Mukaila Salawu V. The State (2014)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellant who was the 3rd accused was arraigned with three others before the Oyo State High Court, Ogbomoso Judicial Division in Charge No.HOG/3C/2004 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 Code Cap.30 Vol.II Laws of Oyo State 1978 (now Cap.38 Vol. II Laws of Oyo State 2000) respectively. They all pleaded not guilty to the charge. The prosecution in proof of its case called seven (7) witnesses and tendered exhibits which were marked Exhibits 1 – 158 while each of the four accused persons testified in his defence but called no other witness. At the end of the trial, the 1st, 2nd and 3rd accused were found guilty of the offences charged. Each of them was given 10 years imprisonment with hard labour on the count of conspiracy to murder and the three of them were sentenced to death for murder. The 4th accused was discharged and acquitted. They appealed by filing separate notices of appeal. On 24th May, 2012, the Court of Appeal, Ibadan dismissed their appeal in appeal No.CA/I/192/2007. The appellant has further appealed against that judgment to this Court. The Notice of Appeal dated 4th June, 2012 contained six grounds of appeal from which the following five issues were formulated:-

(a) Whether the Justices of the Court of Appeal were right when in affirming the conviction and sentence of the appellant by the trial court on the count of conspiracy, they stated that the appellant did not call the Okada men who took him and his co-accused to the scene to confirm the circumstances under which they went to the scene and oath administered on them (Ground One).

(b) Whether Justices of the Court of Appeal were right when they held that the appellant with his co-conspirators acted under circumstances through which it can undoubtedly be inferred that they conspired with one another to assassinate the late Raji Tiamiyu (Ground Two)

(c) whether court of Appeal was right when it held that conduct of the appellant clearly implicated him and for not offering acceptable explanation as to why he was at the scene of crime (Ground Three)

(d) whether circumstantial evidence against the appellant was cogent and compelling to warrant court of Appeal’s conviction and sentence by the trial court (Ground Four).

(e) was the court of Appeal right that prosecution proved the offence of murder beyond reasonable doubt (Ground Five).

The issues formulated by the appellant were adopted in the amended respondent’s brief filed on 27/5/2014 but deemed filed on 11/6/2014.

The crux of this appeal is centered on whether the prosecution proved the offence of murder beyond reasonable doubt against the appellant. Although Learned counsel conceded that the prosecution established the death of the deceased, he submitted that there is no evidence to show that it was the appellant who killed the deceased or conspired with anyone else to kill him and that most of the findings made by the learned trial Judge to find the appellant guilty of conspiracy and murder which was affirmed by the Lower Court were not based on or supported by credible evidence led by the prosecution.

The evidence given by the prosecution which led to the conviction of the appellant and the others for conspiracy and murder is as follows:-

On 27th November, 2002, the accused who stood trial and others at large who are members of the Oodua People’s Congress (OPC) kidnapped one Raji Tiamiyu, a traffic warden from around Takie area in Ogbomoso town and took him in a taxi cab to Odo-Oba area in the outskirts of Ogbomoso town where he was killed after which he was set on fire. This was in retaliation for the death of Kasali Shittu, one of their members during a gun battle with the Police which occurred the previous day. i.e 26th November, 2002. After the death of Raji Tiamiyu, the accused swore to an oath of secrecy not to reveal the identity of those who carried out the kidnap and murder of the deceased. All the accused went into hiding. The Police however received information regarding the kingpin of the dastardly act and it took them over five months to arrest the 1st accused on 19th April, 2003. He made a statement on 25th April, 2003 and later led the Police to the spot where Raji Tiamiyu was shot and his body set on fire. Some pieces of burnt flesh and bones were taken to Laduntan Hospital, Oke Obadare, Ogbomoso where PW3, Dr. Wilfred Olubolade Ladoye performed a post mortem and found that the bones recovered were those of a male. The statement of the 1st accused led to the arrest of the other accused persons who stood trial with him. The 3rd accused made a statement on 27/4/2003 in Yoruba which was translated into English. The statement was admitted as Exhibit 8 while the English translation was marked Exhibit 8A. He also made a statement on 6/5/2003 and another additional statement on 8/5/2003. The statements which were recorded on 6/5/2003 and 8/5/2003 were marked Exhibits 14 and 14A respectively.

The appellant who testified as DW3 said he knew the 1st and 2nd accused persons as leaders of the Oodua People’s Congress (OPC). He stated that on 26th November, 2002 he learnt that the member of the Oodua People’s congress had a battle with the Police in Ogbomoso. That same day he learnt that Alfa Kasali, a member of the Alliance for Democracy (AD) the Political Party to which he belonged died and he went to pay a condolence visit to the family and while he was waiting for the arrival of the corpse from the mortuary, he saw 1st and 2nd accused. While they were at the deceased’s house he saw some motor cycle riders popularly known as ”Okada men” who were escorting the corpse of the deceased for burial. It was at that point he got to know that the deceased was also a member of the O.P.C.

Since it is conceded that the prosecution established the death of the deceased, the prosecution must go further to show that it was the appellant who killed him or conspired with another person or persons to carry out the act. Because of the nature of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See: Obiakor v State (2002) 10 NWLR (Pt.776) 612. In a charge of conspiracy the actual commission of the offence is not necessary to ground a conviction for the offence. All that is necessary is a meeting of the minds to commit an offence and this meeting of the mind need not be physical. Once the Court arrives at a conclusion that the prosecution has established some community effort on the part of the accused persons aimed at committing a crime, it will be safe to convict them for conspiracy. The accused can be guilty of conspiracy even where the meeting of the minds is to carry out a lawful purpose in an unlawful way. See: Shodiya v. State (1992) 3 NWLR (Pt.230) 457 at 471.

The learned trial Judge considered the English version of Exhibits 2, 4, 4A, 7, 8A and 9A which were the statements made by the 1st 2nd and 3rd accused to the Police at Ogbomoso giving account of how the kidnapping and eventual killing of the deceased Tiamiyu Raji was carried out.