MUSA IKARIA V. THE STATE
(2010)LCN/4023(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of October, 2010
CA/I/178/2006
RATIO
PROOF BEYOND REASONABLE: WHETHER PROOF BEYOND REASONABLE IS PROOF BEYOND ALL IOTA OF DOUBT OR PROOF TO THE HILT
…in a criminal matter, the law is already trite that proof beyond reasonable is not proof beyond all iota of doubt or proof to the hilt. See:- Woodmington Vs. D.P.P. (1935) AC 462 – per Lord Sankey L. C. who pronounced the Rule. See also: Nasiru Vs. The State (1999) 2 NWLR (Part 589) 57 At 98 per Uwais, C.J.N. (as he then was). Also, Akalezi vs. The State (1993) 2 NWLR (Part 273) 1 at 13. PER SIDI DAUDA BAGE, J.C.A.
WHEN IS THE EVIDENCE OF A STATEMENT MADE TO A WITNESS A HEARSAY EVIDENCE
On the question of whether the statement of the prosecutions’ witnesses, P.W.1, P.W.2, P.W.3 and P.W.4 constituted a hearsay as claimed by the Appellant in this appeal. “Archbold Criminal Pleading Evidence and Practice Fortieth Edition” at Page 811 Chapter L2B6 stated:- “Evidence of a statement made to witness….. may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and it is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made.” See:- Rabten vs. R, (1972) A.C. 378. PER SIDI DAUDA BAGE, J.C.A.
NATURE OF THE CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION’S WITNESSES THAT WILL AFFECT A CONVICTION
On the issue of contradiction in the evidence of the prosecution’s witnesses. It is already trite law that, for contradiction to affect a conviction, such a contradiction must be fundamental that no reasonable Tribunal or Court can convict on it. PER SIDI DAUDA BAGE, J.C.A.
OFFENCE OF CONSPIRACY : WHAT ARE THE INGREDIENTS OF THE OFFENCE OF CONSPIRACY THAT MUST BE ESTABLISHED BEFORE AN ACCUSED CAN BE CONVICTED FOR THE OFFENCE OF CONSPIRACY
The ingredients of the offence of conspiracy before an accused can be convicted of are as follows:- (1) There must be two or more persons, (2) They must form a common intention, (3) The common intention must be toward Prosecuting an unlawful purpose, (4) An offence must be committed in the process; and (5) The offence must be of such a nature that its commission was a Probable consequence. See:- Akinwunmi vs. The State (7987) 7 NWLR (Part 52) 606. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
MUSA IKARIA Appellant(s)
AND
THE STATE Respondent(s)
SIDI DAUDA BAGE, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Onafowokan J of Ogun State High Court of Justice, sitting at Otta in Charge No. HCT/7R/2000 – Musa Ikaria Vs. The state delivered on the 7th day of March 2003. The Appellant as accused person in the court below, was charged as follows:-
COUNT 1:
“That you Musa Ikaria (M), Godwin Awin (M) and others now at large, on or about the 1st day of February, 1999, at No. 1, Adekunle Close, Agosi Estate, Ifo, in the Otta Judicial Division conspired together to commit the offence of Armed Robbery, contrary to Section 5(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990 as amended by the Tribunals (Certain Consequential Amendments, etc) Act, 1999”.
COUNT II:
“That you Musa Ikaria (M), Godwin Awin (M) and others now at large, on or about the 1st day of February, 1999, at No. 1, Adekunle Close, Agosi Estate, Ifo in the Otta Judicial Division while armed with offensive weapons to wit firearms and knives robbed one Bose Adekunle of a sum of N18,500 and six pairs of golden jewelleries valued at N10,000 and thereby committed an offence, contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990 as amended by the Tribunals (Certain Consequential Amendments, etc) Act, 1999.
Dated this 2nd day of February, 2000.”
Briefly, the prosecution’s case at the High court, Otta, was that, at about 9.00 p.m. of 1st February, 1999 there was an armed robbery incidence at No. 1, Adekunle close, Agosi Estate, Ifo. The victim of the armed robbery was the p.w.3 – Mrs. Bose Adekunle, the landlady of No. 1, Adekunre close, Agosi, Ifo. She was robbed of the sum of N18,500.00 and jewelleries, The Appellant was arrested on the 1/2/99 by the 2nd p.w. – Herbert Ntom, about the time and around the scene of the armed robbery while the 2nd person was arrested by the P.W.1 – Ola Sokanbi on the 2nd day of February, 1999 about 8.00 p.m. in Agosi Estate, Ifo. The Appellant was consequently charged with the offence of conspiracy and armed robbery. At the trial, the prosecution called four (4) witnesses and tendered the exhibits through the fourth witness, but the evidence of the fourth witness was not considered in judgment, because, it was inconclusive and not tested. The Appellant testified in his own defence. He denied committing the offence he was charged with. He claimed not to know the house where the offence was committed and that the allegation that he was armed was not true. At the end of the trial, both Counsel for the prosecution and the defence addressed court, and the learned trial Judge, in a considered judgment delivered on the 7th of March, 2003, convicted the accused person (Appellant) on the two count charge and accordingly sentenced him, as contained at page 54 of the record as follows:-
“I am constrained by the mandatory provisions of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of Nigeria, 1990. I have no discretion in the matter. The accused is therefore sentenced to death.”
It is against this conviction and sentence that the accused person has appealed to this Court. The Appellant filed a Motion on Notice dated 17th November, 2006 and filed same day, seeking for an order granting leave to the Appellant to amend the Notice of Appeal dated 17th day of March, 2003 which was granted. The Appellant filed a 2nd Amended Notice of Appeal dated 4th of April, 2007 also filed same day. It was also granted. The 4th of April Amended Notice of Appeal contains six (6) grounds of appeal which are reproduced below:-
GROUNDS OF APPEAL:
GROUND ONE:
“The learned trial Court erred in law when it relied on hearsay evidence to convict the Applicant of the offence of armed robbery and sentenced him to death.”
PARTICTILARS:
(a) The evidence of P.W.1 is basically hearsay
(b) Under Cross-Examination, P.W.1 confessed “I confirm that I was told what I told the Court about the fact that the accused Person committed an offence.”
GROUND TWO:
“The learned trial Court erred in law when it relied on fundamentally contradictory evidence of the prosecution witness to convict the Applicant.”
PARTICULARS:
(a) P.W.1 in his evidence in Chief, said that, then the Applicant was allegedly arrested on 1st February, 1999, he mentioned the name of the 2nd accused (one Godwin) “as the person who brought him to Agosi Estate to come and rob”
(b) P.W.3 upon Cross-Examination, narrated to the Court as follows:- “In my Presence, the 1st accused (the Applicant), told the Police at Eleweran that they were sent by someone by name George. ”
(c) The identity of the alleged person whom the Applicant is alleged to have conspired with is seriously in doubt.
GROUND THREE:
“The learned trial Court erred in law when it failed and/or neglected to resolve the doubts created by the contradictory evidence of the prosecution witness about the true identity of the person allegedly caught by the P.W.2 and the actual person charged in this case before relying on the evidence to convict the Applicant.”
PARTICULARS:
(a) P.W.1 said, he did not know much about the Applicant, but that when he went to one Babatunde’s house, he saw the Applicant “tied with rope.”
(b) P.W.2 claimed, he caught the Applicant and took him to his caretaker who, along with the other Landlords, took him and the Applicant to the Police Station P.W.2 emphasized: “Before we went to the Police Station, nothing was done to the accused Person. Before the caretaker came, I held on to the accused person. ”
(c) P.W.3 in her evidence in Chief, stated, “it was there, at the Babatunde’s house that the Police came to arrest the 1st accused” (the Applicant).
(d) The identity of the person allegedly caught and taken to the Police Station by the P.W.2 along with his caretaker conflicts with the person seen by P.W.2 tied with rope and arrested by the Police at one Babatunde’s house.
GROUND FOUR:
“The learned trial Court erred in law when it relied on the uncorroborated hearsay evidence of a non-eye-witness and material contradictions in prosecution evidence to convict the Applicant.”
PARTICULARS:
(a) P.W.1 upon Cross-Examination stated categorically, “I was not there when the offence alleged was committed. I confirm that, I was told what I told the Court about the fact that the accused person (the Applicant) committed an offence.”
(b) P.W.2 also upon Cross-Examination, told the Court: “Apart from the fact that I saw the accused running away, I was never a witness to any robbery.”
(c) P.W.3 who claimed she was robbed first told the Court that the Applicant and another person led her upstairs at gun Point where they allegedly robbed her, but recanted or resiled her statement upon Cross-Examination saying the Applicant never followed her upstairs. In her own words. “I say that, the 1st accused and another person led me upstairs of the main building. I now say that the 1st accused never followed me upstairs.
(d) A shaky evidence such as that P.W.3 needed corroboration to reliable. ”
GROUND FIVE:
“The learned trial Court erred in law when it convicted the Applicant based on the evidence of the prosecution witnesses which evidence are incredible and cannot reasonably ground a conviction for an offence of this magnitude.”
PARTICULARS:
(a) P.W.3 said, the two alleged robbers who led her upstairs were they allegedly robbed her the sum of N17,000.00 and jewelleries and all the properties in her house fled in a hurry jumping the fence when they heard the shout of “thief! thief!” yet there was no single naira note or piece of money or jewellery record at the scene or along the path through which they filed.
(b)’ P.W.3 said, the alleged robbers who robbed her while upstairs were armed with gun yet no gun shot was heard or fired even as the alleged robbers fled in panic.
(c) P.W.2 who claimed he lived downstairs and was the one shouting “thief! thief!” did not notice anyone jump over the fence.
(d) P.W.3 did not raise any alarm even as the alleged robbers who allegedly robbed her upstairs jumped the fence and fled.
(e) There was no evidence matching the finger prints on the cartridges with the Applicant.
GROUND SIX
“The learned trial Court erred in law when it convicted the Applicant of conspiracy to commit robbery when the circumstantial evidence relied upon were not cogent or convincing enough to lead to an irresistible that it was the Applicant that robbed the P.W.3.’
PARTICULARS:
(a) Apart from the hearsay evidence of P.W.1, there was no other evidence linking the Applicant with the second accused.
(b) P.W.3 who claimed he apprehended the Applicant and took him to the Police Station never mentioned in evidence that the Applicant or the person he apprehended ever mentioned one Godwin (the 2nd accused) as the one who brought him, to Agosi Estate to rob as alleged by P.W.1.
(c) P.W.3 who claimed she was present at Eleweran Police Station when the Applicant made statement to the Police did not say the Applicant mentioned any Godwin (the 2nd accused) as his accomplice.
(d) P.W.1’s evidence that he caught one Godwin (the 2nd accused) whom he claimed was identified or mentioned by the Applicant as his accomplice on the day he was allegedly apprehended by any other evidence even when the P.W.1’s evidence is basically hearsay.
From the Six (6) Grounds of Appeal, the Appellant formulated in the Appellant’s Brief of Argument dated 26th June, 2007, the following Four (4) Issues which are contained at page 4 of the said Brief.
(1) “Whether the trial Court was right in relying on the uncorroborated hearsay evidence of the prosecution witnesses to convict the Appellant of the offence of armed robbery and sentence him to death.
(2) Whether the contradictions in the evidence of the prosecution witnesses were not sufficient as to render them unsafe as a ground for convicting the Appellant of the offence of armed robbery and sentencing him to death.
(3) Whether the prosecution provided credible evidence to ground the conviction of the Appellant of the offence of armed robbery.
(4) Whether the circumstantial evidence relied upon were so positive and direct enough to ground conviction for conspiracy.”
The Respondent’s Counsel in her Brief of Argument at page 4, dated 30/11/07, filed on the 6/12/07, but deemed properly filed on the 16/4/08, formulated the following Three (3) Issues for determination as follows:-
(1) “Whether the evidence of the prosecution witnesses were hearsay evidence.
(2) Whether there were material contradictions in the evidence of the prosecution witnesses.
(3) Whether the prosecution proved its case beyond reasonable doubt.”
I tend to be guided by the Issues as formulated by the Appellant. I shall treat Issues 1 and 2 together. Issues 1 & 2:
On Issue 1, learned Counsel to the Appellant, Pinheiro Esquire, submitted that, the evidence of P.W.1, P.W.2 and P.W.4 were basically hearsay. P.W.1 upon Cross-Examination stated, “I was not there when the offence alleged was committed. I confirmed that I was told what I told the Court about the fact that the accused person/committed an offence.” P.W.2 also upon Cross-Examination declared; “Apart from the fact that I saw the accused running away, I was never a witness to any robbery.” p.W.4 in his evidence during trial within trial said, he met the Appellant where he was tied up hands and legs by vigilante people that arrested him.
Learned Counsel submitted further that, the fact the accused took to his heels does not mean he has committed an Offence. See:- Emigwe vs. The State (2000) 1 NWLR (Part 641) 408. Also, given the capital nature of the offence, it was unsafe for the trial Court to have convicted the Appellant upon the uncorroborated evidence of P.W.3. See: Ijiofor vs. The State (2001) 9 NWLR (Part 718) 378 at 393; Egboyom vs. The State (2000) 4 NWLR (Part 654) 559.
On Issue 2, learned Counsel submitted that, there were material contradictions in the evidence of the prosecution witnesses which made them unsafe as a ground for convicting the Appellant by the trial Court. P.W.3 upon Cross-Examination stated; “I say that the 1st accused and another person led me upstairs of the main building. I now say that, the 1st accused never followed the upstairs.” It can be rightly said that, the witness had problem identifying those who came to rob her. The identification evidence was poor. An identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence. See:- Archibong vs. The State (2004) 1 NWLR (Part 855) 488.
Learned counsel submitted further that, during trial within trial, the P.W.4 narrated: “On 3rd of February, 1999, a case of robbery was reported at Ifo station. I followed the complainant to the scene of the crime where I met the accused person already tied down. I re-arrested the accused……….” P’W’4 went on in his narrative, “I see Exhibit “C” (i.e.P.w.3’s extra judicial statement), I confirm that the statement was made on the 1st of February, 1999. I cannot remember the date the accused made the statement, the subject of this trial. I confirm that the statement of the accused was obtained on the 3rd of February, 1999.”
Learned Counsel further submitted that, there are obvious contradictions between the tested evidence of P.W.4 given during trial within trial and those of P.W.1, P.w.2 and P.w.3 which raises strong doubt as to whether the Appellant has any link with the alleged armed robbery of 1st February, 1999 for which he was prosecuted, convicted and sentenced to death. Learned Counsel further submitted that, the contradiction in the evidence of the prosecution is sufficiently material to raise doubt as to their reliability as a ground for convicting the Appellant. We urge the Court to so hold and to quash the conviction and discharge and acquit the Appellant. See:- Ogunbayo vs. The State (2002) 15 NWLR (Part 789) 76 at 82. Learned Counsel submitted further on how the Court should resolve any material contradictions in prosecution’s witnesses. Court is referred to Ogunbayo vs. The State (supra), also, Okafor vs. The State (2006) Q.C.C.R. Volume 5 at page 169.
In reply to these arguments, learned Counsel to the Respondent, Mrs. Abudu, submitted with respect, that, a perusal of pages 7-10 of the Record of Appeal which contained the evidence in Chief and Cross-Examination of P.W.1 and P’W’2 showed that, these prosecution’s witnesses told the trial court what they heard, saw and did, in respect of this case on the day of the incidence. Neither of them testified upon thugs or events not within their knowledge and they even participated in the arrest of the 1st and 2nd accused persons. On this, court is referred to 257 At 273 Paragraph H. Also, Utteh vs. The state (supra) at Page 270.
Learned Counsel submitted further that, the evidence of p.W.1 and p.W.2 corroborated the evidence of P.W.3 and that, the trial Court was right to have convicted the Appellant upon the corroborated evidence of p.w.3. Learned counsel further submitted that, the argument of the Appellant’s counsel that P.W.4′,s evidence not being conclusive and untested cannot form the basis of any complaint by the Appellant’s counsel as the learned trial Judge did not rely on same. See:- page 46 Lines 4-6 of the Record of Appeal. Since the evidence of P.w’4 was not considered in the trial, then, it cannot form the basis of any complaint by the Appellant and therefore cannot be part of the argument in this appeal.
Learned, counsel further submitted that, the Appellant’s Counsel argued strenuously that the evidence of P’W’3 was contradictory, because, she said the Appellant followed her upstairs and later said he did not, she had maintained the Appellant did not follow her and the trial Judge believed her. See Page 52 Lines 13-19 of the Record of Appeal on what is a material contradiction, see:- Effia vs. The State (1990) 8 NWLR (Part 613) 1 at 4. Learned Counsel finally submitted on these Issues that p.w.1, p.w.2 and p.w.3 respectively all said the armed robbery occurred on the 1st February, 1999; and that, the Appellant was caught at the scene of the robbery and taken to the Police Station on the same night. Therefore, there is no contradiction at all in the evidence of these prosecution’s witnesses.
A careful examination of the submissions of both Counsel to Issues 1 and 2 will reveal three (3) key areas of the evidence of prosecution’s witnesses attacked by the Appellant. The vital areas are:-
(a) hearsay;
(b) corroboration; and
(c) contradiction.
Before given consideration to the three (3) vital areas, it is pertinent to mention that, in a criminal matter, the law is already trite that proof beyond reasonable is not proof beyond all iota of doubt or proof to the hilt. See:- Woodmington Vs. D.P.P. (1935) AC 462 – per Lord Sankey L. C. who pronounced the Rule. See also: Nasiru Vs. The State (1999) 2 NWLR (Part 589) 57 At 98 per Uwais, C.J.N. (as he then was). Also, Akalezi vs. The State (1993) 2 NWLR (Part 273) 1 at 13.
On the question of whether the statement of the prosecutions’ witnesses, P.W.1, P.W.2, P.W.3 and P.W.4 constituted a hearsay as claimed by the Appellant in this appeal. “Archbold Criminal Pleading Evidence and Practice Fortieth Edition” at Page 811 Chapter L2B6 stated:-
“Evidence of a statement made to witness….. may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and it is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made.” See:- Rabten vs. R, (1972) A.C. 378.
Using the above proposition as a litmus test, we examine the statement of P.W.1 and P.W.2 to see whether they constitute a hearsay. P.W.1 upon Cross-Examination stated:-
“I was not there when the offence alleged was committed. I confirmed that I was told what I told the Court about the fact that the accused person committed an offence.
” P.W.2 upon Cross-Examination declared:-
“Apart from the fact that I saw the accused running away, I was never a witness to any robbery.”
Going by the rule established in “Archbold” were the statements of p.w.1 and p.w.2, intended to establish the truth of what is contained in the statement of P’W’3, which will make it hearsay and inadmissible; of , it is proposed to establish by evidence not the truth of the statement, but the fact that it was made. Looking at the two statements, it is clear that, it satisfies the 2nd condition that, it seeks to establish by evidence not the truth of the statement of the victim (P.W.3), but the fact that, the offence was made or committed. In that regard therefore, the statements of P.W.1 and P.W.2 cannot be hearsay in law and I so hold.
As to whether the evidence of P.w.3 would be regarded as weak and therefore would necessarily be corroborated before it can secure a conviction. The grouse of the learned Counsel to the Appellant on this aspect is that, the trial court, in arriving at its decision, corroborated the evidence of P’W’3 with the hearsay evidence of P.w .2 to hold there was robbery. Learned counsel maintained that, the P.W.3 is the Landlady to P.W.2 (reference to page 10 of the Record of Appeal) and that made the evidence of P.W.2 more suspect as a reliable collaboration of the evidence of p.w.3. Learned counsel sought refuge in Egboyom vs The State (supra). This Court is not unmindful of what the Court held in the above case. It said:-
“Although the relationship of a victim plays a weak secondary role in the nature and circumstances of his evidence. It is a matter of prudence for a Court hearing such a case to act with circumspection in receiving the evidence and to treat the evidence with caution.”
This Court on hearsay earlier held that, the statement of the P.W.2 was not a hearsay evidence as it was not proposed to establish the truth of the statement of P.W.3, but to establish it was made or committed. From the totality of the evidence at the lower Court, there was enough evidence of robbery at about 9.00 p.m. on the, 1st of February, 1999 at No. 1, Adekunle Close, Agosi Estate, Ifo, and the victim of the armed robbery was P.W.3. She was robbed the sum of N18,500 and jewelleries. It was clear from the testimony of the P.W.2 at Pages 7-10 of the Record; he stated what was within his knowledge and his participation in arresting the Appellant, but his statement was aimed at corroborating the statement of P.W.3.
In Utteh vs. The State (supra) at Page 273 Paragraph H, Nnaemeka Agu, J,S,C. (as he then was) stated:-
“In our law, all facts may be proved by oral evidence (Section 75 of the Evidence Act). By Section 76 (b) of the Act, such oral evidence includes what a witness heard subject to the rule of exclusion of hearsay evidence; what a witness heard in the presence of an accused Person cannot be hearsay.”
Furthermore on Page 270 of the Case of Utteh vs. The State (supra Uwais J.S.C. (as he then was) held in Paragraph A that:-
“Where a narration of events or conversation took place between two or more persons in the Presence of an accused person, reference to such narration or conversation at the trial of the accuse by one or all such persons is admissible by virtue of the provisions of Section 76 and 78 of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria, 1990.”
From the above, I hold that the learned trial Judge did not corroborate evidence of P.W.3 with any hearsay evidence. From the record, P.w.1 and P.w.2 gave evidence of what they heard, saw and did in the presence of the Appellant. I further hold that, the evidence of P.W.1 and P.W.2 corroborated the evidence of P.W.3.
On the issue of contradiction in the evidence of the prosecution’s witnesses. It is already trite law that, for contradiction to affect a conviction, such a contradiction must be fundamental that no reasonable Tribunal or Court can convict on it. At this point again, it is germane to examine those contradictory statements of the prosecution’s witnesses to see their respective effects to their evidences. P.w.3, the victim, who was robbed upon Cross-Examination, stated:-
“I said that the 1st accused and another person led me upstairs of the main building. I now say that, the 1st accused never followed me upstairs'”
It is the contention of the Appellant that the reason for this contradiction in the evidence of p.w.3 was never explained by the prosecution nor was the contradiction resolved by the trial Court. Also, P.W.4 in his tested evidence during trial within trial, narrated:-
“On 3rd of February, 1999, a case of robbery was reported at Ifo Station. I followed the complainant to the scene of the crime where I accused person already tied met the down. I re-arrested the accused…………”
Also, at Page 18 of the Record of Appeal, P.W.4 was on in his narrative:-
“I see Exhibit “C” (i.e. P.W.3’s extra-judicial statement), I confirm that, the statement was made on the 1st of February, 1999. I cannot remember the date the accused made the statement, the subject of this trial. I confirm that, the statement of the accused was obtained on the 3rd of February , t999.”
Learned Counsel to the Appellant proceeded that, there are obvious contradictions between the tested evidence of P.W.4 given during trial within trial and those of P.W.1, P.W.2 and P.W.3 which raises strong doubt as to whether the Appellant has any link with the alleged armed robbery of 1st February, 1999 for which he prosecuted, convicted and sentenced to death. P.W.1, P.W.2 and P.W.3 respectively all said the alleged armed robbery occurred on 1st of February, 1999; and that the Appellant was caught at the scene of the alleged robbery and taken to the Police Station on that same night. P.W.4 on the other hand said that, it was on the 3rd of February, 1999 that a case of robbery was reported at the Police Station and that he re-arrested the Appellant from the custody of a vigilante group the same day; and the Appellant made his statement to the Police.
After examining those statements of the prosecution’s witnesses, it is more convenient to start with the last the P.W.4. From the record before the Court, the evidence of P.W.4 did not form part of those evidence considered by the trial Court in arriving at its decision against the Appellant, wherefore it could not be said to have contradicted the evidences of P.W.1, P.W.2 and P.W.3. The trial Court in its judgment, at page 46 lines 4-6 of the Record of Appeal stated:-
“As stated earlier, the evidence of P.W.4, Babatunde Okunade, the Investigating Police Officer, will not be considered in this judgment as it was untested.”
By this,. the trial Court has put to rest the alleged contradiction created by the evidence of P.W.4, against the evidence of the prosecution’s witnesses. P.W.3’s statement, the victim who stated earlier on that the Appellant led her upstairs in the course of the commission of the crime, later changed to say the Appellant did not follow her upstairs in the course of the commission of the crime. The learned Counsel to the Appellant maintained the contradiction was material as it creates doubt as to the identity of the Appellant. The statement of the P.W.3 must thus be rejected.
The view of the trial Court which is agreed by this Court as to whether P.W.3 said the Appellant followed her upstairs and later changed that he did not, is only a matter of sequence of event on that fateful date. This has not affected the fact of occurrence of the crime on that fateful date; and the Appellant being part of the crime. There is uncontroverted evidence that P.W.3 was robbed about 9.00 p.m. of 1/2/99 and her money, the sum of N18,500.00 (Eighteen Thousand, Five Hundred Naira) and jewelleries taken away by the robbers while armed with gun. According to P.W.3, the 1st accused (i.e., the Appellant) was among those that attacked her. The contradiction no doubt that can be regarded as material must be one that will break the chain of the causation of the crime, that will create such a doubt, that no reasonably Court or Tribunal can convict upon it. This is not the case with the evidence of P.W,3. Everything about the commission of the crime was clearly stated, except whether the Appellant went upstairs or did not.
The trial Judge held at Page 52 lines 13-19 of the Record Appeal as follows:-
“Contrary to the submission of Counsel for 1st accused, I see no contradictions in the evidence of the prosecution on whether it was the accused that was seen or not, or whether or not 1st accused followed the P.W.3 upstairs, what is material is that, the 1st accused was identified as one of the robbers.”
The law is already trite on what amounts to a material contradiction. See:- Effia vs. The State (1999) 8 NWLR (Part 673) 7 At 4, it was held:-
“For any contradiction or conflict in the evidence of prosecution’s witnesses to be fatal to the case, the conflict or contradiction must be fundamental to the main issues in question before the Court. Thus, it is not every discrepancy or contradiction in the evidence of the prosecution’s witnesses that would lead to the rejection of such evidence. It must be shown that the contradiction or inconsistency is so material that grave doubts are cast on the case of the prosecution.”
On this point, no contradiction is established by the Appellant against the evidence of the prosecution’s witnesses. Issues 1 and 2 are hereby resolved in favour of the Respondent.
Issues 3 and 4 are considered together, as the two (2) grounds are contaminious to one another. ISSUE 3:
On this Issue, learned Counsel to the Appellant submitted that, the trial Court never averted its mind to the lapses in the evidence of the prosecution’s witnesses. Even more incredictions was the fact that no gunshots were fired or heard by any of the prosecution’s witnesses as the alleged armed robbers fled in panic. There was no credible evidence from the prosecution’s witnesses upon which, the Court should have convicted the Appellant for a capital offence of armed robbery. Both P.w.2 and P.W.3 are not credible witnesses, See:- Gbadamosi & Ors, vs. The State (1997) 6 NWLR (Part 796) 207.
Learned Counsel further submitted on the requirements for the proof of the offence of armed robbery. See:- Ani & Another vs, The State (2003) 77 NWLR (Part 830) 742 At 761. Gbadamosi & Ors. vs. The State (supra); Adeyemi & Another vs. The State (1997) 7 NWLR (Part 770) 679; Ahmed vs. The State (2002) 7 MJSC aAt Page 56; Iko vs. The State (2001) 6 MJSC 8; Ogunbayo vs, The State (supra).
Learned Counsel submitted that, the prosecution has failed to prove that there was an armed robbery and that, the alleged armed robbery for which P.W.1, P.W.2 and P.W.3 testified was the same for which the P.w.4 arrested the Appellant and prosecuted him and for which he was convicted and sentenced to death.
ISSUE 4:
On Issue 4, learned Counsel to the Appellant submitted that, the judgment of the Court in respect of the conspiracy was based on the fact that the Appellant was at the scene of crime and failed to give any explanation as to his presence there and why he was arrested and furthermore; the accused attempted to escape, as held in Emiowe Vs. The State (supra) fleeing from a scene of crime does not prove guilt of the accused person. The prosecution needed to show more than the fleeing of the scene by the accused person to prove its case beyond reasonable doubt as required by the Evidence Act and this was not done. There is nothing from which the Court can infer conspiracy and there is no direct evidence of any conspirator.
Learned Counsel further submitted that, the meeting of the mind of the Appellant with others to commit any offence was not proved by the prosecution. The circumstantial evidence relied upon by the court in convicting the Appellant was not cogent, positive/ overwhelming, compelling and irresistibly pointing at the accused person as required by the law as confirmed by the Court’s decision in the Case of Millar vs. The state (2005) 1 NWLR (Part 927) 236.
In reply, to the submissions above, learned counsel to the Respondent, Mrs. Abudu, submitted that, the prosecution led credible evidence which was not challenged under Cross-examination or by the incredible defence raised by the Appellant. The evidence led at the trial Court showed that, p.w.3 was robbed of her money and jewelleries by the Appellant and his gang while armed with a gun. Learned Counsel submitted further that, the learned trial Judge, who saw the witnesses, heard them and watched their demeanour in the witness box, arrived at a just conclusion through his reasoning when he held that the prosecution had proved the charge against the Appellant beyond reasonable doubt. The judgment of the lower Court is not perverse. See:- Archibong vs. The State (2001) 1 NWLR (Part 855) 488 At 498.
Learned Counsel finally submitted that, the prosecution had proved the charge against the Appellant beyond reasonable doubt.
This court examines all the submissions made by the parties. The bottom line however is, whether the prosecution has proved its case beyond reasonable doubt at the trial Court to secure the conviction and sentence under Section 5 (b) and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990 as amended by the Tribunal (certain Consequential Amendment, Etc) Act, 1999 against the Appellant.
Earlier on in this judgment, this Court had resolved Issues 1 and 2 of the Appellant’s Brief of Argument in favour of the Respondent. Looking at Issues 1 and 2 which deal with reliance on uncorroborated hearsay evidence of the prosecution’s witnesses, and whether the contradictions in the evidence of prosecution’s witnesses were not sufficient as to render them unsafe as a ground for convicting the Appellant of the offence of armed robbery and sentencing him to death. By resolving Issues 1 and 2 in favour of the Respondent, this Court has affirmed the decision of the trial Court under Count 1 of the charge.
What is left at stake is Count 2, which deals with the offence of conspiracy. Earlier again in this judgment, it was stated that, the trial Court rejected the evidence of P.W.4 together with the Exhibits, which were marked “A-A1”, two cartridges and Exhibit “B”, a jack knife, for being inconclusive and not tested’ Thus’ no doubt left a gap in the Respondent’s case to prove conspiracy’ p.w.4 was the Investigating Police officer. Under our criminal justice system, the burden of proof of any offence charged against the accused person rests squarely on his shoulder. The charge of conspiracy which the Appellant stands, convicted of simply put is constituted by the agreement formed by two or more minds with intention to do what is agreed. And where what is agreed to do is an unlawful act the parties are guilty of conspiracy. See:- Thompson (1966) 50 CR APP REP. No doubt, one conspiracy may involve several overt acts as alleged in the instant matter. Equally valid is the proposition that several acts of an accused person can be said to be in furtherance of a common purpose, also as alleged in the instant case. Also, See: – Amachree vs. Nigerian Army (2003) 3 NWLR (Part 807) 256 at 287 Paragraphs D-E.
The ingredients of the offence of conspiracy before an accused can be convicted of are as follows:-
(1) There must be two or more persons,
(2) They must form a common intention,
(3) The common intention must be toward Prosecuting an unlawful purpose,
(4) An offence must be committed in the process; and
(5) The offence must be of such a nature that its commission was a Probable consequence. See:- Akinwunmi vs. The State (7987) 7 NWLR (Part 52) 606.
Considering Section 5 (b) of the Robbery and Firearms (Special Provisions) Act, which provides for anybody who conspires to commit such offence, is deemed to be guilty of the offence as a principal offender; and by Section 1(2) (a) of the Robbery and Firearms (Special Provisions Act) Cap 398 of Laws of Federation of Nigeria, 1990, as amended by the Tribunal (Certain Consequential Amendments, Etc) Act, 1999, the offender shall be liable upon conviction under this Act to be sentenced to death. The trial Judge had stated that, there was no measure of discretion provided for under the Act for the Court to act upon. With due respect to the learned trial Judge, this position can only be totally correct where the prosecution has proved that the said act of conspiracy or assistance given by the Appellant was the full intention by him that firearms was to be used in carrying out the offence, No doubt, an offence was committed by the Appellant but the prosecution has not proved the offence to be punished under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of the Federation of Nigeria, 1990, as amended by Tribunal (Certain Consequential Amendments, Etc Act, 1999. No doubt the offence for which the Appellant was tried and convicted at the lower Court was the offence of robbery. The offence which the prosecution has established against the Appellant is also robbery related. What may differ is the punishment section in view of the lack of proof on how the intention was in the mode of the execution of the crime as stated above. The Appellant, as it is established against him, had knowledge of the crime committed. I am of the opinion that, the appropriate sentencing section under Count 1 which is established against the Appellant under the Act for robbery, is Section 1(1) of the Act and not Section 1(2) (a) of the Act. Section 1(1) of the Act provides:-
“Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years.”
In the final analysis, the conviction done by Onafowokan, J of the High Court of Ogun State, Otta Judicial Division, delivered on the 7th day of March, 2003, in Charge No. HCT/7R/2000, is hereby affirmed, but the sentence of the Appellant (accused) under section 1(2) (a) of the Act to death by firing squad, is hereby substituted by this Court to sentence under Section 1(1) of the Act to a term of imprisonment for life.
STANLEY SHENKO ALAGOA, J.C.A. I read before now the lead judgment just delivered by my learned brother Bage, J.C.A. and I agree with the reasoning and conclusion reached. I abide by the order contained in the lead judgment affirming the conviction by the lower court but substituting the sentence of death with one of life imprisonment.
MODUPE FASANMI, J.C.A. I have read before now the lead judgment delivered by my learned brother, S. D. Bage J.C.A, I agree entirely with the reasonings and conclusion reached. I also affirm the judgment delivered on the 7th of March 2003 in charge no. HCT/7R/2000 I abide with the consequential order made therein.
Appearances
C. A. Chambang, Esq.,For Appellant
AND
F. F. fakolade, State Counsel, Ministry of Justice, Ogun State;
I. Shodipo, State Counsel, Ministry of Justice, Ogun StateFor Respondent
