Aiding & Abetting a Crime

The facts of the case are the following;
Appellant with three others were charge to the Edo state High Court Benin city for a 9 count charge to wit-
”Statement of Offence 1st Count
Furnishing false statement contrary to Section 16 of the Corrupt Practices and other Related Offences Act 2000.
Particulars of offence
Prof. Austin Ohasohan on or about 15th November, 2001 at Benin City being an officer charged with the use of property belonging to the University of Benin Teaching Hospital, knowingly furnished false statement in respect of the sum of N1,150,000. 00 purportedly expended for the purpose of media coverage of the Minister of Health’s official visit.
Statement of Offence 2nd Count
Abetment contrary to Section 26(1) (c) of the Corrupt Practices and other Related Offences Act, 2000.
Particulars of Offence
Emmanuel Egharevba around November, 2001 at Benin city did abet the furnishing of false statement by issuing a letter and receipt to Prof. Austine Obasohan in respect of the sum of N1,150, 000. 00 purportedly expended for media coverage of Minister of Health’s official visit…
Statement of Offence 3rd Count
Furnishing false statement contrary to Section 16...
Particulars of Offence
Sunday Idubor on or about 30th May, 2002 at Benin City being an officer charged with the use of the University of Benin Teaching Hospital funds did knowingly furnished a false statement in a precious Palm Royal Hotel Ltd. Receipt for the sum of N321,790. 00 as amount purportedly spent on Hotel accommodation for the entourage of the minister of Health who was on a visit to Benin City..
Statement of Offence 4th Count
Furnishing false statement contrary to Section 16...
Particulars of Offence
Professor Austine Obasohan and Sunday Idubor sometime in November, 2001 at Benin City being officers charged with the use of the University of Benin Teaching Hospital funds knowingly furnished false return in respect of the sum of N28, 210. 00 (Twenty eight thousand two hundred and ten Naira) purportedly spent by Prof. Obasohan as out-of-pocket expenses and other expenses during the visit of the Minister of Health to Benin City on 16th November, 2001.
Statement of Offence 5th Count
Furnishing of false statement contrary to Section 16...
Particulars of Offence
Professor Austine Obasohan sometime in November, 2001 at Benin City being an officer charged with the management of the University of Benin Teaching Hospital funds knowingly made false statement in an application for the sum of One million as additional expenses purportedly meant for the visit of the Minister of Health to Benin City…
Statement of Offence 6th Count
Conspiracy to commit an offence contrary to Section 26(1) (c) and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act, 2001.
Particulars of Offence
Professor Austine Obasohan, Emmanuel Egharevba, Sunday Idubor, Ifeyinwa Nneka Okolue, on or about May 2002 at Benin City being officers charged with the use of funds of the University of Benin Teaching Hospital conspired among themselves to furnish a false statement in respect of the sum of N1,966,950. 00 advanced to them to cover the visit of the Minister of Health to Benin City..
Statement of Offence 7th Count
Furnishing false statement contrary to and punishable under Section 16 of the Corrupt Practices and Other Related Offences Act 2000
Particulars of Offence
Professor Austin Obasohan, Emmanuel Egharevba, Sunday Idubor and Ifeyinwa Okolue on or about May, 2002 at Benin City being officers charged with the use of the funds of the University of Benin Teaching Hospital knowingly

…………………….B…………………….

furnished a false statement retiring the sum of N1, 965, 950. 00 purportedly spent by the to cover the visit…
Statement of Offence 8th Count
Conspiracy to commit an offence contrary to Section 26 (1) (c) and punishable under Section 16 Corrupt Practices Act, 2000
Particulars of Offence
Prof. Austin Obasohan and Ifeyinwa Nneka Okolue on or about April, 2002 at Benin City being officers charged with the use of University of Benin Teaching Hospital funds knowingly conspired with each other to furnish false statement in respect of the sum of N300,000. 00 purportedly spent by them for the purpose of gift items during the visit of the Minister of Health to Benin City on 16th November, 2001.
Statement of Offence 9th Count
Furnishing false statement contrary to and punishable under Section 16
Particulars of Offence
Ifeyinwa Nneka Okolue on or about April, 2002 at Benin City being an officer charged with the use of University of Benin Teaching Hospital funds knowingly furnished false statement in respect of the sum of N300, 000. 00 purportedly spent by her for the purchase of gift items during the visit of the Minister of Health to Benin City on 16th November, 2001”.

The 1st appellant was the Chief Medical Director of the University of Benin Teaching Hospital (UBTH) at the time of the Visit of the Minister of Health Prof. A.B.C Nwosu to Benin City to attend the wedding ceremony of the daughter of Chief Tony Anenih on the 16th day of November, 2001. The sum of two million naira was approved, disbursed and retired as expenditure during the visit though only the sum of N34,050. 00 was given to the supervisor of the UBTH Guest House when the Minister and his entourage spent the night.
Subsequently, a petition dated 2nd April 2002 and titled “Carnival of Frauds in University of Benin Teaching Hospital Benin City” was addressed to the Chairman of Independent Corrupt Practices and Other Related Offences Commission (ICPC) by the Chairman, Senior Staff Association, Chairman and Secretary of Medical and Health Workers Unioin of Nigeria in UBTH. As a result of the above, a team of investigators were dispatched by ICPC to UBTH to investigate the allegations in the petition. The result of the investigation confirmed that the claims in the retirement paper dated 30th may, 2002 relating to the approved amount in respect of the said visit were false resulting in the arrest and prosecution of the 2nd appellant who is a media practitioner, 3rd respondent , the then Director of Administration of UBTH and 4th appellant, the Senior Public Relations Officer of UBTH along with 1st appellant under the nine count charge earlier reproduced in this judgment.
The prosecution called ten witnesses including the then Minister of Health Prof. Nwosu who testified as PW6. At the conclusion of the case for prosecution, appellants made a no-case submission which was overruled by the trial judge in a ruling delivered on the 27th day of January, 2006.
The said learned trial Judge held:
1. That 1st accused had a case to answer in each of counts 1, 4, 5, 6, 7 and 8 as charged and was accordingly invited to enter his defence thereto.
2. That 2nd accused had a case to answer in each of the counts 2 and 6 but not in count 7, and was invited to enter his defence in respect of the counts 2 and 6. The 2nd accused was then discharged in respect of counts 7 under Section 286 of the Criminal Procedure Act and the count dismissed.
3. That 3rd accused had a case to answer in respect of each of counts 3, 4, 6 and 7 as charged and was invited to enter his defence thereto
.4. That the 4th accused had a case to answer in respect of each counts 6, 7, 8 and 9 as charged and was invited to enter his defence thereto.
All the four accused persons were dissatisfied with the said ruling and consequently appealed against same individually.
The issues submitted by the learned Senior Counsel for 1st appellant, J.O. AGHIMIEN, SAN are as follows:
“(a) whether the essential ingredients of the offences charged in counts 1, 4, 5, 6, 7 and 8 of the charge have been proved by the prosecution warranting the accused/appellant to be called upon to enter his defence on any of the counts.
(b) whether the evidence led by the Prosecution in support of counts 1, 6 and 7 are not at variance with the offences charged in the said counts and to that extent not proved.
(c) Whether the learned Judge properly directed himself in law when he held that the “he is eminently entitled to take judicial notice on the fact that the duties and responsibilities of the 1st accused/appellant include the keeping or management of the Hospital funds”, on the ground that the bulk of the duties of his subordinates from various departments of the hospital rest at his desk.

…………………….C…………………….

(d) Whether the essential ingredients of the offence in count 4 have been established or proved requiring the 1st accused/appellant to enter a defence when there is no evidence on the printed record to show the falsity of the returns statement of out of pocket expenses of the sum of N28, 000.00.
(e) Whether the learned trial Judge in delivering a Ruling on no-case submission can, properly go into the merits of the main case (with particular reference to the proposed defence of the 1st accused person).
(f) Whether the petition (Exhibit P1 and P33) which constituted the bases of the charge against the 1st accused person are legally admissible evidence on which the Court could act when none of the signatories to the said petition was called to testify on the contents.
(g) Whether the entire Ruling by the learned trial Judge delivered on the 27th day of January, 2006 at the High Court, Benin City without warrant from the Chief Judge to continue the case after his posting to the High Court, Uhlaja, is not a nullity”.
The issues submitted by the N.P. OSIFO, ESC, of Counsel for 2nd accused/appellant are three and they are:
“1. Whether there was complaint against the 2nd accused/appellant in the first place to warrant his being arraigned before the lower Court on the information filed by the 1st respondent?
2. If the answer to 1 above is in the positive, whether having regards to the evidence presented in Court by the prosecution, the learned trial Judge rightly overruled the No-case submission made on behalf of the 2nd accused/appellant
3. Whether the learned trial Judge was right in approbating and reprobating at the same time.”
For the 3rd accused/appellant, the issues submitted for determination by his Counsel T.E. OGBEIDE0IHAMA ESQ as follows:
“1. Whether the essential ingredients of the offence charged in counts 3, 4, 6 and 7 of the charge were proved by the prosecution warranting the 3rd accused/appellant to be called upon to enter his defence.
2. Whether the learned trial Judge did not misdirect himself in law when he allowed the prosecution to allege without proof and whether the trial Judge did not go beyond the scope of his mandate in the Ruling on No-case submission by delving into the merit of the entire case.
3. Whether the learned trial Judge did not misdirect himself when he overruled the NO-case submission made on behalf of the 3rd accused appellant when he called on the 3rd accused/appellant to present his case especially on the circumstance surrounding the issuance of Exhibit P3 and how it was spent”.

Finally on behalf of the 4th accused/appellant IDEMUDIA ILUEMINOSEN ESQ submitted the following issues for determination:
“1. Whether there was complaint against the 4th accused/appellant in the first instance to warrant he being arraigned before the lower Court on the information filed by the 1st respondent.
2. Whether the essential ingredients of the offences charged in counts 6, 7, 8 and 9 of the charge were proved by the prosecution to warrant the 4th accused/appellant being called upon to enter her defence.
3. Whether the learned trial Judge did not misdirect himself when he went beyond the scope of his mandate in his ruling on the No-case submission by delving into the merits of the entire case.
4. Whether the entire ruling by the learned trial Judge delivered on the 27th day of January, 2006 at the High Court Benin City without warrant from the Chief Judge to continue with the case having been transferred to High Court Ubiaja, is a nullity”
I have had to go through all these issues submitted for determination before the lower Court so as to appreciate the complaint of appellant who was 2nd appellant in the lower Court and is complaining of lack of fair hearing by the lower Court in respect of his appeal.
The instant appeal is against the decision of the lower Court in the appeal of the accused/appellants including 2nd accused/appellant. Learned Counsel for appellant N.P OSIFO ESQ submitted a single issue for the determination of the appeal in the appellant brief of argument filed on 27/7/2010 to wit:
“Whether the non consideration of the appeal of the 2nd accused appellant by the Court below did not account to denial of fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria 1999, thereby rendering the judgment of the Court of Appeal a complete nullity”
On the other hand, learned Counsel for the 1st respondent submitted the following issue for determination to wit:-“Whether or not the appellant was denied fair hearing by the Court of Appeal in light of the circumstances of the case (gleaned from the single ground of appeal)”

…………………….D…………………….

In arguing the sole issue supra learned Counsel for the appellant stated that the lower Court failed to consider any of the three issues submitted to it by appellant thereby breaching the right to fair hearing of appellant under the provision of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended, relying on the State v. Onugoruwa (1926) (9-10) S.C 329; Amadi v. Thomas Aplin & Co. Ltd (982) 4 S.C 228 that the non-consideration of the substance of appellant appear before the lower Court resulted in a miscarriage of justice, relying on Ugbodume v.Abiegbe (1991) 8 NWLR (pt. 209) 274. Learned Counsel then urged the Court to invoke its powers under Section 22 of the Supreme Court Act to determine the issues as raised before the lower Court and urged the Court to resolve the issue in favour of applellant and allow the appeal.
It is the submission of Learned Counsel for 1st respondent that the lower Court gave equal opportunity to all the parties who were heard on the merit of the case, that what was on appeal was the ruling of the trial Court which overruled the no-case submission made by appellants and that the lower Court rightly found that the said ruling went beyond issues of law and delved into facts and merits of the case and consequently declared same a nullity.
It is in the further submission of Counsel that having set aside the ruling of the Court, the proper order was that of trial de novo before another Judge as was ordered by the lower Court that having ruled that the ruling of the trial Judge was a nullity the Court could not have gone any further to consider any other which might lead to the Court contradicting itself.
Finally, the learned Counsel urged the Court to resolve the issue against appellant and dismiss the appeal.
It should be noted that though the appellants before the lower Court appealed individually and raised separate issues, the appeal and issues arising there from, as earlier reproduced in this judgment, arose from the ruling of the trial Court on a no-case submission made by Counsel for the appellants before that Court. There is no individual ruling in respect of each and every accused person. Secondly, it has to be pointed out that from the issues raised beofre the lower Court for determination in the judgment now on appeal before us, the main complaint is that the trial Court went beyond the normal ruling on a no-case submission to consider the merits of the substantive case which appellants were yet to offer their defence. At page 331-353 of the record, the lower Court had the following to say, inter alia
“…I have no doubt that a reasonable man reading the language used, and the analysis of the law and facts therein, will come away with the distinct impression that the lower Court believed the Appellants were truly guilty of the offences charged which should not be so. At that stage where a no case submission is made what is to be considered by the Court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie (case) requiring at least some explanation from the accused person as regards his conduct or otherwise- see Tongo v.?C.O.P (2007) 12 NWLR (pt. 1049) 525 at 544 SC
In other words, at the stage of a No-case submission when the trial of the case is not concluded, the Court is not expected to be concerned with credibility of witnesses or weight of evidence…
No doubt, the lower Court was most unfair to their appellants, and the appeal will have to be resolved in their favour…
The appellant cannot be discharged and acquitted because the matter had not been decided on its merit, they had not been heard…
The only option open to this Court, which is sanctioned by the Supreme Court, is to remit the matter back (SIC) to the lower Court for trial before another Judge- see Kim v. State (1992) 4 NWLR (pt.233) 17. S.C…”
Finally at page 333 of the record, the Court concluded thus:
“The appeal succeeds and is allowed. The ruling of the lower Court delivered on the 27th of January, 2006 is set aside, and I hereby order a new trial of the appellants before another Judge.”
It should be noted that there is no appeal or cross appeal against the judgment reproduced, inter alia supra. It therefore remains subsisting and binding. The judgment in issue allowed the appeals of the appellant but ordered a trial de novo before another Judge. Yet appellant herein is complaining of breach of his right to fair hearing in that the three issues he brought to the lower Court were not allegedly considered by that Court in judgment on appeal.
I am of the firm view that appellant is not correct in his assertion having regard to the judgment of the lower Court in relation to his issue 2 which postulates thus:-
“2. If the answer to issue 1 above is in the positive, whether having regards to the evidence presented in Court by the prosecution, the learned trial judge rightly overruled the no-case submission made on behalf of the 2nd Accused/Appellant”

…………………….E…………………….

Clearly, the above issue is one of those considered by the lower Court before coming to the conclusion that the trial Court, in an attempt at ruling on the no-case submission went into the merits of the case without first of all hearing the appellant on their defence and as such declared the said ruling a nullity and set same aside. In the circumstance, I do not agree with counsel for the appellant that the case of appellant was not considered by the lower Court before reaching the decision in question.
Secondly, learned Counsel for appellant has not demonstrated how the decision of the lower Court in the judgment on appeal has resulted in a miscarriage of justice as alleged by him. On the contrary, whereas the trial Judge had, in a ruling on a no-case submission virtually concluded that appellants were culpable without even hearing their defence which the lower Court held constitutes a breach of appellants’ right to fair hearing, the lower Court gave appellants the opportunity to be heard before another judge in a de novo trial of the charge. How does that constitute a miscarriage of justice?
Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended allegedly breached by the lower Court provides:
“In the determination of his civil rights and obligations including any questions or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In the present case since all the appeals of the appellants before the lower Court had the same substratum, appellant was duly heard by the Court as earlier demonstrated in this judgment.
Learned Counsel for the appellant has invited this Court to invoke its powers under the provisions of Section 22 of the Supreme Court Act to hear and determine the appeal of the 2nd appellant before the lower Court. I had in effect, held that having regard to the fact that the main issue in the appeal of appellant and which was also common to the other appeals, was determined by the lower Court which issue is substantial enough to dispose and did dispose of the appeals the invitation of the learned Counsel for appellant is in the circumstance misconceived and is accordingly declined.
Still on the invocation of the provision of Section 22 of the Supreme Court Act, I have to point out, that learned Counsel has not argued before us the three issues he presented to the lower Court for determination and which he alleged were not considered or resolved resulting in the alleged breach of the right of appellant to fair hearing. Having not done that, one wonders how Counsel wants the Court to decide the issues without argument of both Counsels thereon. Does Counsel want the Court to argue and decide the issue for him? If so, will that satisfy the rules of fair hearing?
I had earlier found that there is no appeal against the decision of the lower Court setting aside the ruling of the trial Judge on the no-case submission which means there is no subsisting ruling to ground the grounds of appeal from which the three issues or appellant were formulated. This means clearly that the issues in question dies with the ruling attacked in that appeal.
In any event, it is settled law that evaluation of evidence and ascription of weight thereto remains the province of the trial Court which heard and observed the demeanor of the witnesses and is consequently in a better position to form an opinion as to the credibility of the said witnesses. This Court like the lower Court is not the trial Court and is consequently very much unsuitable for the task which learned Counsel for appellant seeks it to perform.
In the circumstance, I hold that this is the most worthless appeal I had ever been called upon to consider as same is time wasting and frivolous. It has no benefit whatsoever to appellant. It is accordingly dismissed by me
Appeal dismissed.
NWALI SYLVESTER NGWUTA, J.S.C.: I read in draft the lead judgment delivered by my learned brother Onnoghen JSC,and I entirely agree with the reasoning and conclusion that the appeal is devoid of merit and ought to be dismissed.
The denial of fair hearing resulting in a miscarriage of justice complained of before us occurred in the trial Court when it went beyond the no-case submission to delve into the facts, and ipso facto, the merit of the case. In dealing with a no case submission,the issue of the Court believing or disbelieving the evidence or the credibility of the witness could not arise and so the facts that will lead to the merit vel non of the case are not in issue. seeR v.Coker 20 NLR 62; Ajiboye v. The State (1995) B NWLR(Pt.414)408 at 444 .

In its judgment, the Court below rightly in my view, nullified the trial by another Judge to give the appellant the

…………………….F…………………….

opportunity of being heard before a decision is taken in his case, thus correcting the error of the trial Court.
For the above and the comprehensive reasoning in the lead judgment, I also dismiss the appeal for want of merit.
Appeal dismissed
MARY UKAEGO PETER ODILI, J.S.C.: I agree with the Judgment just delivered by my learned brother W. S. N. Onnoghen, JSC and in support of the reasonings, I shall make some remarks.
This is an appeal by the 2nd Accused/Appellant against the judgment of the Court of Appeal, Benin Division which dismissed the Appeal of the Appellant on his no-case submission. The Appellant was dissatisfied with decision of the High Court for which he appealed to the Court of Appeal or Court below for short which in turn sent back to the Court of first instance for trial before another Judge. The Appellant aggrieved has come before this Court on ground of a denial of fair hearing by the Court below.
The background facts of this appeal are well set out in the lead judgment and I shall not go into them.
On the 10th of December 2015 date of hearing, there was a letter from learned counsel for the Appellant, N.P. Osifo for an adjournment. The Court proceeded by adopting his Brief of argument filed on 27 /7 /2005 as argued. Therein was raised a sole issue for determination being:-
“Whether the none consideration of the appeal of the 2nd accused/appellant by Court below did not amount to denial of hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, thereby rendering thee Judgment of the Court of Appeal a complete nullity?”
Paul Ahmed Bassi Esq., learned counsel for the 1st Respondent adopted his Brief of Argument filed on the 26/1112012 and deemed filed on the 29111/12. He also identified a single issue for determination thus:-
“Whether or not the Appellant was denied fair hearing by the Court of Appeal in light of the circumstances of the case”.
Learned counsel for the 2nd Respondent, Mr. Erhabor, Mr Anga for the 3rd Respondent and Mr. Ovrawah for the 4th Respondent each withdrew their respective briefs of argument and the Court accordingly struck them out.
The respective issue couched on either side posed the same question and so finding that of the 1st Respondent simpler, I shall utilise it in the determination of the appeal.
SOLE ISSUE:
Whether or not the Appellant was denied fair hearing by the Court of Appeal in light of the circumstances of the case.
Mr. Osifo of counsel for the Appellant contended that the entire judgment of the Court below did not consider the appeal of the appellant and so a breach of fair hearing ensued and so the decision of the Lower Court was a nullity. He referred to Section 36 of the 1999 Constitution; State v. Onagoruwa (1992) 2 NWLR (Pt.221) page 33 at 56 & 58;Deduwa v. Okorodudu (1976) 9 -10 SC 329; Amadi v Thomas Aplin & Co. Ltd (1992) 4 SC 228.
That the Court below was wrong in not considering the substance of the appeal as it was duty bound to pronounce on the issues raised in the appeal of the appellant. He cited Ugbodume v. Abieobe (1992) 8 NWLR (Pt. 209) 274; Ukalta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251 at 268.
Learned counsel further stated that the Supreme Court has jurisdiction under Section 22 of the Supreme Court Act to deal with an issue raised but not dealt with in the Court of Appeal. He relied on Elmskip Ltd v Exquisite Ind, Ltd (2003) 4 NWLR (Pt.809) 88 at 121.
Mr, Bassi of counsel for the 1st Respondent contended that what the Court of Appeal did was right having found that the trial judge went beyond his scope in overturning the no case submission raised before him by the accused/appellant. That even though the general principle of law is that a Court has a duty to consider and make a pronouncement on the issues that arise or were raised and submitted by parties but the principle is not inflexible in all situations as in this instance since the issue of the validity of the of the ruling of the trial High Court subsumes all

…………………….G…………………….

other issues, the Court below could do nothing else and the issue of denial of fair hearing did not arise. He cited Ojoh v. Kamalu (2006) All FWLR (Pt. 297) 978; Wilson v. Oshin (2000) 9 NWLR (Pt.673) 442; Cookey v. Fombo (2005) 5 SC (Pt.11) 102 at 111; Balogun v. Labiran (1998) 3 NWLR (Pt.80) 66 at 80.
In brief the grouse of the Appellant is captured by the submission of the Appellant that the Court of Appeal had failed to consider the issues before it which thereby occasioned a denial of fair hearing to the appellant in contravention of the Constitution of the Federal Republic of Nigeria 1999, Section 36 precisely. The Respondent countered saying the circumstances being a ruling over whether or not the no case submission of the Appellant at the trial Court was rightly overruled and so all the Court of Appeal and even the trial Court on seeing that the no case submission of the appellant failed was just to state that failure and say no more so as not to run the risk of prejudging the merits of the case which full hearing was yet to be undertaken a situation that would have been prejudicial.
The main thrust of this appeal resting at page 332, part of the judgment of the Court below where Augie JCA stated:-
“In this case, the Lower Court’s Ruling of 32 pages on No-Case Submissions, which he over-ruled, was much too lengthy, and thus, as you might expect made it easy right cross the line between the law which the Court had every right to look into, and discussing facts to match the law, which it had no right at all to do”.

The Court of Appeal thereafter ordered the case remitted to the High Court for trial on the merits before another Judge and did not go further than that hence the disagreement of the Appellant that the issues he had raised had been left unattended by that Court and so his right to be heard had been infringed upon. On that note, I would state straight away that it is a general principle of law that a Court has a duty to consider and make a pronouncement on the issues that arise, were raised and canvassed upon by parties for determination. That general position is not an untouchable one or a principle without exception as the Court would desist in tackling all issues where the effect would negate the adjudicatory process or prejudice it or the justice of the matter. In this, exception would rest an unsuccessful no-case submission which still has a long way to go as the defence has not commenced and making further comments beyond stating as briefly as possible that the No Case submission was over-ruled and the accused to enter into his defence. The Court says no more until the defence with or without witnesses have had their say and concluded and the role of the Court to make further comments would be at its judgment. See Ojoh v. Kamalu(2006)All FWLR (pt.297)978;Wilson v.Oshin(2000) 9 NWLR (673) 442; Cookey v. Fombo (2005) SC (Pt.II) 102 at 111;Balogun v. Labiran (1998) 3 NWLR (Pt. 80) 66 at 80.
In this case at hand where the trial Court finding against the no-case submission having gone into the marathon Ruling in saying so, thereby entering effectively into and even deciding the merits of a case, which full course was yet to run, the only right and fair path for the Court of Appeal to do was to do exactly as the Court below did by sending the matter back to the High Court of Edo State for hearing before another judge. In doing that, the Court of Appeal was fair on all parties and took into consideration the interest of justice.
In conclusion therefore, there being nothing upon which the Court of Appeal’s decision could be faulted and in the light of the better reasoning of the lead judgment, I too dismiss the appeal as I abide by the consequential orders made.
OLUKAYODE ARIWOOLA J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Onnoghen, JSC just delivered. I entirely agree with the reasoning and conclusion of the said lead judgment which I adopt as mine. I too will dismiss the appeal.
Appeal is dismissed.
MUSA DATTIJO MUHAMMAD J.S.C.: I read in draft the lead judgment of my learned brother Onnoghen, JSC, Just delivered. I agree with the reasoning and conclusion that the appeal lacks merit. l dismiss same and abide by the consequential orders made in the lead judgment.

…………………….A…………………….

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

…………………….C…………………….

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.

…………………….E…………………….

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.

The two accused persons, Lawrence Oguno and Joel Oguno, were arraigned before the High Court of Justice Plateau State for the offences of culpable homicide punishable with death under Section 221 of the penal Code and abetting the commission of culpable homicide punishable under Section 85 of the penal Code respectively.
The charges read thus:-
1. That you LAWRENCE OGUNO on or about the 31st day of August 1998 at No. 53B Murtala Mohammed Way, Jos committed culpable homicide punishable with death in causing the death of Chief Patrick Oguno by causing him such bodily injury. To wit, stabbing him several times on different parts of his body with knife and pouring a corrosive substance on his body, suspected to be acid, knowing that his death was the probable consequence of your act and thereby committed an offence punishable under Section 221 of the penal Code.
2. That you JOEL OGUNO on or about 31st day of August, 1998 at No. 53.B Murtala Mohammed way, Jos committed the offence of culpable homicide punishable with death in that you abetted the said Lawrence Oguno in the Commission of the said offence of culpable homicide punishable with death by doing an act, to wit; abetting Lawrence Oguno to dispose of the corpse of Chief Patrick Oguno and failing to report the incident and that you have thereby committed an offence punishable under Sections 85 and 221 of the Penal Code.
Both accused persons each pleaded not guilty to the charge and thereafter hearing in the case commenced in earnest. It will be interesting to note that the two accused persons are brothers while the deceased Patrick Oguno was their biological father.
At the trial, the prosecution called five (5) prosecution witnesses and tendered five (5) Exhibits. The accused persons testified in their defence and tendered no exhibit. Both declined to call other witness or witnesses.
At the end of the trial proper the learned trial Judge Dusu J in a reserved judgment convicted the two Appellants as charged and sentenced them to death by hanging. See pages 230 – 260 0f the record of appeal.
Both accused persons were dissatisfied with the judgment of the trial court unsuccessfully appealed to the Court of Appeal Jos Division hereinafter called the lower court.
In a unanimous decision the Court of Appeal on pages 319-342 held thus:-
Particularly pages 341-342 the lower court held thus:-
“From Exhibit 1, 2, 3 and 4 both Appellants were ad idem that 1st Appellant killed the deceased. The 2nd Appellant only aided in carrying the corpse downstairs to hide under the staircase.
From Exhibit 1, 2, 3 and 4, the 2nd Appellant helped in hiding the corpse and also failed to report the crime to the police.
The trial Judge agreed that the drafting of the second count was inelegant but did not think that there was any doubt that the 2nd Appellant is charged with abetting the 1st Appellant in the commission of culpable homicide. The 2nd Appellant was not misled in any way. He understood what he was charged with.
The 2nd Appellant reported that their father was missing but failed to tell them the truth. Was their father really missing when he helped the 1st appellant to hide his body under the staircase?
All the ingredients of the 2nd count were proved from Exhibits 1, 2, 3, 4 and 5 from the testimonies of PW1, PW2 and PW3. The second issue for the 2nd Appellant is resolved against the 2nd Appellant.
Learned counsel for the 2nd Appellant submitted that there was no iota of evidence against the 2nd Appellant. I dare say that the prosecution fixed the 2nd Appellant to the scene of crime from the evidence of PW1, PW2, and PW3. Exhibits 1, 2, 3, 4 and 5 were also part of the evidence against the Appellants.
The prosecution proved that it was the intentional act of the 1st Appellant that killed the deceased. Also that the 2nd Appellant had knowledge of the crime and helped the 1st Appellant in hiding the body of the deceased. Prosecution witness 5 also gave evidence as to the primary cause of death of the deceased. All these evidence pieced together read to no other conclusion other than that, the Appellants killed their father and hid his body under the staircase.
The 3rd issue articulated for the 2nd Appellant also fails.
The 3 issue articulated by learned SAN for the 2nd Appellant are all resolved against him. This appeal lacks merit and it is hereby dismissed. I affirm the judgment of the lower court and the sentencing thereof in respect of the 2nd Appellant.
The appeals of both Appellants are unmeritorious and therefore dismissed. I affirm the judgment of the trial court. I also affirm the sentence of death by hanging of the 1st Appellant Lawrence Ogunu and 2nd Appellant Joel Oguno”.
Dissatisfied with the judgment of the lower court the appellants again appealed to this court on a Notice of Appeal containing five (5) grounds of appeal. They are hereunder reproduced without their particulars:-
1. The Honourable Court of Appeal erred in law when it held that ‘the trial Judge elicited from the evidence of PW1, PW2 and PW3 that both Appellants were in the house with their deceased father when prosecution witness 2 went downstairs to open the shop. It was the Appellants that saw the deceased last alive from the evidence of PW2 and PW3.
2. The Honourable Court of Appeal erred in law when it held that ‘the behaviour of the Appellants on that day was unusual and suspicious and points to no other conclusion that they were indeed the ones that committed the crime’ when suspicion no matter how strong cannot dispence with the need to prove the allegation against the Appellants beyond reasonable doubt.
3. The Honourable court of Appeal erred in law in affirming the conviction and death sentence passed on the 1st Appellant based on Exhibit 4 when same was tendered through a witness that had no connection with the recording of the said exhibit.
4. The Honourabte Court of Appeal erred in law in affirming the conviction and death sentence passed on the 1st Appellant based on Exhibits 3 and 4 when the contents of the aforesaid exhibits were in direct conflict with the evidence adduced by the 1st Appellant.