the decision of the Lower Court was based on circumstantial evidence which was not cogent, complete and unequivocal as to lead to no other conclusion than the guilt of the Appellant. The cases of KOR v. THE STATE (2001) FWLR (PT 76) 637, LORI v. THE STATE (1980) 8-11 SC 81 and OGIDI v. THE STATE (2005) 5 MJSC 155 at 189 were relied upon.
It is the submission of the Appellant that the evidence adduced was not positive, cogent, direct and unequivocal and did not show that he conspired with others to perpetrate the murder as there was no evidence of common intention or agreement between him and others to commit the offence. It was further submitted that there was no direct evidence fixing him at the scene of the incident and that his having been allegedly spotted in a red Mercedes Benz 190 car opposite the Oba's Palace did not place him at the scene of crime. It was therefore stated that the circumstantial evidence did not show a complete and unbroken chain of evidence to constitute sufficient and cogent proof. The case of ARCHIBONG v. THE STATE (2006) ALL FWLR (PT 323) 1747 at 1751 Ratio 6 was cited in support.
The Appellant contended that contrary to the finding of the Lower Court, there was no evidence establishing that the people that were seen in the Oba's Palace were the same persons who killed the deceased. On the Appellant's alibi, it was submitted that the evidence of the PW4 was that he saw the Appellant in front of the Oba's Palace and not the scene of crime; and that there was no iota of evidence placing the Appellant at the scene of crime in order to demolish his alibi. It was argued that the alibi raised by the Appellant, at the earliest opportunity, that he was at Standard Trust Bank, Akpakpava Road when the offence was committed was not investigated and that the benefit of the doubt ought to have been afforded the Appellant. The cases of AIGUOREGHIAN v. THE STATE (2004) 3 MJSC 71 at 89-90, DOGO v. THE STATE (2001) 1 SC and NWABUEZE v. THE STATE (1988) 4 NWLR (PT 86) 16 were referred to. The Appellant posited that proof beyond reasonable doubt means proof of an offence with the certainty of the criminal law, which is that an offence has been committed and that no other person but the accused person committed the offence. The case of BAKARE v. THE STATE (1987) 3 SC 1 at 5 was relied upon. It was conclusively stated that the prosecution did not prove the guilt of the Appellant beyond reasonable doubt.
SUBMISSIONS OF THE RESPONDENT'S COUNSEL
The Respondent maintains that the case against the Appellant was proved beyond reasonable doubt, as the prosecution did not have to prove the case with absolute certainty. Proof beyond reasonable doubt was stated to admit of a high degree of cogency consistent with an equal degree of probability; that it did not mean proof beyond all shadow of doubt and once the evidence is strong enough to leave only a remote possibility in favour of the accused, then proof beyond reasonable doubt has been attained. The cases of ONAFOWOKAN v. THE STATE (1987) 2 NWLR (PT 61) 583 at 661, MOSES v. THE STATE (2003) FWLR (PT 141) 1969 at 1986 and ALAE v. THE STATE (1991) 7 NWLR (PT 205) 567 at 591 were referred to.
It was argued that conspiracy was proved beyond reasonable doubt as the evidence of the PW3, PW4, PW6 and PW10 showed the interconnectivity and meeting of the minds of the accused persons to create the unlawful act and that conspiracy can be inferred from the circumstances of the criminal acts of the accused persons. The case of ABACHA v. THE STATE (2002) FWLR (PT 118) 1224 at 1310 was cited in support. It was stated that the Appellant and one other accused person were identified by the PW4 as the boys of another accused person who had scores to settle with the deceased Chief Sunday Ahanor and the mastermind of the threat to the life of late Chief Sunday Ahanor. It was stated that the Appellant and the 5th accused person were with the suspected assassins who trailed the late Chief Sunday Ahanor with a red Mercedes Benz 190 and it was therefore opined that the evaluation of the evidence by the Lower Court in respect of the count of conspiracy cannot be faulted and that the evidence adduced by the prosecution proved the offence of conspiracy charged beyond reasonable doubt. It was asserted that an appellate Court will not interfere where the findings of a trial Court are supported by the available evidence. The cases of AFOLAKU v. THE STATE (2010) ALL FWLR (PT 538) and JOSEPH v. THE STATE (2010) ALL FWLR (PT 539) 1106 at 1117 were relied upon.
On the count of murder, the cases of GIRA v. THE STATE (1996) 44 NWLR (PT 443) 375 at 383, OGBA v. THE STATE (1992) 2 NWLR (PT 222) 164 at 535 (sic) and NDUKWE v. THE STATE (2009) ALL FWLR (PT 464) 1447 at 1466 were referred to on the proof required of the prosecution, id est, that the deceased died, that the death of the deceased resulted from the action of the accused and that the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.
It was submitted that there was no dispute that the deceased persons, Chief Sunday Ahanor and Corporal Ibrahim Adukwu died. On the death being as a result of the action of the accused persons, it was contended that the testimony of the PW3, PW4, PW5, PW6 and PW10 afforded circumstantial evidence which was overwhelming and irresistible against the Appellant. The Respondent argues that the alibi raised by the Appellant was worthless, especially as the Appellant failed to show any document or call any bank official in proof of the banking transaction he claimed to have been involved in on the day of the incident. The Court was urged to discountenance the alibi as a lie concocted to explain away the involvement of the Appellant in the death of the deceased persons. The cases of OREKEKAN v. THE STATE (2005) 4 ACLR 193 Ratio 16, ALLI v. THE STATE (1998) 1 SC 34 at 47 and OTEKI v. THE STATE (1986) 4 SC 222 at 249 were cited in support.
It was contended that the testimony of the PW3, PW4, PW5 and PW6 established that the death of the deceased resulted from the action of the accused persons. It was then posited that the act of the accused persons in shooting at the bus in which the deceased persons were was intentional with the knowledge that death was the probable consequence and that a man intends the natural and foreseeable consequences of his act.
The three ways of proving the commission of an offence namely by evidence of eyewitnesses, by confessional statement and circumstantial evidence were referred to and it was submitted that the prosecution proved all the ingredients of murder against the Appellant beyond reasonable doubt through the circumstantial evidence adduced in the case. The case of MOSES v. THE STATE (supra) at 1987 was cited in support. It was maintained that the circumstantial evidence adduced was cogent, complete, unequivocal compelling and led to the irresistible conclusion that the accused persons conspired and murdered the late Chief Sunday Ahanor. The case of ADEBAYO v. THE STATE (2007) ALL FWLR (PT 365) 498 at 519 was referred to. The Respondent maintained that the testimony of the PW3, PW6, PW7 and PW10 on the threat to kill Chief Ahanor was not hearsay as their evidence was direct.
RESOLUTION
The Appellant was convicted on all the three counts of the charge preferred against him. In convicting for conspiracy, the Lower Court after referring to the case of NJOVENS v. THE STATE (1973) NWLR 76 at 95 where it was held, inter alia, that " the gist of the offence of conspiracy is the meeting of the mind of the conspirators" and that conspiracy is inferred from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them, proceeded to reason as follows on pages 457 - 459 of the Records:
"There is evidence that the 3rd accused had a running battle with the deceased Chief Ahanor. The 3rd accused described the treatment he received in the hands of the late Chief Ahanor and his men on 13/04/2005, in his statement Exhibit F. In that statement, he said he was beaten to a state of coma by Chief Ahanor and his boys and then one of them urinated on him. In fact that act woke him up partially.
Although 3rd accused claimed that the late Chief Ahanor begged him and they resolved their differences in Exhibit F, the hatred and venom he had for the late Chief Sunday Ahanor can be seen in his next statement Exhibit G. In this statement, 3rd accused spoke about the late Chief in very unsavoury terms.
Through Exhibits F & G made by the 3rd accused, the prosecution was able to expose the mindset of the 3rd accused as far as the deceased Chief Sunday Ahanor was concerned.
There is evidence about the relationship between the 4th accused and the 3rd accused. 3rd accused did his utmost to distance himself from the 4th accused both in his statement Exhibit H and his oral testimony in Court. In spite of his efforts, the link between him and 4th accused came out clearly in Exhibit H. In that statement he agreed that 4th accused was one of his disciples and used to drive his traditional car, during ceremonies if he was chosen to drive.
Under cross examination by learned prosecuting Counsel, 3rd accused denied making some statements which he later admitted upon being shown these statements in his extra judicial statement in Exhibit F. He was shown as being inconsistent and unreliable during the cross examination. His continuous denials sounded hollow in the face of the statements he himself made in Exhibits F, G and H.
The 4th accused in his testimony in Court and under cross examination denied being the boy of the 3rd accused. But he later admitted that he was a worshipper at the shrine of 3rd accused and also drove the 3rd accused.
In Exhibit Z, i.e. the statement made by the 4th accused in respect of the investigation into the murder of one Chief Ehue, the 4th accused admitted being the driver of the 3rd accused.
The 4th accused and the 5th accused were clearly and positively identified by PW4 in the vehicle that was sued to stalk trial and finally assassinate or kill the late Chief Sunday Ahanor. The PW4 was positively, unequivocal and unshaken in his identification of 4th and 5th accused in the said vehicle. In spite of the rigorous and multiple cross examination by different Learned Counsel on this point, he remained unshaken.
As stated in the authorities, it is rare to find positive or direct evidence of conspiracy, and it is usually proved by circumstantial evidence and or inference from certain proved facts. Thus as ably stated in the case of Njovens & Ors v. The State supra, the completed act is usually the only proof of a conspiracy."
Now, conspiracy as an offence is the agreement by two (not being husband and wife) or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In HARUNA v. THE STATE (1972) 8 -?? 9 SC 108 or (1972) LPELR (1356) 1 at 23E - 24A, Fatayi-Williams, JSC (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. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See OBIAKOR v. THE STATE (2002) 36 WRN 1 at 10, EGUNJOBI v. F.R.N. (2001) 53 WRN 20 at 54 and THE STATE v. 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 v. THE STATE (2008) 17 NWLR (PT 1169) 33 and ADEJOBI v. THE STATE (2011) LPELR (97) 1 at 36B E. The circumstantial evidence on which a successful conviction for conspiracy can be predicted 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 v. THE STATE (supra). The crucial factor in the offence of conspiracy is the meeting of the minds of the conspirators to commit an offence and the meeting of the minds need not be physical: ADEJOBI v. THE STATE (supra).
From the reasoning of the Lower Court quoted above the Court seems to have inferred conspiracy from the evidence that (1) the 3rd accused had a running battle with the deceased; (2) that the 3rd accused had hatred and venom for the deceased Chief Ahanor and spoke of him in very unsavoury terms; (3) that there was evidence of relationship between the Appellant and the 3rd accused; (4) that the Appellant was one of the boys of the 3rd accused, a worshipper at his shrine and who sometimes drove him (5) that the Appellant and 5th accused were clearly and positively identified by PW4 in the vehicle that was used to stalk, trail and finally assassinate or kill the late Chief Sunday Ahanor.
The Lower Court then concluded and held as follows at page 461- 462 of the Records:
"On the whole I find and hold as follows:
(i) That the 3rd accused had a serious grudge against the deceased Chief Ahanor
(ii) The 4th accused (Appellant) was or is still his driver, even though not full time.
(iii) The 4th accused is a disciple at 3rd accused's shrine and one of his followers.
(iv) The 4th and 5th accused were seen in a vehicle whose other occupants were more or less disguised as they wore face caps and tied handkerchiefs around their mouths.
(v) This same car or vehicle was used later to stalk, trail ambush or block the late Chief Ahanor and Corporal Adukwu's vehicle, in which PW2 and 7 were also riding at that time.
(vi) The assassins came out of the same vehicle seen by PW4 by the Obas Palace, still dressed as PW4 described i.e. with face cap and handkerchiefs tied around their mouths and nose.
(vii) These persons fired their guns on the vehicle in which the two deceased were riding with PW2 and 7.
(viii) That as a result of these gunshots the two deceased persons died.
Learned Counsel for 3rd accused during the cross examination of PW6, made assertions that the late Chief Ahanor had several enemies. However these suggestions or assertions were not backed with any form of evidence.
After due consideration I am satisfied that issue No. 1 be and is hereby resolved against the 3rd, 4th and 5th accused.
On count 1 on the charge, I am satisfied that the prosecution has proved the offence of conspiracy to commit murder against the 3rd, 4th and 5th accused persons, beyond reasonable doubt."
The critical question is whether the facts are of such a quality that irresistibly compels to make an inference as to the guilt of the Appellant on the charge of conspiracy. Put differently, do the facts as accepted by the Lower Court establish the charge of conspiracy beyond reasonable doubt? 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 v. THE STATE (2009) 29 WRN 43 and SALAU v. THE STATE (2010) LPELR (9106) 1 at 35-36.
Now, how does the alleged grudge which the 3rd accused has against the deceased, even conceding that the matter had not been settled as stated by the 3rd accused, connote an inference of a common criminal design or agreement between the 3rd accused, Appellant and the 5th accused persons towards the realization of a common or mutual criminal purpose. I further ask how does the fact that the Appellant sometimes drives the 3rd accused and is one of the followers and disciples at the shrine of the 3rd accused qualify as a common criminal design between them as it relates to the deceased, Chief Sunday Ahanor. I find it difficult to appreciate how this can be so especially when regard is had to the fact as held in ODUNEYE v. THE STATE (supra) that securing a conviction for conspiracy is fraught with intricacies and inherent difficulties. More so, there is no specificity in the evidence that it was the same vehicle seen at the Oba's Palace that was seen on the road to the deceased Chief Ahanors house; no registration number was given and the evidence didn't disclose that there was only one padded red Mercedes Benz 190 in Benin City. The PW4 merely suspected that it was the same vehicle. Moreover, the evidence did not place the Appellant at the scene of crime.
The prosecution has a duty to prove its case beyond reasonable doubt. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion. See EKPE v. THE STATE (1994) 12 SCNJ 131, NAMSOH v. THE STATE (1993) 6 SCNJ (PT 1) 55 at 69, ADEBOYE v. THE STATE (2011) LPELR -9091 (CA) at 31-33 and OGISUGO v. THE STATE (2015) ALL FWLR (PT 792) 1602. In the circumstances, I doubt and because I doubt the Appellant has to be given the benefit of that doubt. The available evidence is not of a quality that irresistibly compels to make an inference as to the guilt of the Appellant on the charge of conspiracy. Concomitantly, the conviction of the Appellant for the offence of conspiracy to commit murder is hereby set aside.
With regard to the conviction for the substantive counts of murder, the learned counsel on both sides of the divide have referred to the essential ingredients to establish in a charge of murder, namely:
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 possible consequence.
See ILODIGWE v. THE STATE (2012) LPELR (9342) 1 and UWAGBOE v. THE STATE (2008) LPELR (3444) 1 at 29.
In order to secure a conviction for murder the prosecution must, inter alia, prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused person. From the facts of this matter there is no contention with regard to the first ingredient. It is agreed on all sides that the deceased persons, Chief Sunday Ahanor and Corporal Ibrahim Adukwu are dead. The kernel of this appeal is with regard to the second element, id est, whether the death of the deceased resulted from the action of the Appellant. The Lower Court held that the prosecution proved the counts of murder beyond reasonable doubt. In finding the counts established against the Appellant, the Lower Court held as follows at pages 462 - 463 of the Records:
"The second issue deals with the two counts for the actual murder of the late Chief Sunday Ahanor and Corporal Ibrahim Adukwu.
The evidence against the 4th and 5th accused is positive, direct and unequivocal.
The PW4 told the Court how he chanced upon them where they lay in wait, at a point opposite the Oba's Palace on 15/11/15. He told the Court that the fact that he saw other persons who had face caps on their head and tied handkerchiefs over their mouths made him suspicious
...Then he saw 5th accused come out of the car and enter the Oba's Palace grounds, to spy whether the deceased Chief was still in the Palace.
PW4, it was who identified the car when the Police was taking the deceased Chief to his house. The convoy turned around to chase the car and ran into an ambush and a hail of gunfire.
There is evidence putting the 4th and 5th accused persons at the scene of crime from the place where they laid on wait by the Oba's Palace Benin City to the place where the two deceased were shot to death.
The PW4 was, positive direct and unequivocal and he was not shaken by the cross examination."
The Lower Court continued at pages 466 ý 467 of the Records and held as follows:
As had been shown, during the consideration of issue No. 1, the 4th accused (Appellant) had a link with the 3rd accused. The 3rd accused conspired with the 4th and 5th accused and others to kill the deceased Chief Sunday Ahanor. In the process they also killed Corporal Ibrahim Adukwu.
The Lower Court then conclusively held as follows at pages 469 - 470 of the Records:
On the whole, and after due consideration of the totality of the evidence led in proof of counts II and III as laid, I am satisfied and I find and hold as follows:
(i) That the 3rd, 4th and 5th accused conspired together to kill or murder the late Chief Sunday Ahanor.
(ii) That the two deceased persons viz Chief Sunday Ahanor and Corporal Ibrahim Adukwu were fatally shot and killed by 4th and 5th accused and others at the behest of 3rd accused.
(iii) That the 4th and 5th accused in furtherance of the common desig