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".
Of note in the duty to establish the offence of conspiracy is the fact that the prosecution is not expected to prove that the conspirators met before carrying out their activities which are seen as criminal rather the offence of conspiracy is sustained by the prosecution leading evidence from which the Court can discern or infer the criminal acts of the accused person done in pursuance of the apparent criminal purpose common between or among the conspirators. Again, to be said is that to establish conspiracy all that is expected of the prosecution is to prove the inchoate or rudimentary nature of the offence and the inference from which the meeting of the minds of the accused persons nor is it necessary to establish that the conspirators had been in any direct communication one with the other or others as the case may be. There is no hard and fast rule as to how to infer conspiracy as even the mere evidence of complicity is sufficient. I place reliance on Iwuneye v. The State (2000) 5 NWLR (Pt. 658) 550 at 560-561; Osondu v. F.R.N. (2000) 12 NWLR (Pt. 682) 482 at 501-502.
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.
The criminal offences of "conspiracy" and "murder" have fully been recognised by our Penal Law systems. Conspiracy, without more, is always taken to be an agreement entered by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act or to do or commit an act which, per se, is legal/lawful through an illegal/unlawful means.
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.
However, it has been held that in order to secure conviction on a count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful but by unlawful means. See; Adesina Kayode v. The State (2016) 7 NWLR (Pt. 1511) 119; Omotola & Ors v. The State(2009) 7 NWLR (Pt. 1139) 148; (2009) 2-3 SC 7; (2009) 3 SCM 127.
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...
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.
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.
It is also trite that having regard to the nature of conspiracy, it is seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. The evidence relied upon must, however, be of such quality that it irresistibly compels the Court to make an inference as to the guilt of the accused. See: Yakubu Vs The State (supra); Obiakor Vs The State (2002) 10 NWLR (Pt.776) 612; Oduneye Vs The State (2001) 2 NWLR (Pt.697) 311; Njovens Vs The State (1973) 5 SC 17; Dabo Vs The State (1977) 5 SC 197.
It is settled law that in a charge for conspiracy the agreement constitutes the offence and it is not necessary to prove that the act has actually been committed.
To secure a conviction, the prosecution must prove:(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; and
(c) that each of the accused persons individually participated in the conspiracy.
See: Yakubu v. The State (2014) 8 NWLR (Pt.1408) 111 @ 123 F H; Tanko v. The State (2008) 16 NWLR (Pt.1114) 597.
The appellant was also charged with criminal conspiracy punishable under Section 97 of the Penal Code. Section 96 of the Penal Code defines "criminal conspiracy" as follows:
"96, 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 criminal conspiracy."
The offence of conspiracy is established by two or more people agreeing to perpetrate an illegal act or an act which is legal by illegal means. The mere meeting of minds of the conspirators is enough to consummate the offence of conspiracy. See: Kayode Babarinde Vs. State (2013) LPELR – 21896 (SC).
The offence of Criminal Conspiracy to Commit Armed Robbery is complete when evidence is led to establish facts as to:-
i. The existence of an agreement or confederacy between the accused and others to commit the offence.
ii. In furtherance of the agreement, the accused took part in the commission of the robbery or series of robbery, and
iii. The robberies or each robbery was an armed robbery.
See decision in Okoh v. State (2014) 8 NWLR (Pt. 1410) 502, 523.
The question to raise in this appeal is, whether the mere fact that the appellant was arrested at the scene of the alleged crime while trying to run away, when he heard a gunshot, was enough to make him guilty of conspiracy to commit a felony to wit: armed robbery?In the case of Ikwunne v. The State (2000) 5 NWLR (Pt. 658) 550 at 561, (of a persuasive authority), Niki Tobi (JCA) (as he then was) held and said;-
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) Page 182.
It is merely saying the obvious that a Court cannot convict for the offence of conspiracy where there is no evidence. In other words, a Court cannot infer conspiracy in the absence of evidence.
By virtue of Section 96 of the Penal Code, when two or more persons agreed 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 criminal conspiracy.
The offence of conspiracy is complete once a concluded agreement exists.
Therefore, the parties must agree that a course of conduct shall be pursued which will amount to or result in the commission of an offence by one or more of the parties to the agreement.
In respect to the matter of conspiracy, the appellant's position is that the respondent had not established that appellant conspired with the other accused persons as there was no evidence to that effect. It has to be reiterated that conspiracy connotes agreement of the parties and in ascertaining that agreement, direct evidence is not indispensable since the meeting of the parties is usually done in secret and near impossible for an eye witness account. Therefore, the evidence of conspiracy is usually a matter of inference by the Court from surrounding facts and circumstances including the confessional statement of the appellant. See Adejobi v. State (2011) 6-7 SC (pt. iii) 65; State v. Olashehu Salawu (2011) 12 SC (pt. iv) 191; Bright v. State (2012) 1 SC (pt. ii) 47.
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.
It is not necessary to prove that the conspirators were seen coming out from the same place 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. SeeR vs Mevick & Rebuff (1929) 21 CAR 94; Njovens & Ors v. The State (1973) NSCC 257. It is therefore difficult to prove the offence of conspiracy by direct evidence. Conspiracy is a matter of inference from the criminal act of the parties concerned which act is done in pursuance of an apparent criminal purpose. It is therefore the duty of the Court in every case of criminal conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with the offence. See Daboh & Anor vs The State (1977) 5 SC 222: ERIM vs The State (1994) 4 NWLR (Pt. 346) 535.
By taking the first oath before the deceased was killed, the Appellant had consented to the killing of the deceased and after the deed had been accomplished, he joined the rest in taking the oath of secrecy. By the procedure adopted at the scene of the crime, the Appellant and his accomplices had clearly formed common intention to kill the deceased, and therefore it did not matter who fired the gun that killed Raji Tiamiyu.In Alarape vs. The State (2010) FWLR (Pt. 41) 1872 at 1898 – 1894 this Court, per Iguh JSC said:-"The point that needs to be emphasized in these sorts of cases is that once it is firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose, an offence of such a nature of such purpose is committed, each of them is deemed to have committed the offence. In such circumstances, the Court, once the execution of the common intention or design is established would be right in asserting that it does not matter on such facts which of the accused person does what. This is for the simple reason that under such circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have been given by the rest of his co-accused person. The person actually delivering the blow is said to be no more than the hand by which the others all strike."
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.See Patrick Njovens vs The State (1973) 5 SC 17.
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.
The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commit an unlawful act, or do or commit a lawful act by unlawful/illegal means. In Omotola & Ors v. The State (2009) 8 ACLR 29 at 147, this Court reiterated the point that:
"Where more than one accused persons are accused of jointly commission(sic) of a crime, it is enough to prove that they participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence."
Thus, it is immaterial whether the person accused had knowledge of its unlawfulness. The conspirators do not even need to be in direct communication with each other in respect of the offence. A Court can thus, infer, from the criminal acts of the parties including evidence and complicity. See: Bolaji v. The State (2010) All FWLR (Pt.534) 100. 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 substantive offence.
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 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.
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.
Again, it is well settled law that conspiracy may exist between persons who even had never or known or seen each other or had corresponded or communicated with each others. In criminal conspiracy, it is not always necessary that the co-conspirators must know each other or that the accused persons concerned had concocted the plan or modality of the execution of the subject matter of the plan or charge nor that they should have originated and organised it. lf a conspiracy is planned and a person joins it at a later stage, he is equally qualifies as the original conspirators. See R vs. Summonds (1969) 1 QB 685.
As I said supra, the offence of conspiracy can be inferred from the facts and surrounding circumstances of a given case. I will also add that the conduct of the accused and/or his co accused/conspirators often go a long way to suggest or establish that there had been implied or explicit agreement amongst them to commit a criminal offence or offences. Inferences can always be drawn by the trial Court to conclude that the offence of criminal conspiracy has been committed.
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."
lt is not necessary to complete the offence that any one thing should be done beyond the agreement or in furtherance of the agreement. See R v. A Spinall 2 QBD (1876-77) page 45 at pages 58-59.
The gist of the offence of conspiracy is the meeting of the minds of the conspirators, It is not easily capable of proof for conspirators hardly invite people to witness their assent. It is a matter of inference from certain criminal acts of the people concerned. See Njovens v. State (1973) 5 SC 17 at 9-90. There must be the criminal intent of two or more people, the execution of which will result in the actual crime.
Indeed the correct s on evidence of criminal conspiracy is well considered and summed up by the two Courts below. The conspiracy is either by direct evidence of how the conspiracy came about or by inference from certain criminal acts of omissions of the parties concerned, done in pursuance of an apparent criminal purpose common to them. OZAKI v. STATE (1990) 1 SC 109; ONYENYE v. STATE (2012) 15 NWLR (Pt. 1324) 586; NJOVENS v. THE STATE (1973) 5 SC 7 at 10; BALOGUN v. ATT. GEN. OGUN STATE (1992) 2 NWLR (pt.763) 512.
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.
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.
In the offence of conspiracy to commit armed robbery, in order to secure a conviction the prosecution must prove the following facts: a. That there was an agreement between the accused and others to commit armed robbery; b. That in furtherance of that agreement the accused took part in the commission of the armed robbery or series of robbery; c. That the robbery or each of the robberies was an armed robbery. – PER MARY UKAEGO PETER-ODILI, J.S.C.
It is a known position of the law that where a charge of conspiracy is based on the same facts as the substantive charge, the authorities require that the Court deals with the substantive charge and then sees if the charge of conspiracy is desirable and could be sustained. See AMACHREE VS NIGERIAN ARMY (2003) 3 NWLR (PT.807) 256 at 274 applying R VS. DAWSON (1960) 1 AER 558 and NJOVENS VS. STATE (1973) 5 SC 17 at 68. MARY UKAEGO PETER-ODILI, J.S.C. It is pertinent to note that there are concurrent findings of fact by the two lower Courts.
What the Appellant is seeking by this appeal is for this Court to engage in a third evaluation of the facts. This Court is always very wary of interfering with concurrent findings of fact unless they are shown to be perverse. The Appellant therefore has an uphill task to satisfy the Court that there are exceptional circumstances to warrant the setting aside of the concurrent findings. See: Atto Maba Vs The State (2020) LPELR-52017 (SC) @ 31-32 D-C; Olayode Vs The State (2020) LPELR-62519(SC) @ 18 A-B . KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
TO DISCHARGE THE BURDEN OF PROOF THE GUILT OF THE ACCUSED MUST BE ESTABLISHED BEYOND REASONABLE DOUBT In criminal prosecution, the guilt of the accused must be established beyond reasonable doubt. In order to discharge the burden of proof, every ingredient of the offence charged must be proved. Failure to prove an essential element of a crime is fatal. It means that the burden of proof beyond reasonable doubt has not been discharged and the accused would be entitled to an acquittal.
See:Nwaturuocha Vs The State (2011) LPELR-8119 (SC) @ 15-16 F-C; Mohammed Ibrahim Vs The State (2015) 11 NWLR (Pt. 1469) 164 @ 191 G-H & 197 C-D; Oladele Vs Nigerian Army (2004) 6 NWLR (Pt. 868) 166; FRN Vs Umeh & Anor (2019) LPELR-46801 (SC) @ 18 C-D. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, 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.
Where a person is charged with a substantive offence and conspiracy charge, the practice is to first consider the main offence, for in most cases, the failure of the main offence also sounds the death knell of the conspiracy charge.
The substantive offence in this case is culpable homicide punishable with death. I have earlier reproduced it in this judgment. It charges appellant and one Muhammad Abdullahi with causing the death of the deceased Abubakar Shuaibu by strangulating him in the neck and pushing him into the water to drown, an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999.
It is Respondent’s bounden duty as the prosecution and the one asserting to prove beyond reasonable this charge as laid to secure conviction: see is what is required of it by Section 135 of the Evidence Act 2011. The 1999 Constitution of this country in its Section 36 (5) further drives that point home by stating that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.
What is more, Section 36(6) of the same 1999 Constitution states that “Every person who is charged with a criminal offence shall be entitled to: (a) be informed promptly in the language that he understands and in detail of the nature of the offence. (Emphasis mine). PER UGO, 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
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.
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.” See OGU v. COP (2017) LPELR-43832 (SC). The Supreme Court in defining conspiracy held in AWOSIKA v.
STATE (2018) LPELR-44351(SC) as follows: “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.
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 seldom 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″ – UCHECHUKWU ONYEMENAM, J.C.A.
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: NDOZIE v. STATE (2016) LPELR-26067 (SC); ADEJOBI & ANOR V. STATE (2011) 6-7 SC (PT. 11) P. 65, (2011) 12 NWLR (PT. 1261) 347; STATE V. SALAWU (2001) 12 SC (PT. IV) P. 191, (2011) 18 NWLR (PT. 1279) 580 – UCHECHUKWU ONYEMENAM, J.C.A.
ELEMENTS THAT MUST BE PROVED TO SECURE A CONVICTION IN A CHARGE FOR CONSPIRACY To secure a conviction in a charge for criminal conspiracy the Supreme Court in OGU V.
COP (2017) LPELR-43832 (SC) held thus: “The prosecution must prove: (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; and (c) that each of the accused persons individually participated in the conspiracy. See: YAKUBU V. THE STATE (2014) 8 NWLR (PT. 1408) 111 @ 123 F H; TANKO V. THE STATE (2009) 16 NWLR (PT. 1114) 597.”
Therefore, in a charge for conspiracy the agreement constitutes the offence and it is not necessary to prove that the act has actually been committed. It is also trite that having regard to the nature of conspiracy, it is seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. The evidence relied upon must, however, be of such quality that it irresistibly compels the Court to make an inference as to the guilt of the accused – UCHECHUKWU ONYEMENAM, 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.