GARBA MOHAMMED MUKTARI v. THE STATE
(2018)LCN/11902(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/69C/2017
RATIO
CRIMINAL LAW: INGREDIENTS OF ARMED ROBBERY
“In the instant case, the learned trial Court seemed to have relied two clearly distinct aspects, namely: the evidence of eye-witnesses and circumstantial evidence. In the dealing with the question of the eye-witness accounts, there may be need to begin from first principles. Case law in Nigeria is agog with the ingredients of the offence of armed robbery. These are as follows;
a. There must be robbery or series of robberies;
b. That the robbery or each robbery was an armed robbery; and
c. That the accused was one of those who took part in the armed robbery.
See the popular cases of BOZIN vs. THE STATE (1985) 2 NWLR (PT. 8) 465 AT P. 469; ALABI vs. THE STATE (1993) 7 NWLR (PT. 307) 511 AT P. 523 PARAS. F- H; ISIBOR vs. THE STATE (2001) FWLR (PT. 78) 1077 and ADEBAYO RASAKI vs. THE STATE (2014) 10 NCC 1.” PER FREDERICK OZIAKPONO OHO, J.C.A.
EVIDENCE: WAYS OF PROVING EVIDENCE
“Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as corollary to the above, is the fact and from which the prosecution gets a modicum of succor that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012; NWOSU vs. THE STATE (1998) 8 NWLR (PT. 562) 433 AT P. 444, PARA. B; OCHIBA vs. THE STATE (2011) 17 NWLR (PT. 1277) 663 AT PP. 685, PARAS. A – B.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
GARBA MOHAMMED MUKTARI Appellant(s)
AND
THE STATE Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Sokoto State, Coram: BELLO DUWALE, J. delivered on the 3rd April, 2017 wherein the Appellant along with one other were found guilty of the offences of conspiracy, armed robbery and voluntarily causing grievous harm contrary to Section 6(b), Section 1(2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act Cap R11, LFN 2004, and Section 248(2) of the Penal Code Law and sentenced to a term of imprisonment of six (6) months and ten (10) years for the offences of conspiracy and robbery respectively.
By an Amended Charge dated the 7th December, 2016 the Appellant and two others (while the 4th person was at large) were charged before the High Court of Sokoto State, Sokoto on a three count charge of conspiracy, armed robbery and voluntarily causing grievous harm to which the Appellant pleaded not guilty. At the trial the Prosecution called seven (7) witnesses. The PW1 (Sgt. Ibrahim Idris) was one of the Investigating Police Officers (IPOs) attached to the Criminal Investigation Department (CID) of Sokoto State.
He testified that he recorded the Statement of the Appellant (as the 1st Accused). The PW2 (Sgt. Abdul Umar) was the Exhibit keeper with the Sokoto State C.I.D. through whom the objects allegedly recovered from the houses of the Appellant and the 2nd Defendant were admitted in evidence as follows: Exhibit A (a cutlass), Exhibits B & B1 (2 knives), Exhibits C, C1 – C3 (4 pieces of iron-rods), Exhibits D, D1 – D4 (5 damaged handsets), Exhibit F (set of curtain), Exhibits G, G1 – G2 (3 bundles of women wrapper), Exhibits H & H1 (two pairs of women sandals), Exhibits I, I1 – I5 (6 pieces of B29 soap) and Exhibit J (a Bajaj motor-cycle).
The PW3 (Adamu Namadina) was one of the IPOs at the State CID. He recorded the statements of the 2nd Defendant (Exhibits K & K1). The PW4 (Zaki Moyiji), a 66 year old farmer testified that he was the leader of the vigilante group that arrested the Appellant; that they arrested the Appellant when the Appellant and the two other Defendants were sharing their loot; that the 2nd & 3rd Defendants ran away while they arrested the Appellant. Inspector Muhammad Bomodabo was the PW5.
He was one of the IPOs at the State CID. He testified that he directed CPL Charles to record the statement of the Appellant and the 1st Defendant; that CPL Charles recorded the statements in Hausa language and translated same to English and that CPL Charles had been transferred to Delta State Command, which refused to release him to come and testify.
The statements of the Appellant were tendered through the PW5 and were admitted in evidence as Exhibits ‘M’ and ‘M1’ despite objection from the Appellant’s Counsel. The PW6, Dan Bala Dan Magajuya, was the prosecution witness who narrated the incident that led to the charge. He testified that on the 9/7/2014 he was a passenger on a vehicle ‘coming from Ibbi in our vehicle when the driver met a heap of fire wood blocking the road’ and that the incident happened in the night?.
He testified further that all the passengers ran away except him and that he was robbed of the sum of N200,000.00 and two ‘GSM handsets’. He further testified that he was hit at the back of the neck with cutlasses and that he fell and was lying down unconscious when the Police came.
In his evidence-in-chief the PW6 testified that the robbers took from him N200,000.00, but under cross-examination he admitted that he told the Police the robbers took N100,000.00 from him. He further testified under cross-examination that he could not identify the robbers as it was dark in the night. The PW7 (Abubakar Shehu) was a 25 year old beggar. He claimed to be a passenger in the same bus allegedly robbed on the 9/7/2014. He admitted not knowing the Defendants; that he only knew the PW6 and that when the vehicle stopped at the road block, he ran and only came back to the scene the following morning and met the PW6 lying unconscious.
In the case of the Appellant who testified as the 1st Defendant, he denied committing the offence and called no witnesses.
At the end of trial and after final addresses of Counsel, the learned trial judge in a well considered judgment convicted the Appellant and the other Defendants of the offences of conspiracy and robbery, while he set aside the 3rd count (voluntarily causing grievous hurt) for being a duplication of one of the ingredients of armed robbery, the second count.
Dissatisfied with the judgment of the trial Court, the Appellant has by its Amended Notice of Appeal filed the 23-05-2017 appealed to this Court on Four Grounds. The Grounds are reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial judge erred in law when he convicted the Appellant of the alleged offences without proof beyond reasonable doubt.
2. The learned trial judge erred in law when he relied on the unreliable, contradictory and inadmissible hearsay evidence of the prosecution witnesses in holding thus:
”I therefore believe and accept the evidence of PW5, 6 and 7 as the truth that PWs 6 and 7 were attacked with an offensive weapon likely to induce fear or bodily harm before they were robbed of their money and properties. The prosecution has therefore proved the 2nd ingredient of the offence beyond reasonable doubt.”
3. The learned trial judge erred in law when he relied on the unreliable and contradictory evidence of the prosecution to come to the conclusion that:
”Having identified some of their stolen properties which were recovered from the accused persons after searching their houses this is conclusive evidence/proof linking the accused persons with the robbery committed.”
4. The learned trial judge erred in law when he convicted the Appellant without any evidence of identification linking the Appellant with the alleged offences.
ISSUES FOR DETERMINATION:
A total of two issues were nominated for the determination of this Appeal by the Appellant as follows;
1. In order to establish the commission of the offence of robbery, the prosecution must prove that there was a robbery or series of robberies and that the Defendant was the robber or one of those who took part in the robbery. Can a Defendant be convicted of the offence of robbery where the prosecution failed to prove that he was one of those who took part in the robbery? (Grounds 2, 3 and 4)
2. The offence of conspiracy consists in the agreement between two or more persons to do an unlawful act, or to do lawful act by unlawful means. Where there was no evidence before the Court that there was an agreement between the Appellant and the other Defendants to commit robbery, can the Appellant be convicted of conspiracy (Ground 1).
On the part of the Respondent, two issues were nominated for the determination of this Appeal thus;
1. Whether having regard to the evidence adduced at the trial, the trial Court rightly convicted the Appellant of the offence of robbery. (Grounds 2, 3 and 4 of the Amended Notice of Appeal).
2. Whether the trial Court was not right in convicting the Appellant of the offence of conspiracy. (Ground 1 of the Amended Notice of Appeal).
A careful perusal of the issues nominated across board shows that the issues nominated by both sides to this dispute are clearly identical except for issues of semantics. In addition, the issues nominated by the Appellant, are inelegantly couched and for this reason, this Appeal shall be determined based on the issues nominated by the Respondent. The Appellant?s brief of Argument was settled by E. U. CHINEDUM ESQ., while the Respondent?s brief of Argument filed on the 20-2-2018 and settled by STEVE EMELIEZE ESQ., At the hearing of the Appeal on the 21-5-2018, learned Counsel adopted their briefs of Argument on behalf of their sides and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL;
APPELLANT:
ISSUES ONE:
In arguing this issue, learned Appellant’s Counsel submitted that there was no proof before the trial Court that the Appellant was one of the robbers who robbed the PW6 and the other passengers of their belongings on the 9/7/2014. He said that there was also no evidence that the Appellant by himself or in company of others put the PW6 under the apprehension of possible violence to his person before the alleged robbery incident.
According to Counsel, the prosecution called 7 witnesses 4 of whom were Police Officers who did nothing more than recording the statements of the Defendants, while one of them (PW2) was the Exhibit keeper. He said that in other words, the Police officers, PW1, PW3 and PW5 only gave evidence as to the fact that they recorded the statements of the Appellant, and the 1st and 2nd Defendants, while the PW2 came to tender the items allegedly recovered during search and nothing more.
It was further argued by Counsel that the PW4 on his part testified that he was the head of the vigilante group that arrested the Appellant when he and the other Defendants were allegedly sharing their loot, but that the Appellant and the other Defendants ran away. Counsel contended that however, that none of the items alleged to be stolen from the victims of the robbery were recovered from the scene where the Defendants (including the Appellant) were sharing the loot. In addition, he said that there was no evidence that the Appellant and the other Defendants ran away with the loots which, of course, is near impossible.
He reminded Court that all the ‘stolen items’ were recovered from the houses of the Appellant and the other Defendants and none was recovered from the place they were sharing the loot, especially when they were caught sharing the said stolen items and the 1st Defendant was even arrested on the spot. Counsel wondered how and stated that there was no explanation as to why. He said that this ought to create a doubt as to the truth that Exhibits A – J were indeed recovered from the searches conducted in the homes of the Appellant and the other Defendants. Counsel urged this Court to resolve this doubt in favour of the Appellant.
Learned Counsel also argued that there was no evidence that the Appellant was one of the robbers as the evidence of the PW5, PW6 and PW7 were mere unreliable, contradictory and inadmissible hearsay evidence. He further argued that to prove robbery the law requires that the accused was the robber or one of the robbers. Counsel cited the case of IBRAHIM vs. STATE (supra) at page 34 para C and contended that in the instant case, there was no proof that the Appellant was one of the robbers. He argued further that the PW1, PW2, PW3, PW4 and PW5 did not witness the robbery, while the PW6, the alleged victim of the offence, did not identify the Appellant or any of the Defendants as the robber or robbers when he said that the he did not know of the accused person as the incident happened in the night. See page 76 of the Record.
In the case of the PW7 (one of the passengers in the vehicle) on his part testified that he did not know the Defendants but he knew PW6; that on that day, he was coming from Lagos and on getting to D/Daji Road, they met the road blocked with woods. That immediately the vehicle stopped, they started running. Counsel said that the PW7 never gave evidence that he saw the robbers much less identifying any of them.
In the absence of any evidence linking the Appellant to Exhibits A ? J or to the robbery incident of 9/7/2014, Counsel submitted that the Appellant ought not to have been convicted for robbery as was erroneously done by the trial Court. It was further submitted that the prosecution failed to discharge the burden placed upon by it by the law that it must prove beyond reasonable doubt every ingredient of the offence charged by credible evidence. Counsel cited the case of STATE vs. AJAYI (2016) 14 NWLR (PT. 1532) 196 AT 223 PARAS B – C where Supreme Court emphasized the legal implication of failure by the prosecution to do so. See also ABONDEJO VS. FRN (2013) 7 NWLR (PT. 1353) 285 AT 318 PARAS D – E. In the instant case, Counsel submitted that the trial Court ought to have discharged and acquitted the Appellant upon the failure of the prosecution to prove their case. He urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO:
In arguing this issue, Counsel contended that there was no proof that there was an agreement between the Appellant and the other Defendants to commit the alleged offence as none of the prosecution witnesses identified the Appellant as one of the robbers. It is further argued that the conviction of the Appellant for conspiracy by the trial Court was based on the assumption that the blockage of the road was proof of a common intention to rob PW6 and PW7 of their properties. Counsel said that the trial Court stated its reason for convicting the accused persons for conspiracy at page 20 of its judgment (see page 115 of the Record) thus:
”The blockage of the road at that time of the night by the accused persons is a sufficient proof of their common intention to rob PW6 and 7 of their money and properties which they did in view of my findings in this judgment. See Bello Shurumo vs. The State (2011) 6 NCC at 90. I therefore hold that the prosecution has proved the offence of conspiracy contrary to Section 6(b) of the Robbery and Firearms Special Provisions Act Cap. R11 LFN 2004 against the accused persons beyond reasonable doubt. Accordingly, I find the accused persons guilty of the said offence and convict them as charged.”
With this at the background, Counsel submitted that the finding of the trial Court was based on assumption and mere conjecture as there was no evidence before the trial Court pointing unequivocally to the fact that the Appellant was one of the robbers. Having not been shown to be one of the robbers, Counsel said that the Appellant could not have been lawfully held to have participated in the blockage of the road.
On the doctrine of recent possession, under which the learned trial judge, at page 21 of his judgment (see page 116 of the Record) stated that the conviction of the Appellant and the other Defendants for robbery was based and not on any evidence that there was robbery, Counsel argued that there was no evidence before the Court that the Appellant was in possession of stolen goods, neither was there any evidence that he conspired with any other person to keep stolen goods. Counsel cited a number of cases thus; AL-MUSTAPHA vs. STATE (2013) 17 NWLR (PT. 1383) 350 AT 400 PARAS B ? C; AWOSIKA vs. STATE (2010) 9 NWLR (PT. 1198) 49 AT 70 PARAS C ? E.
The contention of Counsel is that having not convicted the Appellant of the substantive offence of armed robbery (as charged on the Charge sheet) which has the same set of facts as the alleged offence of conspiracy, the trial Court ought to have discharged and acquitted the Appellant for conspiracy as well. He said that the trial Court was therefore in error to have convicted the Appellant of conspiracy. He urged this Court to resolve this issue in favour of the Appellant.
RESPONDENT:
ISSUE ONE:
Whether having regard to the evidence adduced at the trial, the trial Court rightly convicted the Appellant of the offence of robbery (Grounds 2, 3 and 4 of the Amended Notice of Appeal).
In arguing this issue, Counsel submitted that this contention of the Appellant that no evidence was adduced linking the Appellant with the crime of robbery is not only baseless but holds no water. He said that in its Judgment, the trial Court convicted the Appellant and his co-accused persons of counts of conspiracy to commit robbery and robbery. According to Counsel, as for the 3rd count, which borders on voluntarily causing grievous hurt, the trial Court reasoned that the count was unnecessary in view of the fact that the ingredients are the same as those of robbery of which it had already convicted the Appellant and the others.
Therefore, for the purpose of this appeal, Counsel said that the relevant offences that require this Court’s attentions are the offences of conspiracy to commit robbery and robbery preferred against the Appellant and the other accused persons. The pertinent question which Counsel posed and which thus, immediately renders itself for this Court’s determination is whether the ingredients of these offences have been proved beyond reasonable doubt to warrant and or support the Appellant’s conviction?
As for the first and second of these ingredients, of the offence of armed robbery, Counsel submitted that the evidence adduced at the trial clearly established the fact that a robbery took place about 2130hrs on the 9th July, 2014 along Dogon Daji – Sokoto Road at Bancho village of Tambuwal Local Government Area of Sokoto State and that the robbers used arms, namely cutlasses and sticks. Particularly in this regard, the evidence of PW4, PW6 and PW7 are very instructive and relevant. Counsel referred to the evidence of the said PW4, who testified thus;
”I am 66 years. I live in Dogon Daji Tambuwal Local Government. I am a farmer. I know the accused persons in connection with the armed robbery in this case.
It is over 2 years now. I am the leader of the vigilante group D/Daji when the incident happened. I went to Tambuwal and informed the D.P.O. We arrested the 1st accused person. We pursued him and arrested him. It was during the raining season. He gave the Police the names of the 2nd and 3rd accused persons. We met them in a house and arrested them. Two days after the arrest of the accused persons their houses were searched where the Police found boundless (sic) of altanpa clothes, motor cycle, knives, soaps, and Iron rods. I can identify the items we recovered from the accused persons. These are the items recovered from the accused persons…”
According to Counsel under cross – examination, the PW4 said as follows:
”We got information from the public that there was a robbery going on. Our informant might not disclose their identity. When I went to the scene the accused persons had run away. The incident happened in the night. We arrested the 1st accused person when we met them sharing the loat (sic) among themselves. The 2nd and 3rd accused persons run away. We could only arrest the 1st accused person at that time. The 3rd accused person was arrested with the 2nd accused in the house of the 2nd accused person…One of the victims was injured by the accused persons. We recovered the Exhibits A – J from the accused person after searching their houses.”
See pages 64 – 65 of the Record of Appeal.
In respect of the evidence of the PW6, one of the victims of the robbery and who witnessed how and when it happened testified as follows:
”I am 60 years. The incident happened in the night. On 9/7/2014 when we reached Dogon Daji, we were coming from Ibbi in our vehicle when the driver met a heap of fire wood blocking the road. Some of the passengers in the vehicle run away leaving me in the vehicle because I could not run. When our vehicle stopped some robbers demanded me to give them money. They hit me at the back of my neck with cutlasses and collected the sum of ?200,000.00 from me. Two of my GSM hand sets were stolen also collected from me. I fell down I was lying down when the police came. My clothes were also collected by the robbers. I was unconscious as the result of the cuts/injuries inflicted on me. The police took me to Dogon Daji hospital.
The hospital refused to receive me. I was taken to Tambuwal where I was admitted. I was treated and discharged. I gave my statement to the police here in Sokoto. I can identify the items collected from me by the robbers. These are my shoes. These are my clothes. They were not sewn. These are my GSM handsets. These wrappers do not belong to me. I took picture of the injuries inflicted on me.”
Under cross – examination, the PW6 maintained his story; though he said he could not identify the robbers as it was dark in the night.
See pages 75 – 76 of the Record for all these.
Counsel also brought to the fore the evidence of the PW7, another victim and eye-witness to the crime testified thus:
”I am 25 years old. I am a beggar. I live in Lagos. My home town is Yola Shagari Local Government. I do not know the accused persons. I know PW6. On 9/7/2014 on Tuesday I was robbed. I was from Lagos on reaching D/Daji road we met the road blocked by robbers with wood. When our vehicle stopped we started running. Because pw6 could not run he was seriously injured by the robbers. When I came back the following morning. I met PW6 lying on the road unconscious. We could not find our properties in the vehicle because they were stolen by the robbers. I can remember some of my stolen properties. The items include bundle of shadda, white clothes, women wrapper and other items that I cannot remember. I also left the sum of N20,000.00 in my bags which was also stolen. My GSM handsets were stolen by the robbers. Sometimes after the robbery, I was invited at the state C.I.D. Sokoto in connection with my stolen properties. I mentioned the items stolen from me. I gave statement to the police. I can identify my stolen properties that were recovered. I did not see some of my properties. I can identify my stolen properties. These women wrappers belong to me. These white bundles of clothes belong to me. None of these shoes belong to me. The unsewn clothe does not belong to me. None of these GSM handsets belong to me.”
Counsel told Court that the Photograph of the PW6 showing the machete wounds he sustained during the robbery is Exhibit ‘N’. He also said that the Appellant had ample opportunity to challenge the foregoing pieces of evidence either through cross-examination or evidence in defense, but never did so and that in circumstances as this, the law deems as established such unchallenged evidence. See OFORLETE vs. THE STATE (2000) 12 NWLR (PT. 681) 415 AT P. 436; GAJI vs. PAYE (2003) 8 NWLR (PT. 823) 583.
It was further contended that from the foregoing pieces of evidence that the prosecution witnesses amply established the occurrence of the robbery and that in the course of the robbery, the robbers attacked PW6 with cutlasses and inflicted wounds on him. Regarding the use of cutlasses to inflict the said wounds, Counsel submitted that by virtue of Section 15 (1) of the Robbery and Firearms (Special Provision Act) Cap R11 L.F.N. 2004, the meaning of the word “arms” is not limited only to fire-arms such as gun, pistol that can cause death or harm but is extensive and include offensive weapon apart from fire-arm such as arrow and bow spear, cutlass, machetes, dagger, cudgel, metal, glass, stone or even a piece of wood or any object likely to induce fear or bodily harm. See also AJIBADE vs. THE STATE (2011) LPELR- 4938 SUNDAY ADEYEMO vs. THE STATE (2010) LPELR 3622; AFOLALU vs. THE STATE (2010) 16 NWLR (PT. 1220) AT 584, all cited by the trial Court in its Judgment at page 110 of the Record of Appeal.
Against the backdrop of this position, Counsel urged the Court to hold that the Prosecution successfully established to the satisfaction of the trial Court the first and second ingredients of the offence of armed robbery.
In respect of the third ingredient of the offence, learned Counsel contended that the PW6 and PW7 were emphatic and very certain that as to which recovered items belonged to each of them and that these items, i.e. particularly Exhibits D, E, G, G1 and G2 and H and H1 were stolen from the commercial vehicle in which PW6 and PW7 travelled when they were robbed along Dogon Daji – Sokoto Road on the fateful day. He said that the items were found in the houses of the Appellant and the other accused persons when they were arrested and searches conducted in their homes.
According to Counsel the Appellant and his co-accused persons never denied that:
(a) These items were found and recovered from their houses;
(b) They were found by the Vigilante group led by the PW4 in the bush sharing their loot and that they ran away when their cover was blown;
(c) When the 1st accused person was arrested, he named the Appellant and the other accused persons as his accomplices.
Counsel argued that these facts having not been denied, they are deemed established and were rightly relied upon by the trial Court. See again, OFORLETE vs. THE STATE (SUPRA).
Learned Counsel referred to the evidence of the Appellant who testified as DW3 at the trial at page 80 of the printed records and that in essence his entire evidence was characterized by denials but that under cross-examination, he admitted being of 26 years of age and that he comes Kwarkwaso village while he was arrested at Tulluwa but did not know how the Police got information about him. However, Counsel said that neither the Appellant nor the other accused persons asserted ownership of the items recovered from them let alone proffer any explanation as to how the items got to their houses.
Against the background of this position, Counsel submitted that there were ample eye witness accounts and cogent, forceful and reliable circumstantial evidence by which the Prosecution proved its case against the Appellant and his co-accused persons.
He said that as noted earlier, neither PW6 nor PW7 could identify the robbers when the robbery took place, but submitted that from the eye witness accounts of PW6 and PW7 and available ample circumstantial evidence showed unequivocally that the Appellant took part in the robbery. These circumstantial evidence, Counsel submitted consists of:
(i) the unchallenged evidence of location of the Appellant and the other accused persons by the PW4 – led vigilante group in the bush where they were sharing the loot of the robbery;
(ii) finding of the stolen items, particularly Exhibits D, E, G and H in the houses of the Appellant and the other accused persons; and
(iii) the confessions of the Appellant and the 1st accused person in Exhibits K and K1 and Land L1 that they were cattle rustlers who specialized in stealing various kinds of animals.
The submission of Counsel is that these are ample circumstantial evidence which were cogent, direct and unequivocal and sufficiently linked the Appellant and the other accused persons with the commission of the robbery in this case. It was further submitted that it goes beyond mere coincidence that these facts all came to exist around and involving the Appellant and his cohorts. He said that it is for no other reason than the fact they were the ones who actually committed the robbery. He urged this Court to so hold.
Counsel also submitted that in actual fact the trial Court could have convicted the Appellant for the offence of armed robbery contrary to Section 1 (2) (a) and (b) of the Robbery and Firearms (Special provisions) Act Cap R 11 LFN 2004 based on the evidence adduced, but out of leniency, it opted to convict and sentence the Appellant and his co-accused persons for the lesser offence of robbery under Section 1 (1) of the Act.
ISSUE TWO:
Whether the trial Court was not right in convicting the Appellant of the offence of conspiracy (Ground 1 of the Amended Notice of Appeal)?
The submission of Counsel under this present issue dealing with the offence of conspiracy is that the for reasons canvassed below under this issue, the learned trial Judge cannot be faulted for the decision he reached in this case in convicting and sentencing the Appellant and the other accused persons for the offence of conspiracy to commit the robbery.
Specifically on the charge of conspiracy to commit an offence, Counsel submitted that the ingredients of the offence are not farfetched. He said that there is a legion of case law on what these ingredients are and which the trial Court, aptly stated in its Judgment at page 114 of the Record.
Counsel further submitted that the offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose and that it can be inferred from what each person does or does not do in furtherance of the agreement. Counsel cited the case of OBIAKOR vs. THE STATE (2002) 10 NWLR (PT. 776) 612 AT P. 628; OYAKHERE vs. THE STATE (2005) 15 NWLR (PT. 947) 159 AT P. 160. Counsel added that the offence of conspiracy is by its nature mostly incapable of direct proof as it can be inferred from the circumstances of the case. See BELLO SHURUMO vs. THE STATE (2011) 6 NCC 90.
The argument of Counsel in this regard is that the evidence of PWS 6 and 7 which have earlier been reproduced are quite instructive. He said that when their vehicle was travelling along Dagon Daji – Sokoto Road, they met the road blocked with leap of fire wood and that on sighting the robbers, the occupants of the vehicle, save the PW6, abandoned the vehicle and their properties. The robbers wounded PW6, robbed him of money and other properties and also carted away the properties of the other passengers.
The further submission of Counsel here is that there was indeed an agreement between the robbers in pursuance of their common intention to rob to block the road with heap of firewood, dispossess their victims of valuable possessions, vi et amis (by force and arm), took their loot into the bush and later went home with their shares of the loot. Importantly, he added, the loot were later found in the respective homes of the Appellant and the other accused persons.
Counsel also submitted that the Appellant and his co-accused persons were undoubtedly the robbers and the actions they put up from the time the road was blocked up to when they took home their shares of the items and same were found in their houses inexorably evidenced their common intention from which conspiracy could and was validly inferred. Your Lordships are respectfully urged to so hold. On the whole, Counsel urged this Court to resolve this issue in favour of the Respondent and against the Appellant and dismiss the Appeal as whole.
RESOLUTION OF APPEAL
The facts of this Appeal are that on 9th day of July, 2014 at about 2130hrs in Bancho village of Tambuwal Local Government Area of Sokoto State, particularly along Dogan Daji – Sokoto Road a commercial vehicle carrying passengers met a road blocked with heaps of firewood by some robbers. Among the passengers was one Bala Dan Magajiya, a farmer aged 60 years old at the time material to this case. He was/is a resident of Sanyinnawal Village in Tambuwal Local Government Area of Sokoto State. Also in the vehicle was one Abubakar Shehu, aged 25 and a beggar who lived in Lagos but an indigene of Yola, Shagari Local Government Area of Sokoto State. While Bala Dan Magajiya was coming from Ibbi, a town in Niger State, Abubakar Shehu was coming from Lagos.
When their vehicle got to the heaps of firewood and had to slow down and or stopped, some men armed with cutlasses and sticks attacked the vehicle and its occupants. While Shehu and some other passengers ran into the bush, Bala Dan Magajiya, owing to his age could not join them. He was attacked by these men with cutlasses and they robbed him of the sum of N200,000.00 (Two Hundred Thousand Naira). Also stolen from him were his GSM handsets and some clothes. The robbers who had dealt Bala Dan Magajiya machete wound around his neck, ransacked the properties of the other travelers including Shehu’s and carted away bundles of shedda fabric, white clothes, women wrappers, N20,000.00 and other items belonging to Shehu and those of the other passengers.
Following Police intervention and assistance from local Vigilante group, and upon acting on a tip-off, the Police found the Appellant and some other persons in the bush where they were busy sharing the items and money which were stolen from Bala Dan Magajiya, Abubakar Shehu and other passengers in the vehicle at Dogon Daji. On sighting the Police and vigilante officials, the Appellant and the other men began to run but after a hot chase, one of them, Mohammed Sani was apprehended.
Upon being arrested, Mohammed Sani gave the Police the names of the other fleeing men found in the bush with him. They are Bala Mohammed, Garba Mohammed Muktari (the Appellant herein) and Abu Bancho.
A manhunt for these other men resulted in their successful arrest, except for Abu Bancho who is at large. At the end of investigation into the matter, the Respondent via an application to prefer charges which was granted by the trial Court on 13/10/2016 (pages 48 – 50 of the Record), commenced criminal proceedings in the Court below against the Mohammed Sani, Bala Mohammed, Garba Mohammed Muktari (the Appellant) and Abu Bancho as 1st, 2nd, 3rd and 4th accused persons respectively.
The charges were later amended to correct the names of the accused persons by an amended charge dated 6th November 2016. See pages 41 – 42 of the Record. Subsequently too, there was a further amendment that resulted in the removal of count 4 of the Charge for duplicity thereby reducing the charges to three (3) counts as contained in the Further Amended Charge dated 7th December 2016.
On 7/11/2016, the Appellant and the other accused persons were arraigned before the trial Court. See pages 51 – 57 of the Record of Appeal. The Prosecution opened its case on 15/11/2016. Between the said date and 26/1/2017 it called seven (7) witnesses who testified and were duly cross-examined. Exhibits A, A1, B, B1, C1 – C3, D,D1 – D4, E, E1 – E2, G, G1 and G2, F, Hand H1, I, I1 – I15, J, K and K1, Land L1, M and M 1, and N were admitted through these witnesses at the trial. See pages 58 – 78 of the Record. At the close of the prosecution’s case on the aforesaid 26/1/2017, the Appellant and the 1st and 3rd accused persons opened their defense. Each of them testified and was duly cross – examined. They all denied committing the offences charged. Thereafter, the trial Court adjourned the matter for addresses of Counsel. See pages 79 – 81 of the Record.
The Court below on the named date i.e. 3rd April, 2017 delivered its Judgment wherein it convicted the Appellant and his co-accused persons, of the offences of conspiracy and robbery and sentenced them to six (6) months and ten (10) years imprisonment respectively to run consecutively. The trial Court was very lenient with the Appellant and his cohorts by sentencing them for robbery as against the offence of armed robbery with which they were charged. See pages 97 – 119 of the Record.
It is important to point out at this stage that the burden to establish the culpability of the accused person standing trial for the offence of Armed robbery rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as corollary to the above, is the fact and from which the prosecution gets a modicum of succor that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012; NWOSU vs. THE STATE (1998) 8 NWLR (PT. 562) 433 AT P. 444, PARA. B; OCHIBA vs. THE STATE (2011) 17 NWLR (PT. 1277) 663 AT PP. 685, PARAS. A – B.
In the instant case, the learned trial Court seemed to have relied two clearly distinct aspects, namely: the evidence of eye-witnesses and circumstantial evidence. In the dealing with the question of the eye-witness accounts, there may be need to begin from first principles. Case law in Nigeria is agog with the ingredients of the offence of armed robbery. These are as follows;
a. There must be robbery or series of robberies;
b. That the robbery or each robbery was an armed robbery; and
c. That the accused was one of those who took part in the armed robbery.
See the popular cases of BOZIN vs. THE STATE (1985) 2 NWLR (PT. 8) 465 AT P. 469; ALABI vs. THE STATE (1993) 7 NWLR (PT. 307) 511 AT P. 523 PARAS. F- H; ISIBOR vs. THE STATE (2001) FWLR (PT. 78) 1077 and ADEBAYO RASAKI vs. THE STATE (2014) 10 NCC 1.
On account of the first and second ingredients, there is no doubt absolutely that from the evidence adduced at the trial it is firmly established that a robbery took place about 2130hrs on the 9th July, 2014 along Dogon Daji – Sokoto Road at Bancho village of Tambuwal Local Government Area of Sokoto State and that the robbers used arms, namely cutlasses and sticks. The evidence to this effect was provided by the evidence of the PW4, PW6 and PW7, who were eye-witnesses and or victims of the robbery. It would be proper to state that the evidence of the trio which had been earlier on reproduced in this judgment were clearly unassailable.
It is for this reason that this Court finds it clearly unable to disagree with the learned trial judge when he held at pages 109 -110 of the printed records when the Court stated thus, on account of the first ingredient of the crime of armed robbery;
”The evidence of PWs 1 – 7 that there was robbery at Bancho village along Dogon Daji Sokoto road on 9/7/2014 where PWs 6 and 7 were robbed of Exhibits D, E, & E1, G and some money was not challenged by the defense. I therefore hold that the 1st ingredient of the offence has been proved. See ALABA OLAGUNJU VS THE STATE (2014) LPELPR 22097, EDET ASUQUA BASSEY VS THE STATE (2008) LPELR – 4073. OLABISI OLAKUNLE V THE STATE (2014) LPELR – 22519.”
As it however relates to the second ingredient of the crime of armed robbery, the Court below at pages 110 – 111 of the printed records stated thus;
”Considering the 2nd ingredient of the offence PW6 said the robbers hit him on the neck with a cutlass. PW7 agrees with him where he said he met PW6 with some injuries inflicted on him by the robbers.
PW5 also said one of the victims of the robbery was cut on the neck. The photograph of the PW6 (Exhibit N) agrees with PW5. Section 15 (1) of the Robbery and Fire Arms (Special Provision Act) Cap R11 L.F.N. 2004 defines arms to include fire arms such as gun, pistol that can cause death or harm. It also include offensive weapon apart from fire arm such as arrow and bow spear, cutlass, machetes, dagger, cudgel, metal, glass, stone or even a piece of wood or any object likely to induce fear or bodily harm. See AJIBADE vs. THE STATE (2011) LPELR- 4938 SUNDAY ADEYEMO vs. THE STATE (2010) LPELR- 3622, AFOLABI vs. THE STATE (2010) 16 NWLR (PT. 1220) AT 584. In this case it is clear from the evidence of PWS 5, 6 and 7 that pw6 was attached (sic) with a sharp object likely to induce fear or bodily harm before robbing him of his money and properties. Pw6 said the robbers hit him on the neck and demanded him to give them money which he did by giving them the sum of ?200,000.00, 2 GSM handsets (Exhibit D) unsown clothes (Exhibit E) and women shoes (Exhibit H). This evidence was not challenged and ought to be accepted as the truth. I therefore believe and accept the evidence of PWs 5, 6 and 7 as the truth that PWs 6 and 7 were attacked with an offensive weapon likely to induce fear or bodily harm before they were robbed of their money and properties. The prosecution has therefore proved the 2nd ingredient of the offence beyond reasonable doubt. See AROGUNDADE vs. THE STATE (2009) 6 NWLR (PT. 1136) 165. SUNDAY ADEYEMO vs. THE STATE (SUPRA) AFOLALU vs. THE STATE (SUPRA).”
On account of the third ingredient of the crime of armed robbery, what seem to stand out very clearly is that this was established through the evidence of the PW6 and PW7 who were able to identify their goods amongst the recovered items from the Appellant and his co-accused persons in Exhibits D, E, G, G1 and G2 and H and H1 stolen from the commercial vehicle in which the duo were travelling before they were attacked and robbed. It is instructive to note that these items were found in the houses of the Appellant and the other accused persons when they were arrested and searches conducted in their homes. A strong point made by learned Respondent’s Counsel and for which I have no cause to disagree with is the fact that the Appellant and his co-accused persons never denied that:
a. These items were found and recovered from their houses;
b. They were found by the Vigilante group led by the PW4 in the bush sharing their loot and that they ran away when their cover was blown;
c. When the 1st accused person was arrested, he named the Appellant and the other accused persons as his accomplices.
The settled position of the law is that these facts having not been denied, they are deemed established and were rightly relied upon by the trial Court. See OFORLETE vs. THE STATE (SUPRA).
The treatment of the establishment of the third ingredient by the Court below is also clearly instructive at pages 111 – 113 of the Record as follows;
upon the arrest of the accused persons Exhibits A-J were recovered from them by the police and PWs 1 and 4. PWs 6 and 7 identified GSM handsets (Exhibit D) bundle of Shellda (Exhibit E) Women wrapper (Exhibits G, G1, G2) and women Shoes Exhibits H & H1 among their stolen properties that were recovered from the accused persons by the police and PWs 1 and 4. It is not necessary to identify the accused person since the incident happened in the night.
But having identified some of their stolen properties which were recovered from the accused persons after searching their houses this is conclusive evidence/proof linking the accused persons with the robbery committed at Bancho village along Dogon Daji Sokoto Road on 9/7/2014?
”The accused persons denied committing the offence at the trial and in exhibits K – M. But they did not deny the recovery of Exhibits D, E, G and H from them by the police which were among the items stolen from pw6 and pw7. It is the law that if a person is found in possession of property recently stolen the presumption is that he is either the thief or knew the property to be stolen…
I therefore hold that the accused persons were among the robbers that robbed PWs 6 and 7 of their money and properties. The prosecution has therefore proved the 3rd ingredient the offence against the accused persons, beyond reasonable doubt. Accordingly, I find the accused persons guilty for the offence of robbery under Section 1 (1) of the Robbery and Fire Arms Special Provision Act Cap R 11 L.F.N. 2004 and Convict them.”
In relation to the Count of conspiracy the gravamen of the learned Appellant’s Counsel Submission on this issue, is that the offence of conspiracy for which the Appellant and his co-accused were charged is that it was not proved. The simple question to, perhaps address at this stage is; what is conspiracy. The offence of conspiracy is not defined in the Criminal Code Act, 1916. The practice therefore, is to draw guidance from the Common Law which defines it as an agreement by two – or more persons to do or cause to be done an illegal act or act which is not illegal by illegal means. One of the many emphases is that there cannot be a conspiracy unless two or more persons are involved who have acted either by agreement or by concert. Serious as the situation, is that the conspirators need not know themselves or like those who were said to have murdered Ceaser, to be seen together coming out of the same premises. The most important thing is that they know of the existence and the intention or purpose of the conspiracy.
Usually, direct positive evidence of the plot between conspirators is hardly capable of proof. The reason for this is that crimes are mostly hatched in secrecy by desperate criminally minded individuals who would stop at nothing to conceal their tracks. It is precisely for this reason that the courts are allowed to draw reasonable inferences from the overt acts of the conspirators so as to establish whether there was a conspiracy or not. See the cases of ODUNEYE vs. THE STATE (SUPRA); OBIAKOR vs. THE STATE (SUPRA); DABOH vs. THE STATE (1977) 5 SC 197 and a host of other decided cases on the subject. The question to therefore address at this stage is whether there were any overt acts of the Appellant and his co-convicts from which a reasonable degree of conspiracy can be inferred in this Appeal
The observation of the Court below on the issue is perhaps, rife in the circumstances of this case, when the Court at page 119 of the Record, it held as follows:
”Without any agreement between the accused persons the road would not have been blocked by the accused persons. The blockage of the road at that time of the night by the accused persons is a sufficient proof of their common intention to rob PWS 6 and 7 of their money and properties which they did in view of my findings in this judgment.See BELLO SHURUMO vs. THE STATE (2011) 6 NCC AT 90. I therefore hold that prosecution has proved the offence of conspiracy contrary to Section 6 (b) of the Robbery and Fire Arms Special Provisions Act cap R11 LFN 2004 against the accused persons beyond reasonable doubt. Accordingly, I find the accused persons guilty of the said offence and convict them as charged.”
This Appeal is therefore without merit and it is accordingly dismissed. Consequently, the Judgment of the High Court of Sokoto State, Coram: BELLO DUWALE, J., delivered on the 3rd April, 2017 is hereby affirmed.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in advance, the lead judgment just rendered by my learned brother, Frederick O. Oho, JCA. I agree with the reasoning therein and the conclusion that the appeal is bereft of substance.
The unmeritorious appeal is hereby dismissed. I subscribe to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the lead judgment of my learned brother, Frederick O. Oho, JCA just delivered. I am in agreement with the reasons advanced and conclusion reached therein that this appeal is bereft of any substance and deserved to be dismissed. I too dismiss the appeal and affirm the judgment of the trial Court
Appearances:
E. U. CHINEDUM, ESQ.For Appellant(s)
STEVE EMELIEZE, ESQ.For Respondent(s)
