ADALUMO AGBETI v. THE STATE (2019)

ADALUMO AGBETI v. THE STATE

(2019)LCN/13781(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 17th day of September, 2019

CA/AK/205CA/2017

JUSTICES:

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

ADALUMO AGBETI – Appellant(s)

AND

THE STATE – Respondent(s)

RATIO

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

Addressing on the substantive offence of armed robbery, the trite ingredients of:
(a) There was a robbery or series of robberies.
(b) The robberies were armed.
(c) The Accused person(s) were or some of them committed the robbery on the authorities of Borin v. The State (1985) 2 NWLR (pt 8) 465; Aruna v. The State (1990) 9 – 10 SC 87; (1994) 6 NWLR (pt 155) 125 relied upon.

Restating the position of the law that the prosecution had the duty of proving the guilt of the accused beyond reasoned doubt learned counsel reiterates that this may be done by
1. confessional statement, or
2. circumstantial evidence, or
3. direct evidence ie evidence of eye witnesses
See Fatilewa v. State (2007) 5 ACLR pages 630 – 631; PER DANJUMA, J.C.A.

WHETHER OR NOT EVERY JUDGE HAS HIS STYLE OF EVALUATING EVIDENCE LED

It is trite that every Court/judge has his style of evaluating the evidence led.
The fact that the learned trial judge started by finding in respect of the substantative offence first and from the character of the evidence led therein to find the fact of the existence of the offence of conspiracy to commit armed robbery was not at all wrong. The Court is not bound to start with a finding of facts in favour or against conspiracy before proceeding to the substantive offence as, after all, they are independent offences and the ingredients of the offence of conspiracy may be inferred from the circumstances of the entire transaction leading to the substantive offence or even from statements as in this case, that severed and proved the act of conspiracy. PER DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment): The Appellant in this appeal, Adalumo Agbeti, was charged, arraigned and tried before his Lordship, Honourable Justice D. I. Kolawole of the Akure Judicial Division of the High Court of Ondo State, (trial Court) on a two count charge of conspiracy and armed robbery contrary to Section 6(b) and 1(2)(a) respectively of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004.

At the end of the trial, Honourable Justice D. I. Kolawole in his judgment delivered on April 7, 2017, found the Appellant guilty of the offence of conspiracy and armed robbery and convicted him (page 42 to 57 of the Record of Appeal).

The Appellant, being dissatisfied with the judgment, has filed a Notice of Appeal dated April 10, 2017 (pages 58 to 59 of the Record of Appeal). With the leave of Court, the Appellant has also filed an Amended Notice of Appeal dated 13th of September 2018 but filed on the 17th of September 2018. In aid of the Amended Notice of Appeal, the Appellant has also filed an Appellants Brief of Argument

dated September 13, 2018 but filed on September 17, 2018.
Statement of facts

The brief facts of this case as presented from the evidence adduced before the trial Court was that the Appellant, Adalumo Agbeti, in company of one Sunday Abioudn on or about the 1st of March 2013, lured and robbed the victim Saheed Ibrahim. The victim, a commercial motorcyclist, was flagged down by the duo and asked to convey them to Iju but to first make a stop at a place behind Grammar School, IA-Ogbolu where they claimed they wanted to pick up a handset they allegedly forgot inside a timber lorry. The victim was then attacked by the Appellant (then 2nd Defendant before the trial Court) who hit him with a small cutlass and proceeded to beat him up and tied him to a tree leaving him as dead. The victim was able to regain consciousness and proceeded to report the matter to the owner of the motorcycle who subsequently in company of the victim reported the matter to the police.

The Appellant was arrested while trying to sell the stolen motorcycle and following investigations was arraigned before the Akure Judicial Division of the High Court of Ondo State on a two count

charge of conspiracy and armed robbery and firearms (Special Provisions) Act. At the trial, the prosecution called six (6) witnesses, the first was Saheed Ibrahim the victim who gave an account of the robbery incident. The second witness was Emmanuel Francis, the owner of the motorcycle who gave the motorcycle to the victim for commercial purposes. He gave an account of how the victim reported the fact of the stealing of the motorcycle and how he, in company of the victim, reported the matter to the police.

The third witness was Alao Micheal, a police corporal who investigated the matter and obtained the statements of both the prosecution witnesses and the Defendants. He tendered the statement of the Appellant.

The fourth witness was Rotimi Ezekiel a motor mechanic who reported the matter to the police when the defendant wanted to sell the stolen motorcycle to him. The fifth witness was Inspector Tam Memuletiwon attached to Enu-Owa Police Station, Ondo State. He gave evidence as to how the statements of the defendant was obtained. The Appellant also gave evidence in defence of this charge.

At the conclusion of the trial, the trial Court found

the Appellant guilty of the two counts of conspiracy and commission of armed robbery. The Appellant have now filed the present appeal challenging the decision of the trial Court on four grounds:
1. The decision of the learned trial judge is wrong in law because the prosecution did not prove the commission of the offences of conspiracy and armed robbery beyond reasonable doubt against the Appellant.
2. Having regards to the evidence on record the decision of the trial Court is unwarranted.
3. The learned trial judge erred in law when he convicted the Appellant on the basis of both a resiled and a retracted confessional statement without any legal justification and inspite of the avalanche of contradictory evidence in the case of the prosecution and which raised doubts in the prosecutions case.
4. The learned trial judge erred in law when he convicted the Appellant for the offence of conspiracy and armed robbery without considering the defence of mistaken identity raised by the Appellant and which was obvious from the face of the record.

This is an appeal from the judgment of the High Court of Justice, Ondo State delivered on the

7th day of April, 2017.

Dissatisfied with the judgment, convicting and sentencing them as such, the Appellant, then 2nd Accused/Convict has lodged this appeal and upon the Amended Notice of Appeal filed on 17 – 9 – 2018, but deemed filed on 21 – 9 – 2018 on 4 grounds.

Valid, the lower Court must not impair the evidence either with his personal knowledge of matters not placed and canvassed before it or by inadequate evaluation, and should avoid vitiating the case presented by the parties through its own wrongly stated or misapplied principle of law. That the trial Court failed to examine the evidence and to clearly understand the issues he had to resolved in the case relies on Tippi v. Notani (2010) 8 NWLR (pt 1249) 285; Momoh v. Umoru (2011) 15 NWLR (pt 1270) 2117.

We have been urged to resolve this sole issue in favour of the Appellant and to set aside the conviction and sentence and to discharge and acquit the Appellant that the rigour of another trial will occasion hardship and a miscarriage of justice.

We were urged to allow the appeal and to set aside the conviction or in the alternative to convict the appellant

for a lesser offence of stealing or robbery.

Upon the transmission of the record of appeal and the exchange of the Briefs of Argument as filed articulating the opposing views for and against the appeal, parties adopted their written Briefs of Argument on the 18 – 06 – 2019.

The Appellant raised a sole issue for determination thus;
Whether the prosecution has proved the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt.

On his part, the Respondent adopted the Appellants sole issue as above reproduced.

ARGUMENTS BY THE APPELLANTS COUNSEL:
Appellants counsel submitted that the two count charge were not proved against the Appellant at all. Addressing on the count of conspiracy, the learned counsel restated the trite ingredients of criminal conspiracy and relied on the case of Omotola & Ors v. The State (2009) 8 ACLR 29 ratio for the view. That the trial Court was wrong in finding that conspiracy was proved by its inference from the conviction for the offence of Robbery. That the trial Court failed to carry out any form of critical evaluation of evidence before the

Court with regard to the charge of conspiracy before it hastily came to the conclusion to convict the Appellant”, that the trial judge relied on Exhibit C and E without testing their veracity and making findings thereon.

That the Appellants denial of the allegation or count of conspiracy was neither believed nor evaluated by the trial Court and that miscarriage of justice had been occasioned.
That the failure to evaluate evidence and make findings on matters which parties have joined issues compels the setting aside of the decision arrived at for perversity. Mogaji v. Odofin (1978) 4 SC 91; Adeleke v. Iyanda (2001) 13 NWLR (pt 729) Daramola & Ors v. A. G. Ondo State (2000) FWLR (pt 6) 997, 1015-1016; Osolu v. Osolu (2003) FWLR (pt 172) 177, 1791 relied upon.

It was thus contended that for the error alleged, the trial Court would have reached a different decision in favour of the Appellant relating to the charge of conspiracy Nkebisi & Anr v. State (2010) 1 -2 SC 145, Adelumola v. The State (1988) 1 NWLR (pt 73) 683 – 691 was relied upon in aid of this submission.

The learned counsel contended that the non

evaluation gave room for speculation and was bound to lead to the uncertainty of the decision which should be set aside.
That there was a misdirection following a non appraisal of the facts in arriving at a decision that there was conspiracy, Archibong v. State (2004) NWLR (pt 855) 488 at 498.

The issues of facts and law according to the learned counsel were not fairly considered. Chidiak v. Laguda (1964) NWLR 133 at page 125 and the English case of Bary v. Ford (1895) AC P. 49 (Lord Watson) were relied upon to urge that in the circumstance we should set aside the conviction and sentence on the charge of conspiracy.

Restating the position of the law that the prosecution had the duty of proving the guilt of the accused beyond reasoned doubt learned

counsel reiterates that this may be done by
1. confessional statement, or
2. circumstantial evidence, or
3. direct evidence ie evidence of eye witnesses
See Fatilewa v. State (2007) 5 ACLR pages 630 – 631; that in this case only a cloudy direct evidence non precise circumstantial evidence and conflicting evidence of confessional statement were available to show that the Appellant committed the offence of Armed Robbery.

The learned counsel argued that in proof of the 1st and 2nd ingredients of the charge, only 1st and 2nd PWW and the extrajudicial statements of the Appellants were tendered, and on the whole that the evidence was suspect; that the doubt be resolved in favour of the Appellant.
Counsel contended that there was a mistaken identity and the doubt should be resolved in favour of the Appellant.

The learned counsel, concedes the facts of exclusive discretion of a trial judge to come to a conclusion on guilt after listening to and observing the demeanour of witnesses and ascribing probative value to their testimonies, but contends that in this case, the prosecution had not shown how the appellant was identified

and the decision was therefore perverse and liable to be set aside by an appellant Court.

That identifying the Appellant merely by clothes worn and that he was taller and fairer than the co-accused was not enough. That this facts was not put across to the police and also cannot be relied upon as there was no identification parade conducted. Refers to page 29 line 18 of the record and page 3.0. That the identification was doubtful in the circumstance and the decision be set aside as perverse. Relies also on Agbanyi v. State (1995) 1 NWLR (pt 362) 22; Igago v. State (1999) 6 NWLR (pt 608) 568; and Bashaya v. State (1998) 5 NWLR (pt 550) 351.

That there was a bad exercise of discretion by the Court and a wrong approach to the assessment of evidence and indeed a non disclosure of any probative value.

The learned counsel intoned that the observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. That its breach will most likely lead to a perverse decision. Mogaji v. Odofin (1978) 4 SC 91, Adeleke v. Iyanda (2001) 13 NWLR (pt 729) 1.

Learned counsel contended that for a judgment to be in response to the sole

issue which was adopted the learned counsel for the Respondent contends that the issue be resolved in favour of the Respondent; contends that guilt may be proved by the statement of the accused without more provided. It was voluntarily made. Relies on Idoko v. State (2018) 6 NWLR (pt 1614).

It was emphasised that the trial Court in admitting Exhibits D and E carried out the exercise of a trial within trial and as in page 55 of the record and came to a conclusion, noting that they were retracted as they were different from his evidence led in Court. Learned counsel contended that it was unfounded to contest that this was evaluated as same was done vis -a-vis other evidences led in Court.

That the process of the mini trial or trial within trial was not challenged nor irregularities therein shown to warrant setting it aside. In the circumstances, the findings of the trial Court is not impeached and the confessional statement of the Appellant becomes evidence which the trial Court is bound to consider in arriving at a decision.

Counsel relies on Lawal v. State (2016) LPELR 40633 SC to argue that once the lower Court as in this case,

was satisfied with the truth of the confessional statement corroboration was unnecessary. That the trial Court had considered the confessional statement vis-a-vis other evidence led before coming to its decision with respect to the guilt of the Appellant/Accused.

Learned counsel emphasised the primary position and role of a trial judge in evaluation of evidence and captured what was done at pages 54 – 56 of the record relating to the departure from a portion of Exhibit D when in Exhibit E Appellant said they had lied when they said the motorcycle was robbed at Ekiti rather than Ifa Ogbola.

The learned counsel argued that the charge was approved by the aggregation of facts that proved the offence in all the categories of the means of proof of guilt as stated inOuitilo v. State (2018) 2 NWLR (pt 1603) 239.

That the facts were not contradicted nor refuted by the Appellant and were so found to constitute armed robbery. The learned counsel reasoned that even if there were minor discrepancies in the evidence presented before the Court, the litmus test was whether notwithstanding that, the prosecution was able to

prove the charge beyond reasonable doubt; relies on Adelani v. State (2018) 5 NWLR Pt 1611; Moavega Igba v. State (2018) 6 NWLR (pt 1614) and Olakunle v. State (2018) 6 NWLR (pt 1614) all without pages referred.
That the evidence of PW1, the victim corroborated by the Appellants confessional statement was clear on the proof of the offence charged.

The learned counsel, on conspiracy was vehement in the position of the trial Court to infer same and on the authority of Olakunle v. State (supra).

On identity or identification parade, counsel urged that it was unnecessary where already established or where already admitted as, here in expressly or impliedly. That amply time spent in the conversation between the culprits and the victim that they left their phone in tipper lorry and the fact of them still wearing the same clothes they were in at the time of the robbery and identified with same had knocked off the question of doubt or mistaken identity.

That there was no mistaken identity and therefore, the appeal should be dismissed and the judgment of the trial Court be affirmed.

DECISION
I have carefully read the record of

appeal and the briefs of argument as filed and adopted by the respective parties, it is obvious to me that the Appellant complains against the methodology of arriving at the decision on whether there was the proof of conspiracy to commit armed robbery as embarked upon by the trial Court.
It is trite that every Court/judge has his style of evaluating the evidence led.
The fact that the learned trial judge started by finding in respect of the substantative offence first and from the character of the evidence led therein to find the fact of the existence of the offence of conspiracy to commit armed robbery was not at all wrong. The Court is not bound to start with a finding of facts in favour or against conspiracy before proceeding to the substantive offence as, after all, they are independent offences and the ingredients of the offence of conspiracy may be inferred from the circumstances of the entire transaction leading to the substantive offence or even from statements as in this case, that severed and proved the act of conspiracy.

The contention against the methodological is sheer academic exercise that signifies no weight. I discountenance it.

On the substantive offence of armed robbery, I do agree that the confessional statements, Exhibits D and E are sufficient and can ground a conviction. The locus of the crime whether it was at Ita Ogbolu or Ekiti was of no moment. Entry into Ondo State or the occurrence of any of the elements of armed robbery had not been shown not to have been in Ondo State as charged.
In any case, the denial of the locus and the assertion of a different locus is a constructive admission of the offence as charged.

The next question is that relating to the identity of the Appellant. The narration of the fact of the parties, i.e victims and Accused persons (including the Appellant) being together for a while and discussions on a forgotten phone in a timber lorry and entreaty for the complainants victims to take them there and the fact that it was done was an exercise in a space of time, which duration and distance covered had not been shown by the Appellant to be such that had incapacitated the Respondents i.e victims from identifying them as the Assailant Accused/Appellant.
Indeed the victim/witness did and said so as relating their differing heights and complexion.

Although, I agree that an identification parade was desirable and even if earlier on it had not been shown by the victims/PW1 or PW2 how they could identify the Appellant, of what use or purport or basis in the circumstance would that have been, as is now been argued by the Appellant?
There was no basis really. The trial judge was not wrong not to have called for one; nor was the police wrong in not doing so.

As there was, nonetheless, the evidence of the Appellant, a clear confessional statement tested against the totality of the evidence led and this had proved beyond reasonable doubt the guilt of the Appellant as charged; for the law does not impose a burden of proof beyond every shadow of doubt, but only proof beyond reasonable doubt.

This can be gleaned from the learned counsel for the Appellants contention in concession that the Appellant could be convicted for robbery or stealing, per se as it will be inconvenient and unreasonable to embark on a fresh trial. Should an accused who had not been identified nor conspired or done any wrong be convicted even for a lesser offence? The Robbery and Fire

Arms Act, 2014 is a law of strict liability and procedure. The Courts cannot change it.

It would not be a surprise to so argue when there is no concrete reason other than speculative defence, as herein.
The Courts will not allow the racking of a defence where there is really none. See Stephen v. The State 198 NWLR.
The prosecution had clearly proved the counts as charged. Re-enforced by the confessional statements voluntarily made and fully corroborated, the conviction and sentence cannot be faulted.

The trial judgment in charge No AK/111C/2013 delivered on 7th April, 2017 is affirmed and the conviction and sentence as passed is affirmed and Appeal is dismissed.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Mohammed A. Danjuma, JCA.

I agree with his lordship’s line of reasoning and the conclusion reached by him that the appeal is devoid of merit. I also dismiss the appeal accordingly and abide by the consequential orders made in the said leading judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A. : Having read the lead judgment in draft when served on me by my learned brother, Mohammed A. Danjuma, JCA, I found the determination of issues therein apt and clear resolution of the controversies in the appeal.

I am in agreement with the resolution of the issues in the lead judgment just delivered. Therefore, this appeal cannot succeed as brought and stand dismissed. The conviction and sentence of the Court below on its judgment delivered on the 7th day of April, 2017 is affirmed by me.

Appearances:

Abdullahi Haruna, Esq. (Absent, though served).
For Appellant(s)

Kehinde Aina, Esq. For Respondent(s)

Appearances

Abdullahi Haruna, Esq. (Absent, though served). For Appellant

AND

Kehinde Aina, Esq. For Respondent