Benson Obiakor V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

U. A. KALGO, JSC

The appellants were jointly charged with the offences of conspiracy and murder before the High Court, Asaba, Delta State. The particulars of the offences read:-

“I. Benson Obiakor and Ngozika Obiakor on the 9th of August, 1997, at Asaba in the Asaba Judicial Division Conspired with each other to murder one Kingsley Ilesanmi contrary to Section 516 of the Criminal Code Cap. 48 Vol. II Laws of defunct Bendel State of Nigeria 1975 as applicable to Delta State.

II. Benson Obiakor and Ngozika Obiakor, on the 9th of August, 1997, at Asaba in the Asaba Judicial Division murdered one Kingsley Ilesanmi contrary to Section 319 of the Criminal Code Cap. 48 Vol. II Laws of defunct Bendel State of Nigeria 1975 as applicable to Delta State.

The appellants pleaded not guilty to the two charges separately when read and explained to them. The prosecution called 7 witnesses to prove their case. The appellants testified in their defence but called no witnesses. Counsel for both sides addressed the court and in a considered judgment, the learned trial judge Umukoro J. found the appellants guilty of conspiracy and not guilty or murder. He passed a sentence of 7 years imprisonment to each of the appellants for conspiracy and discharged and acquitted them of the offence of murder.

Both appellants appealed to the Court of Appeal against this decision but the Court of Appeal after hearing the appeal found no merit in it. It dismissed the appeal and affirmed the decision of the trial court. The appellants further appealed to this court.

Written briefs were filed and exchanged between the parties. In the 1st appellant’s brief the following issues were formulated for the determination of this court:-

“1. Whether the Court of Appeal was right in affirming the conviction and sentence of the 1st and 2nd appellants (husband and wife) of a Christian marriage for conspiracy to murder committed by themselves alone contrary to Section 34 of the Criminal Code, Laws of Bendel State 1976, Cap. 48, (applicable to Delta State of Nigeria)

2. Whether the Court of Appeal was right in affirming the conviction of the 1st appellant for conspiracy to murder when the prosecution failed to prove beyond reasonable doubt the substantive count of murder.

3 Whether having regard to the evidence the prosecution proved its case beyond reasonable doubt against the 1st appellant.

For the 2nd appellant, two issues were raised and they read:-

1. Whether the prosecution proved its case beyond reasonable doubt against the 2nd appellant to warrant the Court of Appeal to uphold the conviction of the 2nd appellant.
2. Whether from the evidence before the court, and all the circumstances, a case of conspiracy was proved by the prosecution against the 2nd appellant.

And the respondent in its brief set out 3 issues to wit:-

I. Whether ground 1 of the 1st appellant’s ground of appeal was competent.

II. Assuming but not conceding that the 1st appellant can raise the fresh issue, whether Section 34 of the Criminal Code Cap. 48 Vol. II Laws of defunct Bendel State of Nigeria 1976 applicable to Delta State avails the 1st and 2nd appellants.

III. Whether the prosecution successfully proved its case beyond reasonable doubt against the 1st and 2nd appellants.