BALOGUN V. THE STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 13th day of April, 2018

SC.651/2014

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

Between

WAHEED BALOGUN – Appellant

AND

THE STATE – Respondent

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PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein along with three other accused persons were arraigned before the High Court of Oyo State holden at Ogbomoso on a two counts charge of conspiracy to commit murder and murder under Sections 324 and 319 of the Criminal Code Cap. 30 Volume 11 Laws of Oyo State 1978. At the end of the trial that followed the Appellant and his co-accused persons were each found guilty of the two counts charge and were accordingly convicted and sentenced to ten years imprisonment for the first count and death by hanging on the second count.Being aggrieved, the Appellant, who was the second accused at the trial Court appealed to the Court of Appeal, Ibadan (henceforth to be referred to as the lower Court). The appeal was heard, and in a unanimous judgment delivered on the 18th day of March, 2014 their Lordships, (Coram Uwa, Tsamani and Daniel-Kalio JJCA) dismissed the appeal. It is against the decision of the Court of Appeal that the Appellant has brought this appeal. His notice of appeal, filed on the 31st of March, 2014 contains ten grounds of appeal. Parties filed and exchanged briefs of argument. At pages 3-4 of the appellant’s amended brief of argument, settled by Chief Michael Abayomi Bisade Alliyu, learned counsel for the Appellant, two issues are submitted for determination of this appeal as follows:-
1. Whether the lower Court was right in holding that the offences of murder and conspiracy had been proved against the Appellant beyond reasonable doubt
2. Whether the lower Court was right in relying on legally inadmissible confessional statements and materially contradictory evidence of prosecution witnesses who have interest to serve to uphold the conviction of the Appellant by the learned trial Judge.

Mr. Kazeem A. Gbadamosi, learned counsel for the Respondent formulated one issue for determination of this appeal and it reads as follows:-
“Whether the lower Court was right in affirming the decision of the trial Court convicting the Appellant of conspiracy and murder given the available evidence both oral and documentary at the trial.”
The prosecution’s case at the trial Court is that the Appellant and three other persons who are members of Odua Peoples Congress (OPC) conspired and kidnapped one Raji Tiamiyu, a traffic warden (policeman) at Taki area of Ogbomoso and conveyed him in a taxi to Odo-Oba area at the outskirt of Ogbomoso town where they took him into the bush and shot him dead with a dane gun fired by one of them. The killing of Raji Tiamiyu a traffic warden was carried out in revenge for the killing of one Alfa Kasali Shittu, a member of Odua Peoples Congress (OPC) allegedly shot by the police on the 26th November, 2002 as a result of a gun shoot out confrontation between the police and the members of Odua Peoples Congress (OPC).
I have read through the record of this appeal and the briefs of argument filed by the parties and I am of the firm view that the only issue calling for determination of this appeal is whether the lower Court was right to have upheld the judgment of the trial Court on the ground that the prosecution had proved its case beyond reasonable doubt.
In criminal cases, the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it. See Section 135(1) and (2) of the Evidence Act 2011. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. The assertion before the trial Court that the appellant committed the offence for which he was charged, tried and convicted was made by the prosecution. The burden of proof was therefore on the prosecution who was required to prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the Appellant. This burden never shifts. See Alabi vs The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras A-C: Solola vs The State (2005) 5 SC (Pt. 1) 135.

In the instant appeal, the Appellant was charged, tried and convicted for the following offences:-
1. Conspiracy to commit murder contrary to Section 324 of the Criminal Code.
2. Murder contrary to Section 319 of the Criminal Code.

Where an indictment contains charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. This is so because a conviction for conspiracy will fail if the

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conviction for the substantive offence is set aside.
See Patrick Njovens vs The State (1973) 5 SC 17.

For the prosecution to prove the offence of murder under Section 319 of the Criminal Code of Oyo State, it must prove by credible evidence the following ingredients:-
1. That the deceased had died.
2. That the death of the deceased was caused by the Appellant.
3. That the Appellant knew that death would be the probable consequence of his act.

See Akpan vs The State (2001) FWLR (Pt. 56) 735 at 737: Bassey vs The State (2003) FWLR (Pt. 164) 294: Ogba vs The State (1992) 12 NWLR (Pt. 222) 164: Aruna vs The State (1990) 6 NWLR (Pt. 153) 125.
Both parties in this appeal have admitted that Raji Tiamiyu died. In his extra-judicial statement, at pages 26 -27 of the record of this appeal, the appellant admitted as follows:-
that time Oluwole was pushing the man into the bush Dauda Lasisi say (sic) that killing Kasali by police on the 26th November, 2002 that they want to revenge retaliate from there I heard gun fired by Oluwole and also Taiwo Oladejo fired the man on the chest, the man died in oar present (sic). Myself and Mukaila Salawu we were not happy the way the (sic) killed…”
The trial Court at page 193 of the record found from the evidence of 1st, 2nd and 3rd accused persons that Raji Tiamiyu had died. There is therefore no controversy about whether the deceased died or not. The lower Court was therefore right when it came to conclusion that Raji Tiamiyu had died.
Now did the Appellant take part in killing Raji Tiamiyu?
Learned counsel for the Appellant submitted that the Appellant did not take part in killing the deceased. According to the learned counsel, the evidence before the Court, including the one by the prosecution showed consistently and without any contradiction that the Appellant was opposed to the killing of the deceased when he was told of the proposal to kill him and that he pleaded strenuously that the deceased should not be killed, as his killing would not bring the late Kasali back. In a further argument, learned counsel submitted that it was only at Odo-Oba where the deceased was killed that the Appellant upon inquiry was notified for the first time of the proposal to kill the deceased and he immediately disagreed and opposed them. Learned counsel argued forcefully that the trial Court and the lower Court heavily relied on the confessional statement of his accomplices. Learned counsel submitted that the conclusion by the lower Court that the Appellant agreed that the deceased be killed is perverse as there was no such evidence before the Court. It is learned counsel’s submission that the lower Court speculated on some issues that were not before the Court.
The Appellant in his extra-judicial statement admitted that he is a member of Odua Peoples Congress. He was in company of the members of the said Odua Peoples Congress when the deceased traffic police officer was shot and killed. His being in their mist was not accidental. He voluntarily followed those who kidnapped the deceased to where he was killed. He joined them in taking the Oath of Secrecy before the killing, and after the killing had taken place. This is what the Appellant said in his evidence in chief with respect to the oath at page 123 of the record:-
“Dauda Azeez then brought out a charm in form of a horn and made us to take oath that we will never reveal what will take place to anybody.
Meanwhile, the other two people with Dauda and Oluwole took the man who was begging them to the left side of the bush, Daudu and Oluwole later followed and I do not know what they did with the man. I did not follow them into the bush because they refused to listen to my pleas that they should not kill the man. We first took oath when I asked them not to kill the man and we took another oath when they come (sic) back from the bush. We took oath so that we will not disclose what we went to the scene to do.”

By taking the first oath before the deceased was killed, the Appellant had consented to the killing of the deceased and after the deed had been accomplished, he joined the rest in taking the oath of secrecy. By the procedure adopted at the scene of the crime, the Appellant and his accomplices had clearly formed common intention to kill the deceased, and therefore it did not matter who fired the gun that killed Raji Tiamiyu.
In Alarape vs. The State (2010) FWLR (Pt. 41) 1872 at 1898 – 1894 this Court, per Iguh JSC said:-

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“The point that needs to be emphasized in these sorts of cases is that once it is firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose, an offence of such a nature of such purpose is committed, each of them is deemed to have committed the offence. In such circumstances, the Court, once the execution of the common intention or design is established would be right in asserting that it does not matter on such facts which of the accused person does what. This is for the simple reason that under such circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have been given by the rest of his co-accused person. The person actually delivering the blow is said to be no more than the hand by which the others all strike.”
In his extra-judicial statement to the police, the appellant admitted that Oluwole, who is coordinator of OPC at caretaker zone and Segun the coordinator of OPC (Odua Peoples Congress) Akita Area came to him on the 27th April, 2002 at different times and reported the fight between the police and the OPC (Odua Peoples Congress) on the 26th April, 2002 in which one of their members Kasali was killed. He told them to go home. From this information, it was so clear that the Appellant was aware of the restlessness within the members of OPC when a few minutes later the deceased was brought to his house. The Appellant’s extra-judicial statement is at pages 30 – 31 of the printed record of this appeal. This is what he said:-
“On the 27th April, 2002 at about 7.30, the coordinator from Akita Area Segun came lo me that one Kassli was killed by the police in the fight that ensued between them on the 26th November, 2002 (sic) Segun Akata then left after few minutes Oluwolem Taiye, Dauda and three other persons brought a man in a mofty whom they called a police traffic warden. He was brought inside a starlet painted taxi colour. I came out and saw the man. He was a black man with a tribal mark like an Ibadan man. He is a Yoruba man. They said I should follow them. I then boarded an Okada und started following them along Randa till we got to Onitinrin road after blind center. The driver of the taxi cap parked and Dauda commanded the said man who he called a traffic warden to come down….”
The story in the Appellant’s statement to the police is different from his evidence in Court where he said he did not see the deceased in the taxi until he was brought down at the scene of crime. The contradiction in his statement to the police and his evidence in Court has clearly portrayed him as a liar. As I stated elsewhere in this judgment, the appellant was aware of what was going to happen at Odo-Oba and he willingly followed and participated in the killing of the deceased. It is therefore my firm view that the lower Court was right in affirming the conviction of the Appellant for the offence of murder and the sentence imposed on him.
The next question I will like to consider is whether the Appellant conspired with other persons to commit the offence of murder. Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act, by unlawful means.
In the instant case, the Appellant and his co-accused were not seen together coming out from the same place. Where and when the deceased was kidnapped, the Appellant was not there. The rest of the accused who were tried together with the Appellant kidnapped the deceased and brought him to the Appellant’s house and the Appellant followed them on a motor-cycle where he took part in the decision to kill the deceased.
It is not necessary to prove that the conspirators were seen coming out from the same place at the same time. Conspirators need not know each other. They also need not have started the conspiracy at the same time. For a conspiracy started by some persons may be joined at a later stage or stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. SeeR vs Mevick & Rebuff (1929) 21 CAR 94; Njovens & Ors v. The State (1973) NSCC 257. It is therefore difficult to prove the offence of conspiracy by direct evidence. Conspiracy is a matter of inference from the criminal act of the parties concerned which act is done in pursuance of an apparent criminal purpose. It is therefore the duty of the Court in every case of criminal conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with the offence. See Daboh & Anor vs The State (1977) 5 SC 222: ERIM vs The State (1994) 4 NWLR (Pt. 346) 535.

To constitute an offence of conspiracy, the prosecution must prove:-
1. That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.

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2. Where the agreement is other than an agreement to commit an offence, it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
3. That each of the accused individually participated in the conspiracy.
The evidence before the trial Court clearly shows that the Appellant was aware of the grievances of the members of the OPC as a result of the alleged killing of one of its members, yet when the deceased, a police officer was being driven to where he would be killed, the appellant followed and took the initial oath which signified his consent to the killing and subsequently took another oath of secrecy after the consummation of the offence. The oaths which the Appellant and his co-accused voluntarily swore to was a binding agreement. With the kind of evidence before the trial Court, it would have been a perversion of justice if the trial Court had reached a different decision.
I am aware of the argument forcefully canvassed by learned counsel for the appellant that a confessional statement of the co-accused cannot be used against the Appellant, and that where an interpreter is used in receiving confessional statement, the statement is inadmissible if the interpreter is not called as a witness. Learned counsel is correct on this score. However, even if the confessional statement of the appellant is expunged from the proceedings in this case, there is sufficient evidence to sustain the Appellant’s conviction. Appellant having admitted being in company of those who killed Raji Tiamiyu and also subscribed to the oath of consent and oath of secrecy cannot turn round to say he pleaded for the life of the deceased. The evidence that nailed the Appellant’s coffin came from him. It was not the co-accused’s confessional statement that was deployed against him. The fact that a confessional statement of a co-accused cannot be used against the Appellant, does not mean that evidence of a co-accused before the Court cannot be acted upon by the Court. The lower Court in my view was correct when it affirmed the decision of the trial Court that the appellant conspired with other persons to murder Raji Tiamiyu. The sole issue identified by me is resolved against the Appellant who chose primitive path in seeking justice for the alleged killing of a member of his organization. This appeal fails and it is accordingly dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Galinje, JSC. I agree with his reasoning and conclusion. I too dismiss appeal.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Galinje, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is unmeritorious and should be dismissed. I too will dismiss the appeal as I have nothing more to add.
KUMAI BAYANG AKA’AHS, J.S.C.: I read before now the judgement of my learned brother Galinje JSC in which he dismissed the appeal filed by my appellant as lacking in merit. In the sister appeal No. SC 250/2010 – Mukaila Salawu v. The State in which judgement was delivered on 19 December, 2014 which is reported in (2015) 2 NWLR (Pt. 1444) 595, I dismissed the appeal based on the same facts, the summary of which are reproduced thus:-
The appellant and his cohorts formed themselves into a tribal militia known as O. P. C and in order to avenge the death of one of their members, Kasali Shittu, who was killed in a gun battle with the Police the previous day, kidnapped Tiamiyu Raji, a traffic warden and shot him and his body was later burnt into ashes. The appellant and other accused went into hiding and it took the Police over 5 months to arrest the 1st accused, Taiwo Oladejo, on 19 April, 2003 who made a statement on 25 April, 2003. His statement led to the arrest of the other accused including the appellant who stood trial with him. The appellant was the 2nd accused. He made three statements. The first was on 26/4/2003, the second was on 6/5/2003 and the third on 7/5/2003. When the traffic warden was arrested he was first taken to his (appellant’s) house before he was taken to the bush and shot. They then swore to an oath of secrecy not to disclose the killing of the traffic warden to anyone.
The retaliatory action taken by the appellant and the other accused was quite horrendous. The appeal is bereft of merit. It is for this reason and the more detailed reasons contained in the judgement of my learned brother, Galinje JSC that I dismiss the appeal.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just handed out by my learned brother, Galinje, JSC, and I agree with his reasoning and conclusion that this appeal fails and it is accordingly dismissed.
Appearances

Mrs. Thelma Otaigbe-Oluleye – For Appellant

AND

Mr. Kazeem A. Gbadamosi with him, Mrs. J. D Rufai and A.O Oladele – For Respondent

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