Segun Oduneye V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The appellant was arraigned before an Oyo High Court presided over by M. A. Owoade, J on a two count charge of conspiracy to commit murder and the murder of Chief Amuda Olorunkosebi, the late Ashipa of Oyo, on or about the 26th day of November, 1992, at Ijawaya village, contrary to and punishable under sections 516 and 319 of the Criminal Code, Cap. 30, Volume II, Laws of Oyo State of Nigeria, 1978.

The trial commenced on the 12th of February 1998 wherein the prosecution fielded a total of 14 witnesses. The appellant, on his part, testified on oath and called his wife, DW1, as a witness. Both learned counsel for the appellant and the prosecution respectively addressed the court. The learned trial Judge thereafter delivered his judgment on the 18th of June, 1998 whereupon he discharged and acquitted the appellant on the second count charge of murder but convicted him on the first count charge of conspiracy to commit murder and sentenced him to seven years imprisonment, without option of fine.

Dissatisfied with the judgment of the trial court, the appellant appealed to the court below which confirmed his conviction and sentence, hence the appellant’s further appeal in this court.

I shall first outline the evidence of the key witnesses in this case. The case for the prosecution is that the appellant in company of one Abiodun Faseyitan came to the deceased and requested for a parcel of land suitable for fish pond and cattle poultry (sic). Consequent to this, the appellant and Abiodun Faseyitan (hereinafter referred to as Faseyitan) visited the deceased and inspected the site in company of agents or representatives of the deceased on two occasions between the months of October and November 1992. PW1, Alhaji Ganiyu Ajiboye, testified that when the appellant and Faseyitan came back to the deceased he, the deceased, requested him to take them to the pond site at Ijawaya. PW1 recognised the appellant as one of the persons whom he took to the site. The visit to the site was in a Datsun Bluebird with Registration No. KD 1586 DU, driven by the appellant while he sat in front with him and Faseyitan sat at the back. On the way to the site they collected Gbadamosi Oyelakin and Raimi Ishola. And after visiting the site Gbadamosi Oyelakin and Raimi Ishola were dropped at their homes and he, PW 1, proceeded with the accused and Faseyitan to show them the deceased’s personal pond as directed by the deceased and thereafter the three of them went to report their mission to the deceased.

On the insistence of Faseyitan and in the presence of the appellant and the deceased, Faseyitan demanded that the deceased should accompany them to the site to confirm that the site belonged to him. The visit to the site was fixed for 26/11/92. On that day, after a naming ceremony attended by the deceased, PW 1 accompanied the deceased, along with the appellant and Faseyitan and some others to the site. At this time, Faseyitan, the deceased, PW1, Raimi Ishola and the appellant rode together to the site. On arrival at the site, PW1, said that they saw a masked person who suddenly emerged, threatened them and pointed a gun at them. Faseyitan then brought out a picture of Alaafin of Oyo and showed it to the deceased and said that this is the person he should ask about these matters. At this point the deceased bent down but PW1 did not see whether the gun shot, hit the deceased or not, because he fled as soon as he heard the gun shot, leaving Faseyitan and the appellant there. He also saw another masked person who was armed with a matchet. On his return to Ijawa, he discovered that Raimi Ishola had been matcheted. The witness later reported the incident at the Police Station.

It was only in 1994, while in the company of one Ayankojo that witness saw the appellant, identifying him as the person who was always, in the company of Faseyitan. Subsequently, he made a report of this to the police in Lagos that they had seen the appellant. One Police Officer, named Tinubu was detailed to go with them to Ibadan where, with the assistance of two other police officers, the appellant was arrested. Later witness identified the appellant, having earlier in an identification parade, identified Faseyitan.

PW2, Alhaji Raimi Ishola, was another key witness for the prosecution and virtually confirmed the testimony of PW 1 particularly on the issues surrounding the death of the deceased. PW4, Lasisi Ayankojo, confirmed how while in PW1’s company efforts were made to locate the appellant at his house at Ibadan and his subsequent arrest. On 3rd May 1995 the matter was assigned to PW5, Mojeed Olajide Tinubu, an Assistant Superintendent of Police. There was also PW7, James Oyelowo Jenfa, a Surveying Assistant who accompanied the appellant and others to the site sought to be sold by the deceased to the appellant and Faseyitan. He readily identified the appellant, as the person who drove them to the site on 19th November, 1992. Again, one Sunday Adeyinka, PW8, a motor mechanic at Mokola, Ibadan testified as the person, who on the instruction of Faseyitan changed the system of the Datsun Bluebird car being used by the appellant and Faseyitan from right hand drive to left hand drive, sometime in December 1992. PW 10, Raimi Buraimoh, bought the Datsun Bluebird from Faseyitan after the change in the system from right hand drive to left hand drive.

The appellant testified in his own defence. A striking aspect of his testimony is that appellant denied ever meeting the deceased and further denied involvement in the charges of conspiracy or murder of the deceased. He however admitted that Exhibit “P2” – a photocopy of the passport of the Alaafin of Oyo – was recovered in the house. He also admitted that Faseyitan served as a pointer to the police who came to arrest him in 1993 with regard to this case. Appellant’s wife DW1 also testified on behalf of the defence and asserted that the appellant was not in talking terms with Faseyitan at the material time to the case.

As already stated, after the confirmation of appellant’s conviction and sentence by the Court of Appeal, appellant undauntedly shifted the legal battle to this court. His learned counsel filed three grounds of appeal on his behalf and therefrom formulated three issues for determination namely:

“1. Whether the learned Justices of the Court of Appeal were not wrong in confirming the appellant’s conviction for conspiracy inspite of the finding of the learned trial Judge that “The prosecution has not fixed the action or inaction of the accused with the death of the deceased”,

2. Whether the learned Justices of the Court of Appeal were not wrong when they held that the failure by the prosecution to call Abiodun Faseyitan and Alaafin of Oyo was not fatal to the prosecution’s case.
3. Whether the contradictions in the case of the prosecution are sufficiently material to justify the discharge and acquittal of the appellant by the Justices of the court below.

Learned counsel for the respondent also identified three issues for determination, namely:

“1. Whether the prosecution, proved the charge of conspiracy against the appellant beyond reasonable doubt.

2. Whether the failure of the prosecution to call certain witnesses is fatal to the case of the prosecution.
3. Whether the court below, was right in affirming and upholding the conviction of the appellant.”

The two respective sets of issues for determinations identified by both parties are identical and there is hardly much to choose between them. Nevertheless, I prefer to tackle the resolution of the issues herein by relying more on the appellant’s set of issues.

Issue 1

Relying on the authorities of Mulcahy v. R. (1868) LR. 3 HL 306 at 317; Ikemson v. The State (1989) 1 CLRN 1, (1989) 3 NWLR (Pt. 110) 455; Daboah v. The State (1977) 5 SC 197 and Patrick Njovens & Ors v. The State (1973) 5 SC 17, learned counsel for the appellant, N.O.O. Oke, Esq. submitted that the prosecution failed to link any action or inaction of the appellant with the alleged conspiracy to murder the deceased. Counsel pointed out that although the two eye-witnesses in the case, PW1 and PW2, stated that the appellant drove the vehicle that conveyed Faseyitan and the followers of the deceased to the site, they also testified that the appellant was present when Faseyitan allegedly showed the picture of Alaafin to the deceased as the brain behind the action of the unknown masked assailants of the deceased, yet counsel submitted that this evidence, without more, was not enough to establish the charge of conspiracy implicating the appellant. It is his further submission that although Faseyitan allegedly made the statement regarding the Alaafin’s picture in the presence of the deceased, the appellant and all the other people present at the site, there was nothing that demonstrated that the appellant and Faseyitan were acting in concert. Finally, it was submitted on behalf of the appellant that notwithstanding the itemized pieces of evidence stated by the trial Judge and confirmed by the lower court, these circumstances were not sufficient to sustain the conviction for conspiracy, more so as they were not shown to be positive, direct and unequivocal and pointing unmistakably and irresistibly to the commission of the offence of conspiracy by the appellant. In support of this submission, counsel cites Alake v. The State (1992) 9 NWLR (Pt.265) 260 at 272 – 273.

Learned counsel for the respondent submitted that since it is not always easy to prove the actual agreement to commit the offence of conspiracy, the courts usually consider it sufficient, if it is established by evidence, circumstances from which the court would consider it safe and reasonable to infer or presume conspiracy, and relies on the authority of Dabah & Anor. v. The State (1977) 5 S.C. 197 at 222. Counsel referred to the itemized 15 factual situations tendered in evidence which combined effect, he submitted, assisted the trial Judge to draw inference of a conspiracy between the appellant, Faseyitan and others to effect the unlawful purpose of the murder of the deceased.

As part of the overt act of the appellant in pursuance of the conspiracy between himself and Faseyitan to murder the deceased. Exhibit P17 – a letter of Request of Grant of Land for Agricultural and Fishery Project in Oyo Area, dated 17th November, 1992, allegedly presented to the deceased by the appellant and Faseyitan, and purportedly said to have emanated from Sanni Factory, at No. 15 Niger Road, Kano was found to be fake from what could be gleaned from the evidence of PW 14, an Inspector of Police formerly stationed at Ibadan. This witness stated that they could not discover any Sanni Farming Factory in the address shown in Exhibit P17. This witness also attested to the fact that the Registration No. KD1586 DU allocated to Exhibit “P18”, the vehicle allegedly used by the appellant and Faseyitan in their visits to the deceased and at the site a Datsun 1.8 Bluebird – did not exist in the Registration Books in Kaduna State Licensing Authority. Still on Exhibit “P18”, additionally it was repainted, its registration number changed from KD 1586 DU to YGT 252W while more profoundly, it was later converted from Right hand drive to Left. Finally, on Exhibit “P18”, counsel recalled that this was the vehicle purchased by the Alaafin of Oyo while the Alaafin, Faseyitan and the accused were together in London.

Learned counsel called our attention to the concurrent findings of both the trial court and the lower court that the prosecution proved the charge of conspiracy beyond reasonable doubt against the appellant. And on the authorities – Sobakin v. State (1981) 5 Sc. 75; Nasamu v. State (1979) 6-9 SC. 153, Nwachukwu v. State (1985) 5 SC (Pt. 11) at 183, (1989) 3 NWLR (Pt. 11) 218 and Adio v. State (1986) 2 NWLR (pt.24) 581 at 589 – he urged the court to be slow to disturb those concurrent findings unless they have been shown to be perverse or reached in violation of some law or procedure. In conclusion, counsel urged us to uphold the findings and conclusion reached by the two lower courts on the charge of conspiracy.

Under Issue 1, the gist of the question that calls for consideration is whether the conspiracy charge laid against the appellant was proved to the hilt by the prosecution at the trial court as to warrant the conviction and sentence in respect thereof being confirmed by the lower court. Let it be said straightaway that after a careful perusal of the record of appeal, it is common ground that except for PW 1 and PW2, there were no other eye-witnesses who testified to the dastardly murder of the deceased. The murderer who unleashed the gunshot on the deceased being fully masked and unchallenged it became an uphill, if not impossible, task on the prosecution, in the circumstances of this case, to press for a conviction for murder but felt that they were on good wicket to seek a conviction for conspiracy to commit murder. A conviction for conspiracy is not without its inherent difficulties. First the offence of conspiracy is not defined under the Criminal or Penal Code. But, perhaps, more importantly. a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is “evidence not of the fact in issue but of other facts from which the fact in issue can be inferred: See F. Nwadialo, Modern Nigerian Law of Evidence,. (Ethiope Publishing Corporation) 1981, P. 3. Aguda, in his Law of Evidence in Nigeria 2nd ed., P. 14 has put it more tersely as “evidence offered to the existence of a fact in issue”. Evidence in this connection must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused.

How then does one identify the offence of conspiracy Willes, J. in the House of Lords’ decision offered the generally accepted definition of the offence of conspiracy in Mulcahy v. R (1868) 3 H.L. at 317 where he stated as follows:

“A conspiracy consists not merely in the intention of two or more but ill the agreement of two or more to do all unlawful act, or to do a lawful act, by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.” (The emphasis is mine).

See also Patrick Njovens & Ors. v. The State (1973) 5 S.C.17; Daboh & Anor v. The State (1977) 5 SC. 197 and Erim v. State (1994) 5 NWLR (Pt.346) 522. What is being chorused by these authorities, simply put, is that for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realisation of their common or mutual criminal purpose .

It may be recalled that the learned trial Judge unequivocally accepted the evidence of the prosecution witness when he said:

“On the whole I am impressed with the quality of the evidence of the prosecution witnesses in this case, especially PW1 who I consider to be a very truthful and intelligent witness. He had ample opportunities to render damning faces (sic) as against the accused person – but he refused even to exaggerate the facts and circumstances which he perceived, led to the death of the deceased,”

Against this background of the quality of evidence of the prosecution witnesses, the learned trial Judge set out the following catalogue of facts adduced by the prosecution in support of the case:

“1. That the accused, Abiodun Faseyitan and the Alaafin of Oyo are friends and/or partners in business.

2. That it was Abiodun Faseyitan that introduced the accused person to the Alaafin of Oyo, Oba Lamidi Adeyemi.
3. That on or about the month of July, 1992, the trio, that is the accused, Faseyitan and the Alaafin of Oyo traveled to London and came back together.
4. That while in London and in the presence of the accused and Faseyitan the Alaafin of Oyo, Oba Lamidi Adeyemi purchased Exhibit P18.
5. Since then there had been various transactions and exchange of money between the parties – in particular the accused and Faseyitan collected huge amounts of money from the Alaafin of Oyo for one business or the other.
6. That on at least two previous occasions before the 26th November 1992, the accused and Faseyitan visited the deceased and on the instruction of the deceased PW1 and PW2 accompanied the accused and Faseyitan to site which eventually became the scene of crime.
7. That on these two occasions, the accused and Faseyitan conveyed PW 1 and PW2 to the site with Exhibit P18.
8. That in the presence of the accused after the second visit, Faseyitan still requested the deceased to follow them to the site.
9. The accused, Faseyitan PW 1 and PW2 now in company of the deceased went back – for the third time to the site, the scene of crime.
10. On this occasion, the company was equally conveyed by Exhibit P18, driven on that day by the accused himself.
11. On getting to the site/the scene of crime, the company was threatened with a gun by a masked man.
12. At the stage and in the presence of all the others Faseyitan brought out a picture of the Alaafin of Oyo – Oba Lamidi Adeyemi and told the deceased “this is the person you should ask about these matters”.
13. PW1 ran away from the scene after a gun shot from the masked man and left the deceased, Faseyitan and the accused at the scene.
14. PW1 and the Police went back to the scene only to meet the corpse of the deceased with matchet cuts on his forehead and acid on his body.
15. PW1 did not see the accused any longer until he identified him at Ibadan and later to the police.

It is from the combined effect of these itemized factual situations in the evidence of the prosecution that the learned trial Judge drew the inference of a conspiracy between the appellant, Faseyitan and others to effect the unlawful purpose of the murder of the deceased. The lower court in its leading judgment, per Tabai, JCA, also confirming the judgment of the learned trial Judge, had this to say:

“In my view the itemized pieces of evidence, if credible, sufficiently meet the definition and elements of the offence of conspiracy laid down in the various authorities referred to above.”

Learned counsel for the appellant, in his brief in this appeal, submitted that the use of the words “if credible” in the leading judgment of Tabai, JCA indicated that the lower court was not convincingly satisfied that the itemized factual situations are credible. With due respect to learned counsel, it appears there is some misapprehension somewhere. The short-cut to this problem is simply this: the learned trial Judge, having evaluated the evidence of the prosecution reached the conclusion that it was of good quality and in fact acted on it; it is too late in the day to cast aspersion on such evidence unless the evidence is tainted with perversity. The appellant, from the records, did not even feebly raise such perversity nor can it be said to have been surreptitiously or subtly raised suo motu by the lower court, because the learned Justice of the lower court had conceded, rightly in my view, that the appraisal of evidence and ascription of value and credibility to it are within the special preserve of the trial Judge, more so as he had the advantage of seeing and hearing the witnesses. Tabai, JCA, fortified his view with the well-known authority of Woluchem v. Gudi (1951) 5 S.C. 291. It was therefore manifest and beyond any peradventure that the credibility of the evidence led by the prosecution was above reproach. If so determined by the trial Judge, then in my judgment, in the absence of any challenge by the adversary party, neither the lower court nor even this court can castigate the credibility of such evidence. The mix-up of appellant’s counsel in this connection, in my view, stems from his erroneous approach of disjointedly reading a section of the judgment of the lower court in isolation whereas it ought to be read harmoniously.

Let us return to the 15 itemized factual situations identified by the trial Judge and from which he drew the inference of a conspiracy between Faseyitan, the appellant and others to effect the unlawful purpose of the murder of the deceased. The lower court, in confirming the judgment of the trial Judge, held that these factual situations were sufficient to meet the definition and elements of the offence of conspiracy laid down in the various authorities it had considered in this respect. Additionally, the lower court considered the investigation and evidence led in regard to Exhibit P17 – a request of Grant of Land for Agricultural and Fishery Project in Oyo Area dated 17th November 1992 presented to the deceased by the appellant and Faseyitan. The investigation, through Exhibit “PI7” revealed that the letter and its contents were fake. The lower court also confirmed the finding of the trial that there was no Sanni Farming Company at No.15 Niger Street, Kano which was not even challenged. The lower court further observed that the finding by the trial court that Exhibit “P 18” bore fake registration number KD 1586 DU was equally not controverted. Reacting to Exhibits “P17′ and “P 18″ in the light of the evidence on record, the lower court said that:

there was, in my view, evidence not only of criminal intention but also of agreement between the duo and others to commit the alleged murder. In all I am of the firm view that the evidence of the prosecution was not merely that founded on suspicion and speculation but rather one positive and strong enough to sustain a charge for conspiracy to murder.”

I have examined the 15 itemized factual situations as identified by the learned trial Judge. Perhaps, if I were to examine them separately and in isolation of one another, these pieces of evidence would appear merely speculative and suspicious and definitely not cogent enough to sustain a charge of conspiracy to murder, having regard to the association between Faseyitan and the deceased. Such a conclusion is inescapable particularly when one examines items 1 to 11 separately. But the situation under item 12 i.e when Faseyitan or some other person displayed the picture of the Alaafin and the remarks that followed that display, added a startling new look or colour to the events wherein the apparently lawful acts of Faseyitan and the appellant turned dreary and degenerated into the unlawful conspiracy of the appellant, Faseyitan and others. At this juncture, the inference of effectuating by unlawful means the agreement or scheme between the appellant, Faseyitan and others becomes cogent and irresistible. Little wonder when the armed masked person threatened the scenario at the site that eventually became the locus in quo, neither the appellant nor Faseyitan was ruffled by the gun shot while PW 1 and PW2 who were startled and rattled fled for their lives and PW 1 reported the incident to the Police. In response to what transpired on that fateful day at the site, the appellant pleaded alibi, denied knowing the deceased and unabashedly stated that he met the PW 1 for the first time at the Police Station after his arrest. Appellant’s alibi was investigated and found to be false and arid.

In the final analysis, it is my view that a communal reading of the 15 itemized factual situations identified by the learned trial Judge coupled with the finding that Exhibits “P17′ and “P18” were fake leaves one with cogent irresistible inference of the agreement between the appellant, Faseyitan and others to commit the murder of the deceased. The Court of Appeal unanimously upheld the decision of the learned trial Judge that the evidence led by the prosecution was not merely that founded on suspicion and speculation but rather one positive and strong enough to inferentially sustain a charge for conspiracy to murder.

Learned appellant’s counsel under his first issue for determination wondered whether the lower court was not wrong in confirming the appellant’s conviction for conspiracy inspite of the finding of the learned trial Judge that “The prosecution has not fixed the action or inaction of the accused with the death of the deceased.”

This observation was made by the learned trial Judge at the conclusion of consideration of the offence of murder in contradistinction to consideration of the charge of conspiracy. This conclusion is legitimate because at the end of the day, the learned trial Judge, unimpressed that the charge of murder had been made out discharged the appellant. Again, it is unfortunate the learned appellant’s counsel did not appreciate the circumstances leading to this assertion.

Issues No 2. & 3

These issues were argued together by both counsel rather briefly. On issue 2, learned appellant’s counsel submitted that from the prosecution’s evidence it was crystal clear that both the Alaafin of Oyo and Faseyitan were material witnesses whose evidence would settle the crucial issues before the court yet, surprisingly, they were not fielded by the prosecution. To establish the offences of conspiracy and murder, particularly as Faseyitan had earlier been tried on similar charges and discharged, the evidence of these two men, it was finally submitted, would have resolved the various contradictions in the testimonies of the prosecution witnesses and such doubt that existed in the case.

Learned respondent’s counsel, as earlier noted also argued Issues 2 and 3 together. In rebuttal to Issue 2, counsel submitted that there was no material issue, which created doubt nor necessitated calling Alaafin of Oyo and/or Faseyitan. On the duty of the prosecution to calling witnesses, counsel submitted that the prosecution is not obliged to call every eye-witness to the offence, but to call enough witnesses to enable them discharge the onus of proof on them of proving their case beyond reasonable doubt. He cites several Supreme Court decisions, including Ogoala v. The State (1991) 2 NWLR (Pt.175) 509; Saidu v. State (1982) 4 SC. 41.

It is now trite that in all criminal cases, without exception, the prosecution have the heavy responsibility to prove the offence preferred against the accused beyond reasonable doubt, see Okpulor v. State (1990) 7 NWLR (Pt.164) 581 at 593 and Seneviratne v. R. (1936) 3 All ER 36. Unless where the law prescribes otherwise, there can be a conviction based on the evidence of a sole witness. Whether, therefore, the prosecution will call one, two or more witnesses in proof of their case, or even the choice to make between witnesses, is a matter of strategy and the decision in respect thereof is entirely at the discretion of the prosecutor. No doubt, some witnesses are more material than others. Yet the law. in my view, does not require the prosecution to call every eye-witness to the offence to testify nor will the situation be different even where some of the witnesses may be described or identified as material witnesses. Indeed, it is not good practice to field numerous witnesses where the prosecution could, with a handful of witnesses, have discharged the burden of proof required to establish the guilt of the accused. So it follows that the prosecution in order to secure conviction must obviously call material witnesses in proof of their case and it is immaterial that the testimony of such witnesses is favorable to or against the prosecution. It will be invidious however to insist that the prosecution must field every witness connected with the case, as argued in Ram Ranjan Roy v. R. (1914) 1 LR 42; Calc 422 14 Digest 490273,22816 (ii). Such general approach, in my judgment, is to heap on the prosecution the performance of the functions both of prosecution and defence. Undoubtedly, the prosecution are obliged to make all material witnesses available to the defence even though they would not field them in proof of the case for the State. The responsibility of the prosecution with regard to material witnesses appears to have been tolerably stated about 60 years ago by the erstwhile West African Court of Appeal in the case of R. v. Kuree 7 WACA 175 at 177.

“It is well established that it is the duty of the prosecution to place before the court all available relevant evidence. This does not mean, of course, that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called.”

This dictum in Kuree is a watershed on the old approach by the courts that was exemplified in the case of R. v. Essien 4 WACA 112 which took the view that the prosecution should call all witnesses, whether their names appeared or not on the back of the information. This new approach, along the dictum in Kuree case, includes Udofia v. State (1981) 11-12 SC 49 at 63; Saidu v. State (1982) 4 SC 41 at 68, the Privy Council decision in Seneviratne v. R. (1936) 3 All ER 36 – a case from Ceylon, and Opayemi v. The State (1985) 2 NWLR (Pt.5) 101, (1985)2NSCC 921,927.

What this boils down to in the light of recent authorities is that the prosecution has no duty to call and field all known material witnesses so long as they call and field all material witnesses that they may consider necessary for proof of their case beyond reasonable doubt. Additionally, it must be emphasized that material or indispensable witnesses crucial for eliciting and setting the basis of the prosecution’s case, must inevitably be called and fielded by the prosecution, notwithstanding that the consequence of such witness’s testimony is favourable to or against the case of the prosecution; to act otherwise, of course, would leave an indelible question mark in the prosecution’s case that must be resolved in favour of the defence.

Now to the case in hand with regard to the charge of conspiracy. The question that confronts us is whether the viva voce evidence of Faseyitan or Alaafin of Oyo was indispensable to the success of the prosecution’s case I think not. The Alaafin was remotely mentioned by the defence in relation to the purchase of Exhibit “P18″ abroad and by the prosecution in the testimonies of PW1 and PW3 in respect of the picture of Alaafin that was shown to the deceased at the site on that fateful day before the gun-man appeared at the scene. As for Faseyitan, he had earlier been tried and discharged. He would not be useful, in my judgment, to further corroborate the impressive narratives – as found by the learned trial Judge – of the account of the event of that fateful day as meticulously rendered by PW1 and corroborated by PW2. Bearing in mind that in a charge of conspiracy direct positive evidence of the plot or design or agreement between the co-conspirators is hardly capable of proof, the courts, as we had earlier shown, have always tackled the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inaction’s of the parties concerned.

In my judgment, the mere mention of Alaafin of Oyo or producing his picture in the circumstances of this case does not create any real nexus between him, the appellant and the other conspirators in this case as to hold him out as a material or indispensable witness to the charge of conspiracy laid against the appellant. Furthermore, the appellant’s downright denial of knowing or ever meeting PW1 or PW2 would tend to negative the entire testimonies of PW1 and PW2 in relation to the events even on the previous occasions at the site before those of the fateful day, and in such circumstances the evidence of Faseyitan would be un-helpful to lend credence to those testimonies. After all, the best that Faseyitan can attest to in relation to the event at the site on that fateful day is the death of the deceased but by no stretch of the imagination would one expect Faseyitan to shed any light on the grand plot of the deceased’s elimination. Thus in my judgment, Faseyitan was neither a desirable nor an indispensable witness to unfold, by his testimony, the narratives on which cogent inference of conspiracy to murder the deceased would be made.

What I have said above is enough to resolve Issue No. 2 against the appellant. Finally, I come to the third and last issue. This issue questions whether the contradictions in this case were not enough to discharge and acquit the appellant. It is common ground that there was some discrepancy in the narratives in respect of the Alaafin’s picture: while PW1 said it was Faseyitan that brought out the picture of Alaafin and showed it to the deceased, PW3 said it was the two men who emerged from the bush that showed the picture to the deceased. It is noteworthy that it is not appellant’s case that a prosecution’s witness attested to two contradictory pieces of evidence, rather appellant’s contention is that there was some discrepancy in the evidence of two witnesses for the prosecution as stated above. The sole point of difference in their testimonies is simply who brought out the picture of Alaafin of Oyo. It was common ground that the picture of Alaafin of Oyo was in fact brought out. The discrepancy would have, perhaps, for purposes of credibility, become relevant if one witness said that it was the picture of Alaafin of Oyo that was brought out while the other categorically stated that it was the picture of an Emir of one of the Northern States that was brought out. Here the difference in the personalities in such circumstances becomes crucial and material and cannot ordinarily be glossed over, at least, as it may relate to the credibility of PW1 or PW2.

Appellant’s learned counsel delights himself in making a mountain out of a molehill, as it were, on this frivolous and inconsequential issue, giving the impression that every ‘contradiction” is fatal to the prosecution’s case. This is unfortunate. On the contrary, it has long been laid down by a long chain of authorities that not every contradiction is fatal to the prosecution’s case save where such contradiction goes to the substance and materiality of a fact or facts in issue in the charge as to raise a doubt in the mind of the court. Unequivocally, such doubt must be resolved in favour of the accused. See Ibrahim v. State (1991) 4 NWLR (pt.186) 399, 415. Udo v. State (1992) 2 NWLR (pt.224) 471 at 479 and Mallam Zakari Ahmed v. The State (1999) 7 NWLR (Pt.612) 641, to mention a few. I am at one with the lower court that the so-called contradiction in this case is really a matter of discrepancy of inconsequential nature that did not relate to the role allegedly played by the appellant in this case. It ought safely to have been overlooked. I would myself unhesitatingly reject the wobbling and woolly submissions of appellant’s counsel in this regard. Accordingly, the third issue is resolved against the appellant.

Although what I have said so far is enough to dismiss this appeal, it is however pertinent to recall as, earlier submitted by respondent’s learned counsel, that this case is one of concurrent findings, of both the trial court and the court below on the fact that the failure of the prosecution to call the two witnesses i.e. Faseyitan and Alaafin of Oyo was not fatal to the case of the prosecution so also the minor discrepancies. Counsel further submits that it is settled law that where there is sufficient evidence to support concurrent findings of fact by the two lower courts, such findings should not be disturbed unless there is a substantial error, apparent on the record, that is to say, that the findings have been shown to be perverse or some miscarriage of justice or some material violation of some principle of law has been shown.

The point of concurrent finding of fact by both of the two lower courts was respectively made by respondent’s counsel after the conclusion of the 1st issue on the one hand and again after the arguments on conclusion of the 2nd and 3rd issues argued together, on the other, and it gave the impression that respondent’s counsel was repetitious in this regard, an approach that must be condemned. A neater approach, in my view, would have been to take the issue of concurrent findings of fact in respect of all the various issues together at the end of counsel’s submissions on the identified issues for determination; this would have placed the submissions on concurrent findings on a clearer and separate pedestal without being tortuously repetitious.

Be that as it may, appellant’s learned counsel neither filed a reply brief nor made any effort in his oral submission to respond to respondent’s submission. I find the submissions on concurrent finding, as argued, unanswerable. The law is quite clear in this regard. The general policy of the law is that it will be unreasonable to over flog such determined findings of fact by unwittingly permitting the adversary party to re-open arguments on them, at his whims and caprices and without first demonstrating with the utmost pellucidity that the circumstances of his case bring him within the purview of the exception for dismissing the findings. See Nasamu v. State (1979) 6-9 S.C. 153; Nwachukwu v. State (1985) 5 S.C. 11, (1985) 3NWR (Pt.l1) 218; Igwego v. Ezeugo (1992) 6NWLR (Pt.249) 561 at 574.

For all I have said, I find no merit whatsoever in this appeal, the same is dismissed. The judgment of the lower court dated 25th January, 2000 is accordingly affirmed.

SC.88/2000