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Obiakor v. State

BENSON OBIAKOR

NGOZIKA OBIAKOR

V

THE STATE

SUPREME COURT OF NIGERIA

ABUBAKAR BASHIR WALI, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

EMANUEL OBIOMA OGWUEGBU, JSC

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC ( Read the Lead Judgment )

SC. 327/2001

FRIDAY, 7TH JUNE 2002

APPEAL - Issue for determination - Fresh issue - Issue which did not form part of evidence of the courts below - Whether requires leave of the Supreme Court to file and argue

APPEAL - Issues for determination - Issue of jurisdiction  - Whether can be raised at the Supreme Court for the first time without leave

COURT - Supreme Court - Whether issue of jurisdiction can be raised thereat as fresh issue without leave

CRIMINAL LAW AND PROCEDURE - Conspiracy - Christian couple tried for offence thereof - Effect of section 34 of the Criminal Code in respect of - Whether husband and wife being part of the other can commit the offence of conspiracy

CRIMINAL LAW AND PROCEDURE - Conspiracy - Conviction therefor Whether circumstantial evidence can ground same

CRIMINAL LAW AND PROCEDURE - Conspiracy - Failure of conviction on substantive charge - Whether leads to failure of conviction on conspiracy

CRIMINAL LAW AND PROCEDURE - Conspiracy - Meaning of - When safe to convict therefor

CRIMINAL LAW AND PROCEDURE - Prosecution - Duty of to prove its case beyond reasonable doubt - Whether requires proof with absolute certainty

CRIMINAL LAW AND PROCEDURE - Prosecution - Duty thereon to prove guilt of accused person - Whether same can be displaced by suspicion

CRIMINAL LAW AND PROCEDURE - Suspicion - Whether can constitute a crime or ground a conviction

EVIDENCE - Circumstantial evidence  - Whether can ground conviction for conspiracy

EVIDENCE - Circumstantial evidence - Purport of - Need for to lead to accused’s guilt before same can ground conviction

JURISDICTION - Issues of - Whether can be raised at the Supreme Court as fresh issue without leave

WORDS AND PHRASES - ‘Conspiracy’ - Meaning of

Issues:

1.            Whether the Court of Appeal was right in affirming the conviction and sentence of the 1st and 2nd appellants (husband and wife) of a Christian marriage for conspiracy to murder committed by themselves alone contrary to section 34 of the Criminal Code, Laws of Bendel State 1976, Cap. 48 ,

( applicable to Delta State of Nigeria ).

2.            Whether the Court of Appeal was right in affirming the conviction of the 1st appellant for conspiracy to murder when the prosecution failed to prove beyond reasonable doubt the substantive count of murder.

3.            Whether having regard to the evidence the prosecution proved its case beyond reasonable doubt against the 1st appellant.

Facts:

The appellants’ herein, a couple, were jointly charged with the offences of conspiracy and murder of one Kingsley Ilesanmi, a three (3) year old son of PW1 at the High Court, Asaba, Delta State.  Mrs. Henrietta Ilesanmi together with her the deceased came to Asaba on a visit to her elder brother Sylvester Okolie (PW2) who is a tenant of the 1st appellant living in the same compound with 1st and 2nd appellants and their family. On the day of the incident, Kelechi the daughter of the appellants carried the deceased away from his mother to play outside. After sometime the daughter of PW2, brought the rubber shoes worn by Ilesanmi when Kelechi took him out. Mrs. Ilesanmi then started to look for the whereabouts of her son. In the course of the search, PW2 asked Kelechi for the boy’s whereabouts but Kelechi said she dropped the boy by the door step of the compound and left him there. All efforts to get more information from Kelechi was prevented by the 2nd appellant.

The matter was then reported to the police. The 1st appellant after being manhandled by soldiers suggested a search of the well (already searched) in which the deceased corpse was found. Post-mortem examination revealed cause of death to be due to acute respiratory failure as a result of suffocation.

At the conclusion of trial, the trial court found the appellants guilty of conspiracy and consequently passed a sentence of seven years imprisonment for conspiracy and discharged and acquitted them for murder. On appeal to the Court of Appeal, the court of Appeal dismissed the appeal and affirmed the decision of the trial court. They further appealed to the Supreme Court.