On 4th May, 1994 the appellants were each convicted and sentenced in the Katsina Ala High Court of Benue State by E. Eko J in a charge No KHC/8C/83 to 5 years imprisonment and compensation assessed at N10,000.00 in lieu of fine jointly and severally against the appellants to PW1 for the offences of mischief by fire contrary to Section 337 of the Penal Code in addition to 3 months imprisonment each for the offence of conspiracy to do illegal act contrary to Section 97 of the Penal Code. All prison sentences shall run concurrently.

The appellants were arraigned before the trial High Court in a three count charge which read as follows:-

That you loryem lortim and Aondolumun Iortim, on or about the 4th day of August, 1992 at Ge-Mbayem in Ushongo LGA and within the jurisdiction of the Honourable court, agreed to do an illegal act to wit: to commit mischief by fire on the house of Amenger Ijuh and the act was done in furtherance of the said agreement and you thereby committed an offence punishable under Section 97 of the Penal Code.

That you Ioryem Iortim and Aondolumun Iortim on or about the 4th day of August, 1992 at Ge-mbayem Ushongo LGA within the jurisdiction of the Honourable Court trespassed into the compound of Amenger Ijuh in order to commit the offence of mischief by fire and you thereby committed an offence punishable under Section 352 of the Penal Code.

That you Ioryem Iortim and Aondolumun Iortim on or about the 4th day of August, 1992 at Ge-mbayem in Ushongo LGA within the jurisdiction of the Honourable court set ablaze and burn to ashes two thatched houses of Amenger Ijuh, the houses which were used ordinarily as places of human dwelling and for the custody of property and you thereby committed an offence punishable under Section 337 of the Penal Code read together with Section 97 of the Penal Code.

The prosecution preferred the charge with leave of court under Section 185(b) of the Criminal Procedure Code. It is common ground from the respective briefs of argument of both parties, that the prosecution during the course of the trial applied to the court to strike out counts 1 and 2 which were duly struck out by the court leaving only count 3 of mischief by fire contrary to Section 337 of the Code. The appellants were therefore tried on only count 3 of the charge, while the learned trial Judge after hearing evidence on the case convicted the appellants on count 3 and sentenced them accordingly as above stated. The learned trial Judge also convicted and sentenced the appellants on count 1 of conspiracy that was struck out along with count 2.

Dissatisfied with the said judgment of 4/5/97 the appellants appealed to the court of Appeal.