DANJUMA v. STATE

CITATION: (2019) LPELR-47037(SC)

In the Supreme Court of

ON FRIDAY, 15TH MARCH, 2019 Suit No: SC.655/2016

Before Their Lordships:

MUSA DATTIJO MUHAMMAD Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court

Between

YOHANNA DANJUMA - Appellant(s) And THE STATE(2019) LPELR-47037(SC)- Respondent(s) RATIO DECIDENDI

1. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S):Attitude of the Supreme Court to interference with concurrent finding(s) of fact(s) of Lower Courts "The law is settled that if there are concurrent findings of fact made by the High Court and Court of Appeal, the Supreme Court will not readily set them aside or substitute its own views unless there is no evidence to support the findings. See Re: MOGAJI (1986) 1 NWLR (Pt.19) 759; SALAMI VS THE STATE (1988) 3 NWLR (Pt.85) 670; MBENU VS THE STATE (1988) 3 NWLR (Pt.84) 615."Per Akaahs, JSC. (P. 18, Paras. D-F). See also MINI LODGE LTD VS NGEI (2009) 18 NWLR (Pt.1173) 254 Per Musdapher, JSC (p.33, Paras. B-D)."Per BAGE, J.S.C. (Pp. 22-23, Paras. E-B) - read in context

2. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where an appellate Court will not interfere with concurrent findings of fact(s) made by Lower Courts "It must be emphasized that the appeal is against the concurrent findings of facts by the two Courts below which, except where shown by the appellant to be perverse, has to prevail. In the case at hand, therefore, the appellant having failed to show that the concurrent findings of the two Courts below are perverse does not deserve to succeed in his appeal. See ODEH V. FRN (2008) LPELR- 2205 (SC) and AMAREMOR V. STATE (2014) LPELR - 22591 (SC)."Per MUHAMMAD, J.S.C. (P. 24, Paras. A-C) - read in context 3. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where an appellate Court will not interfere with concurrent findings of fact(s) made by Lower Courts "Beyond appellant's voluntary confessional statements admitting the commission of the offence, there is the direct evidence of PW1, an eye witness, stating clearly appellant's act that led to deceased's death. The lower Court's affirmation of appellant's conviction and sentence, learned respondent's counsel is right, cannot be said to be perverse. Not being so, the decision cannot be interfered with. See ATOLAGBE V. SHORUN (1985) LPELR - 592(SC) and FRN V. FAITH IWEKA (2011) LPELR - 9350 (SC)."Per MUHAMMAD, J.S.C. (P. 29, Paras. A-C) - read in context

4. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Onus on an appellant appealing against concurrent findings of Lower Courts "Where an appeal is against concurrent judgements, the appellant must show that the findings were perverse and there was no evidence to support such findings before an appellate Court can interfere with the said findings. See: Mbenu v. State (1988) 3 NWLR (Pt. 84) 615."Per AKA'AHS, J.S.C. (P. 30, Paras. C-E) - read in context

5. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "The Respondent's case was predominantly based on circumstantial evidence, which is one of the ways to prove commission of an offence. See ADEBAYO VS THE STATE (2007) All FWLR (Pt.365), 498-519. What manner of evidence was presented by the prosecution before the trial Court and what informed the basis of upholding or affirming same by the Court below? This question is not intended to be another issue for determination, but ancillary to the sole issue for determination as I had formulated above. The penal provisions of our land give the prosecution the choice or options for proving its case beyond reasonable doubt. A prosecutor may deploy all three options or a combination of options. The guilt of an accused may be proved by: "(i) a confessional statement of the accused; (ii) evidence of an eye witness; or (iii) Circumstantial evidence." See IGRI VS THE STATE (2012) 16 NWLR (Pt.1327) 522; OGUNO VS THE STATE (2013) 15 NWLR (Pt.1377) at 1; IBRAHIM VS THE STATE (2014) 3 NWLR (Pt.1394) 305; OGEDENGBE VS THE STATE (2014) 12 NWLR (Pt.1421) 338 and UMAR VS THE STATE (2014) 13 NWLR (Pt.1425) at 497."Per BAGE, J.S.C. (Pp. 17-18, Paras. E-D) - read in context

6. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE NOT PUNISHABLE WITH DEATH: When culpable homicide will not be punishable with death "The Respondent had contended, and rightly so, that the Appellant's conviction and sentence were justified by the trial Court which found that on page 104 of the record that, the Appellant simply acted rashly and thus convicted him of a lesser offence by virtue of Section 218 (2) of the Criminal Procedure Code. I can't agree less with the Respondent that the trial Court was perfectly in order when it found the Appellant guilty of a lesser offence of culpable homicide not punishable with death pursuant to Section 218 (2) of the Criminal Procedure Code having found that there was no intention(2019) to kill the deceased, butLPELR-47037(SC) that the Appellant acted rashly and his action led to the death of the deceased."Per BAGE, J.S.C. (Pp. 20-21, Paras. E-B) - read in context

7. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: Whether conspiracy to commit an offence can be inferred from circumstantial evidence "By way of restating the position of this Court on the issue of conspiracy as held in OKANLAWON VS THE STATE (2015) 17 NWLR (Pt.1489) at 477, Para C-D and KAYODE BABARINDE & ORS VS THE STATE (2014) 3 NWLR (Pt.1395) 568 at Page 594 per Kekere-Ekun, JSC, 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 acts. In ADEBAYO VS THE STATE (2007) All FWLR (Pt.365), 498-519, circumstantial evidence was described thus: "Circumstantial evidence is a series of circumstances leading to the inference or conclusion of guilt when direct evidence is not available. Evidence which although not directly establishing the existence of facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or in relation to the extent that it is sometimes regarded as of higher value than direct evidence, which may or can be perjured or mistaken."Per BAGE, J.S.C. (Pp. 21-22, Paras. B-A) - read in context 8. CRIMINAL LAW AND PROCEDURE - CONVICTION FOR LESSER OFFENCE: Position of the law as regards conviction for lesser offence "In decisions of this Court too numerous to readily count, the power to convict for a lesser offence that is proved in place of a greater offence charged enures to the Courts by virtue of Section 218 (2) of the Criminal Procedure Code. The principle has been stressed that before an accused can be convicted for a lesser offence by virtue of Section 218 (2) of the Criminal Procedure Code, the ingredients of the lesser offence must not only be embedded in the aggravated offence charged, the lesser offence must also be shown to have been committed in the same circumstance as the aggravated offence. See AGUGUA V. STATE (2017) LPELR-42021 (SC) and THE NIGERIAN AIR FORCE V. KAMALDEEN (2007) 2 SC 113. In the instant case, the appellant is charged under Section 221 of the Penal Code which attracts the death penalty. The two Courts below, in the absence of proof of appellant's intention to cause the death of the deceased, convicted him for the lesser offence under Section 222 (7) of the same code. Undoubtedly, the lesser offence under Section 222 (7) of Penal Code, the appellant is convicted for instead of the aggravated one he is charged with under Section 221 of the very code is a combination of some of the particulars that make up the offence charged. Put differently, the particulars of the lesser offence he is convicted for are some of the particulars of the offence charged. In AGUMADU V. QUEEN (1963) LPELR-15440 (SC), this Court, while considering Section 179 of the Criminal Procedure Act that is in pari materia with Section 218 relied upon by the two court in convicting the appellant for the lesser offence, inter-alia held:- "When one is considering action under Section 179 one should write out particulars of which the offence charged consists and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict." If we delete intention on the part of the appellant to cause the death of the deceased from the particulars which constitute the offence under Section 221 of the Penal Code, we shall be left with those particulars of the lesser offence under Section 222 (7) the appellant's is, though not charged, convicted for. The lower Court's correct application of Section 218 (2) of the Penal Code is, therefore unassailable. See NWACHUKWU V. STATE (1986) LPELR - 2085 (SC) and IBRAHIM V. STATE (1991) 4 NWLR (PT 186) 176."Per MUHAMMAD, J.S.C. (Pp. 27-29, Paras. A-A) - read in context

9. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: Whether conspiracy to commit an offence can be inferred from circumstantial evidence "His Lordship observed in the leading judgement that, 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 acts. This is true. As this Court held in Sopakinba Igbikis v State [Appeal No: SC. 316/2014 delivered on February 17, 2017]: ...the category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State(1965) NMLR 119; Ukorah v State [1977] 4 SC 167; Lori v State (1980) NSCC 269; Onah v State [1985) 3 NWLR (pt 12) 236; Ebenehi v State (2009) All FWLR (pt 486) 1825, 1832-1833; Ijioffor v State [2001] 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances(2019) which, by undersigned LPELR-47037(SC) coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v State (supra) 385. The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person, Idiok v State [2008] All FWLR (pt 421) 797, 818. Put, simply, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State [2009] 7 NWLR (pt 1139) 148, 178; (2009) LPELR -2663 (SC) 42-43. Where such circumstances are established to the satisfaction of the Court, they may be properly acted upon, 1/11/7/5 on Circumstantial Evidence [Seventh edition] 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178. Like the leading judgement, I too agree that the trial Court, rightly, inferred conspiracy from the circumstances of this case."Per NWEZE, J.S.C. (Pp. 32-34, Paras. F-C) - read in context 10. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: General principles of the burden and standard of proof in a criminal trial "The point that must be made, and clearly made, is that the appeal before us borders on criminal conspiracy and offence of culpable homicide not punishable by death. The offence for which the Appellant is charged is a very serious one, and by virtue of Section 135 (1) of the Evidence Act 2011, the offence must be strictly proved by cogent and convincing evidence that leaves no iota of doubts or skepticism in the minds of the parties and members of the public, and I dare say this Court. The section provides: "135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted." "(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action." It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See YONGO VS COMMISSIONER OF POLICE (1992) LPELR - 3528 (SC), (1992) 4 SCNJ 113, OGUNDIYAN VS THE STATE (1991) LPELR - 2333 (SC), (1991) 3 NWLR (Pt.181) 519, AKIGBE VS IOG (1959) 4 FSC 203, ONUBOGU VS THE STATE (1974) 9 SC1 at 20, BABUGA VS THE STATE (1996) LPELR - 701 (SC), (1996) 7 NWLR (Pt.460) 279. To all intent and purposes, the burden of proving the commission of a crime by the prosecution has constitutional limitation to the extent that where the burden shifts or a written law assumes or imposes the duty of proof of a particular fact on the accused person, the burden is not displaced by presumption of innocence. Section 36 (5) provides that: "Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts." The adversarial system of adjudication in our Criminal justice set up is well established that the onus of proof is firmly rested on the prosecution following the Constitutional presumption of innocence of the accused person until proven guilty. Thus, once the onus is discharged, there is little option for the Court as in the instant case. The totality of the evidence presented in this case leaves this Court with little or no room to arrive at a different conclusion with the trial Court and Court below. By virtue of Sections 131 and 132 of the Evidence Act: "Burden and Standard of Proof 131. Burden of proof." "(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When(2019) a person is bound to proveLPELR-47037(SC) the existence of any fact it is said that the burden of proof lies on that person." 132. On whom burden of proof lies. "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." Section 138 of the Evidence Act further complements the above. It provides for the burden of proving facts necessary to be proved to make evidence admissible. "138(1) The burden of proving any fact necessary to be proved in order to - "(a) enable a person to adduce evidence of some other fact; or (b) prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent the production of such evidence, respectively." "(2) The existence or non - existence of facts relating to the admissibility of evidence under this section is to be determined by the Court." Proof in criminal trial is attained against the background of the burden enshrined in Section 135 (1) of the Evidence Act, 2011 which states thus: "135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt."Per BAGE, J.S.C. (Pp. 13-17, Paras. C-C) - read in context 11. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person "The evidence adduced by the prosecution in proving its case at trial was in several folds. There is the side of confessional evidence of the Appellant which is neither denied nor challenged as contained in Exhibit 4 and 4A. This alone could ground conviction. By virtue of the provisions of Sections 28 of the Evidence Act, Confessional Statement is tenable and admissible. The section describes a confessional statement thus: "A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime." Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example PATRICK IKEMSON & 2 ORS VS THE STATE (1989) 3 NWLR (Pt.110) 455 at 476 Para D; JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 AT 62; (2000) 12 NWLR (Pt.680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt.438) 530 at 537 Para D-E; SAMUEL THEOPHILUS VS THE STATE (1996) 1 NWLR (Pt.423) Page 139 at 155 Para A- B; and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151. See also PETER ILIYA AZABADA VS THE STATE (2014) All FWLR (Pt.751) 1620, Para B where this Court, per the Learned Onnoghen, JSC (as he then was) declared that: "The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved...Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse's mouth who is the accused person. There is no better evidence and there is no further proof."Per BAGE, J.S.C. (Pp. 18-20, Paras. E-D) - read in context

(2019) LPELR-47037(SC) SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division dated 26th February, 2016 dismissing the appeal of the Appellant and confirming the conviction and sentence of the Appellant for offence culpable homicide not punishable with death. Being dissatisfied with the decision of the lower Court, the Appellant brought this appeal vide a Notice of Appeal containing four grounds, dated 3rd March, 2016

SUMMARY OF FACTS: The Appellant who was the second accused person at the trial Court was arraigned before the High Court of Kaduna State for criminal offences of conspiracy, punishable under Section 97 of the Penal Code Law of Kaduna State and culpable homicide punishable under Section 221 of the Penal Code Laws of Kaduna State. The Appellant and the co-Accused pleaded not guilty. In the course of the trial, the prosecution called 5 witnesses who testified on its behalf and tendered(2019) several LPELR-47037(SC) documents in evidence among which is the confessional statement of the Appellant.

​In defense, the Appellant testified in person and called no

1 other witness. After the close of proceedings, Counsel to both parties addressed the Court. The trial Court found the Prosecution had proved its case beyond reasonable doubt and the Appellant was convicted for the offences of conspiracy and culpable homicide not punishable with death pursuant to Section 222(7) of the Penal Code and sentenced to one (1) year imprisonment for count number one dealing with criminal conspiracy and five (5) years imprisonment for the offence of culpable homicide not punishable with death, both sentences to run concurrently.

The Appellant being dissatisfied with the said judgment of the trial Court filed an appeal at the registry of the Court of Appeal, Kaduna. However, on 26th February 2016, the Court of Appeal, Kaduna Division delivered its judgment and dismissed the appeal while affirming the judgment of the trial Court. Still being dissatisfied with the judgment of the Court below the Appellant filed this appeal seeking to upturn the decision of the Court below. (2019) LPELR-47037(SC)

ISSUES FOR DETERMINATION: The Appellant filed his Brief of Argument dated 20th October, 2016 and formulated two issues for determination before this

2 Court. The issues formulated by the Appellant as contained at page 3 of the Appellant's brief are:

"1) Whether the prosecution was able to prove the essential elements of the offence of conspiracy in this case for which the appellant was convicted and which conviction was affirmed by the Court below? (Grounds 1 and 2) 2) Whether the affirmation of the Court below of the conviction and sentence of the appellant under Section 222 (7) of the Penal Code Laws of Kaduna State is justified putting into consideration all the circumstances in this case (Grounds 3 and 4)"

On its part, the Respondent formulated one issue for determination, thus:

"1) Whether in the entire proceedings of this case and the evidence adduced, the Court below was right when it affirmed the judgment of the trial Court which convicted and sentenced the Appellant for the offences(2019) of Criminal LPELR-47037(SC) Conspiracy and Culpable Homicide not punishable with death punishable under Section 97 and 224 of the Penal Code Law having found that the Respondent proved its case beyond reasonable doubt against him. (Grounds 1, 2, 3, and 4)."

3 CONSIDERATION AND RESOLUTION OF ISSUES: ​The Appellant's contention on its issue one is that the Appellant having pleaded not guilty to the charge contained in count one on criminal conspiracy, by virtue of Section 36 (5) and Section 138 (1) of the Evidence Act, it is the prosecution that has the burden of proof of the said count.

The Appellant relied on the case ofSAMAILA VS THE

STATE (2016) All FWLR (Pt.818) 845 at 857, Para C- D; THE STATE VS GWANGWAN (2015) All FWLR (Pt.8010) 1470 at 1491, Paras E-F.

Relying on the above authorities, the Appellant submitted that the Prosecution has a duty to prove the particulars of the offence spelt out in the charge, citing the case of CAPT.

O. ABIDOYE VS FEDERAL REPUBLIC OF NIGERIA (2014) All FWLR (Pt.722) 1624 at 1642-1643, Para G- D.

The Appellant disagreed with the Court of Appeal's position to the effect(2019) that the LPELR-47037(SC) offence of conspiracy can be inferred from the criminal acts of the parties, including acts of complicity, and the attainment of a common end. The basis of the Appellant's position is that it is not in all cases that the Court would infer conspiracy from acts done. The

Appellant relied on the case ofSHAZALI VS STATE

(1988)

4 NWLR (Pt.93) 614, and submitted that conspiracy was not established against the Appellant contrary to the decision of the Court below.

The Appellant further contended that Exhibits 3, 3A and 4A are not sufficient to conclude that since the Appellant went with the 2nd Accused person to deceased's house to ask why he burnt their farm, that amount to an agreement to, and that an inference of conspiracy can be drawn from it. On this proposition the Appellant relied on the case of

ODUNEYE VS THE STATE (2001) 2 NWLR (Pt.697) 311. The Appellant further contended that at no time was evidence led to prove the charge of conspiracy and that the active ingredient of the offence of conspiracy is the agreement, citing the case of FATAI BUSARI VS THE

STATE (2015) 15 LPELR 24279 (SC).

​The Appellant submitted that conspiracy cannot be inferred merely because the Appellant also beat the deceased. To find the (2019)accused guilty, LPELR-47037(SC) there must be proof of meeting of minds to commit the offence. It is the argument of the Appellant that from the totality of the evidence adduced by the witnesses for the prosecution, an inference of common intention in pursuance of a criminal purpose between the

5 Appellant and his co-accused cannot be easily drawn. The Appellant then urged this Court to answer issue one in the negative and set aside his conviction.

On issue two, the Appellant contended that the affirmation by the Court below of the conviction and sentence of the Appellant under Section 222(7) of the Penal Code Law of Kaduna State is not justified in the circumstances of this case. The contention of the Appellant is that by virtue of Section 36(5) of the 1999 Constitution (as amended), and Section 138 (1) of the Evidence Act, it is the prosecution who has the burden of proving the alleged offence of rash act for which the accused was convicted and sentenced, and must do this beyond reasonable doubt. The Appellant cited the case of OKORO VS THE STATE (1988) 5

NWLR (Pt.94) 255 at 267; EMINE VS THE STATE (1991) 7 NWLR (Pt.204) 280 at 492, Para D-F.

The Appellant specifically contended that the Court of Appeal was(2019) wrong LPELR-47037(SC)when it declared at page 193 of the record, that:

“...The judgment of the High Court of Kaduna State in Charge KDH/KAD/41C/2008 delivered by Honourable Justice G.I. Kurada on the 22nd March 2011, inclusive

6 of the conviction and sentence of the Appellant contained herein, are hereby Affirmed”.

The Appellant's displeasure stems from the fact that according to him, the judgment of the Court below was erroneous as the trial Court did not consider the defence of the Appellant. The Appellant relied on the case ofMANU

GALADIMA VS THE STATE (2012) LPELR-15530 (SC), to the effect that the trial Court has the onerous duty to consider all the defences raised by the evidence whether the accused specifically put up such defence or not; and any defence raised by an accused Person no matter how weak, inconsequential or stupid it may appear must be given due attention.

The Appellant was piqued that the trial Court had correctly found that there was no evidence to establish that the accused knew that death would be a probable and not only likely consequence of their act. The Appellant contended that this(2019) finding is LPELR-47037(SC)crucial as an intention to do an act which death will be the probable consequence is an essential element to be proved by the prosecution, which was not the case in the instant appeal. The Appellant relied on the case

7 of ADAVA VS THE STATE (2006) 9 NWLR (Pt.984) 152 at 167 and MUSA VS THE STATE (2009) 15 NWLR (Pt.1165) at 467.

In his closing submission, the Appellant reiterated that the element of the offence must be proved beyond reasonable doubt by the prosecution as held in the case of KAZA VS

THE STATE (2008) 7 NWLR (Pt.1085) 125 and that failure to prove any of the ingredients will be fatal to the prosecution. The Appellant stressed that the Court should not find a man such as the Appellant guilty of an offence unless in the absence of a guilty mind. See MOHAMMED

VS THE STATE (1991) 5 NWLR (Pt.192) 438. The Appellant then urged this Court to allow the appeal because the offence of conspiracy as alleged in the charge has not been proved to the extent that there is no proof before the trial Court to show that the fight was intended to kill or that death was a natural resultant effect of the fight, and that there was no evidence to prove the offence under Section (2019)222(7) of the LPELR-47037(SC) Penal Code on which the Appellant was convicted.

​The Respondent’s case is essentially based on the contention that the onus of proving the guilt of any person accused of the commission of a crime lies on the

8 prosecution and that the burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See the case of THE STATE VS

JAMES GWANGWAN (2015) 13 NWLR (Pt.1477) 600, at 621, Paras B-E, Per OKORO JSC. See also YONGO

VS COMMISSIONER OF POLICE (1992) LPELR — 3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (Pt.257) 36; OGUNDIYAN VS THE STATE (1991) LPELR- 2333 (SC); (1991) 3 NWLR (Pt.181) 519, ALONGE VS IGP (1959) 4 FSC 203; IBRAHIM VS THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192, Paras A-B.

The Respondent contended that the Appellant's conviction and sentence were justified by the trial Court which found on page 104 of the record that, the Appellant simply acted rashly and thus was convicted of a lesser offence by virtue of Section 218 (2) of the Criminal Procedure Code. The Respondent drew further emphasis from the findings of the trial Court(2019) on page 105LPELR-47037(SC) of the record, to the effect that by Exhibit 3, 3A and 4 and 4A, the accused and his co-accused went to the house of the deceased and jointly beat him. This forms the basis of the finding of the trial Court

9 that the Appellant and his collaborator were guilty of criminal conspiracy to commit culpable homicide not punishable with death under Section 97 of the Penal Code.

The Respondent contended that the guilt of an accused person for the commission of an offence can be established by any one or more of the following methods: by eye witness evidence, by a free and voluntary confessional statement of the accused person and by circumstantial evidence; see SUNDAY UDOR VS THE STATE (2014) 12

NWLR (Pt.1422) 548 at 561 Para B; AKEEM AGBOOLA VS THE STATE (2013) 11 NWLR (Pt.1366) 619 at 648 Para A-C; and EMEKA VS THE STATE (2012) 14 NWLR (Pt.734) 666 at 683 Para G-H.

The Respondent admitted that the onus of proving the offence lies on the prosecution, but contended that this onus has been effectively discharged by evidence of PW.1, an eye witness in addition to the confessional statement of the Appellant(2019) which LPELR-47037(SC) were admitted in evidence without objection and marked as Exhibit 4 and 4A. The Respondent contended that the trial Court was perfectly in order when it found the Appellant guilty of a lesser offence of culpable homicide not punishable with death pursuant

10 to Section 218 (2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

The Respondent argued further that the Respondent has proved the ingredients of the offence for which the

Appellant was charged as required by law, SeeTHE

STATE VS BOKA (1982) 1 NCR 85 at 93, Lines 24-33; EMMANUEL AYO VS THE STATE (2015)16 NWLR (Pt.1486) 531 at 546-547, Para H-B. The Respondent then urged this Court to hold that based on the evidence led, the Court below was right in affirming the conviction and sentence of the Appellant for the offence of culpable homicide not punishable with death.

The Respondent contended that contrary to the Appellant's submission, the trial Court considered the defence of self- defence put up by the Appellant and having failed to challenge(2019) the finding LPELR-47037(SC) of the trial Court that he (Appellant) was not acting in self- defence when they beat up the deceased and prevented him from entering his house, he must be taken to have accepted that finding.

On conspiracy, the Respondent relied on the decision of this

11 Court in OKANLAWON VS THE STATE (2015) 17

NWLR (Pt.1489) at 477, Para C-D and KAYODE BABARINDE & ORS VS THE STATE (2014) 3 NWLR (Pt.1395) 568 at Page 594 Per Kekere-Ekun, JSC to the effect that the actual argument alone constitute 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 acts.

In its concluding submission, the Respondent urged this Court to dismiss this appeal as the Respondent had by cogent and credible evidence proved beyond reasonable doubt that the Appellant and his co-accused person jointly beat the deceased person, which beating led to the death of the deceased. On this premise, the Respondent urged this

Court to affirm the judgment of the Court below which had confirmed the judgement of the trial Court convicting and sentencing(2019) the Appellant LPELR-47037(SC) for the offences of criminal conspiracy and culpable homicide not punishable with death.

I have carefully considered the arguments of both the Appellant and Respondent in this appeal. I see one clear

12 issue for determination in this appeal. For this reason, I have formulated the sole issue for determination in this appeal, thus:

"Whether given the circumstances of this case, the Court below was right in affirming the judgment of the trial Court which convicted and sentenced the Appellant for the offences of Criminal Conspiracy and Culpable Homicide not punishable with death punishable under Sections 97 and 224 of the Penal Code Law."

I now return to answer the above question. The point that must be made, and clearly made, is that the appeal before us borders on criminal conspiracy and offence of culpable homicide not punishable by death. The offence for which the Appellant is charged is a very serious one, and by virtue of Section 135 (1) of the Evidence Act 2011, the offence must be strictly proved by cogent and convincing evidence that leaves no iota of doubts or scepticism in the minds of the parties(2019) and members LPELR-47037(SC) of the public, and I dare say this Court. The section provides:

"135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted." "(1) If the commission of a crime by a party to any

13 proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action." It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.(2019) See YONGO LPELR-47037(SC) VS COMMISSIONER OF POLICE

(1992) LPELR - 3528 (SC), (1992) 4 SCNJ 113, OGUNDIYAN VS THE STATE (1991) LPELR - 2333 (SC), (1991) 3 NWLR (Pt.181) 519, AKIGBE VS IOG (1959) 4 FSC 203,

14 ONUBOGU VS THE STATE (1974) 9 SC1 at 20, BABUGA VS THE STATE (1996) LPELR - 701 (SC), (1996) 7 NWLR (Pt.460) 279. To all intent and purposes, the burden of proving the commission of a crime by the prosecution has constitutional limitation to the extent that where the burden shifts or a written law assumes or imposes the duty of proof of a particular fact on the accused person, the burden is not displaced by presumption of innocence.Section 36 (5) provides that:

"Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts." The adversarial system of adjudication in our Criminal justice set up is well established that the onus of proof is firmly rested on the prosecution following the Constitutional(2019) presumption LPELR-47037(SC) of innocence of the accused person until proven guilty. Thus, once the onus is discharged, there is little option for the Court as in the instant case. The totality of the evidence presented in this case leaves this Court with little

15 or no room to arrive at a different conclusion with the trial Court and Court below. By virtue of Sections 131 and 132 of the Evidence Act:

"Burden and Standard of Proof 131. Burden of proof." "(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person." 132. On whom burden of proof lies. "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." Section 138 of the Evidence Act further complements the above. It provides for the burden of proving facts necessary to be proved to make evidence admissible.

"138(1)(2019) The burden LPELR-47037(SC) of proving any fact necessary to be proved in order to — "(a) enable a person to adduce evidence of some other fact; or (b) prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent the production of such evidence, respectively."

16 "(2) The existence or non - existence of facts relating to the admissibility of evidence under this section is to be determined by the Court." Proof in criminal trial is attained against the background of the burden enshrined in Section 135 (1) of the Evidence Act, 2011 which states thus:

"135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt."

The Appellant made heavy weather of the failure of the prosecution to prove the offence of conspiracy. This is a cheap attempt to becloud the issue in this appeal. This is because the prosecution had been able to deploy an array of proofs. The Respondent's case was predominantly based on circumstantial evidence, which is one of the ways to prove commission(2019) of LPELR-47037(SC) an offence. See ADEBAYO VS THE

STATE (2007) All FWLR (Pt.365), 498-519. What manner of evidence was presented by the prosecution before the trial Court and what informed the basis of upholding or affirming same by the Court

17 below? This question is not intended to be another issue for determination, but ancillary to the sole issue for determination as I had formulated above. The penal provisions of our land give the prosecution the choice or options for proving its case beyond reasonable doubt. A prosecutor may deploy all three options or a combination of options. The guilt of an accused may be proved by:

"(i) a confessional statement of the accused; (ii) evidence of an eye witness; or (iii) Circumstantial evidence." See IGRI VS THE STATE (2012) 16 NWLR (Pt.1327)

522; OGUNO VS THE STATE (2013) 15 NWLR (Pt.1377) at 1; IBRAHIM VS THE STATE (2014) 3 NWLR (Pt.1394) 305; OGEDENGBE VS THE STATE (2014) 12 NWLR (Pt.1421) 338 and UMAR VS THE STATE (2014) 13 NWLR (Pt.1425) at 497.

The evidence adduced by the prosecution in proving its case at trial was in several folds. There is the side of confessional(2019) evidence LPELR-47037(SC) of the Appellant which is neither denied nor challenged as contained in Exhibit 4 and 4A. This alone could ground conviction. By virtue of the provisions of Sections 28 of the Evidence Act, Confessional Statement is tenable and admissible.

18 The section describes a confessional statement thus:

"A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime." Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example

PATRICK IKEMSON & 2 ORS VS THE STATE (1989) 3 NWLR (Pt.110) 455 at 476 Para D; JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 AT 62; (2000) 12 NWLR (Pt.680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt.438) 530 at 537 Para D-E; SAMUEL THEOPHILUS VS THE STATE (1996) 1 NWLR (2019)(Pt.423) PageLPELR-47037(SC) 139 at 155 Para A-B; and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151. See also PETER ILIYA AZABADA VS THE STATE

(2014) All FWLR (Pt.751) 1620, Para B where this Court, per the Learned

19 Onnoghen, JSC (as he then was) declared that:

"The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved...Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse's mouth who is the accused person. There is no better evidence and there is no further proof."

The Respondent had contended, and rightly so, that the Appellant's conviction and sentence were justified by the trial Court which found that on page 104 of the record that, the Appellant simply acted rashly and thus convicted him of a lesser offence(2019) by virtue LPELR-47037(SC) of Section 218 (2) of the Criminal Procedure Code. I can't agree less with the Respondent that the trial Court was perfectly in order when it found the

20 Appellant guilty of a lesser offence of culpable homicide not punishable with death pursuant to Section 218 (2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

By way of restating the position of this Court on the issue of conspiracy as held in OKANLAWON VS THE STATE

(2015) 17 NWLR (Pt.1489) at 477, Para C-D and KAYODE BABARINDE & ORS VS THE STATE (2014) 3 NWLR (Pt.1395) 568 at Page 594 per Kekere-Ekun, JSC, 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 acts. In

ADEBAYO VS THE STATE (2007) All FWLR (Pt.365), 498-519, circumstantial evidence was described thus:

"Circumstantial evidence is a series of circumstances leading to the inference or conclusion of guilt when direct evidence is not available. Evidence which although(2019) not directly LPELR-47037(SC) establishing the existence of facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or in relation to the extent that it is sometimes

21 regarded as of higher value than direct evidence, which may or can be perjured or mistaken."

In view of the above and given the circumstances of this case, the trial Court was perfectly in order to infer conspiracy from the circumstances of this case, particularly the invasion of the deceased house by Appellant and his co- accused and the act of beating which was the unintended consequences of the beating that eventually resulted in the death of the deceased. These are findings of facts for which the trial Court and Court below have found concurrently on both counts for which the Appellant was charged.

In view of the foregoing, I wish to restate that it is my considered view that the judgment of the trial Court cannot be faulted at all and the lower Court was right in affirming and endorsing it. The Appellant has failed to convince us that this is a situation in which this Court should interfere in the concurrent findings of fact. The law is settled that if there are(2019) concurrent LPELR-47037(SC) findings of fact made by the High Court and Court of Appeal, the Supreme Court will not readily set them aside or substitute its own views unless there is no evidence to

22 support the findings. See Re: MOGAJI (1986) 1 NWLR

(Pt.19) 759; SALAMI VS THE STATE (1988) 3 NWLR (Pt.85) 670; MBENU VS THE STATE (1988) 3 NWLR (Pt.84) 615."Per Akaahs, JSC. (P. 18, Paras. D-F). See also MINI LODGE LTD VS NGEI (2009) 18 NWLR

(Pt.1173) 254 Per Musdapher, JSC (p.33, Paras. B-D).

The Respondent has proved the ingredients of the offence for which the Appellant was charged as required by law and the Court below was right in affirming the conviction and sentence of the Appellant for the offence of conspiracy to commit an illegal act under Section 97 and culpable homicide not punishable with death under Section 221 of the Penal Code Law of Kaduna State.

In view of the above, the sole issue formulated is resolved against the Appellant. This appeal fails in whole. It lacks merit and is accordingly dismissed. The judgment of the lower Court dated 26th February 2016 is hereby affirmed. The conviction(2019) and LPELR-47037(SC)sentence of the Appellant are hereby reconfirmed.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in advance the lead judgment of my learned brother SIDI DAUDA BAGE JSC just delivered, I agree with his reasoning

23 and conclusion that the appeal lacks merit and it stands dismissed.

It must be emphasized that the appeal is against the concurrent findings of facts by the two Courts below which, except where shown by the appellant to be perverse, has to prevail. In the case at hand, therefore, the appellant having failed to show that the concurrent findings of the two Courts below are perverse does not deserve to succeed in his appeal. See ODEH V. FRN (2008) LPELR— 2205

(SC) and AMAREMOR V. STATE (2014) LPELR — 22591 (SC).

Appellant and his co-accused were charged under Sections 97 and 221 of the Penal Code for conspiracy and culpable homicide punishable with death. Both accused persons pleaded not guilty. At the end of trial, the trial Court convicted the appellant under Sections 97 and 224 (7) of the Penal Code for conspiracy and culpable homicide not punishable(2019) with death. LPELR-47037(SC) The dismissal of his appeal at the Court of Appeal informs appellant's further appeal to this Court.

Respondent’s single issue, which subsumes appellant's two issues, is preferred as being more succinct and determinative of the appeal. It reads: -

24 "Whether in the entire proceedings of this case and the evidence adduced the Court below was right when it affirmed the judgment of the trial Court which convicted and sentenced the Appellant for the offences of Conspiracy and Culpable Homicide not punishable with death under Sections 97 and 224 of the Penal Code law having found that the respondent proved its case beyond reasonable doubt against him."

Appellant’s contention is that the respondent did not discharge the burden of proving the two offences for which he is convicted by the trial Court which decision the lower Court affirmed. The concurrent findings of the two Courts, not being borne out of available evidence, he further contends, cannot be sustained. He relies inter-alia on

SAMAILA V. THE STATE (2019) ALL FWLR (PT 818) 845, CAPRAIN O. ABIOYE V. FRN (2014) ALL FWLR (PT 722) 1642 and ODUNEYE V. STATE (2001) 2 NWLR (PT(2019) 697) 311. LPELR-47037(SC)

Further arguing the appeal, learned appellant's counsel submits that the correct verdict the trial Court is to return, on finding that the respondent has not proved the charge under Section 221 for culpable homicide punishable with death, is to acquit the appellant and not to convict him under

25 Section 224 (7) of the same code. The affirmation of the trial Court's wrong decision convicting the appellant, it is further submitted, is also wrong. Learned counsel urges that this Court interferes with both erroneous decisions of the two courts.

Learned respondent’s counsel, in reply, submits that appellant's grudge against the lower Court's decision has no basis in law. Firstly, there is the direct evidence of PW1 as well as exhibit 4 and 4A, appellant's free and voluntary confessional statements, which establish the two offences for with both Courts convicted him. The two Courts, it is further submitted, are empowered under Section 218(2) of the Criminal Procedure Code to convict the appellant who is charged for a greater offence under Section 221 of the Penal Code, for the lesser offence under

Section 224 (7) that is proved. Relying on SUNDAY UDOR

V. THE STATE (2014) 12 NWLR (PT 1422) 548 at 561, EMEKA V. THE STATE (2012) 14 NWLR (PT 734) 660 and EMMANUEL(2019) AYO LPELR-47037(SC) V. THE STATE (2015) 16 NWLR (PT 1486) 531, learned respondent's counsel urges that the issue be resolved against the appellant and his appeal dismissed.

26 In decisions of this Court too numerous to readily count, the power to convict for a lesser offence that is proved in place of a greater offence charged enures to the Courts by virtue of Section 218 (2) of the Criminal Procedure Code. The principle has been stressed that before an accused can be convicted for a lesser offence by virtue ofSection 218 (2) of the Criminal Procedure Code, the ingredients of the lesser offence must not only be embedded in the aggravated offence charged, the lesser offence must also be shown to have been committed in the same circumstance as the aggravated offence. See AGUGUA V.

STATE (2017) LPELR-42021 (SC) and THE NIGERIAN AIR FORCE V. KAMALDEEN (2007) 2 SC 113. In the instant case, the appellant is charged under Section 221 of the Penal Code which attracts the death penalty. The two Courts below, in the absence of proof of appellant's intention to cause the death of the deceased, convicted him for the lesser offence under Section 222 (7) of the same code. Undoubtedly, the lesser offence underSection 222 (7) of Penal(2019) Code, the LPELR-47037(SC) appellant is convicted for instead of the aggravated one he is charged with under Section 221 of the

27 very code is a combination of some of the particulars that make up the offence charged. Put differently, the particulars of the lesser offence he is convicted for are some of the particulars of the offence charged.

In AGUMADU V. QUEEN (1963) LPELR-15440 (SC), this Court, while considering Section 179 of the Criminal Procedure Act that is in pari materia withSection 218 relied upon by the two court in convicting the appellant for the lesser offence, inter-alia held:-

"When one is considering action under Section 179 one should write out particulars of which the offence charged consists and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict." If we delete intention on the part of the appellant to cause the death of the deceased from the particulars which constitute the offence under Section 221 of the Penal Code, we shall be left with those particulars of the lesser offence under Section(2019) 222 LPELR-47037(SC) (7) the appellant's is, though not charged, convicted for. The lower Court's correct application of Section 218 (2) of the Penal Codeis, therefore unassailable. ​

28 See NWACHUKWU V. STATE (1986) LPELR — 2085

(SC) and IBRAHIM V. STATE (1991) 4 NWLR (PT 186) 176.

Beyond appellant's voluntary confessional statements admitting the commission of the offence, there is the direct evidence of PW1, an eye witness, stating clearly appellant's act that led to deceased's death. The lower Court's affirmation of appellant's conviction and sentence, learned respondent's counsel is right, cannot be said to be perverse. Not being so, the decision cannot be interfered with. See ATOLAGBE V. SHORUN (1985) LPELR —

592(SC) and FRN V. FAITH IWEKA (2011) LPELR — 9350 (SC).

It is for the foregoing and the fuller reasons contained in the lead judgment that I also adjudge the appeal as lacking in merit and dismiss same. Resultantly, the conviction and sentence of the appellant by the two courts are hereby further affirmed.(2019) LPELR-47037(SC)

KUMAI BAYANG AKA'AHS, J.S.C.: I read before now the judgement of my learned brother, Bage JSC in which he dismissed the appeal and affirmed the judgement of the

Court of Appeal Kaduna. The lower Court had also dismissed the appeal against the judgement of the

29 High Court of Kaduna State delivered on 22 March, 2011 by G. I. Kurada J. in charge No. KDH/KAD/41C/2008.

The appeal is against the concurrent judgements of the Court of Appeal and Kaduna State High Court which found the appellant and Ishaya Sanusi guilty of conspiracy and culpable homicide not punishable with death and sentenced each of them to one year and five years imprisonment respectively for the two counts.

The 3rd accused was acquitted of the offence and discharged from the trial.

Where an appeal is against concurrent judgements, the appellant must show that the findings were perverse and there was no evidence to support such findings before an appellate Court can interfere with the said findings. See:

Mbenu v. State (1988) 3 NWLR (Pt. 84) 615. The appellant has failed to discharge this burden. (2019) LPELR-47037(SC)

​The appellant made a confessional statement which was tendered as Exhibit 4 and 4A. Apart from his confessional statement, PW1 gave an eye witness account of how the incident occurred that led to the death of Makama Adamu, the deceased. He recalled that he was in his house on 1/2/2008 and about 6 a.m, he heard shouts coming from the

30 direction of Makama Adamu's house. He said the distance between his house and that of Makama Adamu is about 5 metres. He first went and informed his father about the cry and the latter instructed him to rush to the scene. On getting there he met the three accused who had carried Makama Adamu from inside the house and were beating him. He then separated them. His father arrived later. His father is the village head who directed him (PW1) to inform the District Head of Ancha District. The District Head in turn directed him to contact the junior brother of the deceased and to also report the case at the Police Station which he did. He, along with Ayuba Mairabo met the deceased lying down and made arrangements to take him to the hospital. The deceased died on the same day the fight took place.

In his statement the appellant stated that on 31/1/2008 he returned from the farm around 1700hrs and discovered that their mango and palm trees' farm which was close to MaHam (2019)Makama Adamu LPELR-47037(SC) (deceased) had been set ablaze. On 1/2/2008 at about 6 a.m. himself and his uncle lshaya Sanusi (1st accused) decided to go and confront the deceased for setting ablaze the farm.

31 The deceased admitted setting the farm ablaze and asked them why they were in his house. They felt provoked and started beating the deceased. He said they used only their bare hands to beat him when he fell down. Exhibit 4 & 4A was a confessional statement.

The learned trial Judge rightly convicted the appellant. From the evidence put forward by the prosecution, there is nothing to show that the appellant was acting under self defence but was provoked into beating the deceased. Since the victim of the attack died on the same day he was attacked, the presumption is that it was the act of the appellant that caused the death of the deceased. In the circumstance there is no merit in the appeal and it is accordingly dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement which my Lord, Bage, JSC, just delivered. I agree with His Lordship that this appeal,(2019) being devoid LPELR-47037(SC) of merit, should be dismissed.

​His Lordship observed in the leading judgement that, because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial

32 evidence and inference from certain acts. This is true. As this Court held in Sopakinba Igbikis v State [Appeal No:

SC. 316/2014 delivered on February 17, 2017]:

...the category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State(1965) NMLR 119; Ukorah v State [1977] 4 SC 167; Lori v State (1980) NSCC 269; Onah v State [1985) 3 NWLR (pt 12) 236; Ebenehi v State (2009) All FWLR (pt 486) 1825, 1832-1833; Ijioffor v State [2001] 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v State (supra) 385. The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person, Idiok v State [2008] All FWLR (pt(2019) 421) 797, LPELR-47037(SC) 818. Put, simply, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State [2009] 7 NWLR (pt 1139) 148, 178; (2009) LPELR

33 -2663 (SC) 42-43. Where such circumstances are established to the satisfaction of the Court, they may be properly acted upon, 1/11/7/5 onCircumstantial Evidence [Seventh edition] 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178. Like the leading judgement, I too agree that the trial Court, rightly, inferred conspiracy from the circumstances of this case. It is for these, and the more elaborate reasons in the leading judgment that I too dismiss this appeal for lacking in merit. I abide by the consequential orders in the leading judgement. Appeal dismissed.

AMIRU SANUSI, J.S.C.: I read before now the draft Judgment delivered by my learned brother Sidi Bage JSC. His lordship had adequately addressed all the issues raised and canvassed by the learned counsel for the parties before he arrived at his conclusion dismissing the appeal for lacking (2019)in merit. LPELR-47037(SC)While adopting his reasoning and conclusion, I shall also dismiss the appeal for want of substance. Appeal dismissed.

34 Appearances:

B. Nwosu For Appellant(s)

A. Yahaya For Respondent(s)

(2019) LPELR-47037(SC)