In The Supreme Court of Nigeria

On Friday, the 13th day of April, 2018


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




THE STATE  –Respondent


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 first accused person at the trial Court appealed to the Court of Appeal, Ibadan Division (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 lower Court that the Appellant has brought this appeal. His notice of appeal, filed on the 31st of March, 2014 contains thirteen grounds of appeal. Parties filed and exchanged briefs of argument. At page 4 of the Appellant’s Amended Brief of argument, filed on the 15th February, 2017 and settled by Chief Michael Abayomi Bisade Alliyu, learned counsel for the Appellant, two issues are submitted for determination of this appeal. These issues are hereunder reproduced 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 of Raji Tiamiyu 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 was carried out in revenge for the killing of one Alfa Kasali Shiuu, 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 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.
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 conviction for the substantive offence is set aside.
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 admitted that Raji Tiamiyu died. In his extra-judicial statement, at pages 10 – 13 of the record of this appeal, the appellant admitted the following facts:-
“I was at Ogbomoso on 27th November, 2002 when Raji Tiamiyu was killed by the following OPC members (i) Dauda Lasisi (2) Oluwole and two of his boys that I don’t know their names and myself. Tiamiyu Raji did not personally offended (sic) us. We killed Tiamiyu Raji retalestion (sic in retaliation) of the death of Kasali Shittu who died during Police OPC clash at Ogbomoso on 26th November, 2002.”
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 made reference to the additional confessional statement of the appellant and submitted that there is nothing suggesting that the Appellant actually participated in the killing of the deceased police officer other than following the taxi cab to the scene of the incidence. In a further argument, learned counsel submitted that both in his evidence in chief and his alleged confessional statement Exhibit 4A, the Appellant denied ever participating in the killing of the deceased. It is learned counsels argument that the confessional statements of other accused persons that were tried along with the appellant should not be used against him since he did not adopt the contents of these confessional statement. Learned counsel faulted the method of interrogation by the police in obtaining the statement of the Appellant. According to him, interrogation nullifies the voluntariness of making the statement, since interrogation connotes question and answer session which ultimately led to forcing the statement out of the Appellant.
The extra-judicial statement of the Appellant were subjected to trial within trial before they were admitted in evidence in a considered ruling delivered on the 27th day of April, 2004. The Yoruba version of the statements were marked Exhibits 3 and 3A, while the English translation were admitted as Exhibits 4 and 4A. I have not seen anything wrong with the procedure adopted during the trial within trial. The Appellants counsel’s contention that the Appellant was forced to make those confessional statement is no longer a live issue before this Court, since he had not attacked the procedure adopted at the trial Court that resulted in their admission in evidence.
In his confessional statement which was recorded on the 6th May, 2003 and admitted in evidence without as Exhibits 12 and 12A, the Appellant made the following admission:-
“I am a member of Odua Peoples Congress (OPC)- and I  joined the organsiation in the year 2000. I was at Ogbomoso on 27th November, 2002 when Raji Tiamiyu was killed by the following OPC members (1) Dauda Lasisi (2) Oluwole and two of his boys that I don’t know their names and myself. Tiamiyu Raji did not personally offended (sic) us. We killed Tiamiyu Raji retalezation (sic; retaliation) of the death of Kasali Shittu who died during police OPC clash at Ogbomoso on 26th November, 2002.

Apart from the voluntary admission of participation in the killing of Raji Tiamiyu, the Appellant took the police to the scene of the crime where the remains of the body of Raji Tiamiyu was removed and taken to the state hospital for post mortem examination. This piece of evidence clearly fixed the Appellant to the scene of crime, since a person who was not at the scene of crime will not ordinarily locate the exact place where the deceased body could be found. In his evidence in chief, the appellant stated as follows:-
“Dauda Azeez and his groups then brought out charms with which we were made to swear that if we ever disclose what we are witnessing, they are going to kill the three of us. The three of us i.e. myself, the 2nd and 3rd accused persons then remaining at that spot, it was at that stage they then brought out a man


from the taxi cab. The man who was brought out of the vehicle was pleading with them saying “E dakun” (which means ‘I beg’ at that stage, they then brought out the charms again for us to swear the second time not to disclose whatever happened since we were then aware that they were going to kill the man that was brought out of the taxi cab. They then entered the bush to kill the man. They then came out and brought us back home.”
The Appellant’s evidence in chief before the trial Court, even though slightly different from his bold admission of the crime in Exhibits 3, 3A, 4, 4A,12 and 12A, It goes a long way to strengthen the prosecution’s case. 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:-
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.”

The Appellant herein, by virtue of the evidence before the trial Court did not only participate actively in the proceedings that led to the killing of Raji Tiamiyu, he seemed to have set in motion the process that led to the murder of the deceased. The prosecution proved beyond reasonable doubt that he participated in killing 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 claimed that he was not at the scene where the deceased was kidnapped. According to the Appellant, it was Oluwole, Waheed Balogun and one other person who he cannot identify that kidnapped the deceased. It may be possible that the Appellant was not among those who kidnapped the deceased. However, the persons who the appellant mentioned as the ones that kidnapped the decease and took him to the house of Baba Alawayo Olawuyi, the grand patron of OPC at Baaki Area of Ogbomoso were among the group he (the Appellant) followed on a motor cycle to Odo-Oba where the deceased was killed. 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. See R vs Mevick & Rebuff (1929) 21 CAR 94: Njovens & Ors vs 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.
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 oath which the Appellant and his accomplices subscribed to was a binding agreement and to show that the Appellant knew the consequence of his act he fled from Ogbomoso and relocated to Gambari where he was following lorries as conductor.
With the type of evidence before the trial Court, it would have been a perversion of justice if the trial Court had reached a different decision.
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 claim innocence of the offence of conspiracy. 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, whom he said had not offended them. The sole issue identified by me is resolved against the Appellant who chose primitive path in seeking for redress of his grievances over the alleged killing of a member of his organization. This appeal fails and it is accordingly dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I read before now, the Judgment just delivered by my learned brother Galinje, JSC. I agree with my Lord’s conclusion that the appeal be dismissed and I too dismiss the appeal.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity 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 devoid of any merit and should be dismissed. I too will dismiss the appeal. Accordingly, the appeal is dismissed by me.
Appeal dismissed.
KUMAI BAYANG AKA’AHS, J.S.C.: My learned brother, Galinje JSC obliged me with a copy of the judgement which I read before now. I agree with him that the appeal lacks merit and should be dismissed.
In Mukaila Salawu v. The State (2015) 2 NWLR (Pt. 1444) 595, I described the present appellant at page 606 as “the kingpin of the dastardly act”.
He was the 1st accused in Charge No. HOG/3C/2004. He was charged with three others namely, Waheed Balogun, Mukaila Salawu and Alawoye Olawuyi for the offences of conspiracy to commit felony and murder of one Raji Tiamiyu, a traffic warden contrary to Sections 324 and 319 of the Criminal Cap. 30 Vol. II Laws of Oyo State (now Cap 38 Vol. II Laws of Oyo State). The three of them namely 1st, 2nd and 3rd accused were found guilty of the offences charged.
Each of them was given 10 years imprisonment for conspiracy to murder and death for the murder.
The 3rd accused was the first to appeal to this Court after he lost in the Court of Appeal and the appeal was dismissed on 19 December 2014. The appeal by Waheed Olagunju was dismissed a few moments ago. This appeal is bound to suffer the same fate since the arguments canvassed in this appeal are the same as those which were agitated in the other two appeals and based on the same facts.
In his extra – judicial statement the appellant stated clearly and unequivocally that “we killed Tiamiyu Raji (in retaliation) of the death of Kasali Shittu who died during police/OPC clash at Ogbomosho on 25 November, 2002.”
It was the appellant who led the Police to the scene of the crime where the remains of Raji Tiamiyu was removed for autopsy.
I am therefore in complete agreement with my learned brother, Galinje JSC that there is nothing to warrant allowing the appeal. It is accordingly dismissed and the conviction and sentences passed are hereby further affirmed.
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 entirely with his reasoning and conclusions. This appeal fails and it is accordingly dismissed.


Mrs. Thelma Otaigbe-Oluleye. For Appellant


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

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