Implied Contract: Meaning, Form(VIII)

This was an appeal
against the judgment of the High Court which convicted and sentenced the appellant to death by hanging for the offences of conspiracy and murder. The Court of Appeal, in a unanimous decision, allowed the appeal.
History of the Case:
Court of Appeal:
Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Akure
Names of Justices that sat on the appeal: Kudirat
Motonmori Olatokunbo Kekere-Ekun, J.C.A. (Presided), Chinwe Eugenia Iyizoba, J.C.A. (Read the Leading
Judgment), Moore A. A. Adumein, J .C.A.
Appeal No.: CA/B/144C2/2007
Date of Judgment: Thursday, 12th July, 2012     Names of Counsel: Olakunle Agbebi, Esq. – for the Appellant
A.O. Adeyemi-Tuki [Mrs.], D.P.P. (with her, Taiwo Olubodun Esq., DD.C.L. and Alaba Ogunyemi, Esq.,     S.LD.) – for the Respondent      High Court:
Name of the Court: High Court of Ondo State, Akure
Name of the Judge: Fagbe, J.
Counsel:
Olakunle Agbebi, Esq. – for the Appellant
A.O. Adeyemi-Tuki [Mrs.], D.P.P. (with her, Taiwo Olubodun Esq., DD.C.L. and Alaba Ogunyemi, Esq., S.LD.) – for the Respondent
IYIZOBA, J.C.A. (Delivering the Leading Judgment): The appellant Aderemi Omotayo was arraigned as 2nd accused before Fagbe, J. of the High Court of Ondo State sitting at Akure on the 29th day of July, 2003 along with two other co-accused persons, Feyisayo Olatise 1st accused and Fredrick Akintade 3rd accused on a two-count charge of conspiracy and murder contrary to Sections 324 and 319 of the Criminal Code, Cap. 30, Volume II, Laws of Ondo State of Nigeria, 1978 (now Cap. 37, Volume 1 Revised Laws of Ondo State).
The prosecution’s case is that the deceased, Joseph Olatunde was on the 20th day of September 1996 shot and killed in the sitting room of the 1st accused at his residence at Ubi Camp Idanre by the 1st accused who conspired with the appellant herein and the 3rd accused to carry out the unlawful act. It was alleged that the 1st accused had deposited two bags of Indian hemp in the farm of the deceased. The deceased found the bags in his farm and raised an alarm which led to their disposal. The 1st accused on two separate occasions 12th and 19th of September, 1996 sought to see the deceased without success.
On the 20th of September, the 1st accused sent his wife to the house of the deceased to fetch him. The wife of the deceased who at the trial testified as PWI in her evidence said that she followed her husband to the house of the 1st accused carrying her baby. There, they met the 1st accused, the appellant herein, the 3rcl accused and others. PWI testified that the 1st accused confronted the deceased as to why he raised alarm over the Indian hemp he (the deceased) found in his farm. At this stage PWI said that her baby started crying and the 1st accused advised her to take her baby home for attention. She then left. While she was away attending to her baby, she heard the sound of a gun shot and returned to the house of the 1st accused to find her husband lying dead in the sitting room of the 1st accused. She claimed that she saw a gun later identified as belonging to the 1st accused on top of a table in the sitting room.
The three accused in their defence told a different story.
They claimed that the 1st accused and the deceased were engaged in an argument over missing cocoa beans belonging to the 1st accused which the 1st accused alleged were stolen by the deceased. In the scuffle that followed, a crowd gathered. The deceased then walked into the house of the 1st accused and what followed was the sound of a gun shot. When the 1st accused rushed to see what happened, the found the doors locked from within. When the people around peeped from the window of the house, they ‘found the deceased lying down, having shot himself. The Police later broke into the house to gain access to the corpse of the deceased. The appellant had made three statements to the Police: Exhibit I made on 21/9/96;
Exhibit J made on 21/9/96 and exhibit D 1 made on 24/9/96. Exhibit J is in line with the oral evidence of the appellant in court and the case of the defence as set out above. Exhibits I and Dl differed as to the cause of the dispute between the 1st accused and the deceased.
They both confirm the case of the prosecution that the cause of the dispute was the Indian hemp found in the farm of the deceased but maintained that the deceased shot himself in the living room of the 1st accused.
At the trial of the case, the prosecution called five witnesses.
The appellant and the other accused persons testified on their own behalf and called no other witness. Learned counsel for the parties filed written addresses which were duly adopted. The learned trial Judge found the appellant and the other two accused guilty as charged on count 1 of conspiracy and sentenced them to 14 years imprisonment. On count 2, the learned trial Judge found them guilty of murder and sentenced them to death by hanging.
By an amended notice of appeal dated 19th April 2010, the appellant herein filed a separate appeal containing three grounds
of appeal. The grounds of appeal without their particulars are as follows:
1: Ground One
That the learned trial Judge committed a grave error in law and in fact in convicting the appellant of the offences of conspiracy and murder and sentencing him to death when the prosecution failed to prove any direct or positive act or omission of the appellant that resulted in the death of the deceased and thereby failed to prove his guilt beyond reasonable doubt.
2: Ground Two
That the learned trial Judge erred in law and in fact in convicting the appellant of the offences of conspiracy and murder and sentencing him to death in the light of the material contradictions in the evidence of the prosecution witnesses which were never resolved.
3: Ground Three
That the learned trial Judge erred in law when he called on the appellant to prove his innocence contrary to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and thereby occasioned a grave miscarriage of justice.
Out of the three grounds of appeal, the appellant distilled two issues for determination. The issues are:
1.Whether the learned trial Judge was right in holding that the prosecution proved a case of murder against the appellant beyond reasonable doubt particularly in the light of evidence adduced?
2.Whether the defence put up by the appellant was considered?
In his brief of argument, learned counsel for the respondent adopted the above issues. Both counsel argued the two issues together.
Learned counsel for the appellant Olakunle Agbebi Esq. after setting out the law on burden of proof in murder trials and what the prosecution must prove to secure a conviction for murder submitted relying on the case of R. v. Nwokocha (1949) 12 WACA 453 that the prosecution failed abysmally to prove that the act of the appellant caused the death of the deceased and that the appellant knew that death or grievous bodily harm would be the probable consequences of his act. Counsel submitted that the evidence adduced by the prosecution as regards the events and circumstances that led to the death of the deceased did not allude or point to any direct or indirect act of the appellant that caused the death of the deceased. Counsel further submitted that a perusal of the record of appeal shows also that there is no evidence on record by any of the prosecution witnesses of anything said, done or omitted to be done by the appellant that can be linked to the death of the deceased or as to be the probable cause of his death. Counsel consequently submitted that the learned trial Judge was wrong to have held that the prosecution proved a case of conspiracy and murder against the appellant.
Mrs. A. O. Adeyemi-Tuki, D.P.P., Ministry of Justice, Ondo State for the respondent in her brief of argument relying on the case of Adeniji v. State (2001) 13 NWLR (Pt. 730) 375 at 397 E-F submitted that the learned trial Judge correctly relied on circumstantial evidence in view of the absence of direct eye witness account of the shooting. Learned counsel argued that the evidence of the witnesses called by the prosecution coupled with other circumstantial facts proved at the trial connected perfectly in an
unbroken chain of events leading to the murder of the deceased. I have set out just the crux of the arguments of both counsel. Further details of their submissions will be considered as the need arises in the course of the judgment.
As succinctly put by Mr. Olakunle Agbebi for the appellant, the presumption in section 36(5) of the Constitution of the Federal
Republic of Nigeria, 1999 that an accused person is innocent until proven guilty places a very heavy burden on the prosecution.

Cross section of branch chairmen, during an exco meeting with the acting Chief Judge of Rivers State, Hon. Justice Peter N.C. Agumagu, at the new High Court complex Port Harcourt, recently. Photo: Nwiueh Donatus Ken