MONDAY EZE v. THE STATE
(2018)LCN/12468(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/EK/4C/2015
RATIO
CRIMINAL LAW: OFFENCE OF ARMED ROBBERY
“As regards the offence of armed robbery with which the Appellant was charged, arraigned, tried, convicted and sentences, the ingredients of the said offence have been firmly established in a very long line of authorities by our Courts. These essential ingredients of the offence of armed robbery are as follows:
(a) That there was a robbery or series of robberies.
(b) That each robbery was an armed robbery.
(c) That the accused was one of the persons that committed the armed Robbery.
The list of authorities on this legal requirement is in exhaustive. See however the following :AFOLALU V. THE STATE (2010) 16 NWLR (PT. 1220) 554, BOZIN V. THE STATE (1985) 2 NWLR (PT. 8) 465, ARUNA V. STATE (1990) 6 NWLR (PT. 155) 125, OKOSI V. A/G BENDEL STATE (1989) 1 NWLR (PT. 100) 642, NWACHUKWU V. THE STATE (1985) 1 NWLR (PT. 11) 218, ANI V. STATE (2003) 11 NWLR (PT. 89) 142.” PER PAUL OBI ELECHI, J.C.A.
CRIMINAL LAW: OFFENCE OF CONSPIRACY
“Also in State v. Haruna (1972) 8-9 SC 174, the Supreme Court defined conspiracy thus: ‘At common law, conspiracy means an agreement of two or more persons to do an act which constitutes an offence, to agree to do.’
See also PATRICK NJOVENS V. STATE (1973) ALL NLR 372, AJOR V. THE STATE (2013) LPELR-20393, KAZA V. STATE (2008) 7 NWLR, STATE V. OLADIMEJI (2003) 7 SCNJ 67, IDRISU AHMED V. STATE (1998) 7 SCNJ 60.” PER PAUL OBI ELECHI, J.C.A.
CRIMINAL LAW: TO PROVE OFFENCE IN CRIMINAL PROSECUTION
“It is now well settled that in criminal prosecution, offence can be proved by any or a combination of the following evidence
(a) Direct evidence (eye witness account, real or documentary evidence)
(b) Confessional statement
(c) Circumstantial evidence
See EMEKA V STATE (2001) 14 NWLR (PT. 734) 666 at 683.” PER PAUL OBI ELECHI, J.C.A.
Before Their Lordships
AHMAD OLAREWAJU BELGOREJustice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMIJustice of The Court of Appeal of Nigeria
PAUL OBI ELECHIJustice of The Court of Appeal of Nigeria
Between
MONDAY EZEAppellant(s)
AND
THE STATERespondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Ekiti State High Court presided over by Lordship, Hon. Justice M.O. Abodunde. The Judgment was delivered on the 21st day of March, 2014 wherein the Appellant and his Co-accused persons (4 number i.e. Tunde Abe (1st Accused), Hyginious Obunisire (2nd Accused), Monday Eze (3rd Accused), and Nonso Vincent (the 4th Accused) were tried on a five (5) counts charge of conspiracy to commit a felony to with: armed robbery in count 1 and armed robbery in counts 2 to 5 respectively.
The trial Judge found the 1st, 3rd and 4th Accused persons guilty as charged on counts 1, 4 and 5 and consequently sentenced them to death by hanging on the neck; on Counts 2 and 3, the learned Trial Judge found 1st, 2nd, 3rd and 4th Accused persons not guilty and discharged them accordingly; equally, the 2nd Accused person was found not guilty on Counts 1, 4 and 5 consequently discharged him and acquitted.
Being aggrieved by the Judgment, the Appellant (i.e the 3rd Accused before the lower Court) herein filed his Appeal challenging the Judgment of the lower Court.
The 3rd Accused person before the lower Court is the Appellant in this Appeal.
The Appellant subsequently filed an amended Notice of Appeal on the 4th May 2015. The Appellant’s brief of argument is therefore predicated on the Amended Notice of Appeal dated 4th May 2015.
The Appellant submitted the following issues for determination;
(1) Whether the arraignment proceedings conducted on the 3rd of February 2004, as contained on page 6A on the record of appeal satisfy the provisions of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 (As amended) and Section 215 of the Criminal Procedure Law of Ekiti State?
(2) Whether the evidence adduced before the trial Court was not sufficient to secure the conviction of the Appellant particularly regard being had to the contradictory nature of the identification evidence of the alleged victims of the prosecution to call other vital witnesses.
At the hearing of the Appeal on the 10th April 2018, learned Appellant’s counsel, Mr. O.O. Ogungbade informed the Court that he is abandoning his argument and submissions in issue one but relies in issue 2 above in arguing the Court to allow the appeal. On the basis of that, the said issue one was struck-out having been withdrawn. Accordingly, the consideration of the issues in this appeal will only be based on issue 2 of the Appellant alone and those of the Respondents.
In arguing issue 2 of the Appellants thus
Whether the evidence adduced before the trial Court was not insufficient to secure the conviction of the Appellant particularly regard being had to the contradictory nature of the identification evidence of the alleged victims of the crime and the failure of the prosecution to call other vital witnesses.
This issue is distilled from grounds 1,2,4,5,6 & 7 of the Amended Notice of Appeal dated 4th May 2015. Learned Appellant Counsel submitted that in order to secure a conviction of the accused on the offence charged, the prosecution had a duty to establish the following:
(i) That there was an agreement or conspiracy between the convict and others to commit the offence of robbery.
(ii) That in furtherance of the agreement or conspiracy the accused took part in the commission of the offence of robbery or series of robberies.
(iii) That the robbery or each robbery was an armed robbery. see Usufu v. State (2007) 1 NWLR (Pt. 1020) 94, Bill v. State (2007) 10 NWLR (Pt. 8) 465.
It is the submission of Appellant’s counsel that the conviction of the Appellant and every finding upon which it was based is wrong and ought to be overturned. The reason he contended is that the trial judge placed too much reliance on his extra judicial statement (Exhibit G) tendered by the prosecution.
Learned Appellant Counsel referred to the evidence of PW4 who at one breath admitted that she was not looking at the faces of those who attacked her but on the other hand stated that the low illumination did not make the room too dark to see those who entered. It is submitted that it is a contradiction to state that the room was still sufficiently lit as to be able to see the faces. See Onuoha v. State (1998) 5 NWLR (Pt. 548) 118 at 135, Rasaki v. State (2011) WRN 23 at 37.
As the witness gave contradicting evidence on this aspect, the Court can not pick and choose which part of the evidence to believe or not but rather to reject the said evidence in its entirely.
See Bassil v. Fajebe (2001) 4 SC (pt 110 119 at 127, Ezemba v. Ibeneme (2004) 14 NWLR (Pt 894) 617. Also if the PW5 stated in evidence that two of the three robbers who entered his room before proceeding to the room of PW4 were masked, how then was he able to identify three robbers in Court. It is therefore submitted that the evidence of identification given by PW4 was most unreliable. Even the Police identified the robbers to the victims at the police station while inside the vehicle that brought them there.
It is submitted that the prosecution failed or neglected to call the driver of the bus Chuks Ugbede and Paul Igbinora as vital witnesses which the prosecution ought to call. Also the prosecution did not tender other statements made by the Appellant and as a result, he submitted that the entire trial and conviction of the Appellant was based on suspicion and conjecture.
He then urged the Court to resolve issue 2 in favour of the Appellant and consequently to allow the appeal and set aside the decision of the lower Court. The Respondent on his own part formulated two issues thus
(1) Whether or not the arraignment proceedings conducted on the 3rd of February 2004, as contained in the Records of Appeal satisfied the provisions of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 (As amended) and Section 215 of the Criminal Procedure Law; and
(2) Whether or not the Respondent has proved the guilt of the Appellant beyond reasonable doubt to warrant his conviction and sentence.
Since issue 1 of the Respondent is one and the same with former issue one of the Appellant which is already abandoned and struck-out. So, the Respondent has no issue to join with the Appellant on issue one. Accordingly, the issue 2 of the Respondent is the only live issue of the Respondent to be argued and considered in this appeal thus:
Whether or not the Respondent has proved the guilt of the Appellant beyond reasonable doubt to warrant the conviction and sentence of the Appellant.?
Learned Respondent counsel submitted that in convicting the Appellant for the offences charged, the trial judge adopted the combination of
(a) Direct evidence eye witness account, real and documentary evidence
(b) Confessional statement
(c) Circumstantial evidence. See Emeka v. The State (2001) 14 NWLR (Pt. 734) 666. The testimonies of PW3 PW4 and PW5 are direct, cogent, credible and unimpeachable in law and he urged the Court to so hold.
On conspiracy, it is learned Respondent’s submission that the learned Trial Judge convicted the Appellant on the offence of conspiracy with the other Co-accused to commit the offence of Armed Robbery. In proving the offence, the prosecution called the PW1 and Pw2 who are police Officers and who arrested the Appellant from where he escaped from being arrested when he (the Appellant) jumped out of Akoto bus that was carrying him to Ikere Ekiti. Upon his arrest, he led the police Officers to the houses of the other Accused persons where they were arrested. The Appellant and the 4th Accused equally led the police officers to the scene of the Crime.
It is submitted that if the Appellant and the other accused persons did not plan the crime together, it will be very difficult for him to lead other Accused to the house they were not living and/or where robbery took place some hours ago.
Learned counsel then referred to Black’s Law Dictionary 5th Edition page 309 where conspiracy is defined as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. In the case of Oduneye v. State (2001) 13 WRN 88, it was defined by the apex Court, thus: ‘Conspiracy consists not merely in the intention of two or more persons to do an unlawful act, or to do a lawful act, by unlawful means.’
In State v. Haruna (1972) 8-9 SC 174, the Supreme Court had defined conspiracy thus:
‘At common law, conspiracy means an agreement of two or more persons to do an act, which constitutes an offence, to agree to do.’
The offence is complete once the agreement has been entered even though the indictable offence which is the subject of the agreement is never actually committed. And indeed as in this case, the offence of conspiracy is proved, as it is in this case, when a crime is proved to have been committed by two or more persons acting in concert or in confederacy. See PATRICk NJOVENS V. STATE (1973) ALL NLR 371, (1973) 5SC 12, AJOR ENEJI V. STATE (2013) LPELR 20393(CA) KAZA V. STATE (2008) 7 NWLR (PT 10850 125 SC, ODUNEYE V STATE (2001) 13 WRN 88.
It is therefore submitted that it will be sufficient if common intention to commit the main offence is established. In State v. Oladimeji (2003) 7 SCNJ 67, The Supreme Court held to the effect that common intention may be inferred agreement in order to enable a Court to convict of conspiracy and participation in the main offence. See Idrisu Ahmed v. State (1998) 7 SCNJ 60.
The prosecution need not therefore bear the burden of proving that the conspirators met before carrying out their illegal act, as long as evidence is led from which the Court could draw the inference of certain criminal acts done in pursuance of an apparent criminal purpose in common between them. See Onyenye v. The State (2012) ALL FWLR (Pt. 643) 1810 @ 1832-1833; Ikwunne vs. The State (2000) 5 NWLR (Pt. 658) 560-561; Osondu vs FRN (2000) 12 (pt. 682) 483 @ 501-502.
The above is the law of conspiracy Nigeria. Therefore, it can not be said that the lower Court was wrong to have convicted the Appellant alongside the other accused persons of the offence of conspiracy to with: armed robbery in the light of the admissible evidence on records? It is the cold fact of this case that the appellant alongside with the other accused went to the house of the PW3, 4 and 5 of the victims, armed with gun and other weapons to rob the victims. The fact that the Appellant and others in unison, armed themselves with weapon, and in collaboration with one another proceeded either jointly or individually to rob the victims evinces clearly a meeting of minds, an intention, an agreement between them to and the fact that they acted in concert to carry out the robbery. Being armed on a mission to collect what was not theirs and what they had no right to collect, nay, to rob is nothing short of an intention to commit the offence ; what is more, the Appellant confessed to the crime. He therefore urged the Court to hold that the Appellant was rightly convicted of the offence of conspiracy to vit-armed robbery by the lower Court.
On the Appellant counsel’s submission that certain number of witnesses were not called to come and give evidence. On the other hand Respondent’s counsel submitted that the calling of the bus driver or any other person for that matter as a witness was not needed placing reliance on Section 200 of the Evidence Act 2011. The evidence of a single witness if believed by the Court can sustain a charge in a criminal matter relating to armed robbery. See OBIDIKE V. STATE (2014) 7 SCM 104, UDOH V. STATE (2014) 6 SCM 199, AFOLALU V. STATE (2010) 16 NWLR (PT. 1220) 584, HAUSA V. STATE (1994) 6 NWLR (PT. 350) 281, SAMUEL.
Learned counsel then referred the Court to the offence to the three ingredients of the offence of armed robbery which he submitted were all established by the prosecution. See ADEYEMI V. STATE (2012) 5 NWLR (PT. 1292) 122 AT 360.
It is therefore contended that it is beyond disputation that there were series of robberies and that the robberies were carried out with arms. See the evidence of PW3 on pages 24 & 25 of the main record of Appeal. She said that she was robbed on the fateful day, she equally said that the Robbers were armed with cutlass and gun.
It is submitted that the first and second ingredients have been met with this pieces of evidence among others on the Record of Appeal.
Equally, it is clear that the Appellant was one of the Robbers immediately he was arrested, he took the Police to the House of the 4th Accused Person, i.e. Nonso Vincent and the two of them took the police to the scene of Crime wherein the victims confirmed it that they were robbed. The 4th Accused even begged the victim that they should forgive them.
It is submitted that the Appellant was one of the Armed Robbers that carried out the robberies operations on the fateful day.
It is accordingly submitted that since the three ingredients of the offence of armed robbery are complete in this case, then the Appellant was rightly convicted and sentenced by the lower Court. He then urged the Court to resolve this issue in favour of the Respondent and to dismiss the Appeal.
As regards the offence of armed robbery with which the Appellant was charged, arraigned, tried, convicted and sentences, the ingredients of the said offence have been firmly established in a very long line of authorities by our Courts. These essential ingredients of the offence of armed robbery are as follows:
(a) That there was a robbery or series of robberies.
(b) That each robbery was an armed robbery.
(c) That the accused was one of the persons that committed the armed Robbery.
The list of authorities on this legal requirement is in exhaustive. See however the following :AFOLALU V. THE STATE (2010) 16 NWLR (PT. 1220) 554, BOZIN V. THE STATE (1985) 2 NWLR (PT. 8) 465, ARUNA V. STATE (1990) 6 NWLR (PT. 155) 125, OKOSI V. A/G BENDEL STATE (1989) 1 NWLR (PT. 100) 642, NWACHUKWU V. THE STATE (1985) 1 NWLR (PT. 11) 218, ANI V. STATE (2003) 11 NWLR (PT. 89) 142.
To secure conviction of an accused person for the offence of armed robbery, the prosecution must satisfy the requirements of these ingredients beyond reasonable doubt or fail. It is proof of those ingredients beyond reasonable doubt by the prosecution that constitute the guilt of the accused person, By the same token, the conviction of the accused will be upheld if, in the words of Adekeye JSC (as he then was) in Olayinka Afolalu v. The State (Supra), the prosecution is able to establish the ingredients of the offence ‘even on the evidence of a single witness’.
It is now well settled that in criminal prosecution, offence can be proved by any or a combination of the following evidence
(a) Direct evidence (eye witness account, real or documentary evidence)
(b) Confessional statement
(c) Circumstantial evidence
See EMEKA V STATE (2001) 14 NWLR (PT. 734) 666 at 683.
PW3, PW4 and PW5 are direct eye witness account, their evidence are direct, cogent, credible and unimpeachable and the mere reason why the trial relied on it to convict the Appellant (Direct eye witness account and circumstantial evidence)
I hold the view that the trial Judge was right in convicting the Appellant on the charge of conspiracy with other accused persons to commit the offence of armed robbery. In proving this offence, the prosecution called pw1 and pw6 who are police officers and who arrested the Appellant from where he escaped from being arrested when he (Appellant) jumped out of Akoto bus that was carrying him to Ikere Ekiti. Upon his arrest, he led the Police officers to the houses of the other accused persons where they were arrested. The Appellant and the 4th accused equally led the Police Officers to the scene of crime. I therefore agree with the submission of the Respondent counsel that if the Appellant and the other accused persons did not plan the crime together, it will be very difficult for him to lead other accused persons to the house they were not living and/or where the robbery took place somehours ago.
‘Conspiracy consists not merely in the intention of two or more persons but rather in the agreement of two or more Persons to do an unlawful act or to do a lawful act by unlawful means.’
Also in State v. Haruna (1972) 8-9 SC 174, the Supreme Court defined conspiracy thus
‘At common law, conspiracy means an agreement of two or more persons to do an act which constitutes an offence, to agree to do.’
See also PATRICK NJOVENS V. STATE (1973) ALL NLR 372, AJOR V. THE STATE (2013) LPELR-20393, KAZA V. STATE (2008) 7 NWLR, STATE V. OLADIMEJI (2003) 7 SCNJ 67, IDRISU AHMED V. STATE (1998) 7 SCNJ 60.
The Appellant’s Counsel had in his brief of argument submitted that the prosecution ought to have called the driver of the bus amongst other witnesses to testify for the prosecution as a vital witness and as such, the case against the Appellant was not proved beyond reasonable doubt. That submission by Appellant’s counsel does not hold water. By Section 200 of the Evidence Act 2011 provides that except specifically required otherwise no particular number of witnesses is required for the proof of any fact. A single witness if believed with credible evidence can sustain a charge in a criminal matter relating to armed robbery. See Afolalu v. The State (2010) 16 NWLR (Pt. 1220) 584 Obidike v. The State (2014) 7 SCM 104.
In Hausa v. State (1994) 6 NWLR (Pt. 350) 81, the Court held that there is no rule of law which imposes an obligation on the prosecution to call a host of witnesses to prove its case. All the prosecution need to do is to call enough material witness to prove its case and in so doing it has a discretion in the matter. The defence can not dictate to the prosecution the witness it must call or not. See Obidike v. State (supra) Amaremor v. the State (2014) 7 SCM 1 Olabode v. state (2009) vol. 174 LRCN 86 this submission by the Appellant does not avail him.
Having carefully considered the arguments in the briefs filed by both parties in this appeal, I am satisfied that the prosecution evidence is more cogent, convincing and more probable than that of the Appellant (defence). There was no break in the chain of events described by the prosecution from the point of the robbery of the victims to the arrest of the accused person (Appellant) the next day the evidence of PW3, PW4 and PW5 show that there is nothing on record to show that the prosecution witnesses did not properly recognize the Respondent.
As earlier stated, there was indeed series of robberies in the house and premises of PW3 (Gift Okereke) PW4 (Mrs Jumoke Adeitan, PW5 (Okereke Okoroafor on the 21st day of May 2003 the robbers were armed with cutlass and gun.
Accordingly, the first and second ingredient have been met amongst others.
The Appellant was one of the robbers arrested after the Robbery operation. He took the Police to the house of the 4th Accused person-Nonso Vincent and the two of them took the Police to the scene of crime wherein the victims confirmed that they were robbed. The 4th Accused -Nonso Vincent even asked the victims to forgive them. There is no doubt in my mind that the Appellant was one of the robbers that carried out the robberies operations on the fateful day. The ingredients of the armed robbery are complete in this case contrary to the submission of the Appellant. All the ingredients point directly to the Appellant and that he was rightly convicted and sentenced by the Trial Court.
In NWOSU V. THE STATE (1986) 4 NWLR (PT. 35) 348- ANIAGOLU JSC of (blessed Memory) stated as follows;
‘A Judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence which the facts leading to his conviction are clearly found on logical deduction, therefore made. It can not be allowed to stand if found on scraggy reasoning or a perfunctory performance the learned respected jurist is right.’
In the present case, the learned trial Judge reasoning was not scraggy. He took great pains to sum up and evaluate the evidence before him and found good reason to convict and sentence the appellant according to law. The evaluation of evidence and the ascription of probative value to the evidence are the primary duties
of a trial Court which had the opportunity of seeing, hearing and assessing the evidence and the demeanour of witnesses. I do not have such opportunity. Therefore, since the trial Judge has unquestionably appraised the facts and properly evaluated the evidence, I do not have any business to substitute my own view to those of the trial Court. See ATOLAGBE V. SHORUN (1985) 1 NWLR 360
The prosecution has proved this case beyond reasonable doubt and the Appellant was properly convicted and sentenced by the trial Judge. The Appeal has no merit and it is hereby dismissed, the Judgment of the Trial Court delivered on the 21st day of March 2014 is hereby affirmed.
Appeal dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of a preview of the judgement just delivered by my learned brother PAUL OBI ELECHI, JCA and I agree that this appeal fails and that the same be dismissed.
I dismissed this appeal, the decision of the High Court of Ekiti State delivered by Honourable Justice M.O Abodunde on the 21st day of March,2014 is hereby affirmed.
FATIMA OMORO AKINBAMI J.C.A.: I agree.
Appearances:
O.O. Ogungbade Esq.For Appellant(s)
Gbemiga Adaramola DPP with him, A.A. Moshood legal Officer, T.E Omobitan legal OfficerFor Respondent(s)
