Accessory Before/After an Act

The brief facts giving birth to this appeal may be stated as follows:-
The appellant and three other persons were originally arraigned before the High Court of Delta State sitting at Ogwashi-Uku and presided over by T. O. Diai, J on 1st December, 2010 upon information filed on 19th August, 2010. The original information was subsequently substituted by a four count information on 12th January, 2011.
The record shows that in the information filed by the State, the 1st, 2nd and 3rd accused persons were charged with the following offences:-
STATEMENT OF OFFENCE; COUNT 1
Conspiracy to commit felony to wit: murder, punishable under S.324 of the Criminal Code Law Cap. C.21 Vol.1, Law of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwuashi-Uku Judicial Division did conspire to commit murder.
STATEMENT OF OFFENCE; COUNT II
Murder, punishable under Section 319 (1) of the Criminal Code Law Cap. C21 Vol.1 Laws of Delta State.
PARTICULARS OFFENCE
OKEMUFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwashi-Uku Judicial Division murdered one SMART OKUTE.
STATEMENT OF OFFENCE: COURT III
Membership of unlawful society punishable under S.64 of the Criminal Code Law Cap C.21 Vol.1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwashi-Uku Judicial Division belong to the unlawful society known as Jurice.
The 4th accused person was charged as follows:
STATEMENT OF OFFENCE: COUNT IV
Accessory after the fact to murder punishable under S.322 of the Criminal Code Law Cap. C.21 Vol. 1 Laws of Delta State 2006.
PARTICULARS OF OFFENCE
MEKWUNYE HEZEKIAH, well knowing that one Onyeka and Onyebushi Mekwunye did on the 21st day of March, 2010 murdered one Smart Okute, did on the 21st day of March, 2010 in Ogwashi-Uku Judicial Division and on other days thereafter recieve, comfort, harbor, assist and maintain the said Onyeka and Onyebushi Mekwunye.
At the trial the prosecution called five witnesses and each of the accused persons testified in their own behalf and called no witness. The respondent’s case was that the appellant herein alongside the 2nd and 3rd accused persons are members of an unlawful society known as “Jurice” and that they conspired to murder and indeed murdered the deceased person on the 21st day of March, 2010. The case against the 4th, accused was that his sons are members of the said ‘Jurice’ confraternity and that they were involved in the murder of the deceased to the knowledge of the 4th accused who assisted them to flee from justice.
The appellant testified for himself and called no other witness. He denied being member of the ‘Jurice’ society and further denied being a part of any conspiracy to murder the deceased. Each of the other accused persons also testified for themselves individually without calling any other witness. Written address were subsequently exchanged and adopted on behalf of the parties.
In a considered judgment delivered on 23rd May, 2012, the 1st, 2nd and 3rd accused persons were discharged and acquitted in counts II and III but were convicted in count I and each sentenced to 10 years imprisonment without an option of fine while the 4th accused person was discharged and acquitted in Count IV.
The 1st, 2nd and 3rd accused persons being dissatisfied with the conviction and sentence, filed separate notices of appeal

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against the said decision. On 17/8/12, the appellant filed another notice of appeal within statutory period for which he relied to prosecute his appeal at the Court below.
On 16th July, 2013, the Court of Appeal Benin delivered judgment and affirmed the conviction of the appellant, thus dismissing his appeal.
Dissatisfied with the stance of the Court of Appeal dismissing his appeal, the appellant, on 7th, August, 2013 filed notice of appeal raising three grounds of appeal therein. Parties filed and exchanged briefs.
On 12th November, 2015 when this appeal was heard, learned counsel for the appellant, Ekeme-Jero Ohwovoriole, Esq., adopted and relied on the brief he filed on 23rd September, 2013. In the said brief, one issue has been distilled for the determination of this appeal.The issue states:
“Whether the Lower Court rightly affirmed the trial Court’s decision that the offence of conspiracy to murder was proved against the appellant beyond reasonable doubt.”

Also, in the brief settled by O. F. Enenmo, Esq., Deputy Director, Department of public prosecution, Ministry of Justice, Asaba, Delta State, the respondent has also formulated one issue for determination. The said issue is similar to that of the appellant but couched differently as follows:
“Whether the Lower Court was right when it affirmed the judgment of the trial Court that the prosecution proved the charge of conspiracy to commit murder against the appellant beyond reasonable doubt.”
I shall, in the circumstance determine this appeal based on the said lone issue.
In his argument the learned counsel for the appellant submitted that the Lower Court was wrong when it affirmed the judgment of the trial Court that the offence of conspiracy to commit murder was proved against the appellant beyond reasonable doubt. It is his further submission that it is an immutable principle of law that the prosecution must establish the guilt of an accused person beyond reasonable doubt in a criminal case, referring to the case of Ogidi v. State (2005) 5 NWLR (Pt.918) 286. On the meaning and quality of evidence to prove the charge of conspiracy learned counsel cited and relied on the cases of Aituma v. State (2006) ALL FWLR (Pt.318) 671 at 684. Oladejo v. State (1994) 6 NWLR (pt.348) 101 at 127 and Pasu v. State (2011) 2 NWLR (Pt.1234) 393 at 412 .
Learned counsel further submitted that although conspiracy can be inferred from established facts adduced in proof of the substantive offence, the decision of the Lower Court that the offence of conspiracy to murder can be inferred against the appellant is perverse for the reason that conspiracy to murder cannot be inferred against the appellant from the established facts of this case. According to him, the trial Court’s decision that conspiracy was proved beyond reasonable doubt was predicated entirely on the appellant’s extra-judicial statement admitted as Exhibit B. It is his view, that looking at Exhibit B, the prosecution did not prove beyond reasonable doubt that the appellant conspired with anybody to murder the deceased.
It was further contended that in view of the fact that the Lower Court held that the statement of the appellant could not be regarded as a direct and positive admission of guilt, it was perverse to return a verdict of guilt against the appellant when there was no other legally admissible evidence upon which the appellant’s guilt could have been predicated. He relies on the case of Shehu v. State (2010) 8 NWLR (Pt. 1195) 112 at 137.
Learned counsel submitted finally that for the reason that there is no evidence in support of the Lower Court’s decision that there was an invitation for the appellant to go to Otulu to fight, that decision is perverse and liable to be set aside by this Court. That the prosecution also failed to adduce circumstantial evidence which could point irresistibly to the guilt of the appellant for the offence of conspiracy to commit murder and that there is no room for speculation relying on the cases of Obiakor v. State (2002) 10 NWLR (Pt.776) 612, Abdullahi v. State (2008) 17 NWLR (Pt.1115) 203 and Ahmed v. State(1999) 7 NWLR (Pt.612) 641. Learned counsel urged the Court to resolve this issue in favour of the appellant.
In response, the learned counsel for the respondent submitted that having regard to the state of evidence before the Court, the Lower Court was right in law when it affirmed the judgment of the trial Court that the prosecution proved the charge of conspiracy to commit murder against the appellant beyond reasonable doubt. On the meaning of proof beyond reasonable doubt, learned counsel referred to the cases of Ogunzee v. The State (1998) 5 LRCN 3512 at 3551 and Edamine v. The State (1996) 3 NWLR (pt.38) 530 at 531.

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Learned counsel further opined that 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. That it is an offence that is deduced from the act of the parties which is focused towards the realization of their common or mutual criminal purpose, relying onNjovens & Ors v. The State (1973) 5 SC 17. He argued that the trial Court did not rely on Exhibit B alone to infer conspiracy but also on the evidence of PW1, 2, 3, 4 and 5. That evidence shows that the deceased was killed by a group of boys who belong to a secret society called the Jurice to which the appellant and the 2nd and 3rd accused in this case are members. He drew the attention of the Court to the evidence of PW4 who saw the appellant and members of the cult pursue the deceased into the bush. That the body of the deceased was recovered from that same bush a day later. Learned counsel further submitted that the appellant and members of their cult group had earlier met and discussed the dispute between the deceased and two of their members before meeting on 21/3/10 for the fight which led to the death of the deceased.
Learned counsel finally submitted that a conviction for the offence of conspiracy does not become inappropriate because the substantive offence of murder was not proved, relying on the case of Balogun v. A.G. Ogun State(2002) 94 LRCN 260 at 270. Leaned counsel then urged the Court to resolve this issue against the appellant.
The offence of conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. In the old case of Njovens v. State (1973) 5 SC 12, also reported in (1975) LPELR 2042 SC at p.57 paras. A – F, this Court held as follows:-
“The overt act or omission which evidence conspiracy is the actus reus and the actus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceasar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Mayrick and Ribuffi (1929) 21 C App. R.94. They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omission of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.”
The essential ingredients of the offence of conspiracy lie in the agreement to do an unlawful act which is contrary to or forbidden by law and it does not matter whether or not the accused persons had knowledge of its unlawfulness. See Clark v. The State (1986) 4 NWLR (Pt.35) 381. The crime of conspiracy is usually hatched with utmost secrecy and the law recognizes the fact that in such a situation, it might not always be easy to lead direct and distinct evidence to prove it. Thus, it is always open to the trial judge to infer conspiracy from the facts of the case. 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 realization of their common or mutual criminal purpose. See Dr. Segun Ogunye v. The State (2001) 2 NWLR (Pt.697) 311.
In Daboh v. The State (1977) All NLR 146, (1977) 5 SC 122, the late legal luminary, Lord Justice Udo Udoma, JSC put the matter more succinctly thus:
“It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the persons charged be so proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, Courts usually consider it sufficient if it be established by evidence the circumstances from which the Court would consider it safe and reasonable to infer or presume the conspiracy.”
In the instant case, the facts as stated earlier in this judgment shows that the appellant and other co-conspirators are members of an unlawful society called the ‘Jurice’ and on 21/3/10 they all assembled at Otulu village, fought the deceased and the deceased was later found dead in a bush where he was pursued into by the appellant and his cohorts. The appellant admitted these facts in his statement to the police which was admitted as Exhibit B. On page 65 of the record, the learned trial judge made far reaching findings and conclusions which were, in my opinion rightly accepted by the Lower Court. It states:
“All the accused persons are not from Otulu. Was it then a mere coincidence that the members of the group came to Otulu on 21/3/2010 to fight? In Exhibit ‘C’, the statement of the 2nd accused person, he stated that one Onyeka had reported the late Smart Okwute in their secret cult meeting before the ‘fight operation’ took place. It appears the fate of the deceased was sealed at that meeting. In the light of the evidence before the Court, it does not appear to be a coincidence that members of the group invaded Otulu on the date material to this charge and participated in a fight, in the course of which the deceased was killed. Though the prosecution did not successfully establish that it was the act of the accused persons which caused the death of the deceased, the

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offence of conspiracy to murder the deceased can be inferentially deduced from the above facts.”
I strongly agree with the Lower Court that the above findings of the trial Court is impeachable. It is clear in exhibit C that before the ‘fight operation’ one Onyeka had reported the deceased in their secret cult meeting. I agree with the two Lower Courts that the fate of the deceased might have been sealed in that meeting. That was why the cult members, who are not from the village of Utulu, converged there for the ‘fight operation’. And that may also be the reason the appellant, no sooner than he received the phone call, headed for Utulu village. It is interesting to note that immediately he arrived and met the fight in progress he, without much ado, joined in fighting the deceased. It is a well established principle of law that the conspirators need not all have started the conspiracy at the same time, for a conspiracy, started by some persons may be joined at a later stage or later stages by others. SeeNjovens v. State (supra) .
It was suggested by the learned counsel for the appellant that having discharged and acquitted the appellant on the count of murder, the conviction on the count of conspiracy cannot stand. I do not think so. It is a known principle of law that conspiracy to commit an offence, is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. An offence of conspiracy can be committed, where persons have acted either by an agreement or in concert. Bare agreement to commit an offence is sufficient. The actual commission of the offence is not necessary. See Silas Sule v. The State (2009) 17 NWLR (Pt.1169) 33, Ikemson v. The State(1989) 3 NWLR (Pt.110) 455 at 467 – 468, Balogun v. Att. Gen. Ogun State (2002) 2 SCNJ 196 at 209.
It is my view therefore, that although the appellant was discharged and acquitted of the offence of murder for insufficient evidence, the learned trial judge properly inferred conspiracy from the facts of this case. The Court below was therefore right to affirm those findings and decision.
In sum, I uphold the judgment of the Court below delivered on 16th July, 2013 which judgment affirmed the conviction and sentence of the appellant by the trial Court on 23/5/12. The appeal is therefore unmeritorious and is accordingly dismissed.
SULEIMAN GALADIMA, J.S. C. : I have been privileged to have a draft copy of the judgment of my learned Brother John Inyang Okoro JSC which I entirely endorse as mine. I cannot in any way fault his resolution of the main issue leading to the conclusion that although the Appellant was discharged and acquitted of the offence of murder for insufficient evidence, the learned trial judge rightly inferred conspiracy from the facts of the case.
I too, uphold the judgment of the Court below delivered on 16/7/2013, which affirmed the conviction and sentence of the Appellant by the trial Court on 23/5/2012.
The Appeal is dismissed for lacking in merit.
MUSA DATTIJO MUHAMMAD, J.S.C. : I read in draft the lead judgment of my learned brother Okoro JSC, just delivered. I agree with the reasoning therein and conclusion that the appeal lacks merit. I dismiss same and abide by the consequential orders contained in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. : My learned brother JOHN INYANG OKORO, JSC obliged me with a copy of the judgment just delivered. His Lordship has painstakingly considered and ably resolved the sole issue for determination in this appeal. I entirely agree with the reasoning and conclusion that conspiracy to commit the offences charged was rightly inferred by the two Lower Courts from the appellant’s extra-judicial statement to the police, Exhibit B, wherein he admitted that he left his own village on the fateful day and travelled to Otulu village upon the receipt of a phone call from a member of his secret cult “Jurice” and joined in the fight which was already in progress that eventually led to the death of the deceased.
At page 113 of the record, the Lower Court held:
“The overt act from which conspiracy to murder can be inferred is the fighting which the appellant admitted to. Conspiracy can be inferred from certain proved facts. The circumstantial evidence of the assembly of the society members at the village is proof positive that they had a preconceived agreement to fight with the deceased. The agreement might have been express or implied. The agreement to go to Otulu to fight showed and their possession of dangerous weapons to go to fight shows that they meant to cause grievous bodily harm to the deceased. In the circumstances, I agree with the learned trial judge that there was conspiracy by the appellant to go and fight with the deceased at Otulu village and it is quite safe to infer that they meant to do grievous bodily harm during the fight… In the course of conspiracy to do an illegal act like fighting, the probable consequence could be the death of the person fought with.”

I fully agree with this finding and find no reason to interfere with it. I therefore dismiss the appeal and affirm the judgment of the Lower Court.
AMIRU SANUSI, J.S.C.: I read before now, the judgment just rendered by my noble Lord John Inyang Okoro JSC,just delivered.
The reasons and conclusion arrived at are agreeable to me. I adopt them as mine and have no useful addition to make. I also do not see any merit in the appeal and I dismiss it accordingly. The decision of the Court below, affirming the judgment conviction and sentence passed on the appellant are also affirmed by me.

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JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal holden at Benin delivered on the 16th day of July, 2013, affirming the judgment of the High Court of Delta State sitting at Ogwashi-Uku in Suit No. 014C/2010. The appellant and two others were found guilty and convicted for the offence of conspiracy to commit murder of one Smart Okwute and sentenced to ten (10) years imprisonment each with hard labour.
The facts giving birth to this appeal as can be gleaned from the record shows that the appellant and three other persons were originally arraigned before the trial High Court on 1st December, 2010 upon information filed on 19th, August, 2010. The original information was subsequently substituted by a four count information on 12th January, 2011.
In the information filed by the State, the 1st, 2nd (appellant herein) and 3rd accused persons were charged with the following offences:
STATEMENT OF OFFENCE: COUNT 1
Conspiracy to commit felony to wit: murder, punishable under S.324 of the Criminal Code Law Cap. C. 21 Vol. 1 Laws of Delta State, 2006 .
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwashiuku Judicial Division did conspire to commit murder.
STATEMENT OF OFFENCE: COUNT II
Murder, punishable under S. 319(1) of the Criminal Code Law Cap C.21 Vol. 1 Laws of Delta State, 2006.

PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwashi-Uku Judicial Division murdered one SMART OKUTE.
STATEMENT OF OFFENCE: COUNT III
Membership of unlawful society punishable under S.64 of the Criminal Code Law Cap. C.21 Vol. I Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
OKEMEFUNE NDOZIE (M), NOSIKE IBOJI (M), CHIBUZOR NKEMEBOUWOR (M) and others now at large on or about the 21st day of March, 2010 at Otulu, in Ogwashi-Uku Judicial Division belong to the unlawful society known as Jurice.
The 4th accused was also charged as follows:
STATEMENT OF OFFENCE: COUNT IV
Accessory after the fact to murder punishable under S. 322 of the Criminal Code Law Cap. C.21 vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
MEKWENYE HEZEKIAH, well knowing that one Onyeka and Onyebushi Mekwunye did on the 21st day of March, 2010 murdered one Smart Okute, did on the 21st day of March, 2010 in Ogwashi-Uku Judicial Division and on other days thereafter receive, comfort, harbor, assist and maintain the said Onyeka and Onyebushi Mekunye.
At the trial, the prosecution called five witnesses and each of the accused persons testified in his own behalf and called no witness. The respondent’s case was that the appellant, along with the 1st and 3rd accused at the trial were members of an unlawful society known as ‘Jurice’ and that they conspired to murder and indeed murdered the deceased on the 21st day of March, 2010. The case against the 4th accused was that his sons were members of the said ‘Jurice’ and that they were involved in the murder of the deceased to the knowledge of the 4th accused who assisted them to flee from justice.
The appellant testified for himself and called no other witness. He denied being a member of the ‘Jurice’ and further denied being a part of any conspiracy to murder the deceased. Each of the other accused persons also testified for themselves individually without calling any other witness. Written addresses were subsequently exchanged and adopted on behalf of the parties.
In a considered judgment delivered on 23rd May, 2012, the 1st, 2nd and 3rd accused persons were discharged and acquitted in counts II and III but were convicted in Count I and each sentenced to 10 years imprisonment without option of fine while the 4th accused person was discharged and acquitted in Count IV.

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The 1st, 2nd and 3rd accused persons being dissatisfied with the conviction and sentence, filed separate notices of appeal against the said decision.
On 16th July, 2013, the Court of Appeal, Benin delivered judgment and affirmed the conviction of the appellant, thus dismissing his appeal.
Dissatisfied with the decision of the Court of Appeal, the appellant, on 7th August 2013 filed notice of appeal raising two grounds of appeal therein. Parties filed and exchanged briefs.
On 12th November, 2015 when this appeal was heard, learned counsel for the appellant Ayo Asala, Esq., adopted and relied on the brief of argument he filed on 23rd September, 2013. In the said brief, one issue has been formulated for the determination of this appeal. The lone issue states:
“Whether having regard to the circumstances of this case, and the totality of evidence on record, the Lower Court was right when it affirmed the decision of the learned trial judge who convicted the appellant for conspiracy to commit murder.”
Also, in the brief settled by O. F. Enenmo, Esq., Deputy Director, Department Public Prosecution, Ministry of Justice, Asaba, Delta State, the respondent has also formulated one issue for determination. The said issue is similar to that of the appellant but couched differently as follows:-
“Whether the Lower Court was right when it affirmed the judgment of the trial Court that the prosecution proved the charge of conspiracy to commit murder against the appellant beyond reasonable doubt.”

I shall, in the circumstance, determine this appeal based on the lone issue distilled by both parties. As would be expected, the learned counsel for the appellant submitted that the Lower Court was wrong when it affirmed the decision of the trial Court that the prosecution proved the charge of conspiracy against the appellant beyond reasonable doubt and on what constitutes the offence of conspiracy, he referred to the cases of Njovens V. The State (1998) ACLR pg.264, Akinwemi V. State (1987) 1 NWLR (pt. 52) 608, Sodiya V. State (2011) All FWLR (pt. 560) 1357. According to learned counsel, where the evidence on record does not reveal any agreement on the part of the accused persons, the charge of conspiracy is not made out, citing the case of Oladejo V. State (1994) 6 NWLR (pt. 348) 101 at 127 paras. G – H. Also relying on the case of Oladejo (supra), learned counsel submitted that where an accused person has been acquitted on a charge of the substantive offence, he cannot at the same time be found guilty of conspiracy to commit the same offence unless where one of the co-accused persons admits the conspiracy or where there are other evidence to sustain the conspiracy.
Relating the above principle to the instant appeal, the learned counsel submitted that since the appellant was discharged and acquitted for the offence of murder and there being no admission by the appellant in Exhibit C – his extra-judicial statement, there was no evidence upon which to infer conspiracy.
Learned counsel further submitted that the concurrent findings of the trial and Lower Courts were based on wrong evaluation of the extra-judicial statement made by the appellant which was admitted as Exhibit C at the trial Court. He contended that there is nothing from the evidence on record, including Exhibit C to prove that the appellant agreed with other persons to commit any unlawful act especially having regard to the particulars in the count of conspiracy. According to learned counsel, there is nowhere in Exhibit C which appellant stated that he was present at the scene of crime or within the vicinity on the day the crime was committed.
On the statement of the appellant in Exhibit C that “the person that shot (sic) Smart Okwute is Chaplet (M), Onyeka (M) was the person that reported the late Smart Okwute in our secret cult meeting before the fight”,learned counsel submitted that it cannot be relied on to support the conclusion that there was an agreement among the accused persons to commit the murder of the deceased. Moreso, that PW4, under cross examination said he did not see the 2nd accused among the group. According to him, conspiracy could not be inferred from the evidence on record including Exhibit C. He urged the Court to resolve the issue in favour of the appellant.
In response, the learned counsel for the respondent submitted that having regard to the state of evidence before the Court, the Lower Court was right in law when it affirmed the judgment of the trial Court that the prosecution proved the charge of conspiracy to commit murder against the appellant beyond reasonable doubt. On the meaning of proof beyond reasonable doubt, learned counsel referred to the cases of Ogunzee V. The State (1998) 5 LRCN 3512 at 3551 and Edamine V. The State (1996) 3 NWLR (pt. 38) 530 at 531.

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Learned counsel further opined that 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. That it is an offence that is deduced from the act of the parties which is focused towards the realization of their common or mutual criminal purpose, relying on Njovens & Ors Vs. The State (1973) 5 SC 17. He argued that the trial Court did not rely on Exhibit C alone to infer conspiracy but also on the evidence of PW1, 2, 3, 4 and 5. That evidence shows that the deceased was killed by a group of boys who belong to a secret society called the Jurice to which the appellant and the 1st and 3rd accused in this case are members. He drew the attention of the Court to the evidence of prosecution witnesses who saw the appellant and members of the cult group pursue the deceased into the bush. That the body of the deceased was recovered from that same bush a day later. Learned counsel further submitted that the appellant and members of their cult group had earlier met and discussed the dispute between the deceased and two of their members before meeting on 21/3/10 for the fight which led to the death of the deceased.
Learned counsel finally submitted that a conviction for the offence of conspiracy does not become inappropriate because the substantive offence of murder was not proved, relying on the case of Balogun Vs. A.G. Ogun State(2002) 94 LRCN 260 at 270. Learned counsel then urged the Court to resolve this issue against the appellant.The offence of conspiracy is the agreement of two or more Persons to do an unlawful act, or to do a lawful act by unlawful means. In the old case of Njovens V. State (1973) 5 SC 12, also reported in (1975) LPELR – 2042 SC at p. 57 paras. A – F, this Court held as follows:-
“The overt act or omission which evidences conspiracy is the actus reus and the actus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceasar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. V. Mayrick and Ribuffi (1929) 21 C App. R.94. They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omission of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.”
The essential ingredients of the offence of conspiracy lie in the agreement to do an unlawful act which is contrary to or forbidden by law and it does not matter whether or not the accused persons had knowledge of its unlawfulness. See Clark V. The State (1986) 4 NWLR (pt. 35) 381. The crime of conspiracy is usually hatched with utmost secrecy and the law recognizes the fact that in such a situation, it might not always be easy to lead direct and distinct evidence to prove it. Thus, it is always open to the trial judge to infer conspiracy from the facts of the case. 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 realization of their common or mutual criminal purpose. See Dr. Segun Ogunye V. The State (2001) 2 NWLR (pt. 697) 311.
In Daboh V. The State (1977) All NLR 146 (1977) 5 SC 122, the late legal luminary, Lord Justice Udo Udoma, JSC put the matter more succinctly thus:
“It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the persons charged be so proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, Courts usually consider it sufficient if it be established by evidence the circumstances from which the Court would consider it safe and reasonable to infer or presume the conspiracy.”

In the instant case, the facts as stated earlier in this judgment shows that the appellant and other co-conspirators are members of an unlawful society called the ‘Jaurice’ and on 21/3/10 they all assembled at Otulu village, fought the deceased and the deceased was later found dead in a bush where he was pursued into by the appellant and his cohorts. The appellant admitted these facts in his statement to the police which was admitted as Exhibit C. On page 65 of the record, the learned trial judge made far reaching findings and conclusions which were, in my opinion rightly accepted by the Lower Court. It states:
“All the accused persons are not from Otulu. Was it then a mere coincidence that the members of the group came to Otulu on 21/3/2010 to fight? In Exhibit C, the statement of the 2nd accused person, he stated that one Onyeka had reported the

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late Smart Okwute in their secret cult meeting before the ‘fight operation’ took place. It appears the fate of the deceased was sealed at that meeting. In the light of the evidence before the Court, it does not appear to be a coincidence that members of the group invaded Otulu on the date material to this charge and participated in a fight, in the course of which the deceased was killed. Though the prosecution did not successfully establish that it was the act of the accused persons which caused the death of the deceased, the offence of conspiracy to murder the deceased can be inferentially deduced from the above facts.”
I strongly agree with the Lower Court that the above findings of the trial Court is impeachable. It is clear in exhibit C that before the ‘fight operation one Onyeka had reported the deceased in their secret cult meeting. I agree with the two Lower Courts that the fate of the deceased might have been sealed in that meeting. That was why the cult members, who are not from the village of Utulu, converged there for the ‘fight operation.’ It is a well established principle of law that the conspirators need not all have started the conspiracy at the same time, for a conspiracy started by some persons may be joined at a later stage or later stages by others. See Njovens V. State (supra).
It was suggested by the learned counsel for the appellant that having discharged and acquitted the appellant on the count of murder, the conviction on the count of conspiracy cannot stand. I do not think so. It is a known principle of law that conspiracy to commit an offence, is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related.
An offence of conspiracy can be committed where persons have acted either by an agreement or in concert. Bare agreement to commit an offence is sufficient. The actual commission of the offence is not necessary. SeeSilas Sule v. The State (2009) 17 NWLR (pt. 1169) 33, Ikemson V. The State (1989) 3 NWLR (pt. 110) 455 at 467 – 468, Balogun V. Att. Gen. Ogun State (2002) 2 SCNJ 196 at 209.

It is my view therefore, that although the appellant was discharged and acquitted of the offence of murder for insufficient evidence, the learned trial judge properly inferred conspiracy from the facts of this case. The Court below was therefore right to affirm those findings and decision.
In sum, I uphold the judgment of the Court below delivered on 16th July, 2013 which judgment affirmed the conviction and sentence of the appellant by the trial Court on 23/5/12. The appeal is therefore unmeritorious and is accordingly dismissed.
SULEIMAN GALADIMA, J.S.C.: The Appellant and two others were found guilty and convicted for the offence of criminal conspiracy to commit murder of SMART OKWUTE and sentenced to TEN years of imprisonment each with hard labour. In the judgment of the Benin Division Court of Appeal delivered on 16/7/2013, the decision of the High Court of Delta State was confirmed.
In his further appeal to this Court, learned counsel for the appellant has submitted that the Court below was wrong, when it affirmed the decision of the trial Court to the effect that the prosecution proved the charge of conspiracy against him beyond reasonable doubt. He submitted that the charge of conspiracy was not made out against the appellant since he has been acquitted on a charge of substantive offence of murder. Learned counsel for the appellant further submitted that the concurring findings of the trial and Lower Courts were based on wrong evaluation of the extra-judicial statement made by the appellant admitted as Exhibit “C.”
I agree with the learned counsel for the Respondent that having regard to the state of evidence before the trial Court, the Court below was right in law when it affirmed the judgment of the trial Court. The prosecutor did prove the charge of conspiracy beyond reasonable doubt. The gist of the offence of conspiracy is predicted on the agreement between the parties focused towards the realization of their common criminal intent and purpose. See PATRICK NJOVENS v. THE STATE (1973) 5 SC 17. The trial Court did not rely on Exhibit ‘C’ – the Appellants’ extra – judicial statement alone to infer conspiracy, but also on the evidence of PW1, PW2, PW3, PW4, and PW5. This evidence points to the direction that the deceased was killed by members of cult group called “Jurice” of which the Appellant was a member. He was at the earlier meeting of the group when the dispute between the deceased and two members were discussed. He was seen with other members pursuing the deceased into the bush.
I do not agree with the learned counsel that the Appellant that the conviction for the offence of conspiracy does not become appropriate because substantive offence of murder was not proved. The offence of conspiracy is separate, distinct and independent of the actual commission of the offence to which conspiracy is related. Mere agreement to commit an offence

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is sufficient: its commission is not necessary. See BALOGUN v. ATTORNEY GENERAL OGUN STATE (2002) 2 SCNJ 196 at 209 IKEMSON v. THE STATE (1989) 3 NWLR (pt.110) 85 at 468.
It is in the light of the foregoing that I agree with my learned brother OKORO JSC that the judgment of the Court below, which affirmed the judgment of the trial Court for conviction and sentence of the appellant cannot be upturned.
I too, dismiss the appeal for lacking in merit.
MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead judgment of my learned brother Okoro JSC, just delivered and agree with his lordship that the appeal lacks merit. For the reasons articulated in the lead judgment which I hereby adopt, the appeal is also dismissed by me. I abide by the consequential orders made in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading a draft of the judgment of my learned brother, JOHN INYANG OKORO, JSC. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I agree with the Court below that conspiracy to commit the offences charged was rightly inferred by the trial Court from the evidence before it, particularly the extra-judicial statement of the appellant, Exhibit C, wherein he admitted being at the meeting where the quarrel between the deceased and a member of their Secret society was reported and where the decision to fight him was taken. The evidence of the prosecution witnesses who testified that the appellant and his fellow “Jurice” members chased the deceased into the bush where he was later found dead, corroborates the contents of Exhibit C and positively raises the inference that the appellant conspired with others to murder the deceased.
I also dismiss the appeal for lacking in merit and affirm the judgment of the Lower Court.
AMIRU SANUSI, J.S.C.: I had the advantage of reading in draft form, the judgment just rendered by my learned brother, JOHN INYANG OKORO, JSC. Although I am in entire agreement with the reasoning and conclusion arrived at in the lead judgment prepared and delivered by my learned brother. I will chip in few comments even if they will merely serve as emphasis or amplification on the issue of conspiracy which is the core or central issue canvassed in this appeal, by parties.
The lone issue raised in the appellants brief of argument reads as below:- Whether having regard to the circumstances of this case and the totality of evidence on record, the Lower Court was right when it affirmed the decision of the learned trial judge who convicted the appellant for conspiracy to commit murder.”
In this case, it is clear from the record of appeal that the 1st, 2nd and 3rd accused persons were discharged and acquitted on the second and third counts of the offences of murder and being member of unlawful society punishable under Section 319 (4) and Section 64 of Criminal Code. Cap 21 Vol. 1 of Laws of Delta State 2006respectively.The trial Court however found them guilty of the first count of conspiracy to commit murder only and sentenced each of them to 10 years imprisonment.
The present appellant became dissatisfied with the conviction and sentence by the trial Court and he thereby unsuccessfully appealed to the Court of Appeal (Court below) which affirmed the trial Court’s decision.
He further appealed to this Court against the judgment of the Court below and raised the above mentioned sole issue for determination which as I said earlier, centered on issue of the offence of conspiracy.
The learned counsel for the appellant contended that since there was no agreement the accused persons, the offence of conspiracy could not be sustained. He said that there was no agreement between the accused persons to commit any unlawful act and also that the appellant did not state in Exhibit C, (his confessional statement) that he was at the scene of the crime. It was again argued on behalf of the appellant, that he was also with his other accused persons discharged and acquitted on the main offence, hence the offence of conspiracy could not be sustained against him. With due deference to the learned counsel for the appellant, the offence of conspiracy is a distinct offence which can be established even where the accused was discharged of the main offence.
The offence of conspiracy can exist between persons who in fact had never known or seen each other or corresponded with each other. See R v. Parnell 14 Cox 508 at 515.
In order to prove the offence of conspiracy, it is not necessary that the accused persons should have concocted the scheme, the subject of the charge or that they originated or mooted it. Even in a situation where a conspiracy is formed and a person joins it later or afterwards, he is equally guilty with the original conspirator. See Gregory Godwin Daboh & Anor v. The State (1977) All NLRV 46, Daboh V. State (1977) 5 SC 122.
In the instant case, the offence of conspiracy can be inferred, especially from the contents of Exhibit C, wherein, the appellant admitted that he was a member of their secret society and that it was there, where the decision to fight was mooted or hatched. From the contents of Exhibit C, it was established that there was element of conspiracy to commit the offence he was charged with. Then on the submission of the appellant’??s counsel that the offence of conspiracy would not be sustained where the accused is discharged and acquitted of the main offence, I think it will be apt to refer to the dictum of Coker JSC in the case of Francis Tete Lawson & Ors v. The State (1975) 4SC (Reprint) 84 where the learned jurist stated thus:- at pages 10-11)
This Court is not laying down in this case and has no intention of allowing this case to he quoted as an authority for saying that whenever a verdict of Not Guilty is returned on a count for conspiracy to commit offence and “Guilty” on other counts in the same indictment charging those specific offences, or centralise when a verdict of Guilty is returned on the count of conspiracy and Not Guilty in the counts charging specific offences the verdict is necessary inconsistent. Each case must depend on its particular circumstances and it is very dangerous in circumstances of this sort to lay down general rules which could be quoted when the facts might be entirely different.

Thus, from the above dictum, it will not be correct to say that since the appellant was discharged and acquitted of the offence of murder he could not be convicted of the offence of conspiracy once the element of the latter offence was proved or established. Each case depends on its own peculiarity. In the instant case, the offence of conspiracy was proved against the appellant as rightly found by the trial Court and confirmed by the Court below.
In the result, I am in entire agreement with the reasoning of my learned brother John Inyang Okoro, JSC that this appeal lacks merit. I therefore, affirm the judgment of the trial Court. I too uphold the conviction and sentence passed on the appellant. The appeal lacks merit and is accordingly dismissed by me. Appeal dismissed.
Appearances

Ayo Asala, Esq For Appellant
John Smart, Esq
O. F. Enenmo, Esq For Respondent
Deputy Director, Ministry of Justice
Delta State.

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MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Benin Division, or lower Court for short, delivered on the 16th day of July, 2013 affirming the judgment of Honourable Justice T. O. Diai sitting at the High Court, Ogwashi-Uku in Delta State. The appellant and two others were found guilty and convicted for the offence of conspiracy to commit murder of one Smart Okwute contrary to Section 324 Criminal Code Cap 21 vol. 1, Laws of Delta State, 2006 and sentenced to ten years imprisonment each with hard labour.
FACTS
In the information filed by the State, the appellant and three others were first arraigned before the trial Court on a four count charge of conspiracy to commit murder, membership of unlawful society and accessory after the fact to murder. The prosecution later substituted the charge and a fresh plea was taken. The particulars of offences are hereunder thus stated:
STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit felony to wit: murder, punishable under Section 324 of the Criminal Code Law Cap C21 Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
Okemefune Ndozie (M), Nosike Iboji (M), Chibuzor Nkembourwor (M) and others now at large on or about the 21st day of March 2010, at Utulu, in Ogwashi-Uku Judicial Division did conspire to commit murder.
STATEMENT OF OFFENCE: COUNT II
Murder, punishable under Section 319 (1) of the Criminal code Law Cap C1 Vol. 1 Laws of Delta, 2006.
PARTICULARS OF OFFENCE
Okemefune Ndozie (M), Nosike Iboji (M), Chibuzor Nkembourwor (M) and others now at large on or about the 21st day of March 2010, at Utulu, in Ogwashi-Uku Judicial Division murdered one Smart Okwute.
STATEMENT OF OFFENCE: COUNT III
Membership of unlawful society punishable under Section 64 of the Criminal Code Law Cap C21 Vol. 1 Laws of Delta, 2006.
PARTICULARS OF OFFENCE
Okemefune Ndozie (M), Nosike Iboji (M), Chibuzor Nkembourwor (M) and others now at large on or about the 21st day of March 2010, at Utulu, in Ogwashi-Uku Judicial Division belong to the unlawful society known as Jurice.
STATEMENT OF OFFENCE: COUNT IV
Mekwunye Hezekiah, well knowing that one Onyeka and Onyebuchi Mekwunye, did on the 21st day of March, 2010 in Ogwashi-Uku Judicial Division on other days thereafter received, comfort, harbour, assist and maintain (sic) the said Onyeka and Onyebuchi Mekwunye.
At the trial, prosecution called 5(five) witnesses and each of the accused persons testified in their own behalf and called no witness. The respondent’s case was that the appellant along with the 1st and 2nd accused at the trial were members of an unlawful society know as “Jurice” and that they conspired to murder and indeed murdered the deceased person on the 21st day of March, 2010. The case against the 4th accused was that his sons were members of the said “Jurice” and that they were involved in the murder of the deceased to the knowledge of the 4th accused who assisted them to flee from justice.
In a considered judgment delivered on 23rd May, 2012, the 1st, 2nd and 3rd accused persons were discharged and acquitted in Counts II and III but were convicted on Count I and each sentenced to 10 years imprisonment without option of fine while the 4th accused person was discharged and acquitted in Count IV.
The 1st, 2nd, and 3rd accused being dissatisfied with the conviction and sentence filed separate notices of appeal against the said decision.
The lower Court in a judgment delivered on the 16th day of July, 2013 affirmed the conviction and sentence of the appellant. Further aggrieved appellant has appealed to the Supreme Court.
Mr. Isiaka Olagunju of counsel for the appellant adopted his Brief of Argument filed on the 31/10/2013 which had been settled by Olatunde Busari, Esq. He raised a single issue which is thus:
Whether in the circumstances of this matter the lower Court was right to affirm the conviction and sentence of the appellant for conspiracy to commit murder?
Learned counsel for respondent, Mr. O. F. Enenmo adopted their Brief of Argument filed on 12/12/13 and he identified a sole issue viz:
Whether having regard to the state of evidence before the trial Court the lower Court was right when it affirmed the judgment of the learned trial judge?
Each of the questions is saying the same thing in slightly a different way and it is safe to answer the question

…………………….B…………………….

irrespective of which of the two issues is utilized.

SOLE ISSUE
Whether having regard to the state of evidence before the trial Court the lower Court was right when it affirmed the judgment of the learned trial judge.
Learned counsel for the appellant contended that the Court below erred when it stated that the trial Court was right in convicting the appellant of the offence of conspiracy to murder as the prosecution did not show that the accused agreed with one or more people to conspire to do an unlawful act. He cited Aituma v. The State(2006) 10 NWLR (Pt. 989) 452 at 469.
That the prosecution had not proved the elements of the offence of conspiracy which are (a) an agreement by one or more persons to execute an agreed act, (b) the agreed act is unlawful.
Also that the Confessional Statements upon which the appellant and the other accused persons were convicted did not pass the six tests laid down by law or anything outside the statement to show it is true. He relied on Nsofor v. The State (2004) 11-12 SC 43 at 50-51; Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) 138.
That the conviction of the appellant was primarily based on circumstantial evidence and in order to ground a conviction, circumstantial evidence must be conclusive enough to lead to the irresistible conclusion that the accused and no one else is guilty which is not the case in the instant appeal. He cited Ikomi v. The State (2007) 7 WRN 121, Ogidi v. The State (2005) 27 WRN 1.
Learned counsel for the respondent reiterated that the prosecution to prove its case against the accused person must do so beyond reasonable doubt which has been interpreted to mean that the prosecution must by credible evidence prove the ingredients of the offence for which the accused person is facing trial. That the evidential proof would be through:
1. Credible evidence of witness.
2. Circumstantial evidence.
3. By admissions and confessions of the very people accused of the crime.
That it is trite law that in a charge of conspiracy to commit murder the onus of proof is on the prosecution to establish by evidence that the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. He relied on Odunye v. The State (2001) 83 LRCN 1 at 16.
Learned counsel for the respondent said 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 and so the offence is deduced from the act of the parties which is focused towards the realization of their common or mutual criminal purpose. He cited Njovens v. The State (1973) 5 SC 17.
That the learned trial judge was right in law when he inferred conspiracy from the criminal act of fighting and the murder of the deceased Smart Okwute. He cited Haruna & Ors. v. The State(1972) ALL NLR 738 at 754.
For the respondent it was canvassed that the learned trial judge could convict the appellant solely on the confessional statement and that subjecting a confessional statement to the veracity test is not a condition precedent to the conviction of the accused person. He cited:
Edhigere v. The State (1996) 42 LRCN 1082 at 1812;
Dawa v. The State (1980) 8-11 SC 236;
Gozie Okeke v. The State (2003) 109 LRCN 1426.
That the fact that the appellant was discharged of the substantive offence does not render his conviction for conspiracy to commit murder inconsistent. He cited Balogun v. A-G Ogun State (2002) 94 LRCN 260 at 270.
In brief the position of the appellant is that the prosecution at the trial Court did not prove the ingredients of conspiracy against the appellant in any way possible that the appellant knew the other co-accused person. That the peculiarity of the offence of conspiracy is such that it is the actual agreement alone which constitutes the offence which actual agreement was absent in this case.
In contrast the respondent is of the view that there is evidence on record on which the trial judge held that the prosecution proved the offence of

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conspiracy to commit murder against the appellant and that the appellant failed to show why the lower Court’s finding was perverse or not in line with the laid down rules of law.
The definition of “conspiracy” in Oxford English Dictionary, Tenth Edition at page 186 is thus:
“A secret plan by a group to do something unlawful or harmful. The action of conspiring.”
It falls to reason that to conspire, the persons jointly make secret plans to commit a wrongful act or a situation where the persons seem to be acting together to bring about an unfortunate result. Therefore the essential ingredient of the offence of conspiracy lies in the bare or mere agreement and association to an unlawful thing which is contrary to or forbidden by law, whether that thing be criminal or not and whether or not the accused persons had knowledge of its unlawfulness. It is therefore to be said that the evidence of conspiracy is generally inferred from surrounding facts and circumstances. See:
Kaza v. The State (2008) 32 WRN 46;
Adesina & Anor v. The State (2010) 35 WRN 49 at 69 per Kekere-Ekun, JCA (as she then was).
The learned trial judge had held thus:
“Each of the 1st-3rd accused persons in their respective statements said that they went to Otulu on the date in question at the invitation of a member of their secret cult. The 2nd accused person also stated that the members of their cult went to Otulu village to fight. Each of them stated that they participated in the fight, as other members of the cult, who were charged in this case. Each of the accused persons retracted his statement during the trial. The 3rd accused person also testified he was at home in Isele-Uku on the date in question.
Again, the particulars of where he was and those who were with him were not given to the police. It is trite law that the burden of establishing an alibi rest with an accused person, which burden is discharged by giving the police the particulars of the alibi at the earliest opportunity. None of the accused persons did so in this case. The respective alibi, therefore, fails. The Court does not believe their testimonies.
All the accused persons are not from Otulu. Was it then a mere coincidence that the members of the group came to Otulu on 21.3.010 to fight? In Exhibit “C” the statement of the 2nd accused person, he stated that one Onyeka had reported the late Smart Okwute in their secret cult meeting before the fight operation took place. It appears the fate of accused was sealed at the meeting. In the light of the evidence before the Court, it does not appear to be a coincidence that the members of the group invaded Otulu on that date material to his charge and participated in a fight in the course of which the deceased was killed.
Though the prosecution did not successfully establish that it was the act of the accused person which caused the death of the deceased, the offence of conspiracy to murder the deceased can inferentially be deduced from the above facts”. See page 65 of the Record.
The Court of Appeal in its judgment anchored in the lead decision of Ogunwunmiju, JCA made similar findings as the trial High Court and stated as follows:
“I cannot agree with the learned appellant counsel that there is no evidence of a link between the appellant and the jurice cult members whom the appellant specifically acknowledged in exhibit D as belonging to when he referred to the cult as “our juris secret cult. The appellant mentioned other members by name and joined them in drinking beer according to his statement. There is no doubt in my mind that even if he did not go to Otulu to fight with the deceased, then when the fight started, he joined the fight with the purpose of doing grievous bodily harm to the deceased. The learned trial judge hit the nail on the head when his lordship inferred that their gathering together as a cult in Otulu on the same day being not resident of Otulu amounted to clear evidence of conspiracy to fight with the deceased”.
The findings as stated above of the two Courts below were garnered from the confessional statement of the appellant, Exhibit D admitted after a trial within trial and the confessional statement, exhibits B and C of 1st and 2nd accused and the oral evidence of PW4.
I shall put down excerpts from the statements of the accused persons including that of the appellant in Exhibit B for a clear view hereunder, viz:
“On 21/3/2010 of about 1700 hours our number one man in Jureecs’ or Amici secret cult called me on phone that I should come to Otulu village. So on my arrival to that village the fight was already on then I now joined them in the fight so on that process this our number one man namely Onyeka (M) and Flash (M) now purchued (sic) the said boy and shot him with gun before all of us now ran away through Ubulu-Okiti Road to Isele-Uku so later Onyeka and Flash now came to Isele-Uku? and told us that he done Bantaram? I now asked them the meaning of Bantaram then he now told me the meaning is that he shot him and also dagger him to dead?”

A critical portion of Exhibit C, the statement of the 2nd accused person is thus:

…………………….D…………………….

“On 21/3/2010 at about 1600 hours boys from my secret cult kingdom namely Jureec’s came to Otulu village for fight and the names of those I know. are Onyeka (M), Onyebuchi (M), Sparker (M), and Chaplet (M) others which I don’t know their names but if see I can identify them. So on the fight one Smart Okwute was shot dead then after the fight incident everybody now ran away. I am a member of Jureecis Secret Cult. I am the number two man in the secret cult Otulu branch. The person that shoot Smart Okwute is Chaplet (M). Onyeka was the person that reported late Smart Okwute in our secret cult meeting before the fight operation took place”.
The relevant portion of the statement of the 3rd accused person is as follows:
“On 21/03/2010 at about 1700hrs one of my secret cult member namely Onyeka (M) at Otulu village called me on phone that I should come down to Otulu village that one of our jurees secret cult member was holding a birthday party. So on my arrival at Otulu village I now mate (sic) them at one shop in Otulu junction before I now joined them in drinking beer. So as we were drinking… one of our secret cult member namely Okemefune (M)… was with us that day. So as we were there one Smart (M) which is late now stood up from where he was sitting and Okemefune (M) and asked him to give him his bike money which he use to carry him. So immediately Okemefune now broke bottle and sharply brought out gun and started shooting before everybody now scattered. So after the incident all of us followed Ubulu-Okiti Road to Isele-Uku and left… it was only one gun that he came with to that very operation. The person that shoot Smart (M) is Okemefune (M)…”
From the pieces of evidence referred to including the extra judicial statements of the accused person, the trial Court as affirmed by the Court below found enough upon which to hold that the offence of conspiracy was established as required by law. This is so, bearing in mind that the elements of the offence are embedded in the agreement or plot among the parties, a position that is rarely capable of direct proof and so is deduced from the acts of the parties channeled or focused towards the realization of a common goal or mutual criminal purpose. The various parts played by the co-accused supporting the confession in the extra judicial statement of the appellant, Exhibit D have given a solid establishment of the offence of conspiracy to murder as alleged. I rely on Njovens & Ors v. The State (1973) 5 SC 17; Haruna & Sons v. The State (1972) ALL NLR 738 at 754.
The point has to be tackled that the appellant’s challenge of the decision, conviction and sentence of the appellant by the trial Court, affirmed by the lower Court which situation appellant’s counsel says was erroneously done, the confessional statement not having been subjected to the veracity test. The reasoning in that posture cannot be sustained since it is now trite that accused can be convicted on his confessional statement in which he admitted the commission of the crime or offence is charged. In this my learned brother Ariwoola, JSC in Dogo v. The State (2013) LRCN 164 has succinctly re-stated the correct position and that is thus;
“Confession of an accused person to the commission of a crime has held to play a major and important part in the determination of guilt of the accused person and a Court of law is entitled to convict on the confession once it comes to the conclusion that the confession is voluntary. The reason being that confession puts an end to the rough and speculative edge of criminal responsibility in terms of the twin requirements of men rea and acutus reus”. See also Dawa v. The State (1980) 8-11 SC 236, Jimoh Yesufu v. The State (1976) 6 SC 167 at 173.
The path the two lower Courts trod in making their findings that the offence of conspiracy to murder had been established while discharging them of the murder of the deceased is without fault since the conviction of conspiracy does not become inappropriate because the substantive offence has not been successfully proved. The reason is based on the fact that the principle of the law is that conspiracy to commit an offence is a separate and distinct offence standing independent of the actual commission of the offence to which the conspiracy is related. Another way of saying the same thing is that the offence of conspiracy to commit a particular offence is not derogated from merely because that offence specified is not proved as required. Therefore the particular substantive offence can fall as not proved beyond reasonable doubt while the conspiracy to so commit it is proved. In this there is no inconsistency. See Balogun v. A-G Ogun State (2002) 94 LRCN 260 a 270 & 277.
From all I have been saying above laced with some judicial authorities in support and considering the concurrent findings of the two Courts below, I see no way out of following along that route of the findings of the trial Court as affirmed by the Court of Appeal. These are concurrent findings that the apex Court has no room to depart from, upset or interfere with. In the end I resolve the sole issue crafted in favour of the Respondent and see no merit in this appeal which appeal I hereby dismiss. I affirm the judgment of the Court below in its affirmation of the conviction and sentence of the Appellant by the trial high Court.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C. : I have had the benefit of reading in draft, the lead judgment of my learned brother Peter-Odili, JSC just delivered.

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I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
I accordingly dismiss same.
NWALI SYLVESTER NGWUTA, J.S.C. : I have had a preview of the lead judgment delivered by my learned brother, Peter-Odili, JSC and I agree with the reasons adduced for dismissing the appeal as devoid of merit.
The principle is that proof of the offence of conspiracy is generally a matter of inference. See Erim v. State (1994) 5 NWLR (Pt. 346) 522 at 538. See also R v. A.S Pinall (1976) 2 QBD 48 at 58-589 wherein it was held that the involvement of the appellant can be inferred from all the collateral circumstances of the case.
On the facts of this case, proof of the involvement of the appellant in the conspiracy went beyond mere inference as the appellant made a confessional statement. The statement was admitted in evidence after a trial within trial. It is at the trial within trial that the appellant can effectively challenge the prosecutor as to the voluntariness vel non of the confessional statement.
If the confessional statement is admitted after the trial within trial the appellant cannot argue simply that he did not make the confession voluntarily without first impugning the trial within trial. Appellant’s voluntary confession which is direct positive and satisfactorily proved is sufficient to warrant conviction even without any corroborative evidence so long as the Court is satisfied of the truth of the confession. See Sunday Effiong v. The State (1998) 59 LRCN 13961 at 3975; Kalu & Anor v. King 14 WACA 30.
There is no reason for the Court to disturb the concurrent findings of the trial Court and the Court below.
For the above and the fuller reasons in the lead judgment I also dismiss the appeal as devoid of merit.
Appeal dismissed.
OLUKAYODE ARIWOOLA, J.S.C. : I had the privilege of reading in draft, the leading judgment of my learned brother, Peter-Odili, JSC just delivered. I am in total agreement with the reasoning therein and conclusion arrived thereat.
From the confessional statement of the appellant which was found to be direct and voluntarily made by the appellant and was corroborated by the confessional statements of the co-accused, I am of the firm view that the trial Court was right in relying on the confession in convicting the appellant for the offence of conspiracy with which he was charged. The Court below was also in order in affirming the conviction and sentence of the appellant.
Accordingly, the appeal is dismissed by me while the judgment of the Court below which had earlier affirmed the decision of the trial Court is affirmed.
Appeal is dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C. : I read in draft the lead judgment of my learned brother Peter-Odili, JSC, whose reasoning and conclusion therein I adopt in dismissing the unmeritorious appeal. I also abide by the consequential orders made in the judgment.