Between
GABRIEL ONYEBUCHI OBI
and
FEDERAL REPUBLIC OF NIGERIA
CHINWE EUGENIA IYIZOBA JCA: This is an appeal against the judgment of Okechukwu Okeke J of the Federal High Court, Lagos Division in Suit No. FHC/L/89C/2011 delivered on the 17th day of May, 2013 wherein the Appellant, Gabrielle Onyebuchi Obi and Ugwu Geoffrey (2nd accused) were convicted on the first count of the offence of conspiracy to import 165 Kilogram of Cocaine into Nigeria; and on the second count of importation of the said 165 Kilogrammes of Cocaine into Nigeria. They were sentenced to 15 years imprisonment on the first count and 5 years on the second count, the sentences to run concurrently for 15 years.
THE FACTS: Sometime in November 2010, the National Drug Law Enforcement Agency (NDLEA) received intelIigence report that three containers Nos. MSCU 1816340, MSCU 3668026 and MSCU 1287231 originating from Bolivia were suspected to be carrying Cocaine, a narcotic drug. NDLEA Operatives mounted surveillance at Tin can Island Port Lagos for the arrival of the containers. Container number MSCU 1816340 arrived the Tin can Island Port, it was intercepted, searched and nothing incriminating was found. When container number MSCU 3668026 arrived, nobody initially came to claim ownership. This prompted NDLEA officials and other security Agencies at the Tin can Island Port to conduct a search on the container and 110 Kilograms of Cocaine was allegedly found inside it. As a result of this discovery, and further investigations conducted by NDLEA, the 2nd accused was arrested at a company called Ellisbonave Nig. Ltd located at Mangoro/Cement Bus Stop, Lagos where he had gone to collect clearance letter for the release of the container MSCU 1816340. On his arrest, he was found with the following documents:
(i) A copy of release letter to the Mediterranean Shipping Line (MSC) Exhibit U.
(ii) A copy of Bill of Lading in respect of containers MSCU 3668026 and MSCU 1287231, Exhibit W.
(iii) A receipt for payment of N35, 000.00 fee for the release of the containers Exhibit UZ.
In other to obtain the above documents, the 2nd accused forged and presented to Ellisbonar Nigeria Ltd;
(i) An identity card of himself as a staff of Efcrisam Groups Company Ltd. Exhibit V2.
(ii) Certificate of Incorporation of Efcrisam Groups Company Ltd - Exhibit V.
(iii) A letter of authority from Efcrisam Groups Company Ltd. Exhibit VI.
The 2nd accused in his extrajudicial statement dated 21st January 2011 said he got the bill of loading - Exhibit W from Audu Ismail. Investigations revealed that the said Audu Ismail got it from one Ibrahim Maidurumi, while Ibrahim Maidurumi got it from Gabriel Onyebuchi Obi the Appellant herein. The Appellant admitted in his testimony in Court and in his extrajudicial statement dated 21st January 2011.- Exhibit L that he gave the bills of lading to Ibrahim Maidurumi to help him clear the 2 containers numbers MSCU 3668026 and MSCU 1287231, but claimed that it was one Chief Oke who gave them to him. He further claimed that Chief Oke gave him N300, 000. 00 to clear the containers for him. He claimed he did not know Chief Oke's residence; that they only met at a drinking joint and that he does not know his phone number because Chief Oke always called him with a hidden number. Attempts by the appellant to help NDLEA apprehend Chief Oke failed. The Respondent on the other hand claimed the appellant did not give NDLEA any useful information that would lead to the arrest of Chief Oke. The Appellant, the 2nd Accused Ugwu Geoffrey, Audu Ismail and Ibrahim Maidurumi were on 27th January 2011 taken to the Tin can Island Port Lagos where the container number MSCU 1287231 was opened and searched in their presence and 165 Kilograms of Cocaine was found in the container. This fact was admitted by the Appellant in his extrajudicial statements dated 27th & 28th January 2011 - Exhibits O and P respectively. Ibrahim Maidurumi PW10 in his testimony confirmed the fact.
CA/L/629/2014
The Appellant claimed to be a business man who deals in fairly used spare "parts and from time to time assists his clients to clear containers and or vehicles from the Tin Can Island and Apapa Ports. He claimed that usually when he receives such briefs, he engages the services of Nigerian Customs officials to assist him clear the said containers and or vehicles. On one occasion, he was requested by one Chief Okey to clear for him a container of floor tiles. Upon the said instruction, he approached Ibrahim Maidurumi, PW 10 to assist him clear the container. He gave him a photocopy of the bill of lading which he had received from Chief Okey. The original he claimed was still with Chief Okey. The appellant claimed that a few days later he was arrested by NDLEA who accused him of importing a container containing cocaine and detained him and seized his telephones. The Appellant denied the accusation and informed NDLEA operatives that he got the photocopy of the bill of lading from Chief Okey. He informed NDLEA officials that Chief Okey is likely to call him. They handed over his phones to him and Chief Okey did call him. He informed Chief Okey as directed by NDLEA officials that he needed more money to clear the containers. The Appellant arranged to meet with Chief Okey at Benny Suites hotel Festac Town, Lagos. Chief Okey did not show up for the meeting. The appellant claimed that apart from the copy of bill of lading which the Appellant gave to PW 10, the Respondent did not produce any other evidence linking the Appellant to the container and the cocaine purportedly found therein. Both the Appellant and the 2nd accused in their defence claimed that save on the day of their arrest on the 21st of January 2011; they had never met before and did not know each other. The Appellant admitted that he gave the bill of lading to PW 10. PW 10 gave the said bill of lading to one Audu Ismail a clearing agent. Audu Ismail contacted the 2nd accused, Gabriel Ugwu and gave him the instruction to begin the process of clearing the said container.
It is pertinent to mention that after the search of the second container, allegedly not claimed by anybody, and where 110 kg of cocaine was found, NDLEA now did what they should have done in the first place made inquiry through the shipping line and got information from the cargo manifest of the container linking two companies to the containers. The companies are Efcrisam Group Company Ltd and Ellisbonav Nig Ltd. Through enquiries at these companies the 2nd accused Gabrielle Ugwu and other suspects including the appellant were arrested.
During the trial, the Respondent called 11 witnesses. The appellant and his co-accused each testified on his own behalf and called no other witness. In a considered judgment delivered by Okechukwu Okeke J. on 17/5/13, the Appellant was convicted and sentenced as stated above. Naturally, unhappy with the judgment, the Appellant appealed by Notice of appeal dated 29/11/13 filed on 6/12/13 at pages 351 - 357 of the Record of Appeal containing seven grounds of appeal. As is customary in this court, the parties filed and exchanged briefs of arguments. The appellant's brief was settled by Mobolaji Olanipekun Sowole Esq while the Respondent's brief was settled by J. N. Sunday Esq. Director, Prosecution & Legal Services (NDLEA) and, Obiageri Iwuchukwu.
From the seven grounds of appeal, learned counsel for the Appellant in his brief distilled three issues for determination as follows:
1. Whether the offence of importation of 165 kilograms of cocaine was proved against the Appellant in line with provisions of the enabling law. Ground 2.
2. Whether the offence of conspiracy to import 165 kilograms of cocaine was proved against the Appellant in line with provisions of the enabling law. Grounds 1, 4 & 5.
3. Whether the learned trial Judge properly directed himself as to 1 the burden and standard of proof having regard to the nature of the issues placed before him and made a proper evaluation of the evidence led by the prosecution and the defence. Grounds 3,6 & 7.
The Respondent's counsel on their part formulated two issues for determination as follows:
1. Whether the prosecution has proved its case Against the Appellant Beyond Reasonable doubt as required by law.
2. Whether in the circumstances of this case it will not be improper for the Court of Appeal to tamper with the findings of fact of the Trial Court.
The Appellant's three issues cover the Respondent's two so I will adopt the Appellant's three issues in the determination of the appeal.
APPELLANTS ARGUMENTS:
On issue one: whether the offence of importation of 165 kilograms of cocaine was proved against the Appellant in line with provisions of the enabling law, learned counsel faulted the procedure adopted by the Respondent in determining whether or not there were drugs in the containers. Counsel submitted that PW9 testified that when the three containers arrived in Nigeria, two of the three containers were opened and searched by the Joint Task Force (JTF) of the Respondent alone when the normal practice would have been to have the containers opened and searched only in the presence of the owners or those who would come forward to clear them. Counsel argued that the claim by the Respondent that it found cocaine in the second container and was then prompted to inquire through the shipping line and information from the cargo manifest led them to a company called EFCRISAM GROUPS COMPANY LIMITED, Egbeda Lagos is manifestly irregular. The inquiry should have been made and the owners or their clearing agents located before the opening of any of the containers. Counsel submitted that it is unfair to arrest and detain clearing agents and hold them out as the owners of the containers when JTF knows that the clearing agents are never the owners but used by the owners to clear their goods and in most cases the clearing agents may not even know the owners of the containers. Counsel submitted that it is only after breaking the seal of the containers and opening the said containers in the presence of the owners or those who come forward to clear them that the JTF can confirm for sure that the said containers had drugs in them. Counsel queried why the JTF was in such a hurry to open the said containers on the ground that no one claimed ownership when it had in its possession the bills of lading with which it could have traced the owners of the containers. Counsel opined that the unusual practice adopted by the Respondent raise suspicion as to whether the drugs may have been planted in the containers. He indeed submitted that the only conclusion one can arrive at is that there was no cocaine in the two containers when they arrived in Nigeria and that JTF having opened and searched the first container in the absence of the owners and finding no cocaine therein, were disappointed and as a result opened the remaining two containers and planted cocaine therein. It was after that, they now did what they should have done in the first instance. Counsel referred to the evidence of PW9:
That. . . .the Joint Task Force then made an inquiry through the shipping line and information from the cargo manifest of the container. I led a team of officers to Efcrisam Group Company Limited, Egbeda Lagos where the owner of the company Kayode Fashagba was invited to the Joint Task office and interrogated by us.
Counsel submitted that by the evidence of PW9 the JTF knew how to reach those connected with the containers whether consignors or Nigerian agents of the owners; and that if JTF had contacted Efcrisam Groups Company Limited upon the arrival of the containers, an ambush would have been laid for those who would show up to clear the containers and upon their showing up, they would have been taken to the containers, all the seals would have been broken in their presence and a search of the said containers would have been carried out. Counsel brazenly contended that the JTF actually opened all the three containers and having found nothing therein planted cocaine in the last two containers and resealed same for the eventual mock opening of the said containers. Counsel on this issue: finally submitted that although the damaging trail of evidence of the opening and search of the containers in the absence of the owners was provided by the Respondent's witnesses; the learned trial Judge ignored the adverse nature of the said evidence on the case presented by the Respondent. He opined that if the trial Judge had given due consideration to the said evidence, he would have resolved the issue of the importation of cocaine in favour of the Appellant and the 2nd accused.
In view of the above submissions, counsel opined that the offence of importation of 165 kilograms of cocaine was not proved against the Appellant. Counsel submitted that the Respondent failed to establish by credible evidence that the cocaine claimed to have been found in the containers were actually contained in the said containers at the point of entry into Nigeria and not that they were planted in the said containers. Counsel argued that if on receipt of the information that the containers had drugs in them the JTF had waited for the would be owners of the container or those who would show up to clear the containers and upon their coming forward, the seals of the containers were broken and the containers opened in their presence and the drugs found therein, then the Respondent would have had a case against the Appellant and the 2nd accused. Counsel finally submitted that the Respondent failed to prove the offence of importation of 165 kilograms of cocaine against the Appellant and urged this Court to so hold.
On issue 2: whether the offence of conspiracy to import 165 kilograms of cocaine was proved against the Appellant in line with provisions of the enabling law learned counsel submitted that the crime of conspiracy could not have been committed when there was no proof that there was cocaine in the container upon its arrival-in Nigeria as earlier submitted under issue one. Counsel argued that the cocaine found in the last two containers could only have been planted in the said containers by the Respondent and the JTF in their obvious desperation to rope in the Appellant. Counsel relying on Akinwunmi v The State (1987) NWLR (Pt 52) 608 submitted that the Respondent failed to establish the ingredients of the offence of conspiracy.
On issue 3: whether the learned trial Judge properly directed himself as to the burden and standard of proof, having regard to the nature of the issues placed before him made a proper approach to the evidence led by the prosecution and the defence, counsel relying on The State v. Usman (2005) 5 ACLR 45 at 49 ratio 39 submitted that the burden of proof in a criminal matter rests squarely on the prosecution and the prosecution must not only prove that a crime has been committed by the accused person, but must also prove it beyond reasonable doubt. Counsel submitted that the Respondent did not prove its case beyond reasonable doubt. He opined that the evidence which the prosecution presented before the Court was simply that the 2nd accused was caught with forged documents with which he intended to use to -clear two containers; that the Appellant gave two bills of lading to PW 10 in order that he may assist him in clearing the said containers and nothing more. Counsel submitted that most of the Respondents witnesses who testified during the trial, testified either to the fact that they kept the drugs in safe custody or that they oversaw the taking of the statements of DWI and DW2.
Counsel submitted that the Respondent's star witness was PW9, who is a Staff Officer in charge of investigation in the NDLEA. His schedule of duties included coordinating surveillances, liaising with their international counterparts; coordinating some operations and investigation of cases. He investigated and gave his evidence which in the main was that he received intelligence report about three suspicious containers coming from Bolivia and suspected to contain drugs. PW9 gave evidence as to how the Appellant and the 2nd accused person were arrested on the 21st of January 2011 followed by the arrest of Ibrahim Maidurumi, PW 10 and the clearing agent Audu Ismail. The summary of the said evidence as presented by the Respondent purportedly pointed to the fact that the container with bill of lading No. MSCU1287321 which purportedly contained the 165kg of cocaine was believed to belong to the Appellant who was being assisted by the 2nd accused to clear the said container. Counsel submitted that these facts were not proved beyond reasonable doubt.
Counsel submitted that there were crucial issues during the trial which the learned trial Judge ought to have made definite findings of fact on. These are:
1. Why the container in issue was opened by the Respondent and the JTF in contravention of the procedure for opening suspected containers said to contain drugs;
2. Whether in reality, there was drug in the container;
3. Whether the Appellant and the 2nd accused indeed conspired to import the drugs;
4. Whether there was a meeting of minds to commit an offence;
5. Why the Respondent made no effort to trace the telephone number that the Appellant provided the police; and
6. Whether the Appellant and the 2nd accused were guilty of any crime whatsoever.
Counsel submitted that there was ample evidence provided by the Appellant that the actual owners of the container were known and could have been traced. But for reasons best known to the prosecution, it chose to ignore the leads it had as to the actual owner of the container. Counsel submitted that the lead in question was the telephone number of the boy who works for the owner which the owner gave the Appellant and which the Appellant passed on to the Task Force. Further, that the Appellant cooperated with the NDLEA and made effort to lead the Task Force to the actual owner - Chief Okey - but the Task Force bungled the opportunity.
Counsel opined that the learned trial Judge failed to consider the defence of the Appellant to wit: that he was procured by one Chief Okey to clear the container on his behalf. Counsel submitted that the learned trial judge appeared to have been swayed by his conclusion that the appellant and the 2nd accused were liars but the law is that an accused cannot be convicted of an offence the prosecution has failed to prove simply because he lied. Counsel cited the cases of Okpere v. The State (1971) NMLR 145 and Philip Omoaodo v The State (1981) 5SC 5 page 22.
Relying on the cases of Alatise v State (2013) ALL FWLR (PT.686) PG. 552 at [567. paras. A-E]; Odogwu v The State (supra): and R.v. Teper (1952) A C. 480 at 489. learned counsel submitted that the circumstantial evidence relied on by the learned trial judge to convict the appellant was not so cogent, complete and unequivocal as to lead to the irresistible conclusion that the appellant and the 2nd accused conspired to import 165 Kilograms of cocaine from Bolivia.
Counsel submitted that while it is trite that an appellate Court would not disturb or reverse the findings of fact made by a trial court, which had the opportunity of hearing and watching the demeanour of the witnesses, where the trial court failed to properly evaluate the evidence or make proper use of the opportunity of seeing and hearing the witnesses at the trial or where it is shown that the trial court's findings are perverse and that a miscarriage of justice has been occasioned as a result, the appellate Court will interfere. Adimora v Ajufo (1983) 3NWLR (Pt. 80) 1 Ebba v Ogodo (1984) 1 SCNLR 372 at page 185. See also Williams v The State (1998) 4 SCNJ 202 at 222. Ojo V Governor of Oyo State (1989) 1 NWLR (Pt 95) and Elohor v Osayade (1992) 6 NWLR (Pt. 249) 524.
Counsel submitted that the Respondent failed to prove each of the counts against the Appellant beyond reasonable doubt and urged us to allow the appeal and to discharge and acquit the Appellant on the two counts.
RESPONDENT'S ARGUMENTS:
On the first issue, whether the prosecution has proved its case against the Appellant beyond reasonable doubt as required by law, learned counsel for the Respondent submitted that the case against the Appellant was proved , beyond reasonable doubt and that there was evidence beyond reasonable doubt to warrant the conviction of the Appellant for the offences of conspiracy to import 165 Kilograms of Cocaine into Nigeria and importation of the said 165 Kilograms of Cocaine into Nigeria. Counsel quoted the dictum of Karibi Whyte JSC in Ogwumba v. State (1993) 5 NWLR (Part 296) 60 at 67 that "-a formulation which only raise the issue of whether the case against the Appellant had been proved beyond reasonable doubt is not merely raising the issue of burden of proof, it questions the proof of essential ingredients of the offence and the validity of procedure adopted". Counsel submitted that the prosecution in discharging the burden of proof proved all the essential ingredients of the offences and that the trial court adopted the right procedure in accordance with the relevant laws in criminal trial in coming to the decision convicting the Appellant. Counsel submitted that the Respondent tendered evidence that the Appellant was involved in the conspiracy and importation of container no. MSCU 1287231 which contained 165 Kilograms of Cocaine imported into Nigeria in January 2011. He opined that the 2nd accused who was convicted along with the Appellant admitted an oath that he faked documents to facilitate the clearance of the^ container no. MSCU 1287231 which contained the 165 Kilograms of Cocaine.
On the ingredients of conspiracy, Counsel referred to the Supreme Court case of Kaza V. State (2008) 7 NWLR (Pt. 1085) 125 at 133 and submitted that the prosecution adduced the under listed evidence to prove the conspiracy between the Appellant and the second accused person in the importation of the container containing the cocaine?
(i) Evidence that the Appellant handed over the bill of lading in respect of container no. MSCU 1287231 which contained the 165 Kilogrammes of Cocaine to Ibrahim Maidurumi PW12 and also paid a deposit of N300, 000 to enable him clear the container containing 165 Kilogrammes of Cocaine. -
(ii) Evidence that Ibrahim Maidurumi handed the bill of Lading to Audu Ismail, who in turn gave it to Ugwu Geoffery (the 2nd Accused).
(iii) Evidence that the 2nd accused then forged some documents and made payments to Ellisbonar Nigeria Ltd to get a release letter to clear the container from the Tin can Island Port.
Learned counsel urged the Court to affirm the conviction of the Appellant for conspiracy to import the 165 Kilogrammes of Cocaine into Nigeria.
With respect to the offence of importation of the 165 Kilograms of Cocaine, Counsel submitted that the prosecution also proved the offence beyond reasonable doubt. Counsel submitted that the Respondent was required to prove the following ingredients.
a. That there was importation of cocaine into Nigeria.
b. That the Appellant was a party to the importation of the Cocaine.
c. That the substance imported is proved to be cocaine.
On (a), counsel submitted that the trial court found at page 349 of the record of Proceedings that the said container no. MSCU 1287231 containing the 165 Kilograms of Cocaine was imported into the country from Bolivia, South America. The Country of origin is Bolivia and the destination of the container is Nigeria. Counsel argued that once the container landed at Tin can Port, Lagos, it has been imported into Nigeria. He referred to Exhibit W (the bill of lading).
On (b), that the Appellant was a party to the importation of the v Cocaine, counsel referred to the findings of the learned trial judge in his judgment at page 349 of the Record of Proceedings:
The activities of the 1st and 2nd accused persons are indicative of the involvement of a syndicate. The two accused persons though they claim not to know each other, I am satisfied that they conspired with persons now at large to import the 165 Kilograms of Cocaine in container no. MSCU 1287231 from Bolivia, South America"
Counsel also referred to the findings of the trial judge at page 348 of the Record of proceedings:
"That the evidence before the Court is that the 1st accused handed over the Bill of Lading (Exhibit W) for container MSCU 1287231 to Ibrahim Audu Maidurumi (PWIO) to assist him in the clearing of the said container. In Exhibit M the 1st Accused Statement dated 22nd January 2011, the 1st accused stated that he gave the bills of lading for containers nos. MSCU 3668026 and MSCU 1287231 to Ibrahim and that they were given to him by one Chief Oke. The Bill of Lading for container no. MSCU 1287231 was given to Ibrahim by the 1st accused personally".
Counsel submitted that all these findings were sufficient to prove that the Appellant was party to the importation of the cocaine.
On (c), that the substance imported is proved to be Cocaine, counsel submitted that in his evidence PW4 gave a graphic account of how the powdery substance recovered from the tiles which was the mode of concealment was field tested and packed into A1 and A3. The evidence of PW4 was that AI was sent to the Forensic Laboratory for forensic analysis. PW3 the liaison officer gave evidence of how he received Al from PW4 and kept until it was analyzed on 14th of February 2011 by PW2. He also gave evidence of how the Al was returned. Al was admitted as Exhibit F and the forensic reports were admitted as Exhibit E. The report confirms that the powdery substance tested positive for Cocaine.
Counsel referred to section 42 of the Evidence Act which provides as follows:
"Either party to the proceedings in any criminal case may produce a certificate signed by the Government Chemist, the Deputy Government Chemist, an Assistant Government Chemist, a Government pathologist or entomologist, or the Accountant-General or any other chemist so specified by the Government Chemist of the Federation or of the State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of the State, or any Accountant specified by the Accountant-General of the Federation or of the State (whether any such officer is by that or any other title in the service of a State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated therein"
He submitted that in addition to producing the forensic reports of the Exhibits in this case, the Forensic Analyst was called as a witness and she was cross-examined by the defence. Counsel further submitted that all the ingredients of the offence of importation have been proved by the prosecution. The onus consequently shifted to the accused (appellant herein) to prove lawful authority. Counsel cited Section 142 of the Evidence Act which provides that "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him"; and section 143 of the Evidence Act which further provides that: "Any exception, exemption, proviso, excuse, qualification whether it does or does not accompany in the same section the description of the offence in the Act, order, by-law, regulation or other document creating the offence may be proved by the accused, but need not be specified or negatived in the charge; and if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution". Counsel cited the case of Ibrahim Abdul-Rahaman V. Commissioner of Police (1971) 1 NNLR 87 or 1971 NMLR 24 where it was held that "the onus was on the accused to show that he falls within the exceptions allowed in law." Counsel submitted that the Appellant failed to prove lawful authority to import cocaine into the country. Counsel urged the court to hold that the Respondent has proved count II that is importation of 165 Kilogrammes of cocaine against the Appellant beyond reasonable doubt and to affirm the conviction of the Appellant accordingly.
On the second issue, whether in the circumstances of this case it will not be improper for the Court of Appeal to tamper with the findings of fact of the Trial Court, learned counsel submitted relying on Mini Lodge Vs. Ngei (2009) 12 SCNJ 93 at 104 and Amadi v. F.R.N (2005) 18 NWLR Part 1119, 259 at 267 and 268 that the evaluation of evidence remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus the Court is best suited to assess their credibility. Where therefore a trial Court makes a finding as to the credibility of a witness an appellate Court would not ordinarily interfere. Contending that the findings of the trial court were not perverse and ought not to be interfered with, counsel urged us to dismiss the appeal as lacking in merit.
RESOLUTION
I shall begin by considering appellant's issue 2, the count of conspiracy. In the case of Obiakor v. State (2002) 10 NWLR (Part 774-776) 612 @ 628-629: Kalgo JSC discussed the nature of the offence of conspiracy thus:
"Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed.
Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts......................And for circumstantial evidence to ground conviction, it must lead to one and only one conclusion i.e the guilt of the accused See Popoofa v. Commissioner of Police (1964) NMLR 1; R. v. Roberts (1913) 9 CAR 189 Raphael Ariche v. State (1993) 6 NWLR (Pt302) 752. The facts to be relied upon for conviction must be consistent, cogent and must irresistibly lead to guilt of the accused......."
Further in the case of Clark v State (1986) 4 NWLR (Pt. 35) 381 @ 394 H, Kolawale JCA delivering the lead judgment observed:
"What then is the nature of evidence required in a case of conspiracy of this kind? Generally, it may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and the person charged be also proved to have been engaged in it I think it is well recognized in law that it is not necessary that it should be proved that the appellants met to concoct the scheme which led to the theft of the subject aircraft--------------
I believe that the essential ingredient of the offence of conspiracy or the gist of the offence lies in the bare engagement and association to do an unlawful thing which is contrary to or forbidden by law, whether that thing be criminal or not, whether or not the accused persons had knowledge of its unlawfulness. It is of course necessary to constitute the offence that there should be a criminal purpose common to all the conspirators. (See R. v. Clayton (1943) 33 Cr. App.R 113)"
The charge of conspiracy reads:
That you Gabriel Onyebuchi Obi and Ugwu Geoffery males, adults, sometime in October 2010 at Lagos within the jurisdiction of this Honourable Court, conspired with others at Large to commit an unlawful act, to wit, to import 165 Kilogrammes of Cocaine from Bolivia, South America using container no. MSCU 1287231 and you thereby committed an offence contrary to and punishable under Section 14(b) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation 2004;
For the prosecution to secure a conviction on the above count of conspiracy, it must establish the following:
1. That the appellant and Ugwu Ge