LUKMON OSETOLA & ANOR V. THE STATE
(2010)LCN/3801(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of May, 2010
CA/I/188/06
RATIO
WORDS AND PHRASES: MEANING OF ROBBERY
What is ‘Robbery’ Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 defines ‘Robbery’ as follows, “Robbery means stealing anything and at or immediately before or after the time of stealing it using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.’ PER STANLEY SHENKO ALAGOA, J.C.A.
WORDS AND PHRASES: MEANING OF ATTEMPTED ROBBERY
Attempted Robbery’ is defined under the Act as, “Any person who, with intent to steal anything assaults any other person and at or immediately after the time of assault uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty years.” PER STANLEY SHENKO ALAGOA, J.C.A.
EVIDENCE: TESTS FOR VERIFICATION OF CONFESSIONAL STATEMENTS
The law is well settled that the Court can convict on a retracted confessional statement.
There is a plethora of case law on this subject matter. See IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468-469; NWACHUKWU V. THE STATE (2007) 12 SCM 447 at 455.
Never the less the Supreme Court in DAWA V. THE STATE (1980) 8-11 SC 236 in reliance on the English decision in R. V. SYKES (1913) 18 CR APP. REPORTS and cited in KANU V. R. highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them. These six tests have also been relied upon in a number of other cases notably R. V. OBIASA (1962) 2 SCNLR 402; (1962) 1 ALL NLR 651 and are as follows :
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the crime?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved? PER STANLEY SHENKO ALAGOA, J.C.A.
WORDS AND PHRASES: MEANING OF CONSPIRACY
Conspiracy has been held in a number of decided cases to mean a meeting of the minds of the Conspirators. It consists of the intention of two or more persons to do an unlawful act or lawful act by unlawful means and conviction for conspiracy is usually based on circumstantial evidence. See ODENYE V. THE STATE (2001) 2 NWLR (PART 697) 311 at 324 PATRICK NJOVENS V. THE STATE (1973) 5 SC 17; UPLAR V. THE STATE (2003) CNWL 30 at 293. Black’s Law Dictionary defines ‘Conspiracy’ as:
“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective.” PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. LUKMON OSETOLA
2. FATAI TIJANI Appellant(s)
AND
THE STATE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): The Appellants as 1st and 2nd accused persons & anor were at the High Court Ibadan in Charge No. RFT/3/98 arraigned, tried, convicted and sentenced to death on a two count charge of (1) Conspiracy to commit armed robbery contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990. (2) Attempted armed robbery contrary to and punishable under section 2(2)(a) of the Robbery and Fire-arms (Special Provisions) Act Cap 398 of the Laws of the Federation of Nigeria 1990.
The case for the prosecution was that on the 29th December, 1996 at about 8 p.m., PW2 by name Abudu Alao was in his father’s beer shop when three young men on a white vespa motorcycle came to the shop. While the rider of the vespa motorcycle remained on the motorcycle outside, the two others entered the shop in pretence of being customers who wanted to purchase stout. One of the men suddenly produced a gun from a plastic bag which he pointed at PW2 ordering him to produce all the money that had been made from the day’s sales. PW2 told him that he (PW2) hadn’t the keys to the safe where money so realized was kept. The men asked for his father and PW2’s reply to them was that his father was not around. The men then spotted PW2’s father who was sitting somewhere outside the shop and called him into the shop where they introduced themselves as men of the C.I.D. Eleweran Abeokuta. They pointed a gun at him and asked him to bring out all the money he had made from the day’s sales and PW2’s father by name Alhaji Sikiru Alao requested his son PW2 Abudu Alao to bring out the money from the safe. As PW2 was going to the safe to bring out the money his father Alhaji Sikiru Alao was shot and killed. The men then fled from the shop and reunited with their partner in crime on the vespa motorcycle in an attempt to flee from the scene whereupon PW2 gave chase. One of the men fell down from their getaway motorcycle while the other two escaped. A struggle then ensued between PW2 and the man, who had been left behind by his partners but the man overpowered PW2 and fled into the night. PW2 later that night reported the incident at the Ibara Police Station to the police officer on duty PW3 by name Sergeant Fidelis Bimi, who obtained his statement and followed him to the scene of crime where he found the lifeless body of PW2’s father- Alhaji Sikiru Alao which he deposited that night in the mortuary for post-mortem examination which was performed by PW1 Dr. E. A. Sobowale a medical officer, whose report was that Alhaji Sikiru Alao had a gunshot wound in the chest and died of hemorrhagic shock. This medical report was tendered as Exhibit ‘A’ while PW2’s statement to PW3 was tendered as Exhibit “B”. An expired cartridge found at the scene of crime was tendered as Exhibit ‘C’. PW4 one Corporal, Temitayo Adepelumi took up further investigation of this case and a search of the house of one Mrs. Modinatu Adekoya resulted in the recovery of among other items, the gun used in the attempted robbery that took place at Ibara Omida in the night of the 29th December, 1996. The gun was tendered in the course of proceedings. PW4 also arrested the three accused persons between the 6th & 7th January, 1997 and obtained confessional statements from them which were objected to by their respective counsel as not having been made voluntarily but after a trial within trial, the Court found the objections to be baseless and admitted them as Exhibits I, J and K respectively. Photographs of an identification parade by the police where PW2 identified 1st accused as being the one who shot and killed his father Alhaji sikiru Alao were tendered by the prosecution also as Exhibits G and G1 while the getaway vespa motorcycle allegedly used by the fleeing armed trio on the night of the incident was admitted by the prosecution as Exhibit “H”. PW4 had told the court how the 2nd accused had led him into a house where the vespa motorcycle was recovered. In proving its case, the prosecution called four witnesses and tendered eleven Exhibits.
At the end of the case for the prosecution, each of the accused persons gave evidence in his own behalf but called no witness. While the 1st accused did not deny being at the scene of crime on the day of the incident, his evidence was that of an innocent person who had found himself in the wrong place at the wrong time. He said, he was at work at the Date Joint Restaurant when a man by name Saheed came in to have a drink. He tried to hurry Saheed and another man up contending that he wanted to close early as he intended going to Ibara, Omida area of Abeokuta. Saheed told him not to be too hasty as he himself intended going to that same area of Abeokuta, and that he would give him a ride. He (1st accused) and Saheed, then came out of the restaurant and boarded a commercial motorcycle popularly referred to as ‘Okada’ and when they got to the shop of Alhaji Sikiru Alao (PW2’s father) around 8p.m. on the day of the incident, he disembarked and Saheed asked him to find out the price of a carton of stout from PW2’s father’s shop, while he (Saheed) would go to the shop of his radio repairer near PW2’s father’s shop. Saheed then came into PW2’s father’s shop and surprisingly produced a gun from a nylon bag he was carrying and pointed the gun at both PW2 and himself (1st accused). Saheed then asked PW2 to bring out money from the day’s sales and as PW2 began to scream, the attention of a man outside the shop was attracted and as the man came into the shop, Saheed ordered him to bring out all the money from the day’s sales and as the man stood where he was, Saheed shot him. 1st accused said, he did not know Saheed or where he had come from as he had only met him twice in the past, the first time being the 24th December,1996 and on the 29th December, 1996 the day of the incident and that even if he saw him he would not be able to recognise him. He denied knowing anyone connected with the incident. 2nd accused also denied the charge and said he knew nothing about the offence. While admitting that he was a commercial motorcyclist, who owned a vespa motorcycle and which colour he gave as red, he denied carrying any passenger to Ibara Omida on the 29th December, 1996 the day of the incident. He admitted making a confessional statement, but said he did so under torture. The accused called no other evidence.
At the close of the case for the prosecution and the defence, Counsel on both sides addressed court and in its considered judgment delivered on the 21st May, 2004, the learned trial Judge S. A. Oduntan J. found the 1st & 2nd accused persons guilty and convicted each of them on Count 1 to death and on Count 2 to imprisonment for life.
Dissatisfied the 1st & 2nd accused persons have appealed as 1st & 2nd Appellants not only against the final judgment delivered on the 21st May, 2004 but against the ruling on the trial within trial delivered also by Oduntan J. on the 21st February, 2003. The Appellants filed Notices of Appeal contained at pages 127-135 and 136-143 of the Record of Appeal. The grounds of appeal are identical and are reproduced below devoid of particulars:
1. ERROR-IN-LAW
The Learned trial Judge erred-in-law in shifting the onus of proof of the voluntariness, or otherwise of a confessional statement on the 2nd Accused/Appellant when in law it is squarely the duty of Prosecution to prove beyond reasonable doubt the voluntariness of confessional or extra-judicial statement.
2. ERROR-IN-LAW
The trial Judge erred-in-law in holding that the Prosecution has proved the making of the confessional statement free and voluntary and, or admitting the purported confessional statement of the 2nd Accused/Appellant as having been voluntarily made.
3. ERROR-IN-LAW
The trial Judge erred-in-law in relying on the evidence of PW2 and PW4, as being evidence which corroborated the purported confessional statement of the 2nd Accused/Appellant.
4. ERROR-IN-LAW
The trial court erred-in-law in convicting the 2nd Accused/Appellant of the offence of conspiracy.
5. ERROR-IN-LAW
The trial Court erred-in-law in convicting the 2nd Accused/Appellant on his retracted confessional statement without corroborative reliable evidence before the court.
6. ERROR-IN-LAW The learned trial Judge erred-in-law in holding that the evidence called by the prosecution in support of the charge is really stronger than that of the 2nd Accused in support of his defence of alibi.
7. ERROR-IN-LAW
The trial Court erred-in-law in convicting the 2nd Accused/Appellant of the offence of conspiracy and attempted Robbery, when there are lots of doubts apparent on record as to the guilt of the 2nd Accused/Appellant.
8. ERROR-IN-LAW
The trial Court erred-in-law in passing a sentence of death by firing squad on the 2nd Accused/Appellant on 1st count of conspiracy when in law the trial court has no power to invoke
Section 1(2)(a) of the Robbery and Fire Arms Act Cap. 398, Laws of the Federation 1990 for offence of conspiracy.
In the Appellant’s Brief of Argument dated the 20th March, 2009 and filed same day, the following issues have been formulated-
1. Whether the prosecution (without direct evidence of voluntariness of retracted confessions) proved its case beyond reasonable doubt to warrant the conviction of the Appellants.
2. Whether the learned trial Judge rightly evaluated the evidence with which he disbelieved that the confessions of the Appellants were involuntary.
3. Whether the learned trial Judge was right in law to conduct part of the trial of the Appellants in a language other than that of the court without employing the services, of an official interpreter.
The Respondent on its part has formulated the following sale issue for the determination of this Court-
“Whether the prosecution proved its case beyond reasonable doubt based on the evidence adduced to warrant conviction.”
This issue is contained in paragraph 3.01 at page 3 of the Respondent’s brief of Argument dated the 22nd October, 2009 and filed on the 23rd October, 2009 but deemed properly filed and served on the 25th November, 2009 following the grant by this Court of a motion on Notice brought pursuant to Order 7 Rule 10(1) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Honourable Court praying for the following orders:
1. An order extending the time within which’ the Respondent/Applicant may file its Brief of Argument.
2. An order deeming the Respondent’s Brief of Argument already filed and served as properly filed and served.
This appeal came up to be heard on the 24th February, 2010. Segun Fowowe counsel for the Appellants adopted and relied on the Appellants’ brief of Argument and urged this Court to allow the appeal.
Miss F. F. Fakolade State Counsel, Ogun State Ministry of Justice who appeared with Miss C. L. Nzekwe also State Counsel in the same Ministry adopted and relied on the Respondent’s Brief of Argument and also urged this Court to dismiss the appeal. The Respondent’s Brief of Argument is more all embracing and I shall rely on it in the consideration and determination of this appeal. By way of refreshment of memory that sole issue reads as follows-
“Whether the prosecution proved its case beyond reasonable doubt based on the evidence adduced to warrant conviction.”
Appellants have rightly said in reliance on section 138 of the Evidence Act that in a criminal case the prosecution must prove its case beyond reasonable doubt and that the onus does not shift. The following cases are illustrative of this hallowed legal principle BALUDA V. STATE (1996) 7 NWLR (PART 460) 279; ONUBOGU V. STATE (1974) 9 S.C. 1; CHIA V. STATE (1996) 6 NWLR (PART 455) 465; MORKA V. STATE (1998) 2 NWLR (PART 537) 294 at 307. See also
NWOSU V.THE SITE (1998) 8 NWLR (PART 562) 433 at 444 where it was held that,
“In all criminal trials the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused. Failure to do so will automatically lead to the discharge of the accused person. The burden never changes.”
The importance of this requirement of proof of a crime by the prosecution beyond reasonable doubt will become clear when considering the ingredients of the offence for which the Appellants were charged and stand convicted and sentenced. In a nutshell Count 1 is for Conspiracy to commit armed robbery while Count 2 is for attempted armed robbery. Counts 1 and 2 make reference to ‘Armed Robbery’. What is ‘Robbery’ Section 15(1) of the Robbery and Firearms (Special Provisions)Act Cap 398 defines ‘Robbery’ as follows, “Robbery means stealing anything and at or immediately before or after the time of stealing it using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.’
Attempted Robbery’ is defined under the Act as, “Any person who, with intent to steal anything assaults any other person and at or immediately after the time of assault uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not more than twenty years.”
Section 2.2(a) of the Act simply provides that if such an offender as has just been described above is armed with any firearms or any offensive weapon such an offender shall upon conviction be sentenced to life imprisonment.
How does the evidence of PW2 Abudu Alao fit into this picture?
The evidence of PW2 has been stated earlier and needs no elaborate restatement save to state briefly that two young men entered his father’s beer shop pretending to be customers while another sat on a vespa motorcycle outside waiting for them. One of them brought out a gun and pointed it at PW2 demanding to be given the proceeds of sale from the shop for the day. PW2 said he did not have the keys to the safe where the money was kept. The men asked for PW2’s father and PW2 told them he wasn’t around. The men however saw him outside and asked him to come and when he did they pointed a gun at him and asked him for the proceeds of sale for the day.
He requested his son PW2 to collect money from the safe where money was kept, but PW2’s father was nevertheless shot and killed and the men escaped with the vespa motorcycle with PW2 giving chase. One of them fell from the motorcycle and a struggle ensued between him and PW2 who however was overpowered and the man escaped into the night having been left behind by his colleagues on the vespa motorcycle.
From the evidence of PW2, it is not in doubt that the three young men were robbers who had made an attempt to steal the money of Alhaji Sikiru Alao (PW2’s father) though they did not eventually succeed. That they attempted stealing the money would make them attempted robbers.
PW2’s evidence was that at least one of them was armed which meant that the other two were in the company of a robber who was armed. This evidence if indeed it was uncontradicted and it was not, would mean that all three young men who visited the beer shop of Alhaji Sikiru Alao about 8p.m. on the 29th December, 1996 and made an unsuccessful attempt and a violent attempt at that to steal Alhaji Sikiru Alao’s money were indeed attempted armed robbers. That a gun falls into the class of firearms is certainly not in doubt. The prosecution has thus been able to prove that whoever the young men were, they were armed robbers and since they attempted to steal PW2’s father’s money, an act which if they had succeeded would have meant that they were robbers but since the act suffered a hitch as a result of which they were unable to steal any money from Alhaji Sikiru Alao, the prosecution had succeeded in establishing that the trio were attempted armed robbers and I so hold. Having thus established that, the three persons who came to the beer shop of PW2’s father Alhaji Sikiru Alao on the 29th December,1996 were indeed attempted robbers a question begging for an answer is who were these three young men? Have they been sufficiently identified? Counsel for the 1st Appellant says an identification parade would have been conducted. Exhibits G and G1 are photographs showing that an identification parade was indeed conducted at which 1st accused was identified:
PW4 had given evidence of that fact but that should have been unnecessary because 1st accused/Appellant did not deny that he was at the scene of crime on the day and time in question.
He denied having participated in the dastardly act of either attempting to steal from or from murdering Alhaji Sikiru Alao.
He had only gone to ask for the price of a carton of stout when he found himself in the midst of vicious people who had even pointed a gun not only on PW2 but on the now deceased Alhaji Sikiru Alao.
The Supreme Court has said that it is not in every instance when persons suspected of having committed an offence are paraded for identification. In UKPABI V. THE STATE (2004) 7 SCM 189 at 199-200 the Supreme Court said as follows, “Where a trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Identification parade is not a sine qua non. IKESON V. STATE (1989) 3 NWLR (PART 110) 455 …”
(Underlining mine for emphasis).
In ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129 the Supreme Court also had this to say,
“The law I believe is sufficiently settled that where an accused is arrested or caught when trying to escape during the commission of an offence and the victim of the crime was present and positively identified the accused person there is no need for an identification parade.”
In the present case, 1st accused/Appellant came into the beer shop of Alhaji Sikiru Alao. He (1st accused) did not deny that fact. There was not just verbal but also visual interaction and contact between PW2 and 1st accused/Appellant. Identification of anybody does not have to take more than a fraction of a second before the brain stores in that image in its memory bank. Having done that, it takes sometime before that image is lost. I think that, it is with the identification of the 2nd accused/Appellant that one should primarily concern oneself with. With respect to that PW4 had stated in evidence that the 2nd accused/Appellant had been present at the scene of crime and had taken part in the attempted robbery. It was the 2nd accused/Appellant who led PW4 to a house in Obantoko Abeokuta where PW4 recovered the vespa motorcycle which was allegedly used by the gang of three on the day of the incident. In fact the 2nd accused/Appellant confessed to PW4 that he was the one who actually rode the vespa motorcycle on the day of incident. Perhaps the question that readily comes to mind is the weight to be attached to the evidence of PW4 as to this piece of confessionary statement by the 2nd accused/Appellant. The question may as well be asked how the 2nd accused/Appellant knew about the vespa motorcycle and its very location if he was not a party to the incident of 29th December, 1996. PW4’s evidence is further buttressed by the fact that the recovered vespa motorcycle exactly fitted the description of the vespa motorcycle used by the tripartite gang on the 29th December, 1996. The notion as advanced by defence counsel that both PW2 and PW4 had their own interest to serve and their evidence should not be relied upon, is as untenable as it is, ludicrous. PW4 was just a policeman performing his normal official duties and would have had no specific interest to serve. True that PW2 is the son of the murdered Alhaji Sikiru Alao but would he point accusing fingers at just about anyone? That would be ridiculous. Thus the identities of 1st accused/Appellant and the 2nd accused/Appellant would appear to have been corroborated by the evidence of PW2 and PW4 but there is the need to examine their confessionary statements objections to their admissibility having been taken by their Counsel resulting in a trial within trial after which their confessionary statements were admitted as Exhibits ‘I’ & ‘J’ respectively. The statements had earlier been retracted, the Appellants having denied that they were voluntarily made. The law is well settled that the Court can convict on a retracted confessional statement.
There is a plethora of case law on this subject matter. See IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468-469; NWACHUKWU V. THE STATE (2007) 12 SCM 447 at 455.
Never the less the Supreme Court in DAWA V. THE STATE (1980) 8-11 SC 236 in reliance on the English decision in R. V. SYKES (1913) 18 CR APP. REPORTS and cited in KANU V. R. highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them. These six tests have also been relied upon in a number of other cases notably R. V. OBIASA (1962) 2 SCNLR 402; (1962) 1 ALL NLR 651 and are as follows :
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the crime?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
I wish to apply these tests to this appeal now being considered. There is much outside the confessional statements that indicate the truth contained in them. The 1st accused/Appellant did not deny that he was in PW2’s father’s (Alhaji Sikiru Alao) shop on the 29th December, 1996 at about 8p.m. and was witness to the incident that took place. His defence was that he did not participate in the crime. This evidence was punctured by the evidence of PW2 who identified him in the identification parade. He claimed that he did not know the other two persons who were his partners in crime on that day but even this was found to be false. The 2nd accused/Appellant according to PW4’s evidence confessed to PW4 that he took part in the crime and that it was he who rode the others to the beer shop of late Alhaji Sikiru Alao, PW2’s father on the day of the incident. After the confession he led the PW4 to a house in Obantoko Abeokuta where the vespa motorcycle used for the attempted robbery operation on that day was found and recovered. The question is – How did the 2nd accused/Appellant know about the use of the motorcycle on the 29th December,1996 and how did he know the location of the motorcycle if he took no part in the dastardly crime on the night of the incident? The relevant statements made in the confessional statements are therefore true as can be tested independently of the confessional statements themselves. The confessional statements are possible and consistent with other facts outside the confessional statements of the Appellants.
The argument by the Appellants’ Counsel that the prosecution could have relied on other evidence than those of PW2 and PW4 to convict the Appellants is untenable since it is not the number of witnesses that prosecution calls to establish its case that matters but the quality of evidence given.
In IJIOFOR V. THE STATE (2006) 6 NSCQR (PART 1) in 209 at 237 Achike JSC of blessed memory succinctly put it this way:
“The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they field as witnesses.”
This point is very well made. In so far as the evidence of PW2 and PW4 are cogent and believable and corroborate each other they are sufficient proof of the guilty of the accused and I so hold.
Counsel for the Appellants have also submitted that there were contradictions in the evidence of the prosecution witnesses. The law is that for an appellate court to set aside the finding of a lower court based on contradictions supposedly ignored by the lower court, such contradictions must be material. See ARCHBONG V. THE STATE (2006) 5 SCNJ 2022 at 2035. The question of whether for example the vespa motorcycle used by the Appellants to commit the crime was red or white is certainly not such material contradiction that this Court would regard as material given the fact that the motorcycle may even have been resprayed after its use on the 29th December, 1996. 2nd accused/Appellant took the PW4 to a house where he showed him the vespa motorcycle which he, 2nd accused person admitted riding on the day of the incident, conveying his two other partners in crime. This piece of evidence of PW4 was not destroyed by cross-examination.
On the question of Conspiracy, there is no doubt that the Appellants conspired among themselves to steal from the beer shop of Alhaji Alao which plan did not quite succeed.
Conspiracy has been held in a number of decided cases to mean a meeting of the minds of the Conspirators. It consists of the intention of two or more persons to do an unlawful act or lawful act by unlawful means and conviction for conspiracy is usually based on circumstantial evidence. See ODENYE V. THE STATE (2001) 2 NWLR (PART 697) 311 at 324 PATRICK NJOVENS V. THE STATE (1973) 5 SC 17; UPLAR V. THE STATE (2003) CNWL 30 at 293. Blacks Law Dictionary defines ‘Conspiracy’ as:
“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective.”
From the totality of the evidence adduced by the prosecution coupled with the confessional statement of the Appellants, I hold that the charge on conspiracy also succeeds. I think that the learned trial Judge rightly found the Appellants / guilty of the two count charge. It is on the issue of sentencing that I do not agree entirely with the learned trial Judge. While on Count 2 – attempted armed robbery, I agree that under the relevant law cited by the learned trial Judge the sentence should be life imprisonment, conspiracy to carry out the principal act which is attempted armed robbery should not carry the death penalty but imprisonment for life and I so hold. The appeal succeeds in part.
I therefore quash the sentence of death on the Appellants imposed by the learned trial Judge on Count 1 and substitute in its place imprisonment for life. The sentences are to take effect from the 24th May, 2004 when Judgment was given in the court below.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the draft of the judgment delivered by my learned brother S. S. ALAGOA, J.C.A. The resolution of the issue was comprehensively dealt with.
I agree with the reasoning and conclusions arrived at in quashing the death sentence imposed on the Appellant by the trial Court and substitution of same for life imprisonment. I also hold that the sentences should run from 24/5/2004, when the judgment of the trial court was delivered.
MODUPE FASANMI, J.C.A: I was privileged to read the draft of the Judgment of my learned brother S. S. Alagoa J.C.A.
I agree entirely with the reasoning and conclusions reached. There is nothing more to add. I also quash the sentence of death on the Appellants imposed by the learned trial Judge and substitute in its place imprisonment for life
.
Appearances
Segun Fowowe Esq.For Appellant
AND
Miss F. F. Fakolade, State Counsel, Ogun State
Ministry of Justice with Miss C. L. NzekweFor Respondent
