JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Edo State of Nigeria, Auchi Judicial Division in Charge No. HEK/2C/2003: THE STATE VS ODION OKHIRIA & 3 OTHERS delivered on 3rd day of May, 2011 wherein the Accused/Appellant was convicted on Counts 1 & 2 and sentenced to 7 years imprisonment with hard labour in Count 1 and 14 years imprisonment with hard labour in Count 2. The terms of imprisonment are to run concurrently.
Briefly, the facts of this case are that the Appellant and one Miss Aimuanohi Iziengbeaya Ihonre (i.e. PW7) had dated for about 4 years until PW7 decided to call off the relationship as she felt it was not going to lead to marriage.
The Appellant felt bad and threatened to kill PW7 or blind her. On 17/5/2002 at about 6.30pm while PW7 was on her way to church at Ujemen in Ekpoma, the Appellant used his vehicle to block the vehicle which PW7 boarded, dragged her out of the vehicle and beat her up. PW7 was rescued from the Appellant. And at about 8.00pm on the same day, the Appellant in company of his gang members including 2nd and 4th Accused
persons came to the PW7 fatherý??s house, destroyed the house and about 5 other houses in the area. On 18/5/2002 at about 4.15pm, the Appellant returned in search of PW7, in company of some group of boys with gallon of what looks like fuel and other dangerous weapons like bottles, knives, etc. The Appellant was seen in front instructing the people with him and in the process, the house of PW1 was completely burnt down by fire set on it by the Appellant and those who were with him.
The PW1 Philemon Ikpefua testified and told Court how the Appellant led some boys numbering about 20 to their street on 18/5/2002, how he was pursued by the boys after the Appellant identified him as the landlord of the house they were heading to and how he fled for his life because of the dangerous weapon they were holding. He later testified of how he later saw his house in flame from his hideout, while the Appellant and his men kept watch until the house was completely razed down by fire. (See pages 84 - 85 of the Record of Appeal).
The PW2 Mr. Clement Irekenagba also told the trial Court how he saw the Appellant on the day commanding the crowd, telling them to destroy anything
they see and how they eventually set PW1ýs house on fire (See pages 86 - 88 of the Record of Appeal).
The PW3, Mrs. Alice Aiyedun, who is the mother of PW1, also testified of how she saw the Appellant in company of some other persons holding a gallon and how they eventually set PW1ýs house on fire. (See 88 - 90 of the Record of Appeal).There was also evidence on record by PW4, 5, 6 and 7 of how the Appellant led a mob which led to the burning of PW1ýs house. (See pages 91 - 102 of the Record of Appeal).
The Appellant in his own case denied the allegation. He testified for himself and called one other witness. He denied setting fire on PW1ýs house and testified that he only led members of Anti-Cult Crusade Organisation of Nigeria (ACCON) to PW1ýs house to invite her for an amicable settlement of their dispute. He further testified that they were attacked in the process by the younger brother to PW7 and his friends which led to some of them sustaining injuries, that one of them escaped to campus to alert the students of the attack which led to a retaliation by the students and in the process the house of PW1 was set on fire.
At the conclusion of trial at the Lower Court, the Appellant was convicted and sentenced to 7years imprisonment with hard labour in Count 1 and 14 years imprisonment with hard labour in Count 2.
The Appellant who is dissatisfied with the Judgment has now appealed to this Court seeking to have his conviction set aside and a verdict of acquittal entered in his favour.The learned counsel for the Appellant formulated a sole issue for the determination of the appeal. The issue is set out as follows: -
ýWhether the prosecution proved its case beyond reasonable doubt to warrant the conviction and sentencing of the Appellant to 7years imprisonment with hard labour and 14 years imprisonment with hard labour respectively for conspiracy and arson.ý
On the other hand, the learned counsel for the Respondent also formulated a sole issue for the determination of the appeal. The issue is also set out as follows: -
ýWhether having regard to the totality of the evidence led at the trial and the circumstance of this case, the prosecution proved the offences of conspiracy to commit arson and arson against the appellant beyond reasonable doubt.ý
At the hearing of the appeal on 1/2/2016, the learned counsel for the Appellant referred to the notice of appeal filed on 1/6/2011 which was amended by an order made on 2/11/15. The said amended notice of appeal filed on 19/6/15 was deemed as properly filed on 2/11/15. The record of appeal was also deemed as properly compiled and transmitted on 2/11/2015.
He also referred to the Appellants brief of argument filed on 13/11/2015. He adopted and relied on the said brief as his argument in urging that the appeal be allowed and the Judgment set aside.
The learned counsel for the Respondent, in his own case, referred to the Respondents brief of argument filed on 17/11/2015. He adopted and relied on the said Respondents brief as his argument in urging that the appeal be dismissed and affirm the Judgment of the Lower Court which convicted and sentenced the Appellant.
I have carefully examined the issues formulated for the determination of the appeal by counsel for the parties, and I am of the view that the sole issue formulated by counsel for the Respondent though similar to that formulated on behalf of the Appellant, would take care of the issues in controversy in this appeal. I will therefore rely on the said Respondent sole issue.
ISSUE FOR DETERMINATION OF THE APPEAL
"Whether having regard to the totality of the evidence led at the trial and the circumstance of this case, the prosecution proved the offences of conspiracy to commit arson and arson against the appellant beyond reasonable doubt."
The learned counsel for the Appellant submitted that it is settled law that conviction of an accused person by a Court of law on any allegation of crime is only possible where every element of the alleged crime has been proved beyond reasonable doubt. He relied on Section 135(1) of the Evidence Act 2011 and the case of ONAFOWOKAN VS THE STATE (1987) 3 NWLR Part 61 Page 538.
He contended that in cases where an accused person clearly and unequivocally informs the police that, it was not him, but someone else who committed the offence, the police are obliged to call such persons for questioning in order to get to the root of the matter. But where the police fail to do so, in the course of their investigation, such failure is fatal to the case of the prosecution. He relied on - OPEYEMI VS THE STATE (1985) 2
NWLR Part 5 Page 101.
AL-HASSANI VS THE STATE (2011) 3 NWLR Part 1234 Page 254 at 277 paragraphs D - E.
Learned counsel for the Appellant referred to the statements of the accused to police admitted as Exhibits B, B1 and B2. (See page 108 of the Record of Appeal). He went further that in the statement, the Appellant stated that the arson for which he was charged was committed by some students of Ambrose Alli University (AAU). He went further that this piece of evidence was corroborated by DW1.
It was submitted on behalf of the Appellant that every defence raised by an accused person, no matter how flimsy or stupid it might sound, ought to be investigated and considered in order to determine its veracity and weight to be attached to it. He relied on the case of - AHMED VS. NIGERIAN ARMY (2011) 1 NWLR Part 1227 Page 89, 118 - 119 paragraphs H - C.
He submitted that in view of the defect in the evaluation of evidence by the trial Court that the prosecution failed to discharge the burden of proving beyond reasonable doubt the guilt of the Appellant. He urged that this appeal be allowed and discharge and acquit the Appellant.
The testimony of the Appellant in his defence was referred to where he said that he was not among the people that carried out the act as he was on admission in the hospital following attack on him.
Learned counsel submitted that the finding by the Lower Court that it was the Appellant that triggered off the action and must take responsibility for the end result of his action was a wrong evaluation of evidence by the Court.
It was also submitted on behalf of the Appellant that the Appellant ought to have been excused of any criminal responsibility for arson.
He therefore urged that this appeal be allowed because the Appellant was not a party to the arson allegedly committed by students of Ambrose Alli University (AAU).
He finally urged that the appeal be allowed, set aside the Judgment of the Lower Court and discharge and acquit the Appellant.
In his response, the learned counsel for the Respondent submitted that the prosecution proved the offence of conspiracy to commit arson and arson against the Appellant beyond reasonable doubt.
He relied on the following cases: - MUSA VS THE STATE (2002) 10 LRCNCC Page 255 at 262 ratio 11. - SHURUMO VS THE STATE (2012) Volume 10 LRCNCC Page 1 at 9 ratio 16.
For the purpose of the appeal, the learned counsel for the Respondent submitted that the ingredients required in proving the offence of arson are:
(a) That a dwelling house was actually set on fire;
(b) That the accused was responsible in doing so and did so intentionally. He relied on the case of: - CHIA VS THE STATE (1996) 6 NWLR Part 455 Page 476.
It was submitted on behalf of the Respondent that the PW1's house was set on fire was not in dispute in this case as conceded to by the Appellants counsel in the Appellants brief page 13. What is in dispute is whether the Appellant was responsible in doing so and whether he did so intentionally.
In determining whether the Appellant was responsible for setting the dwelling house of PW1 on fire, the learned counsel for the Respondent referred to Sections 7, 8 and 9 of the Criminal Code.
He submitted that the evidence of PW1 - PW7 who are eyewitnesses to the burning of PW1ý??s house did not only establish the fact that the Appellant actively participated in the arson and submitted that evidence of PW1 was corroborated by PW2 - PW7 who are eyewitnesses to the crime committed by the
Appellant and his gang members.
He relied on the case of: - OGUNNIYI VS THE STATE (2012) LPELR 8567 (CA). The learned counsel for the Respondent also submitted that where the prosecution adduces sufficient and acceptable evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such a plea ineffective as a defence. He relied on the case of: - NDUKWE VS THE STATE (2011) Vol. 9 LRCNCC Page 219 at 226 ratio 9.
It was also submitted on behalf of the Respondent that it has been established beyond reasonable doubt from the evidence of PW1 - PW7 that the Appellant acted in concert with other students from Ambrose Alli University, now at large, to set the house of PW1 ablaze. And therefore that the offence of conspiracy to commit arson was properly established against the Appellant.
In his submission, the learned counsel for the Appellant contended that the prosecution has failed woefully to prove the offences of conspiracy to commit arson and arson against the Appellant beyond reasonable doubt.
Let me point it out straightaway that our law places on the prosecution the duty to prove a criminal case beyond reasonable doubt. The prosecution do not have the duty to prove the case beyond all shadow of doubt, because that one places a heavier burden on the prosecution and it is unknown to our law. A Court can convict an accused person the moment the prosecution proves its case beyond reasonable doubt.
?In SHURUMO VS THE STATE (Supra) Page 1 ratios 9 & 16, it was held inter alia that: -
ýProof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability.ý
See also the following cases:
?- AFOLALU VS THE STATE (2011) Vol. 194 LRCN Page 136 at 142 and 144 ratios 1 & 4.
-MUSA VS THE STATE (2012) Volume 10 LRCNCC Page 255 at 262 ratio 11.
In my humble view, all that the prosecution is required to do in a criminal trial in order to discharge the burden of proof is to establish the ingredient of the offence. And one of the ways of discharging the burden of proof is by the evidence of an eyewitness of the crime.
In OSENI VS THE STATE (2012) Volume 208 LRCN at 158 ratio 9 , the Supreme Court held among others as follows: -
ýIn discharging the burden of proof on the prosecution, the guilt of an accused person can be proved by: -
(1) The confessional statement of the accused person;
(2) Circumstantial evidence or;
(3) Evidence of an eyewitness of the crime.
What it means is that the three conditions need not co-exist. The evidence of one of them suffices to establish the ingredients of an offence in a criminal trial.
?All that is required in proving the ingredients required in proving the offence of arson are: -
(a) That a dwelling house was actually set ablaze;
(b) The accused person was responsible in doing so and did so intentionally.
See CHIA VS THE STATE (Supra)
In order to determine whether the Appellant was responsible for setting the dwelling house of PW1 on fire, it would be necessary to read the provisions of: -
Section 7, Section 8 and Section 9 of the Criminal Code which provides as follows: -
7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission. A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act
or making the omission.
8. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
9. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case, the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him. (Underlining supplied).
?I agree with the submission of counsel for the Respondent that the evidence of PW1 - PW7 who are eyewitnesses to the burning of PW1ýs house did not only establish the fact that
the Appellant actively participated in the offence of arson to wit: the burning of PW1ýs house, that he also procured others to do so.
At page 84 lines 13 - 33 and page 85 line 1 of the Record of Appeal, PW1 testified among others as follows: -
ýOn 18/5/2002, at about 4:15pm, when I returned from work, ...I met the 1st accused (appellant) and some other boys coming towards our street. They were about twenty in number... I went to meet the 1st accused and asked him what the matter was... he (appellant) told the boys that I was the landlord of the house they were going to now and they pursued me. I ran to the bush opposite my house. I ran because they were armed with dangerous weapons like bottles, sticks, knives, and from the bush while watching, I saw my house in flames. They stood around until fire engulfed everywhere and nothing could be taken from the house. The 1st accused (appellant)was commanding them. They had jerricans and matches on them. I saw one of them light fire in a stick which he passed into my house.ý(Underlining mine).
The evidence of PW1 set out above corroborated by the evidence of PW2 - PW7 who are also eyewitnesses to the crime committed by the Appellant and his gang members.
In corroborating the evidence of PW1, PW2 also testified before the trial Court at page 87 lines 9 - 15 as follows: - ??Among the crowd that day I recognized the 1st accused (appellant). 1st accused was the person commanding the crowd and asking them to destroy everything they see. The crowd destroyed two windows and two fluorescent lights in my house. They left my house and set fire to PW1??s house. We tried to put off the fire to no avail. It was the students that were led by 1st accused that set fire to PW1??s house.
PW3 also corroborated the foregoing evidence of PW2 when she testified at the trial Court, on page 89 lines 18 - 28 of the Record of Appeal, thus: -
After a while we saw a group of people in a line. They were shouting with 1st accused (appellant) in front holding a gallon. There were two houses in our compound, they destroyed things in the first house before entering the second house. There were about eight tenants in the house who were not in and the students set fire to the building. I shouted for help and they remained until the whole house went up in flames.
It was only 1st accused (appellant) I recognised in the group. It was 1st accused who brought the boys. After the house had burnt the Onogie of Ekpoma and many people came to see it. The house contains my apartment, but it is my son PW1 who owns the building.(Emphasis supplied).
A careful reading of the testimony of PW1 - PW7 would reveal that the ingredients required to prove the offence of arson was sufficiently established at the trial Court.
Now coming to the issue of alibi raised by the Appellant that he was not at the scene of crime, but the evidence adduced by the prosecution was sufficient in fixing the Appellant at the scene of crime at the material time, therefore, the Appellant??s alibi has been logically and physically demolished. The plea has therefore become ineffective.
See - NDUKWE VS THE STATE (Supra).
On conspiracy, from the evidence of PW1 - PW7 on record, it showed that the Appellant acted in concert with other students from Ambrose Alli University, now at large, to set the house of PW1 ablaze.
The learned trial Judge, in convicting the Appellant for the offence of conspiracy, said inter alia, at page 147 lines 24 - 25 and page 148
lines 1 - 4 of the Record of Appeal, that -
??The evidence led by PW3, PW4, PW5 and PW6 on the manner of approach of 1st accused (appellant) when he came with the University Students, is lucid and clearly showed that 1st accused was acting with the students in concert. They had a set mission to cause mayhem. 1st accused was the person who led the students to Iruekpen and identified the respective houses. The prosecution sufficiently proved that 1st accused conspired with the students to commit a felony.(Emphasis supplied).
In the circumstance, I am of the view that the offence of conspiracy to commit arson was established against the Appellant.
Furthermore, the learned trial Judge has diligently and painstakingly evaluated the evidence led at the trial Court and he ascribed probative value to the evidence of the prosecution witnesses when he held on page 149 lines 9 - 22 of the record of appeal as follows among others -
??The 1st accused (appellant) has been fixed and identified at the scene of crime as he is a known face and comes from that community. His defence of ý??it is the students not meý?ý is not believed by me as the evidence
shows he led the students and encouraged them to commit the offence of arson.... The evidence given by the accused persons and DW1 has been examined by me and I do not agree that the 1st accused was not with the students. He was actively involved when they came for what DW1 termed a reprisal attack.(Emphasis supplied).
It is settled that evaluation of evidence and ascription of probative value to such evidence is the primary function of the trial Court. It is the trial Court that saw, heard and assessed the witnesses as they testified at the trial Court. When the trial Judge has evaluated the evidence and appraised the facts, it is not the business of an appellate Court to interfere and to substitute its own views for the views of the trial Court.
The position of the law stated above was fortified by the Supreme Court when it held in AMADI VS FRN (2011) Vol. 9 LRCNCC Page 177 at 179 - 180 ratio 3, thus: -
??An appellate Court will not ordinarily disturb the finding of facts of a trial Court unless such findings are perverse and not supported by evidence. It is only the trial Court that has the singular advantage of seeing and listening to a witness,
thereby watching his demeanor as he gives evidence and assessing him.
See also the case of: -
- AFOLALU VS THE STATE (Supra) at 46 ratio 13.
Consequent upon the foregoing, I am of the view that the prosecution succeeded in proving a case of conspiracy to commit arson and arson against the Appellant at the trial Court.
This sole issue for the determination of the appeal is therefore resolved in favour of the Respondent.
In the result, this appeal lacks merit and it is hereby dismissed.
The Judgment of the Lower Court delivered on 3rd day of May 2011 in Charge No. HEK/2C/2003 which convicted and sentenced the Appellant to terms of imprisonment is hereby affirmed.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, JIMI OLUKAYODE BADA, J.C.A. His Lordship has stated the law in clear and unambiguous terms. The issue for determination in the appeal has been eloquently and completely dealt with. The act of the Appellant is senseless, inhuman and unsociable. The Appellant is a disgrace to human race.
In the circumstance, I too conclude that this appeal lacks merit and I also dismiss it.
The judgment of the lower Court delivered on the 3rd day of May, 2011 is hereby affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, Jimi Olukayode Bada, J.C.A., which has just been delivered. I am in entire agreement with, and do not desire to add to, the reasoning and conclusions expressed by my learned brother in the said judgment.
Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I also join in dismissing the appeal as lacking in merit. The judgment of the High Court of Edo State, in charge No.HEK/2C/2003 delivered on 3rd May 2011 is hereby affirmed.
Mr. S. N. Ilegieuno holding brief for Adewale Atake For Appellant
Mr. Oluwole Iyamu - Solicitor-General Edo State Ministry of Justice with him, S. O. Ohaimire (SSC) and M. O. Eruagua (SSC) For Respondent