Ishaya Sansani & Anor V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

The Appellants were arraigned before the Kaduna State High Court in Charge No.KDH/KAD/41C/2008 on a two count charge of conspiracy to commit an illegal act contrary to the provisions of Section 97 of the Penal Code Law of Kaduna State and of culpable homicide punishable with death contrary to the provisions of Section 221(b) of the Penal Code Law of Kaduna State.

The Appellants were alleged to have on or about the 1st of February at Ancha Gida Village, Sanga Local Government Area of Kaduna State, conspired to beat and to have beaten one Mallam Makama Adamu to death by inflicting injuries to the head of the deceased with knowledge that death would be the probable consequence of their actions.

?The Appellants pleaded Not Guilty to the charge and the matter proceeded to trial and in the course of which the Respondent called five witnesses and tendered exhibits in the proof of its case and the Appellants called three witnesses, including themselves, in proof of their defence. At the conclusion of trial and after the final addresses of Counsel, the Lower Court entered

judgment wherein it found the Appellants guilty of conspiracy and of culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law and it sentenced each of the Appellants to one year and five years imprisonment respectively for the two offences. The Appellants were dissatisfied with the judgment of the Lower Court and they caused their Counsel to file a notice of appeal against it on each of their behalf?s. The two notices of appeal were dated the 17th of May, 2011, and they each contained ten grounds of appeal.

Counsel to the Appellants filed a joint brief of arguments in prosecuting the appeals of both Appellants before this Court. The joint brief of arguments was settled by Chief C. A. Ekhasemomhe and it was dated and filed on the 15th of July, 2011. In response, Counsel to the Respondent filed a brief of arguments dated the 29th of January, 2015 on the 3rd of February, 2015 and the brief of arguments was deemed properly filed and served by this Court on the 28th of April, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral

submissions on the appeals of the Appellants.

Counsel to the Appellants formulated three issues for determination in the appeals and these were:

i. Whether the offence of criminal conspiracy for which the Appellants were convicted and sentenced to imprisonment term of one year each was proved by the Respondent beyond reasonable doubt.

ii. Whether the learned trial Judge’s failure to call on the Appellants of their Counsel to address him on Section 222 (1) of the Penal Code raised by him suo motu before convicting them under the said Section of the Penal Code has not occasioned a breach of the Appellants’ rights to fair hearing and thereby caused a miscarriage of justice.

iii. Whether the Respondent has discharged the burden of proof of all the essential elements of the offences for which the Appellants were convicted and sentenced.

Counsel to the Respondent adopted the three issues for determination as formulated by the Counsel to the Appellants.

In arguing the first issue for determination, Counsel to the Appellants Counsel stated that by virtue of Section 36 (5) of the 1999 Constitution, every person charged with an offence is

presumed innocent until the contrary is proved and that therefore, in a criminal trial, the onus of proving the commission of a crime by an accused person is on the prosecution and the burden is beyond reasonable doubt and he referred to the cases of Moses Vs The State (2006) All NWLR (Pt.322) 7437 and Oteki Vs A.G. Bendel State (1986) 2 NWLR (Pt.94) 255, amongst others. Counsel stated that for the prosecution, in the instant case, to prove beyond reasonable doubt all the essential elements of the offence of conspiracy, it must establish (i) that there was an agreement between two or more persons to do or cause to be done some illegal act or?an act which is legal by illegal means; (ii) that some act besides the agreement was done by one or more of the parties in the furtherance of the agreement and (iii) that each of the accused persons individually participated in the agreement; and he referred to the case of Abacha Vs FRN (2006) 4 NWLR (Pt.970) 239. Counsel stated that proof of conspiracy is generally matter of plausible inference deduced from certain criminal acts done in pursuance of an apparent criminal purpose common between them and that in the instant