SEGUN AJIBADE v. THE STATE (2011)

SEGUN AJIBADE v. THE STATE

(2011)LCN/4755(CA)

In The Court of Appeal of Nigeria

On Monday, the 25th day of July, 2011

CA/I/185A/2006

RATIO

STANDARD OF PROOF: STANDARD OF PROOF REQUIRED IN A CRIMINAL CHARGE

That the prosecution must prove its case beyond reasonable doubt to sustain a criminal charge against an accused person is a notorious and elementary legal principle. Section 138 of the Laws of the Federation of Nigeria 2004 provides to this end as follows:- “(1) If the commission of a crime by a party to any proceedings is directly in issue in any Proceedings civil or criminal it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to section 141 of this act on the person who asserts it whether the commission of such is or is not in issue in the action.” PER STANLEY SHENKO ALAGOA, J.C.A.

BURDEN OF PROOF: WHETHER ITS THE DUTY OF THE ACCUSED PERSON TO ESTABLISH HIS INNOCENCE IN A CRIMINAL CHARGE AGAINST HIM

RESTING CASE ON THE PROSECUTION: EFFECT OF THE ACCUSED CHOSE TO REMAIN SILENT AFTER THE PROSECUTION HAS CLOSED ITS CASE

On the effect of the accused adopting to remain silent learned trial Judge referred to the concurring judgment Oputa JSC in this case (supra) at pages 27-28 thus – “?????.if the defence rests and refuses to put an accused person into the witness box to depose to his own version of the events, then the learned trial Judge is denied the opportunity of listening to the accused tell his story, of watching his demeanour, or assessing his credibility, and of making the necessary choice between his story and that of the prosecution. In the final result the trial court will have to decide the case on the evidence before it undeterred by the incompleteness of tale from drawing all inferences that properly flow from the evidence of the prosecution. The defence has shut itself out and will have itself to blame. The court will not be expected to speculate on what the accused might have said if he testified. PER STANLEY SHENKO ALAGOA, J.C.A.

OFFENCE OF ARMED ROBBERY: ESSENTIAL INGREDIENTS IN PROOF OF THE OFFENCE OF ARMED ROBBERY

It is settled on the authorities that the essential ingredients in proof of the offence of armed robbery are as follows – (a) The prosecution must prove that there was a robbery or series of robberies. (b) The prosecution must prove that the robberies were armed robberies. (c) The prosecution must prove that the accused persons were, or some of the people who took part in the robberies. See the following cases – ALABI V. THE STATE (1993) 7 NWLR (PART 307) 511; BOZIN V. THE STATE (1985) 2 NWLR (PART 8) 465; OKOSI V. ATT. GEN. BENDEL STATE (1989) 1 NWLR (PART 100) 642. PER STANLEY SHENKO ALAGOA, J.C.A.

EVIDENCE OF THE ACCUSED: OPTIONS AVAILABLE TO AN ACCUSED PERSON AFTER THE PROSECUTION HAS CLOSED ITS CASE

The answer is provided in the case of N. M. ALI & ANOR V. THE STATE (1988) 1 NSCC 14. In the said case Honourable Justice Craig JSC in the lead judgment, dwelling on the legal effect of an accused person electing not to give evidence on oath stated at page 22 thus:- “Section 287(1)(a) of the Criminal Procedure Act stipulates three alternatives open to an accused person after the prosecution has closed its case. The accused may – 1. Make an unsworn statement from the dock in which case he will not be liable to cross-examination or 2. He may give sworn evidence in the witness box and be cross examined or 3. He may elect not to say anything at all.” PER STANLEY SHENKO ALAGOA, J.C.A.

BURDEN OF PROOF: WHETHER THE FACT THAT THE ACCUSED HAS NOT UTTERED A WORD IN DEFENCE OF HIMSELF GUARANTEES THAT THE PROSECUTION WILL SUCCEED IN ESTABLISHING ITS CASE AGAINST HIM

Suffice it to say that in our criminal justice system, an accused person is presumed innocent until he is proved guilty. See OPEYEMI V. STATE (1985) 2 NWLR (PART 5) 101; (1985) 2 NSCC 921; OMEREGIE V. THE STATE (2008) 35 WRN 181; (2008) 18 NWLR (PART 1119) 464. And as Nnaemeka Agu (JSC) rightly observed in KIM v. STATE (supra), the mere fact that the accused has not uttered a word in defence of self does not itself guarantee that the prosecution will succeed in establishing its case against the accused more so as proof in criminal trials is beyond reasonable doubt as distinct from proof on a balance of probability attendant to civil cases. Resort to keeping mute and saying absolutely nothing in defence of self though ill advised comes into play when from the facts and evidence adduced by the prosecution, the prosecution’s case is so very weak that it cannot sustain the change against the accused. PER STANLEY SHENKO ALAGOA, J.C.A.

ROBBERY: WHAT THE WORD “ROBBERY” MEANS ACCORDING TO THE PROVISION OF SECTION 15(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT CAP 398

Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 defines robbery this way – “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.

CONTRADICTORY EVIDENCE: WHETHER FOR A CONTRADICTION TO WARRANT THE SETTING ASIDE OF A LOWER COURT’S DECISION IT MUST BE A MATERIAL CONTRADICTION

For a contradiction to warrant the setting aside of a lower court’s decision it must be a material contradiction. Again where there are other credible pieces of evidence adduced by the prosecution witnesses, an appellate court will not because of minor contradictions set aside a decision of a lower court. See generally the following cases – ARCHIBONG V. STATE (2007) 10 WRN 1; (2006) 5 SCNJ 2022 at 2035; OKERE V. STATE (2001) 2 NWLR (PART 697) 397 at 414; NDIDI V. STATE (2006) 17 NWLR (PART 953) 17 at 32; AGBO V. STATE (2006) 2 SCM 1 at 10-11. PER STANLEY SHENKO ALAGOA, 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

SEGUN AJIBADE Appellant(s)

AND

THE STATE Respondent(s)

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Abeokuta Ogun State of Nigeria, the Appellant as 1st accused was charged in charge No.AB/8R/2001 along with three others with the following offences –
COUNT 1:
That you Segun Ajibade, Ogbonna Ogbojionu, Kolawole Oladeji and Sunday Oloyede on or about the 23rd October 2000 at Elf Filling Station at km.9 along Abeokuta/Lagos Road in the Abeokuta Judicial Division conspired together to commit a felony to wit armed robbery and thereby committed an offence contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 L.F.N. 1990 as amended by the Tribunal (Certain Consequential Amendments etc.) Decree 1999.
COUNT II:
That you Segun Ajibade, Ogbonna Ogbojionu, Kolawole Oladeji and Sunday Oloyede on or about the 23rd day of October 2000 at Elf Filling Station along Abeokuta/Lagos Road, in the Abeokuta Judicial Division while armed with offensive weapon to wit an iron rod robbed Lister Electricity/Generator, Property of the said Filling station and thereby committed armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 L.F.N. 1990 as amended- by the Tribunal (Certain Consequential Amendments etc.) Decree.
The Prosecution called eleven witnesses and ten number of exhibits in proof of its case while the defence called no witnesses, choosing to rest its case on the prosecution’s case. After short addresses by counsel for the accused persons on the 16th October 2002 at pages 49 and 50 of the Record of Appeal, the learned trial Judge Ayobode Lokulo-Sodipo J. (as he then was) reserved judgment for 23rd December 2002 and in his considered judgment delivered on the 14th January 2003 at pages 52-77 of the Record of Appeal the learned trial Judge found all the accused persons guilty of the two count charge and sentenced each of the accused to death on each of the counts.
Dissatisfied the 1st accused Segun Ajibade has appealed against the judgment of the lower court by his Notice of Appeal dated the 20th January 2003 at page 78 of the Record of Appeal. By Order of this Court the Notice of Appeal was amended. The Amended Notice of Appeal dated the 12th 2009 and filed same day consists of four grounds stated below but without the particulars:-
GROUND ONE:-
The decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.
GROUND TWO –
The learned trial court erred in law when it failed and/or neglected to give the applicants fair trial before convicting them for the offence of armed robbery and sentencing them to death.
GROUND THREE –
The learned trial court erred in law when it convicted the applicants for armed robbery without the prosecution proving the ingredients of armed robbery beyond reasonable doubt.
GROUND FOUR.
The learned trial court erred in law when it convicted the applicants for the offence of armed robbery without resolving the material contradictions in the evidence of the prosecution witnesses which made the said evidence unsafe as a ground for conviction.
From these grounds of Appeal, the Appellant has formulated the following issues in his Brief of Argument at 4 for the determination of this Court –
1. Whether the Court was right in convicting the Appellant in the face of contradictions between the language with which his Plea was taken at the Police Station and the language in which his Plea was taken in Court.
2. Whether the prosecution proved its case beyond reasonable doubt having regard to the requirements for the proof of the offence of armed robbery.
3. Whether the Court can safely convict the Appellant based on the contradictory evidence of PW1 whose statement 6tas not tendered in Court.
The said Brief of Argument of the Appellant is dated the 19th October 2009 and filed on the 26th October 2009. It was adopted and relied upon by counsel for the Appellant C. A. Chanbang who urged this court to allow the appeal. The Respondent for its part distilled the following two issues at page 4 of its Brief of Argument dated 9th March 2011 and filed on the 21st March 2011 –
1. Whether the learned trial judge rightly convicted the Appellant of the offences of Conspiracy to commit Armed Robbery and Armed Robbery.
2. Whether there were any material contradictions in the evidence of the prosecution witnesses which are fatal to the prosecution’s case.
This Brief of Argument was also adopted and relied upon by the Respondent’s counsel W. A. Onawole, State Counsel Ogun State Ministry of Justice who urged this court to dismiss the appeal and affirm the judgment of the trial court below.
After a very careful consideration I think that the only issue for consideration is whether the prosecution has prove its case beyond reasonable doubt to warrant the conviction and sentence passed on the Appellant. I say so primarily because not only are the other issues canvassed by both Appellant and Respondent encapsulated in this lone issue as example whether there were material contradictions in the evidence of the prosecution witnesses or whether there were contradictions between the language with which the Appellant’s statement was taken at the police station and the language with which his plea was taken in court. I say so because only the prosecution fielded witnesses and tendered exhibits in proof of its case, the defence choosing to rest its case on that of the prosecution. That the prosecution must prove its case beyond reasonable doubt to sustain a criminal charge against an accused person is a notorious and elementary legal principle. Section 138 of the Laws of the Federation of Nigeria 2004 provides to this end as follows:-
“(1) If the commission of a crime by a party to any proceedings is directly in issue in any Proceedings civil or criminal it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to section 141 of this act on the person who asserts it whether the commission of such is or is not in issue in the action.”

The burden placed on the prosecution to prove the charge against an accused person never shifts and failure on the part of the prosecution to establish even one of the ingredients the offence will lead to the discharge of the accused person. There is an in exhaustive case material on this subject matter. See the following cases – NWEKE V. STATE (2001) 4 NWLR (PART 704) 588; (2001) 15 WRN 96; AIGBEDION V. STATE (2000) 7 NWLR (PART 666) 686 AT 704; (2000) 4 SCNJ 1; TANKO V. STATE (2008) 16 NWLR (PART 114) 597 AT 636; (2008) 31 WRN 117; HASSAN V. STATE (2001) 6 NWLR (PART 709) 286; UMEH V. STATE (1973) 2 SC 449; ARUMA V. STATE (1990) 66 NWLR (PART 153) 125.
The purport of Section 138 of the Evidence Act as expounded in these legal authorities cited above is that it is not the duty of the accused person to establish his innocence in a criminal charge against him but that of the prosecution to establish the guilt of the accused beyond reasonable Nnaemeka Agu JSC of blessed memory summed it up beautifully in KIM V. STATE (1992) 4 NWLR (PART 233) 17 thus:-
“The prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt against the accused.”
See also WOOLMINGTON V. D.P.P. (1935) AC 462; IGABELE V. STATE (2006) 6 NWLR (PART 975) 100.Perhaps it is at this juncture that I should say a word or two about the effect of an accused saying nothing in his defence as was observed in this case. At page 58 of the Record of Appeal is stated the fact that the “accused persons led no evidence at the hearing of this case”. Also at page 60 of the Record of Appeal the learned trial Judge remarked as follows –
“I have before now stated that the accused persons did not lead evidence at the hearing of this case. They rested their case on that of the prosecution. Now what is the effect of this in law? The answer is provided in the case of N. M. ALI & ANOR V. THE STATE (1988) 1 NSCC 14. In the said case Honourable Justice Craig JSC in the lead judgment, dwelling on the legal effect of an accused person electing not to give evidence on oath stated at page 22 thus:-
“Section 287(1)(a) of the Criminal Procedure Act stipulates three alternatives open to an accused person after the prosecution has closed its case. The accused may –
1. Make an unsworn statement from the dock in which case he will not be liable to cross-examination or
2. He may give sworn evidence in the witness box and be cross examined or
3. He may elect not to say anything at all.”The learned trial Judge went further to say that in instant case the Appellant chose the third alternative of saying anything at all which is well within his legal rights to so. On the effect of the accused adopting to remain silent learned trial Judge referred to the concurring judgment Oputa JSC in this case (supra) at pages 27-28 thus –
“…………….if the defence rests and refuses to put an accused person into the witness box to depose to his own version of the events, then the learned trial Judge is denied the opportunity of listening to the accused tell his story, of watching his demeanour, or assessing his credibility, and of making the necessary choice between his story and that of the prosecution. In the final result the trial court will have to decide the case on the evidence before it undeterred by the incompleteness of tale from drawing all inferences that properly flow from the evidence of the prosecution. The defence has shut itself out and will have itself to blame. The court will not be expected to speculate on what the accused might have said if he testified.”That is, the law and I completely agree. Having gone thus far it is now time to 6o on to the charge and proof thereof same. The Appellant is charged with conspiracy to commit armed robbery and the commission of the armed robbery itself. The case of the prosecution is that he (the Appellant) in company of three others armed with at least a rod went to a Elf petrol Filling station, attacked the security guards on duty one of whom died and loosened and carted away an electric generating plant. The armed robbery took place along the Abeokuta/Lagos Road on the 23rd October 2000 and the Lister generating plant carted away belonged to the station. As is usual and pertinent with offences of conspiracy and Armed Robbery, I intend to concern myself firstly with the offence of armed robbery as highlighted in count 2 of the charge. What is armed robbery? Put some other way what are the ingredients that make up or constitute the offence of armed robbery? It is settled on the authorities that the essential ingredients in proof of the offence of armed robbery are as follows –
(a) The prosecution must prove that there was a robbery or series of robberies.
(b) The prosecution must prove that the robberies were armed robberies.
(c) The prosecution must prove that the accused persons were, or some of the people who took part in the robberies. See the following cases –
ALABI V. THE STATE (1993) 7 NWLR (PART 307) 511; BOZIN V. THE STATE (1985) 2 NWLR (PART 8) 465; OKOSI V. ATT. GEN. BENDEL STATE (1989) 1 NWLR (PART 100) 642.In his judgment at page 73 of the Record of Appeal the learned trial Judge had made this remark which I must say I agree with –
“As earlier stated none of the accused persons testified at the hearing of this case. Given this all that is open to the Court is to rely on the evidence adduced by the prosecution witnesses and the confessional statements of the accused persons which form part of the proseuction’s case.”
The disadvantage placed on the accused/Appellant by not making himself heard by the Court has already been dealt with and no further reference need be made to it. Suffice it to say that in our criminal justice system, an accused person is presumed innocent until he is proved guilty. See OPEYEMI V. STATE (1985) 2 NWLR (PART 5) 101; (1985) 2 NSCC 921; OMEREGIE V. THE STATE (2008) 35 WRN 181; (2008) 18 NWLR (PART 1119) 464. And as Nnaemeka Agu (JSC) rightly observed in KIM v. STATE (supra), the mere fact that the accused has not uttered a word in defence of self does not itself guarantee that the prosecution will succeed in establishing its case against the accused more so as proof in criminal trials is beyond reasonable doubt as distinct from proof on a balance of probability attendant to civil cases. Resort to keeping mute and saying absolutely nothing in defence of self though ill advised comes into play when from the facts and evidence adduced by the prosecution, the prosecution’s case is so very weak that it cannot sustain the change against the accused. The prosecution is, thus made to drown in the cauldron or get caught in the dragnet that it has laid for the defence. Is that the scenario here? Was there an armed robbery at the Elf Filling Station along the Abeokuta/Lagos Road on the 23rd October 2000? This question for now does not attempt to consider whether the Appellant was involved in such armed robbery or not but whether there was ever an armed robbery at the Elf Filling Station along Abeokuta/Lagos Road on the 23rd October 2000. Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 defines robbery this way –
“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.”Has the prosecution proved beyond reasonable doubt that such a robbery did take place at the Elf Filling Station on that day? Respondent’s Counsel has drawn the attention of this Court at pages 5-7 of the Respondent’s Brief of Argument to the evidence of PW1 and PW7 to the effect that there was indeed a robbery of a generating set at the Elf Filling Station along Abeokuta/Lagos Road on the 23rd October 2000. I now intend to examine these pieces of evidence. PW1 is one Akanni Yusuf and his evidence is at page 30 of the Record of Appeal. He says he is a night guard at the Elf Filling Station along Lagos/Abeokuta Road and in the night/early hours of the 22nd/23rd October 2000, he and one Moses Bankole were night-guards at the Elf Filling Station when they saw some people enter into the premises. He alerted his companion and tried to escape. The intruders caught up with him and dragged him back into the premises. One of the people hit him on the thigh with an iron, the blow of which broke his femur, He also saw some of the men beating his companion and when his companion wanted to shout one of the men who invaded the premises hit his companion on the head with an iron rod. Because he pleaded that his companion’s life be spared, one of the men also hit him on the head with an iron rod. His partner died while still tied up. The men later dismantled the generating set in the premises and carried it away. In the only question put to this witness under cross-examination, his answer was that it was dark at the time of the incident. The evidence of this witness as has been seen, was never punctured during cross-examination by defence counsel.
PW7 is one Enoch Samuel and his evidence is at page 39 of the Record of Appeal. He is an Inspector of Police attached to the Nigeria Police Force Sango-Ota Division. He remembers the 23rd October 2000 as he was on duty at the toll gate, Ota on that day. At about 2.30am a Toyota Hiace vehicle with registration number XR 937 KJA stopped at the toll gate. He instructed a Corporal to go and check what was wrong with the vehicle. The Corporal returned to inform him that the vehicle was carrying “pure water” and firewood to conceal a big generator. He went to the driver of the vehicle and demanded to see the receipt of the generator. The driver referred him to the owned who he claimed was inside the vehicle. He then ordered the three people in the vehicle to come down as he had decided to take them to the Station. However in the process of starting the vehicle in order that it could be driven to the station, the driver took off in the vehicle and headed for Lagos. The 2nd accused person was arrested and locked up in one of the cells at the toll gate but later escaped through the roof by breaking the cell’s asbestos. Under cross-examination by Mr. Adeniyi Counsel for the accused persons, with witness said he can identify the driver of the Toyota Hiace if seen but he cannot identify the 3rd passenger that was never apprehended. The 4th accused person he said was the driver of the Toyota Hiace vehicle. He maintained that the vehicle was carrying a generator despite efforts to conceal it although he did not know the make of the generator when he saw it on the 23rd October, 2000. He is seeing the 2nd and 4th accused persons for the first time in Court after his encounter with them on the 23rd October 2000. The toll gate is properly illuminated with electric light for 24 hours and there was light when he encountered the Toyota Hiace vehicle and passengers therein on the 23rd October 2000. This evidence was not discredited under cross-examination.
From the evidence of pw7 thus given and that of PW1 there is no doubt that the prosecution has proved beyond reasonable doubt that there was indeed a robbery at the Elf Filling Stations along Lagos/Abeokuta road of an electric generating plant on the 23rd October 2000.
The second ingredient is as to whether the robbery was an armed robbery, Here again resort must be had to the meaning of the terms “arms” under the robbery and Firearms Act. Under section 15 of the Act, the word “arms” is made to include “firearms” as for example a gun or pistol that has some firepower that can cause death or harm when used. It also includes ‘offensive weapon” which means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes such items as bows and arrows, spear, cutlass, machete, dagger, cudgel, metal, glass, stone or even a piece of wood. The list is inexhaustive and I think that the of whether an article can come under the definition of offensive weapon must be whether its use by its possessor on the person of another is capable of causing death or harm to the person of another or some reasonable apprehension or fear to persons around were it to be used by its possessor. In that case iron rod in the hands of its possessor must fall into the class of weapons referred to as “offensive weapons”. To this end the evidence of PW1 is replete with the use of “iron” or “iron rod” on his person and his companion and fellow night guard Moses Bankole who died while still being tied up, his head having been hit with an iron rod by one of the men who invaded the Elf Filling Station along the Abeokuta/Lagos road on the 23rd October 2000. As earlier been noted the only question asked in examination of PW1 elicited the answer that it was dark at the time of the incident. Thus the evidence of PW1 was punctured by cross-examination, and shows that whoever the men that robbed at the Elf Filling Station along Abeokuta/Lagos Road on the 23rd October 2000, they were armed robbers. The second ingredient in proof of the charge of armed robbery has without doubt been proved by the prosecution beyond reasonable doubt.
The third ingredient and undoubtedly always the most difficult would be to establish beyond reasonable doubt that the Appellant was one of the armed robbers at the Elf Filling Station on the 20th October 2000.
Appellant’s counsel has submitted in this regard at pages 7 and 8 of the Appellant’s Brief of Argument that prosecution did not discharge the burden of proving that Appellant took part in the alleged robbery on the grounds firstly that the allegedly stolen electric generating plant was not found with the Appellant and secondly that there was no proper identification of the Appellant linking him Counsel referred to the case of ASAKITIKIPI V. STATE (1993) 5 NWLR (PART 294) 399 where it was held that –
“When the quality of identification is poor, the accused person should be acquitted unless there is other evidence the correctness of the other identification.”
Counsel also relied on the case of USUFU V. STATE (2007) 1 NWLR (PART 1020) at page 103 where the court held that –
“where an accused person is not arrested at the scene of crime and the prosecution witness does not name the accused at the earliest opportunity, a proper identification of the accused should be conducted.”
These arguments by learned defence Counsel are very cogent. The Appellant was never identified or linked with the crime by the prosecution witnesses PW1 and PW7 who would have come in contact with him either at the Elf Filling Station on the day of the incident or at the toll gate. The electric generating plant was also never seen with him. Is there thus any evidence linking the Appellant with the commission of the offence for which he stands convicted and condemned death? PW8’s evidence at pages 40-43 of the Record of Appeal is instructive. He is Tajudenn Tijani a Police Sergeant with registration number 139575 attached to the Sango-Ota Police Station Surveillance Office. His evidence is that he was on duty at the Station when he was informed by PW7 Inspector Enoch posted to the toll gate, Sango Ota how vehicle No. XR 973 KJA (a Toyota Hiace) was stopped and found to be carrying a generator concealed with pure water bags and how the driver and some of the occupants of the vehicle escaped. Armed with the registration number of Hiace vehicle (No.XR 973 KJA) he went to the Alausa Licensing Office Lagos where the particulars of the ownership of the Hiace vehicle was given to him in writing which was tendered as Exhibit “G”. Armed with Exhibit “G” he traced the ownership of the Hiace vehicle to one Mr. M. A. Odugunle who informed him that he had sold the vehicle to one Mr. Jelili. Mr. Odungunle later brought Mr. Jelili and the four drivers that operate the vehicle. The vehicle was also brought. The 4th accused was one of the drivers brought by Odungunle.
On interrogation the 4th accused admitted that he was the driver of the Hiace vehicle on the 23rd October, 2000. The 4th accused’s statement is exhibit H. PW8 then left with 4th accused Sunday Oloyede for the purpose of apprehending the other suspects. On getting to Lagos the 4th accused took PW8 to the house of the Appellant. The Appellant then took PW8 to where 3rd accused was apprehended. The Appellant, 3rd and 4th accused having been apprehended, PW8 asked them where the stolen generator was and was told that it was in the possession of 2nd accused. While the 3rd and 4th accused persons claimed not to know where 2nd accused person lived, the Appellant said the 2nd accused lived at Ilasa and he could take PW8 there. Appellant then took PW8 to the house of the 2nd accused where the 2nd accused was arrested but the generator was not fund there. While the Appellant and the other acdused persons were being led away by PW8, the 2nd accused told PW8 that they could resolve the matter as the electric generating plant had already been sold. PW8 then told the 2nd accused that for a resolution of the matter the electric generator must first found. The 2nd accused then took PW8 to one Ali Rihami, a Lebanese national to whom the generator had been sold. Ali Rihami admitted buying the generator for which a receipt was issued to him. Upon information to him that the generator was the subject of an investigation Ali Rihami agreed to release generator to PW8. Further interrogation of the 3rd accused person revealed that the generator was stolen from the Elf Filling Station along Abeokuta/Lagos Road. PW8 then extended his investigation to the Elf Filling Station in question where he found that the Station’s generator was carried away by armed robbers who in the process had killed a security guard. On the 7th November 2000 according to PW8 an official of Elf Filling Station came to Sango Ota Police Station and identified the generator which was retrieved from Ali Rihami, the Lebanese national as the very generator carted away from the Elf Filling Station by armed robbers. Cross-examination of this witness (PW8) by Mr. Adeniyi at page 43 of the Record of Appeal was very short and did not in the least discredit or affect veracity of PW8’s evidence. As has been seen by discerning person the evidence of PW8 which is as detail it is illuminating and was not punctured by cross-examination is quite damaging to the plea of innocence of the crime by the Appellant and some other evidence has to be produced by the Appellant from its kitbag to counter the evidence of PW8. Has such evidence been forthcoming? Before answering this question, it is pertinent to state at this stage that the uncontradicted evidence of PW8 puts paid to the heavy weather made by the Appellant’s Counsel at page 5 of the
Appellant’s Brief of Argument that no evidence was led by Elf Filling Station as to the ownership of the generator. The defence does not tell the prosecution who to field as witnesses in establishing its case. See IJIOFOR V. STATE (2006) 6 NSCQR (PART 1) 209 at 237. If the prosecution can achieve the same purpose from the evidence of PW8 does it need to call as witness the Elf staff who identified the stolen generating plant as belonging to the Station? The answer must be in the negative. The paramount question here is whether the defence in its cross-examination of PWB was able to discredit the evidence of PW8 as to the ownership of generating plant. The answer yet again must be in negative. I had earlier posed the question whether Appellant had any evidence to counter the very damaging evidence of PW8. Also damaging to the Appellant are the evidence of PW1 and PW7. The simple answer is that the Appellant led no evidence at all and it was only at the stage of cross-examination of the prosecution’s witnesses that the Appellant’s Counsel would have been opportuned to dig deep into its arsenal and/unleash fireworks at the prosecution. This has not been the case. The Appellant’s position is compounded by exhibits “A” and “K” which are without a shadow of doubt confessional statements of the offence of Armed Robbery for which he was charged. These exhibits were admitted without objection at the trial court. The Appellant did not contend that the statements were not made by him or that they were not made by him voluntarily and must therefore be taken as having made the confessional statements chronicling his involvement in the crime. Exhibits “A” and “K” are a detailed step by step account of how the plan to steal the generator at the Elf Filling Station was hatched and meticulously executed. That the Appellant took part in loosening and carting away the generator from the Elf Filling Station can be seen from his brazen confessional statement. It is the law that an accused person can be convicted on his confessional statement alone. See IKEMSON V. STATE (1989) 3 NWLR (PART 110) 455.
Appellant has made heavy weather of alleged contradictions between the language in which the Appellant’s statement was taken at the Police Station and the language in which his plea was taken in court. The first point to note is that at page 27 of the Record of Appeal under the caption COURT NOTE the learned trail Judge had asked the accused persons which language they understood very well and the 1st accused (now Appellant) said he understood English very well. Second and more importantly and as observed correctly by learned Counsel for the Respondent at page 11 paragraph 4.32 of the Respondent’s Brief of Argument, there is no ground of Appeal covering this issue in the Amended Notice of Appeal. Mention, I think, ought to be made of the perceived contradictions in the evidence of PW1 and PW2 which Appellant’s counsel has also tried to make heavy whether of which is to the effect that PW2 one Corporal Ismaila Bamidele No. 87474 had said in evidence that PW1 when invited to the office made a statement where he denied knowing an about the robbery which is a contradiction of PW1’s evidence about all he knew about the robbery and neither was the contradiction explained nor the statement made by PW1 tendered which statement should have shed more light on the entire incident. Appellant’s Counsel went on to submit that the Court should have invoked the provision of Section 149(d) of the Evidence Act to hold that the statement if produced would be detrimental to the prosecution’s case. What if I may ask is the essence of cross-examination? Is it not to discredit a witness? Looking at the cross-examination of PW2 at page 33 of the Record of Appeal no questions were put to PW2 regarding these alleged contradictions. At least the answers given by PW2 during his cross-examination do not suggest so. The Court makes use of evidence placed at its disposal does not suo motu fish for evidence. That apart, it is not every contradiction by the prosecution that warrants the setting aside of the lower court’s judgment. For a contradiction to warrant the setting aside of a lower court’s decision it must be a material contradiction. Again where there are other credible pieces of evidence adduced by the prosecution witnesses, an appellate court will not because of minor contradictions set aside a decision of a lower court. See generally the following cases – ARCHIBONG V. STATE (2007) 10 WRN 1; (2006) 5 SCNJ 2022 at 2035; OKERE V. STATE (2001) 2 NWLR (PART 697) 397 at 414; NDIDI V. STATE (2006) 17 NWLR (PART 953) 17 at 32; AGBO V. STATE (2006) 2 SCM 1 at 10-11.As has been seen the defence did not proffer any evidence of its own preferring to rest its case on the prosecution’s case. The effect of this has already been dealt with in this write up and need not be revisited. Rigorous cross-examination of PW2 by counsel may well have made some difference who knows, but it is not open to the trial Judge to speculate. It should also perhaps be observed that not even the address of counsel for the Appellant at page 49 of the any Record of Appeal touches on this aspect. From the totality of the evidence adduced by the prosecution I have no doubt that prosecution has proved the commission of Count 2 i.e. Armed Robbery against the Appellant beyond reasonable doubt and I so hold.
Count 1 is on the offence of Conspiracy to commit the crime or which the Appellant is charged. What is conspiracy? Conspiracy in its simplest terms can be defined as a meeting of the minds of the Conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means and conviction is usually based on circumstantial evidence. See ODUNE V. STATE (2001) 13 WRN 88; (2001) SC PART 11; UPAHAR V. STATE (2003) 6 NWLR (PART 139) 1512; OKEKE V. STATE (1999) 2 NWLR PART 590 page 246 at 265. The evidence of PWB Tajudeen Tijani which is uncontradicted shows how the Cop who deserves commendation was able to trace the missing generator to all the accused persons. The Appellant it was who took him to the house of the 2nd accused who had sold the generator to PW11 a Lebanese national by name Ali Rihami. By the thorough investigation carried out by PW8 all the accused persons including the Appellant were apprehended. There is no doubt that there was a meeting of the minds of the Appellant with the other accused persons at the lower court to cart away the Elf generating electric plant on the 23rd October 2000. The confessional statements of the Appellant which were admitted in evidence without objection as exhibits “A” and “K” shows clearly that he was part and parcel of the gang of robbers and even took part in loosening the electric generating plant form the Elf Filling station along Abeokuta/Lagos roads on the 23rd October 2000. I find conspiracy in Count 1 against the Appellant also proved beyond reasonable doubt by the prosecution and have no cause disturb the finding of the learned trial Judge.
The Appeal therefore lacks merit and is dismissed. judgment of the learned trial Judge Lokulo-Sodipe J. (as then was) delivered on the 14th January 2003 in Charge AB/8R/2001 STATE v. SEGUN AJIBADE & ORS is hereby affirmed by me against the Appellant only.