Conspiracy

On this matter of inference and the near impossibility of direct evidence being available with which the offence of conspiracy can be established, this Court as in numerous occasions stated the guideline and I shall refer toOnyeye v. The State (2012) 15 NWLR (Pt. 1324) at 586 wherein it was held as follows:-
"Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The Courts tackle the offence of conspiracy as a matter of inference to be adduced from certain criminal acts or inactions of the parties".

As a refreshing position, I would restate that to ground a conviction for the offence of conspiracy the essential ingredients of the offence must be established beyond reasonable doubt and they are thus;
(a) An agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(b) Some act besides the agreement was done by one or more of the accused persons in furtherance of the agreement.
(c) That each of the accused persons individually participated in the conspiracy. See Obiakor v State (2002) 6 SC (Pt. 11) 33 at 39 – 40.

On the offence of conspiracy there is no gainsaying that all the circumstances prevailing and proffered in evidence are such as the Court had easily deduce the commonality of the criminal purpose carried out by the actors in the robbery activities. Being an offence in which direct proof is a near impossibility, conspiracy is usually hatched in secrecy, the proof comes by inference from the facts and circumstances of a given case such as the present one where there is surfeit of materials from which the agreement with a common purpose can be founded. See; Kenneth Clark & Anor v. The State (1986) 4 NWLR (Pt.35) 381 at 395; Musa v. The State (2005) FWLR (Pt.262) 243 at 353 – 354;Chianugo v. The State (2005) FWLR (Pt.74) 242 at 251.

It is now settled law, that the offence of conspiracy can most of the time, only be established through inferences of common design or agreement by two or more persons to do or not to do a criminal act. The offence of conspiracy is seldomly capable of being proved through direct evidence, but is largely established through inferences from the act or action of the parties thereto, which said act was focused towards realization or achieving a common or natural criminal purpose. See. Oduneye v The State (2001) 1 SC (Pt.1) 1 at 617. Godwin (Isienei) Chianugo v State (2001) FWLR (Pt.74) 242 at 251; Kenneth Clark & Anor vs The State (1986) 4 NWLR (Pt.35) 381; Musa v The State (2005) FWLR (Pt.262) 343 at 353/354.

It is pertinent to say that the word "conspiracy" has been described in Mulcahy vs R (1968) 3 HC at 377 when Willes J of House of Lords stated thus:-
A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So being as a design rest in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus centra acins, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. (emphasis supplied by me)
See also cases of Patrick Njovens & Ors vs The State (1973) 5 SC 17; Dabo & Ors vs The State (1994) 5 NWLR (Pt.346) 535.

Conspiracy is ordinarily not defined under either the Criminal or Penal Code. But a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is evidence not of the fact in issue, but rather of other facts from which the fact in issue can be inferred. See; Dr. Segun Oduneye v. The State (2001) 2 NWLR (Pt. 697) 311; (2001) 2 SCM 81; (2001) 1 SC (Pt. 1) 1.

Generally, conspiracy is said to be an agreement between two or more persons to do or carry out an unlawful act. It is a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly are ever confined to one place. However, being in itself a separate and distinct offence which is independent of the actual offence conspired to commit, failure to prove a substantive offence does not make conviction for conspiracy inappropriate. See; Balogun v. A.G. Ogun State (2002) 4 SCM 23, (2002) SC (Pt. 11) 89; (2002) 2 SCNJ 196. Folorunsho Atufohai v. The State (2014) 12 SCM (Pt. 2) 122; (2015) 3 NWLR (Pt. 1445) 172; (2015) All FWLR (Pt. 765) 198.

To prove conspiracy, the prosecution must present evidence in respect of every essential element needed to establish the offence. The apex court pronounced on the ingredient of conspiracy in the case of OKOH V STATE (2014) LPELR-22589 thus: "It is also well settled that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to do 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. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial Court may infer conspiracy from the fact of doing things towards a common purpose. See: Clark V. The State (1986) 4 NWLR (Pt. 35) 381; Gbadamosi V. The State (1991) 6 NWLR (Pt. 196) 182; Aje V. The State (2006) 8 NWLR (Pt. 982) 345 at 363 A – C; Kaza v. The State (2008) 7 NWLR (pt. 1085) 125 @ 175 – 176 F – B." Per KEKERE-EKUN, J.S.C. NIKI TOBI, J.S.C (of blessed memory) also talked about conspiracy in the case of KAZA V STATE (2008) LPELR- 1683(SC) thus: "From the above, I sift the following ingredients of the offence of conspiracy: (i) There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds. (ii) The persons must plan to carry out an unlawful or illegal act, which is an offence. (iii) Bare agreement to commit an offence is sufficient. (iv) An agreement to commit a civil wrong does not give rise to the offence, as Section 97(1) of the Penal Code provides only for criminal conspiracy. (v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator. (vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective." Per TOBI, J.S.C. Conspiracy is...

The law enjoins the prosecutor to prove the conspiracy laid out in the charge and that the persons charged were those engaged in it. While the proof of the actual agreement is desirable, though always a difficult task, Courts usually consider it sufficient if conspiracy is established by evidence from which the Court would consider it safe and reasonable to infer or presume the conspiracy. See DABOH v. THE STATE (1977) 5 SC 122; (1977) ALL NLR 146.

On what the prosecution should do to succeed in a charge or offence of conspiracy to rob and armed robbery, the ingredients of the offences are thus:-
a) That there was an agreement or confederacy, between the convict and others to commit the offence of robbery.
b) That in furtherance of the agreement or confederacy, the accused took part in the commission of the offence of robbery or series of robberies.
c) That the robberies or each of the robbery was an armed robbery. See Yusuf v. State (2008) All FWLR (Pt.405) 1731.

Conspiracy is a matter of inference from certain criminal acts of parties concerned and done in pursuance of their common criminal intention. See Oduneye v. State (2001) A NWLR (Pt.697) 311 at 325.

It has to be reiterated that conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of a 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. In short, conspiracy is an offence inferentially deducted from the acts of the parties thereto which are focused towards the realization of their common or mutual purpose. It is not an offence that is usually established by direct evidence since the conspiracy or agreements thereto are usually contrived in secret. I rely on Oduneye v. State (2001) 2 NWLR (Pt.697) 311 or 325.

For the offence of criminal conspiracy, the prosecution has the bounden duty to prove the following ingredients:
(a) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(b) Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically that each of the defendants individually participated in the conspiracy. See State v. Salawu (2012) ALL FWLR (Pt.614) 30 – 31.

However, it needs to be appreciated that, by its nature, the offence of conspiracy is established once the prosecution adduces credible evidence, which is not debunked by the accused, to show criminal design and intent. See ODUNEYE VS THE STATE and DABOH VS THE STATE (1977) 5 SC 197.

To establish conspiracy it is not necessary that the conspirators should know each other. So long as they know of the existence and the intention or purpose of the conspiracy, the offence is complete.

The appellant was charged along with four other persons with conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of Federation of Nigeria 1990.
In Oyediran v. Republic (1967) MNLR p.122 Coker JSC explained the offence of Conspiracy when his lordship gave three examples of how a conspiracy may be formed.
(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others revolve, like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another and so on. This is called the 'chain' conspiracy.

The law is that when a co-conspirator does an act or makes an omission in furtherance of a conspiracy, his act or omission is ascribable and binding on all the conspirators. See: Ikwunne v. State (2000) 5 NWLR (Pt.658) 550
.

Conspiracy is generally proved by inference deduced from the criminal acts of the culprits done in pursuance of the criminal or illegal purpose common to the conspirators. Proof of the actual agreement, which is the hub of the crime, is not always easy to establish since the agreement is almost always shrouded in secrecy. That being so, the facts of each case will determine whether or not a charge of conspiracy has been proved. See Rasaki V State (2011) LPELR-4859(CA) 67; Omotola V State (2009) 4 NCC 89; Tanko V State (2008) 16 NWLR (Pt. 1114) 591.

The essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be express or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. The agreement between the parties must be proved beyond reasonable doubt, and an inference or circumstantial evidence of an agreement would do. SeeSmart V State (2016) LPELR-40827(SC) 27; & Yakubu V State (2014) LPELR-22401(SC) 33.

For a conspiracy to exist there must be two or more persons involved, as one person cannot conspire with himself. The two or more persons must be found to have agreed in order to ground a conviction for conspiracy. Thus, to prove an offence of conspiracy, there must be an agreement which is an advancement of an intention conceived in the mind of each person secretly. The secret intention must have been translated into an overt act or omission or mutual consultation or agreement. It is trite that the Court can infer conspiracy from the circumstantial evidence or the facts of the case. In Tanko V State (2008) 16 NWLR (Pt. 1114) 597) 597 at 638, the Supreme Court held –
The Court can infer conspiracy and convict on it if it is satisfied from the evidence that the accused persons pursued by their acts the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design.

Where an indictment contains charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. This is so because a conviction for conspiracy will fail if the conviction for the substantive offence is set aside.

Conspiracy to commit an offence is a separate and distinct offence independent of the actual offence to which the conspiracy is related. The actual commission of the offence is not necessary to secure a conviction for conspiracy. The bare agreement to commit the offence is sufficient. See: Okemefune Ndozie Vs The State (2016) LPELR- 26067 (SC) @ 14-15 D-A; Sule Vs The State (2009) 17 NWLR (Pt. 1169) 33; Ikemson Vs The State (1989) 3 NWLR (Pt. 110) 455 @ 467-468.

In a charge of conspiracy, all that is required is evidence of agreement of the parties, which could be express or implied.
Conspirators need not be seen together before conspiracy can be established. The conspirators can be circumstantially linked with the conspiracy.

To constitute an offence of conspiracy, the prosecution must prove:-
1. That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence, it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
3. That each of the accused individually participated in the conspiracy.

The next question I will like to consider is whether the Appellant conspired with other persons to commit the offence of murder. Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act, by unlawful means.

With respect to the matter of the charge of conspiracy, it is an offence that is proved by circumstantial evidence, that is inferred from the circumstances surrounding a particular case. This is because it is difficult to prove it by direct evidence being a crime that is usually hatched in secret, a fact well recognized by the law. Therefore in this instance there is a surfeit of evidence from which the meeting of the minds of the offenders is inferred from. I rely on Bello v. State (2012) (Pt. 2) SCM 28; Aduku v. FRN (2009) (1997) 5 SC 197.

In order to establish an offence of conspiracy against an accused person to commit a criminal offence, the prosecution is required by law to prove the following:
(a) That there was an agreement between two or more persons to do or cause to be done, some illegal act or an act which is not illegal but by illegal means;
(b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically, that each of the accused individually participated in the conspiracy.
There is no doubt and it has been held that there need not be an express agreement before common intention can be shown in conspiracy. See: Adekunle VsThe State (1989) 12 SCNJ 184.

In a charge of conspiracy, the prosecution has the burden to prove not only the inchoate or rudimentary nature of the offence but also the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence. See:Gbadamosi & Ors. v. The State (1991) 6 NWLR (Pt.196) 182.
This is buttressed by Section 8(1) of the Evidence Act 2011 which states:-
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by one of them, is a relevant fact as against each of the persons believed to be so conspiring for the purpose of proving the existence of the conspiracy as well as for the purpose of showing that any such person was a party to it."
.

In Ikwunne v. State supra Tobi JCA (as he then was) at pages 560 – 561 explained that in the offence of conspiracy, the conspirators may be in direct communication in respect of the offence and only one person may be the hub of which the others revolve in respect of the offence. It is therefore possible for the offence of conspiracy to be committed by the persons who have not met or known themselves and the conspirators need not be seen together planning the offence. A Court of law can infer from criminal acts of the parties, including evidence of complicity. See: Njovens v. The State (1973) 5 SC 17.
.

The law is that when a co-conspirator does an act or makes an omission in furtherance of a conspiracy, his act or omission is ascribable and binding on all the conspirators. See: Ikwunne v. State (2000) 5 NWLR (Pt.658) 550
.

Generally, conspiracy is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful or illegal act, with an intent to achieve the agreed objective. See; The Salawu vs. State (2011) LPELR – 8252 (SC) (2011) 10 SCM 76.

Generally, as the saying goes, "It takes two to tango" It certainly takes two or more persons to conspire and a person alone cannot be convicted of conspiracy if the others are discharged and acquitted.
However, it is trite law that a 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. See; Balogun vs. Attorney General of Osun State (2002) 4 SCM 23, (2002) 2 SCNJ 196; Silas Sule v State (2009) 8 SCM 177.

However, it had been held that the proper and appropriate approach to an indictment containing conspiracy charge and substantive charge is to deal with the latter, that is, the substantive charge first and then proceed to see how conspiracy count has been made out in answer to the fate of the charge of conspiracy. Conspiracy generally, is an agreement between two or more person to carry out an unlawful act. But failure to prove substantive offence does not make conviction for conspiracy inappropriate, as it is, in itself a separate and distinct offence, that is independent of the actual offence conspired to commit. See, Balogun vs. Attorney General, Ogun State (2002) 9 SCNJ 1961 Lukman Osetola & Anor Vs. The State (2012) LPELR 9348 SC (2012) 12 SCM (Pt.2) 347; (2012) 17 NWLR (pt.1329) 251; (2012) 6 SC (Pt IV) 148.

There is a conspiracy when two or more persons agree to do an act which is unlawful. They do not necessarily have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. Once there is a meeting of the minds of the conspirators to commit an offence and this is easily inferred by what other person does in furtherance of the offence of conspiracy.In all cases of conspiracy, the Court is to ascertain evidence of complicity of the accused person in the offence. See Adejobi v. State (2011) ALL FWLR (Pt.588) p.850 Shurumo v. State (2011) ALL FWLR(Pt.568) p.864 State v. Salawu (2011) 18 NWLR (Pt.1279) p.580 Posu v. State (2011) 3 NWLR (Pt.1234) p.393

The fact that the armed robbery occurred in a Christian Guest House/Lodge in Wuse Zone 5 is clearly established to my satisfaction and I am in complete agreement with both Courts below on the crime scene.
In Oyediran v. Republic (1966) 4 NSCC P.252 Coker, JSC explained the modes of forming conspiracy when His lordship said that:
1. Conspiracy may be formed in one of the following ways:
(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others revolve like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another, and so on. This is what is called chain conspiracy.
(2) In order to establish conspiracy therefore, it is not necessary that the conspirators should know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy.
It becomes clear that there is said to be a conspiracy when A and B agree to commit a crime, and the agreement between A and B can be inferred after examining the facts of the case. See Njovens v State (1973) 5 SC p.17
Mumuni v State (1975) 6 SC p.79
Daboh v State (1977) 5 SC p.197
Osetola & Anor v State (2012) 6 SC (Pt. iv) p.148

It needs to be stressed here, that the essential ingredients of the offence of conspiracy to commit armed robbery lies in the agreement and association to do an unlawful thing or act which is contrary to or forbidden by law, whether that thing/act is criminal or not and whether the accused person has knowledge of its unlawfulness. The offence of conspiracy is often not proved through direct evidence but the Courts normally infers such agreement or plot from the facts of doing things towards a common purpose. See Clark v The State (1986) 4 NWLR (pt.35) 381; Odeneye v State (2001)1 SC 1; Nwankwoala v The State (2006) All FWLR (pt.339) 801.

The offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted. See Balogun v AG Ogun State (2002)2 SC (pt. II )89.

The mere agreement alone constitutes the offence of conspiracy and it is immaterial to prove that the act was in fact committed. See Obiakor V The State (2002) 6 SC (pt. II) 33 at 39/40.

There is nowhere in the statute books or in any of the judicial authorities, where such a proposition of law is stated or expounded. Yes, conspiracy is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means, and it is clear in this case that the Appellant agreed with the others, including Francis Omosaye, to rape and murder the deceased.
Nonetheless, the offence of conspiracy is a separate and distinct offence from the offence of murder, with which Appellant was charged and convicted. In other words, conspiracy to commit an offence is independent of the actual commission of the offence, to which the conspiracy is related – see Balogun V. A.-G., Ogun State (2002) 2 SC (reprint) (Pt. II) 89 of 96, Adamu V. State (2017) LPELR-41436(SC) and Ndozie V. State (2016) LPELR-26067(SC). So, the Accused may be found guilty of conspiracy, even where the commission of the actual or substantive offence is not proved. In the same vein, a discharge on a Count of conspiracy would not automatically translate to a discharge on the Count alleging the commission of the actual or substantive offence see Sule V. State(2009) 17 NWLR (Pt. 1169)33 SC and Adamu V. State (supra).

The other complaint raised by the appellant was that his conviction for the offence of conspiracy cannot be sustained. Conspiracy generally means no more than that agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See Ogogovie vs. The State (2016) 12 NWLR (pt. 1527) 468 @ 493. It is the law that the offence is normally inferred as it is difficult to get direct evidence, being that conspirators normally and usually conspire aided by darkness or in secrecy. It is inferred from the circumstances of each case, the evidence that gives rise to the inference and the conclusions drawn from such illegal agreements. See The State vs. Salawu (2010) ALL FWLR (pt. 614) 1 @ 29, Iboji vs. The State (2016) 9 NWLR (pt. 1517) 216 @ 229, Daboh vs. The State 1977 5 SC 197. Iwuneve vs. The State (2000) 5 NWLR (pt. 658) 550.

So, the charge of conspiracy, as found by the trial court, has no legs to stand. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the court to draw such inferences as to the guilt of the Accused. In other words, there must be the criminal intention (actus reus) of two or more persons, Actus Contra Actum which is punishable where it is translated into achieving a criminal objective through a criminal means. See: Njovens v The State (1973) 5 SC 17; (1973) 5 SC (Reprint) 12; Dabo v The State (1977) 5 SC 197; (1977) 5 SC (Reprint) 122. A charge of conspiracy in a criminal trial, in my view, is by no means peripheral. Commission of grievous offences in most cases lay their eggs on that fertile ground for the offence to germinate. Where that offence is established as required by law, the offender must be ready to accept the punitive result of his nefarious act.

In order to establish that conspiracy has been committed by some set or group of persons suspected to have committed a crime/crimes, the law requires the Prosecution to prove that:
a) an agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but by illegal means.
b) where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
c) specifically that each of the Accused individually participated in the conspiracy.

The general definition assigned to the word "Conspiracy", in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement's objective.
Burton's Legal Thesaurus 4th Edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89 Laws of Northern Nigeria (1963) under which the Respondent was charged, Section 96 thereof defines "conspiracy" as follows:
"(1) When two or more persons agree to do or cause to be donea) An illegal act; or
b) An act which is not illegal by illegal means."

In Ikwunne v. State supra Tobi JCA (as he then was) at pages 560 – 561 explained that in the offence of conspiracy, the conspirators may be in direct communication in respect of the offence and only one person may be the hub of which the others revolve in respect of the offence. It is therefore possible for the offence of conspiracy to be committed by the persons who have not met or known themselves and the conspirators need not be seen together planning the offence. A Court of law can infer from criminal acts of the parties, including evidence of complicity. See: Njovens v. The State (1973) 5 SC 17.
In a charge of conspiracy, the prosecution has the burden to prove not only the inchoate or rudimentary nature of the offence but also the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence. See:Gbadamosi & Ors. v. The State (1991) 6 NWLR (Pt.196) 182.
.

In a case of conspiracy, it is not necessary to prove that the conspirators were seen together at the same time. Conspirators need not know each other. They also need not have started the conspiracy at the same time. For a conspiracy started by some persons may be joined at a later stage or stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators: See R v. Meyick & Rebuff (1929) 21 CAR 94, Njovens & Ors v. The State (supra).
.

Generally, conspiracy is an agreement between two or more persons to do an unlawful act, or to carry out a lawful act by unlawful means. This is however, a matter of inference to be deduced from certain criminal acts of the parties accused, which were done in pursuance of an apparent criminal purpose in common between them which are hardly ever confined to one place. Therefore, being a separate and distinct offence in itself, failure to prove a substantive offence does not make conviction for conspiracy inappropriate. It is independent of the actual offence conspired to commit. see; Kaza Vs. The State (2008) 5 SCM 70 (2008) 7 NWLR (pt.1085) 125; (2008) 1-6 SC 151; Balogun Vs. A.G Ogun State (2002) 2 SC (Pt.11) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196. Folorunsho Alufohai Vs. The State (2014) 12 SCM (Pt 2) 122; (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR Pt.765) 198.

The general definition assigned to the word conspiracy" in the realm of criminal law is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful act coupled with an intent to achieve the objective of the agreement. A charge of conspiracy is a separate offence from the completed offence and it can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person. The Court in pronouncing sentence, must separately do so in respect of conspiracy and the completed offence. See State v. Salawu (2011) 8 NWLR (Pt.1279) 580.

From the provision of Section 6 of the Robbery and Firearms (Special Provisions) Act, the prosecution can only succeed in proving the offence of criminal conspiracy, if it establishes the following ingredients:-
1. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy.
The burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence.

Again to be stated in this queer offence is that the conspirators need not know each other or meet at any point in time and this could mean their living in different towns, cities or even countries. It is enough that the conspirators have communicated at any point. For a fact it is an offence with damning features and a later change of mind at any given stage matters not. See Erim v. The State (1994) 5 NWLR (Pt. 345) 522 at 524; Omotola v. F.R.N. (1999) 12 NWLR (Pt. 682) 483 at 501-502.
Taking the matter of conspiracy further, the point has to be made that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is taken as liable for the consequence of the act that ensues. It is irrelevant which of the accused did what.
Stated differently, where two or more persons act in concert in committing an offence any of them can be convicted for that offence, I rely on David Idiok v. State (2006) 12 NWLR (Pt. 993)1.

On the offence of conspiracy, it is to be noted that it is an offence with the unique feature of being an offence usually concealed and often hatched in secret by the conspirators and so make it difficult to establish the physical contact among the persons who are said to have agreed to carry out an illegal act or perform a legal act through illegal means. Most of the essential element of the offence of conspiracy are made through circumstantial evidence or by inference from an overt act of the conspirators or one of them. The offence of conspiracy is complete when two or more persons have agreed to do something at the moment of the agreement or even in the future. It is of no moment that something was done or omitted to be done beyond the stage of the agreement between those persons who have agreed to prosecute the act. To expatiate further, it is to be said that the moment the meeting of the mind has been reached and thereafter one of the conspirators reneges, repents, acquires cold feet and stops interaction with the others or may no longer have opportunity to participate or carry out his role in the agreement the offence has been already committed.

To establish conspiracy it is not necessary that the conspirators should know each other. So long as they know of the existence and the intention or purpose of the conspiracy, the offence is complete.

The appellant was charged along with four other persons with conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of Federation of Nigeria 1990.
In Oyediran v. Republic (1967) MNLR p.122 Coker JSC explained the offence of Conspiracy when his lordship gave three examples of how a conspiracy may be formed.
(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others revolve, like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another and so on. This is called the 'chain' conspiracy.

The concurrent findings of the two Courts below tally with the views of this Court. See Kolawole v. State (2015) ALL FWLR (Pt.778) 864 at 887 wherein the Supreme Court had this to say:
"Assuming, without so suggesting, that the appellant merely acted as lookout while the armed robbery operation was being committed, would he have successfully put up a defence of non-participation in the principal offence of robbery? The answer is found in Section 7 of the Criminal Code Cap. C38, Laws of the Federation of Nigeria, 2004 which provides thus:-
7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and be charged with actually committing it.
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In the instant case, it is not in doubt the appellant was the person who procured other co-accused persons to carry out the robbery on the night in question considering his statements and the confessional statements of other accused persons."
I also refer to the case of David Idiok v. State (2006) 12 NWLR (Pt.993) 1.

I agree with the submission of learned counsel for the respondent that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is liable for the consequence of the act and it does not matter which role any of the accused played.

On the offence of conspiracy, one of the counts for which the appellant was charged, it is to be noted that for the offence of conspiracy to be committed there must be an agreement by two or more persons to do or cause to be done on illegal act or a legal act by illegal means. To prove the offence the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. The nature of the offence of conspiracy is such that the circumstances surrounding the offence are usually concealed and plotted in secret by the conspirators and so it is difficult to prove the physical act. The uniqueness of the offence is such that the offence is complete when the agreement to do the unlawful act or carry out a legal act illegally and nothing more is done thereafter. Stated another way, the moment the meeting of the mind is reached, the fact that one of the conspirators reneges, repents or stops at a point or has no further opportunity to participate or perform his role in the agreement changes nothing as the offence is already completed.
Again to be said is that the conspirators need not know or meet each other previously and might as well live in different towns, cities and even separate countries, it is enough that the conspirators were in communication. See Erim v The State (1994) 5 NWLR (Pt.345) 522 at 524; Omotola v. FRN (1999) 12 NWLR (Pt.682) 483 at 501-502.

The offence of conspiracy is a separate and distinct offence from the offence of armed robbery. The act of conspiracy may be based on the same facts or set of facts as the main offence of armed robbery but not in all cases. On the distinction between the two offences, it was held in Balogun v. A.G. Ogun State (2002) 2 SC (Reprint) (Pt.11) 89 @ 96 per Uwaifo, JSC as follows:
Conviction for conspiracy does not become inappropriate simply because the substantive offence has not been proved. It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted, or may have become impossible to commit.

Section 96(1) of the Penal Code defines criminal conspiracy. It reads:
"96(1) when two or more persons agree to do or cause to be done-
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy."

The offence of conspiracy is complete once a concluded agreement exists. The parties must agree that a course of conduct shall be pursued which will definitely amount to or result in the commission of an offence by one or more of the parties to the agreement. There must be a criminal purpose that the parties share as their common purpose. See Adejobi & Anor v. State (2011) 6-7 SC (Pt. II) p. 65, (2011) 12 NWLR (Pt. 1261) 347; State v. Salawu (2001) 12 SC (Pt. IV) p. 191, (2011) 18 NWLR (Pt. 1279) 580.

It must be stressed here, that where persons are charged with criminal conspiracy, the elements of conspiracy as disclosed in the charge must be proved and it must be established against the person or persons so charge that he or they have engaged in it. However, it must be noted that it is not always easy to prove the actual agreement. The Court can however infer the agreement from the surrounding circumstance of each given case and from those inferred circumstances; it can safely presume the conspiracy. See Gregory Godwin Daboh & Anor v. The State (1977) All NLR 148; (1977) LPELR 904.

In respect to the offence of conspiracy, one is reminded that established either by the direct evidence of how the conspiracy was hatched or came about or by inference by certain criminal acts of the parties concerned done presence of an apparent criminal purpose in common between them. It is to be stated that it is the obvious that conspiracy can hardly be proved by direct evidence since plotting is done secrecy being a meeting of the minds. Therefore, conspiracy is a matter deducible by inference from certain criminal acts of the parties concerned done in pursuance of the criminal Purpose between them and proof of conspiracy, the act or omission of the conspirators furtherance of the common desire may be and is often given in evidence against another of the conspirators. See Njovens v. State (1973) 5 SC 7 per Coker JSC; Balogun v. A. G. Ogun State (1992) 2 NWLR (Pt. 763) 512.

This Court has deprecated the practice of including a count of conspiracy to commit an offence in an information as well as a count for actually committing it, where the evidence to support the two counts are the same. The reason is obvious.This is because:
(i) evidence which otherwise would be inadmissible on the substantive charges against the accused becomes admissible, and
(ii) such a joinder of charges adds to the length and complexity of the case so that the trial may easily be well near unworkable and impose a quite intolerable strain on the Court.
See R V DAWSON v. WENLOCK (1960) 44 CR APP. R 87 Page 93 where the opinion of the Court of Appeal in England on the issue was adopted in lie Nigerian case of CLARK v. STATE (SUPRA). See further AIYEOLA & 2 ORS v. THE STATE SC/27/69 (Unreported) of 7/8/1970. This proposition is good if there will be clogging of otherwise simple trial with a count of complicated conspiracy, especially when there is no independent evidence of conspiracy. This is the merit of this proposition of the law. It should not be over-stressed or stretched to a ridiculous elasticity. I agree with the stance of the Court below on the point when it held on page 190 of the record, while relying on the cases of CLARK v. STATE (Supra) and SULE v. THE STATE (2009) 17 NWLR (Pt.1169) 33 thus:
"That position of law is eminently suitable (sic). This is because in a charge of conspiracy to commit on (sic) offence such as armed robbery, even although a separate offence from armed robbery, where the facts are intricately interwoven the Courts are enjoined to the deal with the main offence first, since, if the substantive offence is unproven; the case for conspiracy is (sic) such circumstances collapses."

Conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. In Stephen's Digest of the Criminal Law, it is defined as "When two or more persons agree to commit any crime, they are guilty of conspiracy whether the crime is committed or not."

It is difficult to prove conspiracy by direct evidence because of the secrecy involved; hence it can only be inferred from surrounding circumstances. See: Onvenve v, State (2012) 15 NWLR (pt. 1324) 586;Bright v. State (2012) 8 NWLR (pt. 1302) 297. From the evidence adduced the learned trial Judge came to the conclusion and rightly too that the coming together of the three accused in the evening of 1st February, 2008 and their identification by the victims of the robbery at PW1's house is a conclusive proof of the offence of conspiracy.

It is trite law that all the prosecution needs to prove under this count is the agreement of two or more persons to do or cause to be done an illegal act or legal act by on illegal means. This is done either by direct evidence or inference from illegal act of the accused persons. See the dictum of Coker, JSC in Njovens V. State (supra) where he had this to say at pages 263-264:-
"'The gist of the offence of conspiracy is the meeting of the minds 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 done in common between them and in proof of conspiracy the act or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against others of the conspirators."

The offence of conspiracy requires that there should be the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence.
See Gbadamosi & Ors V. State (1991) 6 NWLR (Pt.196) 182. Appellant's counsel reiterates that there is no evidence on record to support such a charge against his client.

That in the proof of conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprises need not be given as all that is necessary to be shown is a meeting of minds. He relied on Oladejo V State (2014) LPELR-22946 (SC) etc . Mary Ukaego Peter-Odili, J.S.C.

The offence of conspiracy is established once it is shown that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not have started the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. The offence of conspiracy is not specifically defined in our Penal or Criminal Code. Consequently, a direct positive evidence of the plot among the conspirators is hardly provable.
The Courts therefore tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or omissions of the parties concerned. All the same conspiracy constitutes an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See: Nwosu v. The State (2004) 15 NWLR (PT 897)466; Obiakor v. The State (2002) 10 NWLR (PT 776) 612. It is also trite that the Conspirators need not know themselves and need not have agreed to commit the offence at the same time.
But conspiracy can be inferred from the facts of doing things towards a common goal, where there is no direct evidence in support of an agreement between the accused persons. See: Aituma vs. State 2006 10 NWLR (PT 989) 452. Innocent v. State (2013) LPELR-21200. ABDU ABOKI, J.S.C

The ingredients of the offence of conspiracy under the Penal Code are as follows: a) An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by illegal means. b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in the agreement, and c) Specifically, that each of the accused persons individually participated in the conspiracy. See: Musa v. The State (2016) LPELR-42803 SC; Obiako v. The State (2002) 6 SC (Pt. 11) 33; (2002) LPELR-2168SC.
ABDU ABOKI, J.S.C

“Conspiracy” was defined in Busari Vs The State (2015) LPELR-24279 (SC) as follows: “Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to. Evidence of [a] direct plot between the conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical.
Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.” See also Jato Vs The State (2019) LPELR-49310 (SC) @ -13 D – G, Nwosu Vs The State (2004) 15 NWLR (Pt.897) 456, Oduneye Vs The State (2001) 2 NWLR (Pt. 697) 311, Njovens Vs The State (1973) 5 SC 17.
The ingredients of the offence are: (a) An agreement between two or more persons to do an illegal act or an act that is not illegal by illegal means – the agreement can be inferred from surrounding circumstances; (b) That the illegal act was done in furtherance of the agreement; and (c) That each of the accused persons participated in the conspiracy. See Enesi-Lukman Abdullahi Vs The State (2008) 17 NWLR (Pt.1115) 203, Kaza Vs The State (2008) LPELR- 1683 (SC) @ 11-13 D – A.
In the instant case, PW1 was a member of a patrol team that pursued the commercial vehicle in which the appellant, his co-accused and other passengers were riding. He was the Investigating Police Officer and incidentally also the only witness for the prosecution. In addition, the prosecution also relied on the appellant’s extra-judicial statement tendered as Exhibit P2, which they considered to be confessional. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C

On whether appellant was complicit and liable for the offences of armed robbery, I would not hesitate in reiterating that the offence of conspiracy is embedded in the agreement or plot between the parties. It is normally deduced from the act of the parties which is focused towards the realization of the common or mutual criminal purpose. Usually, the inference is drawn by the Court from the established evidence in the consideration of the offence of conspiracy. I place reliance on the cases of Njovens & Ors v State (1993) 5 SC 17; State v Gbahabo & Ors (2019) LPELR-48 117 (SC).
Mary Ukaego Peter-Odili J.S.C.

Whenever a person is charged for conspiracy to commit an offence along with the commission of the substantive offence the proper approach by the Court in resolving the charges is to first deal with the substantive offence or charge and then proceed to determine whether conspiracy has been proved or can be inferred from the circumstance. Osetola V. State (2012) 17 NWLR (Pt 1329)251, Jimoh V. State (2014) 10 NWLR (Pt 1414) 105.
Starting with the offence of armed robbery, the law is settled as to what constitute armed robbery; it simply means stealing plus violence in the words of Nnaemeka Agu JSC, in Aruna VS. State (1990) NWLR (Pt. 155) 125, “Armed robbery means simply stealing plus violence used or threatened” Mohammed V. State (2022) LPELR 57830 (SC), Okobi V. State (1984) LPELR 2453 (SC). PER BASIR, J.C.A.

Now, in a Count alleging Criminal Conspiracy, the law is that the Respondent, being the Prosecution before the lower Court, was under the duty to prove beyond reasonable doubt, though not beyond any fanciful doubt, by credible and cogent evidence all the following essential elements of the offence of Criminal Conspiracy, namely: that there was an agreement between two or more persons; the agreement was to do or cause to be done some illegal act or legal act by illegal means and that the individuals participated in the agreement with each other, accused persons. See Garba V.
COP (2007) 16 NWLR (Pt. 1060) 378 AT p. 405. See also Godday Jonah V. The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA, Clement Ofoni V. State (2019) LPELR – 48803 (CA) per Sir Biobele Abraham Georgewill JCA. Thus, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means.
In law, a conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means and thus so long as a design rests in intention only it is not indictable. But, when two or more agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. See Godday Jonah V.
The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA. See also Odunayo V. State (2014) 12 NWLR (Pt. 1420) 1. See also Oduneye V. State (2001) 2 NWLR (Pt. 697) 311, Mulcahy V. R (1868) 3 H.L. AT p. 317, Patrick Njovens & Ors V. The State (1973) 5 S.C. 17, Daboh & Anor V. The State (1977) 5 SC.197.​ The offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed. PER GEORGEWILL, J.C.A

For a fact, conspiracy is an offence that is often deduced or inferred from the acts of the parties and not usually by direct evidence of the meeting of the minds. The reason is simple, that discussions and agreements to do an illegal act or carry out a legal act by illegal means are transactions in secret and normally shrouded from those not part of the deal. The dictum of this Court per Adekeye, JSC (as he then was) in Onyenye v. State (2012) LPELR-7866 SC, (2012) 15 NWLR (Pt. 1324) 586 is useful.
According to his Lordship: “In effect, conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned.” ABDU ABOKI, J.S.C.

Taking that matter of how conspiracy is established in the realm of what transpired in this case from the evidence of the prosecution witnesses and the confessional statements of the appellant, and placing them alongside the defence put up by the appellant, the trial Court and as affirmed by the Court of Appeal had no difficulty in reaching the conclusion that the standard of proof beyond reasonable doubt had been met. I agree. What is expected of the prosecution is proof beyond reasonable doubt and not beyond a shadow or an iota of doubt. I call in aid the case of Nwaturuocha v.
State (2011) 2 – 3 SC (Pt. 1) 111524, (2011) 6 NWLR (Pt. 1242) 170. ABDU ABOKI, J.S.C.

Conspiracy is an agreement between two or more persons, acting in concert or in combination, to accomplish or commit an unlawful/illegal act or to do or to commit an act which is legal/lawful through an illegal/unlawful means. The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commit an unlawful act by unlawful means. See Peter Vs State (2018) 13 NWLR (Pt.1635)1 at 4 – 5;
The nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain acts. All that is required by way of proof is either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the offence.
There is a finding by the trial Court that from the evidence of PW1 and the confessional statement of the Accused/Appellant, it is not in doubt that the Accused/Appellant and co-accuseds conspired among themselves in tandem to pursue a common purpose to commit the crime, which is correct as shown by the evidence on the record. I fail to see any extenuating circumstances, as the learned counsel for the Appellant would want this Court to believe.
To make the picture clearer it was in evidence that Appellant and co-accuseds have agreed to hire a speed boat to Agobiri, and on the way to attack the driver and rob him of the speed boat. This operation was carried out from the evidence of PW1 and the confessional statement of the Accused/Appellant exhibit PR16. The trial Court found the confessional statement corroborating the oral testimony of PW1. I am therefore in complete agreement with the trial Court that the offence of conspiracy was well established against the Appellant – PER TANI YUSUF HASSAN, J.C.A.

The Appellant in this case is charged with the offence of Conspiracy and Armed Robbery contrary to Sections 6 and 1(2) of the Armed Robbery and Firearms (Special Provision) Act 2004.
The Sections provide: Section 6(a) “Any person who- (a) Aids, counsels, abets or procure any person to commit an offence under Sections 1, 2, 3 and 4 of this Act, or (b) Omitted; (c) Omitted; Whether or not he is present when the offence is committed or attempt to be committed, shall be deemed to be guilty of the offence as a principal offender, and shall be liable to be proceeded against and punished accordingly under this act”. PER SAULAWA, J.S.C.