FASLAT ADEPOJU v. THE STATE (2014)

FASLAT ADEPOJU v. THE STATE

(2014)LCN/7409(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of July, 2014

CA/L/936/2012

RATIO

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CRIMINAL CASES, THE ELEMENT FOR THE OFFENCE OF CONSPIRACY AND THE MEANING OF CONSPIRACY

It is trite that the burden of proof in criminal cases is permanently fixed on the prosecution and it does not shift throughout the trial. Every offence has elements that must be established by credible evidence before it can be said to be proved. Here, the offences are Conspiracy and Robbery and the elements for the offence of Conspiracy has been settled by the Apex Court as follows:
“(i) an agreement to do something which is unlawful or;
(ii) To do something which is lawful by unlawful means.”
See OMOTOLA & ORS V. THE STATE (2009) 7 NWLR (pt 1139) 148.
The Supreme Court went further to state thus: “Conspiracy is an offence which is difficult to prove because it is often hatched in secrecy. Circumstantial evidence is often used to point to the fact that the confederates had agreed on the plan to commit the crime. There must be an overt act from which to infer the conspiracy.” per. Y. NIMPAR, J.C.A

COURT; DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO CONSIDER EVIDENCE LED BY THE PROSECUTION TO DRAW NECESSARY INFERENCE THERE FROM

It is also settled that a trial Court should consider evidence led by the prosecution to draw necessary inferences there from. per. Y. NIMPAR, J.C.A

EQUITABLE INTEREST: LIEN; WHAT IS LIEN AND THE CONDITIONS UNDER WHICH LIEN ARISES

Lien has been defined by the Supreme Court in the case of AFROTEC TECHNICAL SERVICES (NIGERIA) LTD V. MIA & SONS LTD &….. (2000) ALL NWLR 533 thus:
“A lien, broadly speaking is a right to retain that which is in ones possession belonging to another till certain demands of the person in possession are satisfied. The unpaid seller’s lien however is his entitlement to retain the goods in his possession until the buyer has paid or tendered the whole of their price”.

The Court went further to list the conditions under which a lien arises. It stated that a lien arises if the following conditions are satisfied, namely:

The seller is unpaid
2. The good have been sold without any stipulation as to credit, or the stipulated period of credit has expired, or the buyer has become insolvent.
3. The seller is in possession of the goods or part of them.”

A lien therefore is not created where there is no contract. It is given by Law as an incident of contract. More or less, a right to enforce a charge upon property of another for payment of debt, See FIRST BANK OF NIGERIA PLC V. OLUFEMI SONGONUGA (2005) LPELR 7495(CA). per. Y. NIMPAR, J.C.A

CRIMINAL LAW: THE OFFENCE OF ROBBERY; THE DEFINITION OF ROBBERY AND THE INGREDIENT OF ROBBERY TO BE PROVEN BEYOND REASONABLE DOUBT
The second aspect of the issue under consideration is proof of robbery according to Law. Robbery is defined by Section 401 Criminal Code Law; CAP C17 vol. 2 Laws of Lagos State of Nigeria, 2003 in the following terms.
“Any person who steals anything and, or immediately before or immediately after the time of stealing it, uses or threatens 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 is said be guilty of robbery”.

Robbery has been defined by a plethora of authorities as 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 as to prevent or overcome resistance to it being stolen or retained, See OJETOLA & ANOR v THE STATE (2010) (LPELR 4803 CA); ARUNA & ANOR v THE STATE (1990) NWLR (Pt 155) 125, EKE V. THE STATE (2011) LPELR – 1133 (SC) AMINU TANKO v THE STATE (2009) 1 – 2 SC (Pt 1) 198 at 223.
The essential ingredients that must be proved to ground a conviction on a robbery charge are:
(a) Stealing
(b) The stealing must be accompanied by either violence or threatened violence
(c) That the Appellant took part in the robbery.
The Court of Appeal in AROWOLO V. THE STATE (2009) LPELR 4913(CA) held as:
“In proof of robbery prosecution must establish the ingredients beyond reasonable doubt. There must be proof among other things that the items were stolen accompanied by the use of or threat to use violence; and the Appellant took part in the robbery. See BOZIN v THE STATE (1985) 2 NWLR (pt 8) 465, OKOSUN V A.G. BENDEL STATE (1985) 3 NWLR (pt 12) 283; NWACHUKWU v THE STATE (1985) 3 NWLR (Pt 11) 218 at 269. It is also trite that the degree of the burden of proof placed on the prosecution is to prove the accused guilty beyond reasonable doubt. Section 138 of the Evidence Act places such burden beyond reasonable doubt”. per. Y. NIMPAR, J.C.A

CRIMINAL LAW: THE OFFENCE OF STEALING; THE MEANING OF STEALING AND THE INGREDIENTS OF THE OFFENCE OF STEALING

The fact of stealing was found established by the trial Court. What is stealing? It is settled that stealing has attracted judicial definition in a plethora of cases, one of which is the case of ADEJOBI V STATE (2011) LPELR – 97 (SC) where the Supreme Court held thus: “A person who fraudulently takes anything capable of being stolen or fraudulently convert to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing are as follows namely:
1. The ownership of the thing stolen
2. That the thing stolen is capable of being stolen
3. The fraudulent taking or conversion. per. Y. NIMPAR, J.C.A

EVIDENCE: CORROBORATION; THE MEANING OF CORROBORATION

EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHETHER PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND EVERY SHADOW OF DOUBT

Proof beyond reasonable doubt is not an abstract concept but one over flocked principle of law. The Supreme Court in the case of DIBIE V. THE STATE (2007) LPELR 941 (SC) said thus:
“Proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the Court is entitled to convict him, although there exist shadows of doubt. The moment the proof by prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus rea or both, the prosecution has discharged the burden placed on it by Section 138 (3) of the Evidence Act”. per. Y. NIMPAR, J.C.A

COURT: INTERFERENCE: WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF FACTS BY A TRIAL COURT THAT IS NOT PERVERSE

An appellant Court would not readily interfere with findings of facts by a trial Court except it is perverse and evident on the record. see ODOFIN V AYOOLA (1984) LPELR 2227 (SC) where the Court held as follows:
“Where a Court of trial which saw and heard witnesses has come to specific findings of facts on the evidence in issues before it, an appellant Court which had no similar opportunity should refrain from coming to different finding, unless it can show that the conclusion of the trial Court was perverse, or that the conclusion would not follow from the evidence before it”.

It is in this wise that an appellate Court will not descend into the arena of context to usurp the functions of the trial Court when the findings are evidently supported on the record.
Furthermore the prosecution must not call a host of witnesses to prove an offence. What is required is that it calls witnesses necessary to prove the offence charged. See OCHIBA V. THE STATE (2011) LPELR 8245 (SC) where it was held as follows:
“I need to say it that it is settled Law that the prosecution was not obliged to call a host of witnesses in order to discharge the burden placed on it to prove the charge against the appellant beyond reasonable doubt as dictated by section 138 (1) of the Evidence Act. A sole witness like P.w.1, who has given credible and clear evidence which was believed by the trial Judge, will suffice. See OBUE V THE STATE (1976) 2 SC 141; SADAM v THE STATE [2010] 12 SC (PT.1) 73 at 87-88; AKPAN v THE STATE [1991] 3 NWLR (PT 182) 695“. per. Y. NIMPAR, J.C.A

JUSTICES:

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

YARGATA B. NIMPAR Justice of The Court of Appeal of Nigeria

Between

FASLAT ADEPOJU – Appellant(s)

AND

THE STATE – Respondent(s)

Y. NIMPAR, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of HONOURABLE JUSTICE A. O. WILLIAMS delivered on the 16th day of October, 2009 wherein the Appellant along KEZEEM RAIMI were convicted for the offence of conspiracy and robbery. Dissatisfied with the judgment, the Appellant appealed against the judgment and the notice of appeal dated 15/03/2013 set out 4 grounds of appeal. Appellant distilled 3 issues for determination there from the 4 grounds of appeal.
The Respondent formulated 2 issues for determination in this appeal.

The brief facts are that the appellant and one KAZEEM RAIMI were arraigned before the Lagos State High Court of Justice on a 2 count charge of conspiracy and robbery. The prosecution called 2 witnesses while the defendants testified and did not call any other witness. Upon trial, the learned Judge found both appellant and KAZEEM RAIMI guilty of conspiracy and robbery and sentenced each of them to 21 years term of imprisonment thus this appeal.

The Charge Sheet upon which the Appellant was tried states thus:
“STATEMENT OF OFFENCE 1st Count Conspiracy to commit robbery contrary to section 403A of the Criminal Code Law Cap 17 Vol. 2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
KAZEEM RAIMI (M) FASLAT ADEPOJU on or about 4th day of January 2006 at No. 83 Transit Village, Victoria Island, Lagos. In the Lagos Judicial Division Lagos State did conspire with one another to commit a felony to wit robbery.

STATEMENT OF OFFENCE – 2nd Count

Robbery contrary to section 402 (1) of the Criminal Code Law Cap C17 vol. 2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE
KAZEEM RAIMI (M), FASLAT ADEPOJU on or about 4th day of January 2006 at No. 82 Transit Village, Victoria Island, Lagos. In the Lagos Judicial Division Lagos State did rob one Eti Osa OZIGBO ESERE of her belongings one LG Colour Television valued at 34,000.00, one DVD Engine valued at 13,000.00, three Wrist Watches valued at N30,000.00 one Siemen Mobile Phone and Nokia camera phone valued 38,000.00.”

The issues formulated by the Appellant are as follows:

1. Whether in view of the evidence before the trial court and the Law the trial court was right when it held that the Respondent has proved its case beyond reasonable doubt to ground a conviction of the Appellant and whether such holding occasioned a miscarriage of Justice on the Appellant and ought to be set aside (distilled from Ground one).

2. Whether in view of the position of the Law and evidence at the Lower Court the trial court was right when it held that the evidence of PW1 was corroborated by Pw2’s evidence and was sufficient to prove the offence of conspiracy and robbery and whether such holding occasioned a miscarriage of Justice against the Appellant (Ground two).

3. Whether the trial court was right when it held that the evidence of the prosecution has established beyond reasonable doubt the two counts of the offences of conspiracy and robbery and that the Appellant committed the offence of robbery on the basis of which the court convicted the Appellant and whether the conviction is warranted, reasonable and supportable having regard to the Law and the charge against the Appellant at the trial count.
(Ground three and four).

The Respondent’s issues are thus:

1. Whether the trial judge was correct in Law to have relied on the evidence of the two witnesses to sustain that the Prosecution has proved its case beyond reasonable doubt in conviction of the Appellant?

2. Whether the prosecution has proved all the elements of the offence of conspiracy to commit robbery and robbery to warrant the conviction of the Appellant?

Considering the issues formulated by both sides, it will be expedient to adopt the issues formulated by the Respondent as issues to be determined in this Judgment. They are more encompassing and the consideration shall be issue one of both parties, while issues two and three of the Appellant shall come under issues two of the Respondent.

The appellant in arguing issue one submitted that the Appellant (sic) told the Court the properties removed from the complainants (pw1) house belonged to one Linda and she picked them to hold onto them as a lien until Linda’s husband settles her for impregnating her previously; Counsel reviewed her evidence at pages 44 – 45 of the record. He contended that the evidence was not controverted but the trial Court went ahead to find her guilty.

Counsel restated on whom the burden of proof in criminal cases lie and that any doubt is resolved in favour of an accused person as held in EZIKE v EZEUGWU (1992) 4 NWLR Pt. 236 462. Counsel argued that for the offence of robbery the prosecution must establish all the ingredients of the offence and stealing constitutes a major element of the offence of robbery; he referred to BALOGUN v A.G. OGUN STATE (2001) 14 NWLR (Pt 733) 331 and Section 383 of the Criminal Code Law Cap C17, Laws of Lagos State of Nigeria Vol. 2, 2003 to contend that the prosecution must prove intention to permanently deprive the owner of the thing stolen and that the evidence of the Appellant which was uncontroverted should have been taken as establishing the facts they relate to, he cited HABIB NIG. BANK V. GIFTS UNIQUE NIG. LTD (2005) ALL FWLR Pt. 241.
Counsel argued that actus reus must meet the mens rea for the offence to be complete as decided in BABALOLA & ORS V STATE (1989) 4 NWLR (Pt 115) 264 at 293. Counsel reviewed the admission of the Appellant and submitted that there was no intention to permanently deprive the complainant of the property but they intended to exercise a lien over the properties. He submitted that Linda left the properties under the control of the complainant hence the Appellant’s decision to go there and pack the things pending when Linda’s husband would settle her medical bills. He referred to Section 24 of the Criminal Code Law, Cap C17, Law of Lagos State of Nigeria, 2003.

Learned counsel asked whether stealing was proved and went on to answer that it was doubtful and listed the elements of conspiracy; he challenged the evidence of Pw1 and Pw2 and said they were inconsistent, unconvincing and therefore the trial Court erred in convicting the Appellant and that has occasioned a miscarriage of Justice. He urged the Court to resolve this issue in favour of the Appellant’s.

The Respondent in arguing issue one admitted that the burden of proof in Criminal cases remain with the prosecution but the proof is not beyond all shadow of doubt. Counsel relied on AUDU V. STATE (2003) N.W.L.R (Pt. 820) 516 at 554. Counsel submitted that for the Appellant to be entitled to the benefit of doubt there must be a genuine and reasonable doubt arising from the evidence before the Court, Counsel sited NWANKWO V F. R. N (2003) 4 NWLR (Pt. 809), at 35 – 36.
Counsel contended that the evidence against the Appellant is overwhelming as all properties taken belonged to Pw1 and not any Linda. That the stolen properties were found with the 1st defendant at the trial Court.
Arguing further, Counsel submitted that it is not the number of witnesses the prosecution calls but credible evidence presented in proving a charge; relied on CLEMENT OGUONZE v STATE (1986) 5 NWLR pt 551 and Section 200 Evidence Act 2011. Counsel highlighted the inconsistency in the evidence of the 2 accused persons in that the 1st defendant said it was Linda’s house, while the 2nd defendant said they went to Pw1’s house to pack Linda’s properties. Furthermore, that the Appellant said Pw1 was not home when they went to her house and they entered the house with a key because she knew where the key was kept. While pw1 in her testimony told the trial Court that she was home and identified the Appellant from her voice and the shoes she had given to the Appellant.
Counsel urged the Court to find that there was credible evidence before the Court to warrant the verdict of the Court.

ISSUE ONE:
This issue question the reliance on the evidence of Pw1 and Pw2 by the trial Court in arising at the conviction correct in Law. The case of the prosecution as per the charge against the Appellant and one other is conspiracy and robbery. The prosecution called 2 witnesses, the victim of the offence and a Police man. The two defendants also testified but did not call any witness, in support of their defence. The charge was reproduced earlier in this Judgment.

“Conspiracy is an offence which is difficult to prove because it is often hatched in secrecy. Circumstantial evidence is often used to point to the fact that the confederates had agreed on the plan to commit the crime. There must be an overt act from which to infer the conspiracy.”

It is also settled that a trial Court should consider evidence led by the prosecution to draw necessary inferences there from. The trial Court evaluated the totality of evidence before it and arrived at the conclusion that conspiracy was proved. The Appellant’s contention is that though there was an agreement between the defendants, it was not for an illegal purpose as they packed properties belonging to Linda to keep as a lien pending the payment of the money Linda’s husband promised the 2nd appellant.
The issue to consider is whether there was evidence to satisfy all the requirements for the offence of conspiracy. Was there an agreement?

The trial Court found ample evidence of agreement between the appellant and the 1st defendant; fundamentally from the evidence of the appellant and the 1st defendant themselves. It is abundantly made clear by the 1st and 2nd defendants in the witness box that they agreed to go and pack the properties and they in fact packed the properties from the house of Pw1 to the house of Dw1 from where same were recovered. The overt act here is the packing of the properties from Victoria Island to Ojodu, Berger, Lagos.
As required, it is the overt act that situates the offence of conspiracy. They agreed to go, they went together, they packed the properties together to the house of the 1st defendant. The agreement is replete in the evidence of appellant and 1st defendant see pages 38 lines 20 – 29 of the record of appeal where the first defendant said thus:

“We were bitter about the failed promise so we went to the house of her boss to take her belongings. We were not armed with a gun when we went to pack the things.
The properties we packed have been taken by the Police….. When we went to pack the properties of the 2nd defendant’s boss, she was not at home, we went to pack the things because the husband of the 2nd defendant boss promised the 2nd defendant that he will give her money to offset medical expenses but he did not give her the money.”

The same line of testimony was confirmed during cross examination of Dw1 at page 40 of the record of appeal at page 49 lines 12 where he told the Court thus “we did not meet Pw1 when we went to her house. I never said we found her at home. I maintained that she was not at home when we went to the house.”
Both defendants at the trial admitted going to Pw1’s house to pack properties allegedly belonging to Linda. Pw1 in her testimony clearly identified the Appellant by her voice and the slippers she wore which Pw1 had given her; she also told the Court that the appellant came with a man.
Dw1 admitted he went with Dw2 – the Appellant to Transit Street, Victoria Island, to pack properties. Some of the properties were recovered from his house.
The trial Court diligently reviewed the evidence and the findings were that, from the facts established, conspiracy was proved since the fundamental element of the offence is the agreement of minds which was established. By the evidence highlighted above, the agreement was clearly established. The next element is that they have agreed to an illegal act or to do a legal act by illegal means.

Here the Appellant’s counsel argued that the packing of the properties was for them to exercise a lien pending the settlement of the Appellant. The question is whether a lien can be exercised in such circumstances. The person the Appellant wants to settle her did not know of the packing of the properties if he existed at all; the properties belong to a different person and not even Linda, the wife of the alleged man; she did not know that her things were taken or had been packed. The Appellant with Dw1 went to pack the things at night and entered the house through the kitchen door even if it were by a key which is not usually used by guest. Going by Appellant’s evidence Pw1 was not home but they let themselves in because she knew where the key was kept. Flowing from all the above, it points at nothing but an illegal act. The secrecy and timing all compounded the case of the appellant.

The Court went further to list the conditions under which a lien arises. It stated that a lien arises if the following conditions are satisfied, namely:

1. The seller is unpaid
2. The good have been sold without any stipulation as to credit, or the stipulated period of credit has expired, or the buyer has become insolvent.
3. The seller is in possession of the goods or part of them.”

By whatever ingenuity of argument, no valid lien arises under the circumstances of this case. The properties taken belong to a different person, not even related to the one to pay the money. He was not informed before or after packing the properties. So how could a valid lien arise. The argument of Counsel to the Appellant cannot stand as it is a misapplication of the principle of lien to the facts of this case. Therefore the act of packing the things was illegal and in pursuance of the agreement which satisfies the second element of Conspiracy.

The third element is that of the overt act which would invariably reveal the agreement of the minds. The act of packing the properties in circumstances tainted with intension to commit crime has satisfied the last element to be proved by the respondent. The trial Court was right when it found that conspiracy was proved. The evidence available is strong enough to support the findings of the trial Court which is according to Law.
The second aspect of the issue under consideration is proof of robbery according to Law. Robbery is defined by Section 401 Criminal Code Law; CAP C17 vol. 2 Laws of Lagos State of Nigeria, 2003 in the following terms.
“Any person who steals anything and, or immediately before or immediately after the time of stealing it, uses or threatens 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 is said be guilty of robbery”.

“A person who fraudulently takes anything capable of being stolen or fraudulently convert to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing are as follows namely:
1. The ownership of the thing stolen
2. That the thing stolen is capable of being stolen
3. The fraudulent taking or conversion.

From the facts found by the trial Court, the properties which are the subject matter of the stealing belonged to Pw1 (ETI-OSA OZIGBO – ESERE) even though the Appellant claimed that it belonged to one Linda. The items mentioned in the charge were moved from Victoria Island, the house of Pw1 to another part of Lagos, the house of Dw1 – 1st defendant at the trial. This was done through threat as Pw1 told the Court how she was threatened to move to the sitting room to keep quiet and to the bedroom where properties were taken, her evidence is at page 17 – 22. The items taken from Pw1 were:

(a) Nokia 6310 and Starcomm Phone
(b) 3 wrist watches
(c) A pair of white gold earring
(d) A pair of gold earring
(e) A pendant with blue beads
(f) 3 other dress earrings
(g) Television Set – big LG Silver 33 inches
(h) DVD player and video set
All above listed items are movable things capable of being stolen.

The third ingredient is fraudulent taking or conversion. Fraudulent Act is defined by Blacks Law Dictionary 9th Edition thus:
“Conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude.”
This Court in the case of AMUZIE V. CHRIS ASANYE (2010) LPELR – 4758 (CA) quoting from Blacks Law Dictionary 7th Edition defined fraudulent act as conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude. The question to now answer is whether the Appellant acted fraudulently in taking the properties of Pw1 – ETIOSA OZIGBO – ESERE. Going by the facts established before the trial Court, Appellant and 1st defendant acted in bad faith, they lack integrity and moral turpitude. The items taken did not belong to the people they intended to hurt. Learned Counsel for the Appellant made an issue of the intention of the Appellant and lack of mens rea in the commission of the offence. This shall be resolved fully under issue 2. Suffice to say here, that after removing the items, Appellant did not get back to Linda or her husband to notify them and then make a demand. Furthermore, some of items taken have not being returned, which goes to show that the intention was not to return them. Again the timing of the removal of items, is a pointer to the intention in the conduct of the Appellant and they were hooded. The trial Court is on good ground in the findings of robbery. In any case, the only area of challenge as observed above is the intention of the packing of the things. It is settled that a man intends the natural and probable consequences of his act, See SHAZALI v. THE STATE (1988) LPELR 3040 (SC) and R V DIM 14 WACA 154 at 155.
On the challenge to the findings of the Court that the evidence of Pw2 corroborated that of Pw1, the Appellant’s Counsel contended that it cannot be so and highlighted areas he felt would defeat the evidence of Pw2.

What is corroboration? The Supreme Court in the case of DAGAYYA V. THE STATE (2006) 7 NWLR (Pt 980) 637 held thus:
“Corroboration entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness.
Corroboration does not mean that the witness corroborating must use the exact or very like words, unless the matter involves some arithmetic”. PER TOBI J.S.C. Corroboration evidence is relevant where the law requires it. Thus unless corroboration is required by Law, the evidence of a single witness of the right probative value has always been accepted as sufficient proof for the offence as charged. See MOHAMED V. THE STATE (1991) 7 SCNJ 114.
So is corroboration required in proving the offences of conspiracy and robbery? Learned Counsel did not say so and since it is not a legal requirement whether Pw1’s evidence was corroborated or not is of no moment in the decision of the Court since the Court relied heavily on the evidence of Pw1. In any case, if there must be corroboration, is the evidence of Dw1 and Dw2 not enough corroboration of what Pw1 told the Court? It is not the law that defence cannot corroborate the evidence of prosecution witnesses. In any case, Pw2 is the investigating Police officer who traced the first defendant and also recovered most of the properties stolen by the Appellant and 1st defendant. Both defendants gave detailed evidence of how they organized and carried out the robbery. There is nothing to stand on to insist that Pw2’s evidence is not corroborative. The trial Court found so and it is so and remain so.

The evidence of Pw1 is that of a victim and an eye witness to the commission of the offence. Pw2 was a Police Officer who investigated the offence. The trial Court believed their evidence and relied on it. The trial Court at page 99 was categorical in the assessment of Pw1, hear the Court:

“Both prosecution witnesses led positive evidence, Pw1 stated what happened on 04/01/06. She was clear and forthright in her testimony and she was not shaken under cross examination. She narrated the roles played by the accused persons succinctly and without prevarication and reiterated her story under cross examination. Her testimony alone established a prime face case against the accused persons. It was confirmed and corroborated by the testimony of Pw2 who investigated the crime. Not only did he narrate how the accused persons confessed to him that they committed the crime, he also narrated how the stolen property was found in the house of Dw1 when Dw2 took the Police there”.

The trial Court diligently evaluated the evidence before the Court before arriving at the verdict. If the appellant and 1st defendant did not testify the question of whether they confessed would arise. But here, they testified and confirmed to a large extent what the two prosecution witnesses told the Court. The appellant copiously in her testimony admitted the act of carting away properties from Pw1’s house even when the person she has a grudge against is living in a different place. She confessed to committing the offence. An appellant Court would not readily interfere with findings of facts by a trial Court except it is perverse and evident on the record. see ODOFIN V AYOOLA (1984) LPELR 2227 (SC) where the Court held as follows:
“Where a Court of trial which saw and heard witnesses has come to specific findings of facts on the evidence in issues before it, an appellant Court which had no similar opportunity should refrain from coming to different finding, unless it can show that the conclusion of the trial Court was perverse, or that the conclusion would not follow from the evidence before it”.

ISSUE TWO:
This issue questions whether the prosecution proved all the elements of the offence of conspiracy to commit robbery and robbery to secure the conviction. Issues 2 and 3 of the Appellant challenges the Judging of the trial Court that the evidence of Pw1 was corroborated by Pw2 and if sufficient to prove the offence of conspiracy and robbery. Furthermore, the Appellant questions the finding of the trial Court that the prosecution has proved its case beyond reasonable doubt having regard to the evidence before the Court. These 3 issues put together simply questions whether the offence of conspiracy and robbery was proved to warrant the verdict of the trial Court.
Taking Appellant issues 2 and 3 together, the Learned Counsel argued that burden of proof is static on the prosecution and cited Section 135 (1) & (2), Section 139 of the Evidence Act 2011 and the case of MAKERI v STATE (1994) 3 NWLR (Pt. 330) 55 at 61. He submitted taking the case of the prosecution alone; it failed to meet the required standard towards a conviction. He contended that the evidence of the prosecution is contradictory and the trial Court ought to have resolved the doubt in favour of the appellant. He referred to the record of appeal and relied on the following cases:
1. EKO v. STATE (2001) 7 SC (Pt 11) 115 Act 1 & 2
2. ALMU V STATE (2009) 4 – 5 SC (pt 11) 33 AT 44
3. ONUBOGU V THE STATE (1974) 9 SC 1 (1974) 9 SC (Reprint)

Counsel argued that the evidence of Pw2 was hearsay and in admissible and that the Court erred by relying on the said evidence, since all pw2 did was obtaining the statements of the Appellant and the 1st accused.
Counsel referred to the evidence of Pw1 wherein she said she did not see the Appellant and the 1st accused with an offensive weapon and the evidence of 1st accused at page 39 and 43 of the record of Appeal.
Counsel submitted that the prosecution did not prove the use of force because the Appellant said they went to complainant’s house in her absence, he challenged the evaluation of evidence by the trial Judge at page 98, 99 – 100 of the record. Counsel submitted that the Appellant never confessed to the Pw2 to warrant the trial Court’s finding that Appellant’s evidence was corroborated by Pw2 and this occasioned a miscarriage of Justice.
Another area of challenge is the Court’s finding that pw2 never visited the scene of crime and did not conduct a search on the premises of the 1st accused therefore the decision of the Court is perverse, he cited UDENGWU V UZUEGBU (2003) 13 NWLR (pt 836) 136 IMUOHA V NIPOST LTD (2003) 8 NWLR (Pt 822) 308 at 344 on what a perverse decision is. He urged the Court to interfere because there are circumstances which warrant doing so, and relied on ARUMA v STATE (1990) 9 – 10 SC. 87 at 97.
Counsel further argued that Pw1’s evidence is not sufficient to establish the guilt of the Appellant and there was no corroboration therefore this Court should so find. Arguing under Appellant’s issue 3, Learned Counsel submitted that the evidence before the Court did not establish the offence of conspiracy and robbery, he said the prosecution failed to establish a nexus between the accused and the property stolen as the offence of robbery was not proved. He relied on the case of OTTI v STATE (1991) 8 NWLR (pt. 207) 103 at 118 on what must be proved to secure a conviction for the offence of robbery. He referred to the evidence of Appellant at pages 43 – 50 of the record which he submitted is devoid of intention to permanently deprive the owner of the use of the properties. He argued further that no conspiracy as established according to Law as intention was not proved.
Counsel conceded that the taking of the properties was morally wrong but not illegal. He went on to define conspiracy and submitted that the purpose of the meeting of the two minds must be to commit an offence, he cited IYARO v THE STATE (1988) 1 NWLR (Pt 69) 256 and urged that where the agreement is for an immoral act, it cannot constitute an offence.
He relied on HARUNA & ORS V THE STATE (1972) 7 NSCC 550; MAJEKODUNMI v THE QUEEN (1952) 14 WACA 64 and GBADAMOSI v. THE STATE (1991) 6 NWLR (Pt 196) at 204 – 205.
Counsel submitted that the hallmark of the offence of conspiracy is the criminal intent. He conceded that there was an agreement to remove Linda’s things and that has no criminal intent and so the respondent failed to prove conspiracy and robbery. He said that Appellant raised serious doubt that should have convinced the Court to discharge her; That the Court therefore erred when it held that the prosecution proved it’s case beyond reasonable doubt. He then urge the Court to find for the Appellant.
In response, Respondent submitted that the ingredients of an offence are what the Court views to see if the evidence established them before arriving at a verdict and cited ALONGE V. INSPECTOR GENERAL OF POLICE (1959) 5 SC NWLR 516. Counsel recited the elements of conspiracy as established in the cases of GBADAMOSI v. THE STATE (1991) 6 NWLR (Pt 196) 182; AJE v THE STATE (2006) 8 NWLR (Pt 982) 345 at 363; CLARK v THE STATE (1986) 4 NWLR (pt 35) 381 and MUMUNI v. THE STATE (1975) 6 SC 80, Where the Court held that conspiracy as a crime is complete upon agreement. Counsel referred to the evidence of the Appellant wherein she admitted that the agreement was to go and carryout an unlawful act. That in furtherance of the agreement the Appellant and 1st defendant went to the house of the complainant and that conspiracy can be inferred from the surrounding facts; relied on IKEMSON v THE STATE (in complete citation) and GBADAMOSI v. THE STATE (Supra).
On intent as argued by the Appellant’s Counsel, responded asked what could be the intention of breaking into a house and taking away properties belonging to someone else as in the circumstances of this case?
That the excuse given by the Appellant as to holding the property as a lien is untenable and the evidence before the Court is that the properties belong to PW1 and not Linda.
On the definition of robbery as per Section 401 Criminal Code Law Cap C17, Vol. 2 Law of Lagos State, Counsel submitted that stealing is a major element of robbery and several situations that give rise to intention as listed in ARUMA V STATE (1990) 9 – 10 SC 87 and the prosecution presented credible evidence to warrant the conviction. More so, Pw1 was under the apprehension that the defendant was armed, she was threatened with violence and Appellant did not disclose that they were only there to pick Linda’s things. Another point Counsel, submitted is the direct and positive identification of the Appellant by Pw1 through her voice and the shoes she wore. So, if Pw1 was not home, how then could she have identified the Appellant so as to lead to the arrest of the 1st defendant and the recovery of the items stolen. Counsel finally urged the Court to dismiss the appeal and affirm the conviction.
The Appellant in reply on corroboration submitted that the statement of Pw1 was not tendered consequently it cannot be basis of corroboration he relied on HASSAN v STATE (2001) FWLR (pt 74) 212 at 225. Furthermore, that corroboration must be independent and capable of implicating the accused and must support the evidence in material respects, he cited IKO V. THE STATE (2001) FWLR (Pt 68) 1161 at 1171 – 1178, 1189. He went on to submit that Pw2 gave hearsay evidence.
On the weakness of the offence, Counsel argued that the Law is that he who asserts must prove and proof in criminal cases is beyond reasonable doubt, he relied on Section 135 (1) and (2) Evidence Act 2011 and NWEKE V THE STATE (2001) 2 SC 9 at 17 – 18. That the prosecution must win on the strength of its evidence; he relied an ALMUSTAPHA V STATE (2013) LPELR – 20995. He finally urged the Court to allow the appeal.

Issue 2 challenges the availability of all the required ingredients in proving conspiracy and robbery vis-Ã -vis the challenge to findings of the trial Court that the charge was proved. Appellant’s issue 2 was resolved under issue one and the large aspect of issue 3 of the Appellant comes under 2 of the Respondent which was also resolved above except the question of intention and mens rea that the Appellant devoted so much energy on to challenge the judgment of the trial Court. Learned counsel dwelt so much on the alleged statement by the Appellant that she did not intend to steal.
Intention generally is incapable of positive proof because it is a matter of inference of supporting circumstances of every given case, See NWANKWOALA & ANOR V THE STATE (2006) LPELR 2112 [SC].
There is a legal aphorism that even the devil himself does not know the intention of man. Thus, intention is inferred from overt acts. Where there is a confession from the accused and surrounding circumstances of a case, intention can be discovered there from. The actions of the accused provides the basis for concluding on the intention. The significance of intention in a criminal trial is that intention is the purpose or design of the act performed coupled with the desire to do the act. The intention here is evident from the surrounding circumstances. The Appellant in her testimony said she did not intend to deprive PW1 or Linda of the properties permanently but some were not returned. As observed above and following the findings of the Court at page 100 -102 where the trial Judge debunked all the excuses given by the Appellant.
The question is if the properties belonged to Linda and Linda had moved out much earlier, could she have left her phone behind? Could Linda’s trinket be in Pw1’s bedroom? What vehicle was it that moved Linda’s things and yet items like earrings, phones, DVD player etc could not find space. With the admission in the witness box intention was clearly established. Did she have the mens rea to commit the offences charged? Mens rea simply means a guilty mind. Put in another way, a guilty mind propels a guilty act or flows into a guilty act, See ABEKE v THE STATE (2007) LPELR 31 [SC]. Usually it is the actus rea that draws out the mens rea just like in this case. The actions of the Appellant clearly established her mens rea. Why cover your face if you are legitimately taking what belongs to your employer? How can you transfer the obligation of Linda’s husband to Pw1 and even Linda. Where are some of the items stolen? Why did she not tell Linda’s husband that she had taken Linda’s properties immediately after the incident? Why did she not report to anybody before her arrest? From the record of appeal, the trial Judge was right in her findings and subsequent conviction because the guilty mind of the Appellant is evident on the record. This issue is resolved against the Appellant.

On the whole therefore the appeal lacks merit and is hereby dismissed the judgment of HON. JUSTICE A. O. WILLIAMS delivered on 16th day of October, 2009 which convicted and, sentenced, the Appellant for the offence of conspiracy and robbery is hereby affirmed.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother YARGATA B. NIMPAR, JCA.
I agree with the reasoning and conclusion reached therein, I too join my learned brother in holding that, on the whole therefore the Appeal lacks merit and is hereby dismissed by me. The judgment of Hon. Justice A. O. Williams delivered on 16th day of October, 2009 which convicted and sentenced the Appellant for the offence of conspiracy and robbery is hereby affirmed.

RITA NOSAKHARE PEMU, J.C.A: I had the advantage of reading in draft, the lead Judgment just delivered by my brother Y.B. NIMPAR JCA.
I agree with the reasoning and conclusions.
The appeal lacks merit. The conviction of the Appellant for conspiracy and stealing is hereby upheld and the decision of A.O. Williams (Judge) delivered on the 16th day of October 2009 is hereby affirmed.
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Appearances

C.V.C. IHEKWEAZU, A.C. EZE AND T.A. MICAHFor Appellant

AND

MRS. ABIOLA AJAYI CHIEF STATE COUNSELFor Respondent