C.o.p V. Ogor & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The criminal matter that led to this appeal started at the Chief Magistrate Court, Apiapim-Obubra in Cross River State, and it has to do with the breaking of an “ancestral pot’, used by Ovanum People during traditional burial ceremonies. The ten Respondents, as the Accused Persons therein, were alleged to have:

(1) Conspired among themselves to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace.

(2) Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community Graveyard without authority; and

(3) Willfully and unlawfully damaged one pot valued at N500.00 property of Chief Raymond Ewena Okpa.

According to the four Witnesses that testified for the Prosecution against them, PW1 [Chief Raymond Ewena Okpa], who is the Village Head of Ovanum, was informed about the death of the son of the fourth Respondent (now deceased), and he delegated PW2 [John Egede] and PW3 [Abeng Okera] to carry the said ancestral pot and mark the burial spot for the internment of the deceased child.

​However, PW2 and PW3 were stoned and chased by the Respondents, who had gathered at the fourth Respondent’s house for the burial of his son, and in the process of being attacked with stones, the ancestral pot got broken.

The ten Respondents, who testified themselves, attributed their arrest and prosecution to a chieftaincy dispute between fourth Respondent and PW1. In his judgment delivered on 5/12/2005, the Chief Magistrate, held as follows:

The evidence of the Prosecution Witnesses, especially that of PW2, pointed unequivocally to the fact that on 28/2/2004, the Accused persons and their cohorts created a scene at the spot when PW2 and PW3 approached the 4th Accused Person now deceased to show them where to mark the grave for the burial of the 4th Accused Person’s brother by name- Oyama Onyum. There is copious evidence that the Accused Persons and their cohorts threw stones at PW2 and PW3 which led to damage or destruction of the traditional pot in Exhibit M. From the evidence so far led, I cannot hesitate to infer that the traditional pot was damaged as a result of the conduct of the Accused persons. No better inference can be drawn than this. After all, the offence of conspiracy has a hub. It does not mean that all the Accused persons must be present at the same time and spot. A person can be anywhere and still match conspiracy. To all intents and purposes, the 1st Accused Person’s house is the hub of this conspiracy. It is not true, as submitted by Counsel that PW2 and PW3 did not lead evidence as to the conspiracy. The evidence of PW2 and PW3 revealed without any equivocation that Accused persons and their cohorts conspired and threw stones at them thereby damaging the traditional pot and chasing them away. None of these Prosecution Witnesses changed his stand under cross-examination and I am bound to believe them. – I hold that the Prosecution has proved its case in all the Counts beyond reasonable doubt in accordance with Section 138(1) Evidence Act Cap 112. I find all the Accused Persons Nos 1 to 10 guilty as charged and I convict all of them as charged.

They were all “cautioned and discharged” on Counts I and II and on Count III, the ten of them were each sentenced – “to 2 years I.H.L. or pay N2000 as fine”. The Chief Magistrate also ordered that “all the convicts are bound over to keep peace for 7 years without any Surety”. They then appealed to the High Court, Calabar, in its appellate jurisdiction, wherein they complained inter alia that the Chief Magistrate erred in convicting them for an offence under Section 249(d) of the Criminal Code, when the place where the alleged offence took place was not proved to be a public place, but the private residence of the fourth Accused. Section 249(d) of the Criminal Code – Laws of Cross Rivers State, provides –

Every person who, in any public place, constitutes himself in a manner likely to cause breach of the peace shall be deemed to be idle and disorderly persons, and shall be guilty of a simple offence and shall be liable to imprisonment for one month.

The High Court agreed, and it held as follows in its judgment of 24/6/2009 –

The main Count here is Count 2 – Even the Respondent reproduced the testimony of PW1 thus – “We do not have any graveyard, and whenever any death occurs that place would be marked graveyard”. As if that is not enough PW3 said – “When I approached the Chief to give me a burying place, the Chief gave me somebody, who accompanied me to the compound of the 4th Accused. I now accompanied the 4th Accused Person to show me where to measure the grave”. l, therefore, agree with Appellants’ Counsel that indeed there is no place in existence called Ovanum Community graveyard, and if there is no such graveyard, could there, therefore, be any trespass into same and causing a breach of peace thereat? In my view, the answer is in the negative, as you cannot put something on nothing and expect it to stand – This means that there is no way Counts one and two could have been proved in the lower Court for that Court to have convicted the Appellants therein. Their convictions on those two Counts cannot stand and is accordingly set aside. The reason being that the finding of fact by the lower Court is perverse in consequence of which a Court of Appeal like this one, can interfere.

It also set aside their conviction on Count III, and then concluded as follows:

In the final analysis, it is ordered as follows:

1. The judgment/decision of the learned Chief Magistrate Grade II, Apostle B.E. Mbang, Esq., dated 5/12/2005 is, hereby set aside.
2. Appellants are discharged and acquitted on all the three Counts Charge upon which they were convicted.
3. The binding over Order for 7 years upon the Appellants is set aside.

This time around, it was the Appellant, who appealed to the Court of Appeal, which dismissed his appeal, and affirmed the said judgment of the High Court. Further aggrieved, he appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, which are being challenged by the Respondents, and the Grounds of Objection set out in their Notice of Preliminary Objection are –

1. All the four Grounds of Appeal in the Notice of Appeal raised, variously, issues of fact and of mixed law and fact and are, therefore, incompetent.
2. No solitary Ground of Appeal, on grounds of law alone in the said Notice exists, capable of salvaging the Appellant’s said above incompetent Notice of Appeal, which is comprised of incompetent grounds.
3. No leave of this Court, was ever, or could be obtained, to salvage the incompetent Grounds of Appeal therein.

The four Grounds of Appeal, which are being challenged, complain as follows:

Ground One: The lower Court misdirected itself when it held as follows:

“PW2 and PW3 alluded to the presence of certain boys at the scene, who were digging the grave while the Respondents looked on. PW3 was particularly clear on this. This was the Witness with poor sight. An interesting part of their testimonies was that they ran immediately stones were being thrown at them with their assailants in pursuit, how could they name those stoning them with their backs turned, is some mystery. They did not report any injury so equally mysterious is the fact that stones thrown at them did not injure them but only broke the small pot held by PW2″.

Ground Two: The lower Court misdirected itself when it held as follows:

“While PW1, who was not at the scene, was eager to name his adversaries in the leadership tussle as the perpetrators of the alleged offence, PW2 and especially PW3 named other persons, who they described as boys, as different from the Respondents, who were called Chiefs, as the likely perpetrators”.

Ground Three: The lower Court misdirected itself when it held as follows:

“Having come to the above conclusions on the main Counts, the first Count of Conspiracy is fatally flawed and cannot in the circumstances be sustained as well”.

Ground Four: The judgment of the Court below is unwarranted and cannot be supported having regard to the evidence adduced.

To cut to the chase, the Appellant filed a Reply Brief, wherein he conceded that Grounds 1, 2 and 4 are grounds of fact or mixed law and fact. But he contends that the same cannot be said about Ground 3 of the said Grounds of Appeal. In effect, there is no contention as to the fact that the said Grounds 1, 2 & 4 of the Grounds of Appeal are incompetent, and they are accordingly struck out.

Is Ground 3 also incompetent? The Respondents say that it is since it involves evaluation of evidence to meet legal requirement to prove conspiracy; and at the very best, it is a ground of mixed law and fact because a ground of appeal that questions evaluation of facts before the application of the law, is a ground of mixed law and facts – State V. Omoyele (2016) LPELR-40842 (SC).

​They further argued that the present alterations and amendments of the Constitution have deleted Subsection (3) of its Section 233 that authorized an Appellant to seek and obtain leave of the Court of Appeal or leave of this Court to appeal against a ground of appeal based on fact or mixed law and fact; and citing Shittu V. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 95 that the Constitution has denied the Appellant the right to remedy his problems and seek for leave from this Court, where the grounds of appeal are based on fact or mixed law and fact, since all such appeals, like this appeal, end at the Court of Appeal.

I must say here that the Issue of whether Section 233(3) is deleted from the amended Constitution has been settled by this Court in a ruling delivered on 5/2/2021 in Amadi V. Wopara – SC.837/2018, wherein I explained that –

“The observation made by Rhodes-Vivour, JSC, in Shittu V. PAN Ltd. (supra) is, no doubt, an obiter dictum. It was not part of the arguments before the Court. What is more, he made the observation after he upheld the Objection raised by the Respondent and struck out the grounds of appeal because “they are caught by Section 233 (3) of the Constitution”. In effect, his comment made in passing is not binding on this Court- see Afro-Continental Nig. Ltd. V. Ayantuyi (1995) 9 NWLR (Pt. 420) 411 SC.”

​As to the merits of the Objection, the Appellant submitted in his Reply Brief that Ground 3 questions the lower Court’s understanding of the law on conspiracy vis-a-vis the cogent evidence he adduced at the trial; that it queries the findings of the lower Court to the effect that it improperly misunderstood the law as it concerns conspiracy such that a proper understanding would have helped it to better appreciate the evidence before it enough to make proper inferences; and that it is a ground of law based on the decisions of this Court, which he cited.

For instance, he referred to the guidelines to properly determine whether grounds of appeal are one of law, or of fact or of mixed law and fact, and quoted what I said in Obayuwana V. Adun (2020) 13 NWLR (Pt 1741) 371 as follows:

“Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter.”

He submitted that this is a restatement of the landmark judgment of this Court in Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484, wherein Eso, JSC, said:

“It is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law.”

He also cited Ekunola V. C.B.N (2013) 15 NWLR (Pt. 1377) 224/260, Uwak V. Ekpemyong (2019) 7 NWLR (Pt. 1670) 67, Daniel V. INEC (2015) 9 NWLR (Pt. 1463) 113, N.I.W.A V. S.P.D.C.N. Ltd. (2020) 16 NWLR (Pt. 1749) 160, and submitted that since a sole ground of law can sustain a Notice of Appeal, it means that the Notice of Preliminary Objection filed by the Respondents is incompetent as the only procedurally valid means to challenge his Notice of Appeal (given the circumstance) is by way of an application seeking to strike out the alleged incompetent grounds. He, therefore, urged this Court to so hold.

​The question is whether Ground 3 of the Grounds of Appeal alleges an error in law or fact, therefore, the Ground itself and its Particulars of Error must be construed together because its classification as a ground of law can only give competence to an appeal without leave, if the nature of the misdirection or error clearly stated in the Particulars bears out the category assigned -see Garuba V. Omokhodion(2011) 6-7 SC (Pt. V) 89, Metal Const. (W. A.) Ltd. V. D. A. Migliore (1990) 1 NWLR (PE 126) 299, Globe Fishing V. Coker (1990) 7 NWLR (Pt. 162) 265 and Nyako V. Adamawa State House of Assembly (2016) LPELR-41822(SC), wherein M. D. Muhammad, JSC, said:

“The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its “children” or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the Parties.”

​The Particulars of Error of the said Ground 3 (set out earlier) are as follows:

i. The Respondents were charged for breach of peace owing to their malicious conducts. The Count is hereby reproduced as follows –

“Conspiracy to effect unlawful purpose to malicious damage/conduct likely to cause breach of peace contrary to Section 518(6) of the Criminal Code CAP 31, Volume II Laws of the Cross River State of Nigeria, 1983”.

ii. Conspiracy cannot be ascertained by mathematical precision but by drawing necessary inferences or deductions from certain criminal acts of the parties concerned.

iii. The Appellant, through its PW2, already led cogent evidence to show that the Respondents willfully damaged the Village pot when the Respondents hurled stones at him.

iv. The lower Court failed to sustain the Count on conspiracy by drawing the proper inference from the testimony of PW2 despite the expression of a criminal design and intent by the Respondents, who hurled stones at PW2, thereby damaging the village pot in the custody of PW2.

​It is also settled that where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be obtained by the Party from the Court of Appeal or this Court. So, failure to obtain leave renders the appeal incompetent, and it will be thrown out – see Garuba V. Omokhodion (supra).

The question, therefore, is what is the distinction between the questions of law and questions of fact? In answering same, Obaseki, JSC, made the difference clear in Metal Const. (W.A.) Ltd. V. D. A. Migliore & Ors (supra) as follows:

“Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. – Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.”

That is the distinction – any matter to be decided on evidence and inference therefrom is a matter of fact, while an appeal on point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit a particular decision or disposal of the case before the Court.

The Respondents herein were charged with the offence of conspiracy, and the bedrock of the offence is the agreement to do something unlawful – Ikemson V. State (1989) 3 NWLR (Pt. 110) 455, Erim V. State (1994) 5 NWLR (Pt. 346) 522. The conspirators must have agreed to do something unlawful to justify a conviction for conspiracy.

The word “unlawful’ means “not authorized by law; illegal; criminally punishable”- see Black’s Law Dictionary, 9th Edition.

​In this case, in setting aside the Respondents’ conviction for conspiracy by the trial Chief Magistrate Court, the High Court had first of all considered the allegation in Count 2 that they “conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority” and held that they could not have been guilty of conspiracy, because there is “no place in existence called Ovanum Community graveyard”. In affirming the above decision of the High Court, the Court of Appeal held that:

“From the evidence adduced by the Appellant – the count of conspiracy was based on the same facts as those of the two substantiative offences, and where a charge of conspiracy is based on the same facts as the substantive charge, the Court is enjoined to deal with the substantive charge and then see if the charge of conspiracy is desirable and could be sustained. See Amachree V. Nigerian Army (2003) 3 NWLR (Pt. 807) 256 at 274 applying R V Dawson (1960) 1 AER 558 and Njovens V. State (1973) 5 SC 17 at 68. The Count was predicated on the existence of a public place as envisaged by Section 249(d) of the Criminal Code, as such it is palpably evident that the existence of the said Ovanum Community graveyard is fundamental to the success of the allegation. The Witnesses at trial on both sides of the divide were unanimous that there was no such place in existence. In other words, the public place, Ovanum Community graveyard, where the Respondents were supposed to have trespassed did not exist – Having come to the above conclusions on the main Counts, the first Count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”

The complaint in Ground 3 of the Grounds of Appeal is that the Court of Appeal erred when it held that based on its conclusions on the main Counts II and III, Count I for conspiracy is fatally flawed, and so, it cannot be sustained as well.

However, it appears from the Particulars of Error to the said Ground that the Particulars are not in consonance with the complaint in the Ground itself. The decision of the Court of Appeal is that the Count of conspiracy was based on the same facts as the main Counts and having concluded that the Appellant failed to prove the existence of Ovanum Community graveyard – a public place; a key element in Count II, then the Count on conspiracy cannot be sustained.

Nevertheless, the position of the law as it stands today is that once the error complained of is identified and properly oriented in the Ground, the inelegance of its Particulars would not invalidate the grounds from which they follow -see Best (Nig.) Ltd. V. B.H. (Nig). Ltd. ​(2011) 5 NWLR (Pt. 1239) 95 and Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, wherein Nweze, JSC, stated:

“It is not every failure to attend to grounds of appeal with the fastidious details prescribed by Rules of this Court that would render such a ground incompetent This is particularly so where sufficient particulars can be gleaned from the grounds of appeal – and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded – Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice – Put differently, since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow – This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253 – Indeed, this Court, recently stamped its infallible authority on this current posture. Abe v. Unilorin (2013) LPELR-206443.”

​The point I am trying to make is that the issue of whether Ground 3 is a ground of mixed law and fact or a ground of law depends on whether this Court must evaluate the evidence to determine whether the lower Courts are right that the Appellant failed to prove that the said incident took place in a public place, which would make it a ground of mixed law and fact. However, if the question is whether the Court of Appeal is right that Respondents cannot be convicted for conspiracy since a key element to sustain the main was not proved, then Ground 3 is a ground of law because evaluation of evidence is out of it.

The alleged breach of peace that led to this Appeal occurred in 2004 – 18 years ago, and I believe it is in the interest of justice to deal with this appeal and lay the matter to rest once and for all. As it is, it is not necessary to evaluate evidence in addressing the complaint in the Ground itself; it is on that premise that I hold that the said Ground 3 of the Grounds of Appeal is a ground of law

Besides, the Issue distilled by the Appellant from the said Ground 3 is – “whether the lower Court was correct in its finding when it failed to sustain the Count of conspiracy against the Respondents? Thus, the Appellant is right that Ground 3 of the Ground of Appeal is a ground of law, and as he also submitted, it is trite law that a sole ground of law is sufficient to sustain a Notice of Appeal -see Ekunola V. CBN (supra).

But I must add that the issue for determination in the appeal must be distilled from the said competent ground of appeal, and not from the other grounds of appeal, which are incompetent, and struck out.

As this Court, per Ogunbiyi, JSC, put it in Njemanze V. Njemanze (2013) 8 NWLR (Pt. 1356) 376 – “no competent issue can arise from an incompetent ground of appeal”. See also Akpan V. Bob & Ors (2010) LPELR-376(SC).

In this case, the Appellant formulated two Issues for Determination and Issue [i], which questions whether the evidence led by the Prosecution proved the allegation against them beyond reasonable doubt, is distilled from the other Grounds of Appeal in his Notice of Appeal, which have been struck out earlier for being incompetent. The said Issue is also incompetent, and it is struck out.

​Issue [ii] is distilled from the said Ground 3 of the Grounds of Appeal, which has been adjudged competent, and the Issue is, therefore, competent, and I will adopt same in dealing with this appeal. Thus, it goes without saying that the Preliminary Objection raised by the Respondents “to the hearing and determination of this appeal” must be overruled, and it is, hereby, overruled.

So, this appeal turns on the narrow issue of whether the Court of Appeal is right that in view of its findings on the substantive offences, the Respondents could not be guilty of the offence of conspiracy. The Appellant, who focused his arguments on other areas, did not have anything to say about this Issue.

​The Respondents reechoed the Court of Appeal’s conclusion that since it was alleged in Count 2 that they caused breach of peace by trespassing into Ovanum Community graveyard without lawful authority, the said Count cannot be proved except there is proof that the event occurred in a public place, thus, the Ovanum Community graveyard, as a public place, is a condition precedent to establishing same; and that the Witnesses were unanimous that there was no such place in existence, therefore, the public place, Ovanum Community graveyard, where they were supposed to have trespassed, did not exist at all.

Now, it is trite law that conspiracy to commit an offence is a separate and distinct offence by itself and it is independent of the offence of the actual commission of the offence to which the said conspiracy relates – see Atano V. A.G., Bendel (1988) 2 NWLR (Pt. 75) 201, wherein Nnamani, JSC, explained:

“It is obvious that the offence of conspiracy to commit an offence will necessarily precede in point of time the offence of the actual commission of the offence to which the conspiracy relates. So, it is possible that one may be guilty of conspiracy to commit an offence and yet not be guilty of the actual commission of the offence. For it is possible that one might change one’s mind before the offence was committed but after the conspiracy might have been hatched. And consequently, that one might not have gone along with the other conspirators in the commission of the offence itself. In other words, that one might have dropped out of the whole scheme after the conspiracy had been entered into.”

​In other words, a conviction for the offence of conspiracy does not fail merely because the conviction on the substantive charge had failed – see Bouwer V. State (2016) 4 NWLR (Pt. 1502) 295, Balogun V. A.G., Ogun State (2002) 6 NWLR (Pt. 763) 512, Okanlawon V. State (2015) 17 NWLR (Pt. 1489) 445.

Even so, the Courts have deprecated the practice of including a Count of conspiracy to commit an offence as well as a Count for actually committing the offence itself, where the evidence to support the two Counts are the same.

In arriving at its decision in this case, the Court of Appeal relied on its decision in Amachree V. Nigerian Army (2003) 3 NWLR (Pt. 807) 256/274, wherein applying R v. Dawson (1960) 1 AER 558, the Court held as follows –

“In Dawson’s case, there were fourteen substantive Counts and one Count for conspiracy – The Court frowned at the charge of conspiracy. The principle that emerged from that case is whether conspiracy charge should also be charged where there are substantive charges in relation to the same conduct- This established principle in Dawson’s case [is] that the proper approach to an indictment containing conspiracy charge and substantive charges is to deal with the substantive charges first and then proceed to see how far the conspiracy Count should be there at all and whether it is made out. The answer to the question decides the fate of the charge of conspiracy.”

It also relied on Njovens V. State (1973) 5 SC 17, wherein this Court held that:

“The Accused Persons are charged with various Counts of specific offences comprising of acts or omissions, which would constitute for each of them, the actus reus to associate him with the conspiracy – There is only one set of evidence, which is being used to prove the conspiracy as well as the specific charges. In R v. Dawson (1960) 1 WLR 163 the Court of Criminal Appeal deprecated this practice, which carries no legal obloquy whatsoever, but fails to stand the test of strategy – The learned trial Judge was right to conclude that all the Accused took part in abetting the offence of robbery.”

Clearly, the issue at stake in this appeal has nothing to do with the fact that the conviction for the substantive offences failed; it has to do with the fact that the Prosecution adduced the same evidence to support the allegations against the Respondents in Counts 2 & 3. which are substantive offences, and the offence of conspiracy in Count 1. That being so, the Court of Appeal is certainly right.

In a charge of conspiracy to commit an offence, even though a separate offence from the substantive offence, where the facts are intricately interwoven, Courts are enjoined to deal with the substantive offence first. This is because, in such circumstances, the conviction for conspiracy will fail if the conviction for the substantive offence is set aside – see Okiemute V. State (2016) 15 NWLR (Pt. 1535) 297 SC, Oladejo V. State (2018) 11 NWLR (Pt 1630) 238/244 SC.

In this case, in Count 1 of the Charge, the Respondents were alleged to have conspired “to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace”, and in Count 2 they were alleged to have-

Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority thereby committed an offence punishable under Section 249(d) of the Criminal Code Cap 31 Vol. II LCRSN 1983.

​Section 249 (d) of the Criminal Code specifically states that every person, who, “in any public place, constitutes himself in a manner likely to cause breach of the peace – shall be guilty of a simple offence”. In other words, to be guilty of the said offence under Section 249(d), the Respondents must have conducted themselves in a manner likely to cause breach of the peace in a public place, and the public place, as alleged in Count 2, is Ovanum Community graveyard.

The Prosecution adduced evidence in support of both Counts, therefore, to ground a conviction for conspiracy, the allegation in Count 2 must be proved. It is an established fact that the Ovanum Community graveyard does not exist, which means that the Prosecution had failed to prove a fundamental element that cuts across the substantive offence itself and the offence of conspiracy.

So, the Court of Appeal made the right call – it held that the public place, Ovanum Community graveyard, where the Respondents were supposed to have trespassed did not exist thus, the Count for conspiracy “is fatally flawed and cannot in the circumstances be sustained as well”, and I completely agree.

In the circumstances, this appeal lacks merit, and it is hereby dismissed.

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SC.1126/2017