GODSPOWER ODE v. THE STATE
(2019)LCN/13269(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/B/317C/2015
RATIO
CONSPIRACY: BEST WAY TO RESOLVE THE ISSUE OF CONSPIRACY
It is trite that the offence of Conspiracy is difficult to prove. This is understandable because it is often contrived in secrecy. Circumstantial evidence is often resorted to in pointing out the fact that the Conspirators had agreed on the plan to commit the Crime.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CONSPIRACY: NATURE
There must therefore be an act done in the open to justify the inference of Conspiracy. The offence of Conspiracy is said to have taken place when people have acted by agreement or in concert.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CONSPIRACY: PROOF THAT AN ACCUSED CONSPIRED
In SALAMI VS. THE STATE (2015) 2 NWLR (PT. 1444) PG 595 at 610, the Supreme Court per Kumai Akaahs JSC stated thus:
In a Charge for an offence which is linked with Conspiracy, the actual presence of the accused person where the offence is committed together with prior abetment means participation in the offence.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
ARMED ROBBERY: WHAT PROSECUTION MUST PROVE
Now on the second count of Armed Robbery. In an offence of Armed Robbery, the burden of proof is on the prosecution to prove the following beyond reasonable doubt:
a. That there was robbery or series of robbery
b. That the said robbery was an armed robbery.
c. That the Appellant was one of those who took part in the armed robbery.
See ATTAH VS THE STATE (2010) 10 NWLR (PT. 1201) PG. 190 at 224.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
GODSPOWER ODE Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A.(Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned before the High Court of Delta State, Warri Division presided over by M. Umukoro, J, on an information of two Count Charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap RII Vol. 14, Laws of the Federation of Nigeria 2004.
In his judgment delivered on the 27th day of February, 2013, the learned trial Judge convicted the Appellant on the two Count Charge of Conspiracy to Commit Armed Robbery and Armed Robbery and sentenced the Appellant to death. This appeal is predicated on the said judgment.
SUMMARY OF FACTS:
The case as presented by the prosecution at the trial Court was that the Appellant on the 7th day of September, 2008 at Okere Road, within the Warri Judicial Division robbed one Jessica Atuge of her gold necklace, Gold Key Pendent, handbag containing handset, a bible and a cash of N200 (two hundred Naira) while armed with gun and thereby committed an offence punishable under Section 1(2)(a) of the Robbery
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and Firearms (Special Provisions) Act, Cap RII Vol. 14, Laws of the Federation of Nigeria, 2004.
The Appellant pleaded not guilty to the two Count Charge and the case proceeded to hearing.
The prosecution called two witnesses and tendered four exhibits. The victim Jessica Atuge testified as PW1, while PW2 was the investigating Police Officer.
The Exhibits tendered by the prosecution were: One cut to size single Barrel Gun Exhibit A, live Cartridge Exhibit B, Statement of the Appellant ? Exhibit C, and three Shells of expanded Cartridges Exhibit D.
On the 26th of June, 2012, the Appellant opened his defence and denied the two Count Charge against him. The Appellant testified that he was a Motorcyclist who carried two boys as passengers, that he was later asked to block another Motorcycle carrying a passenger and that he complied having been threatened with a gun. That while one of the passengers robbed PW1, the other passenger stayed on top of the Motorcycle. He was asked to ride off after PW1 was robbed. PW1 raised alarm which attracted other people who gave them a chase. The two people he carried on his
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Motorcycle escaped while he was apprehended by a soldier.
In a considered judgment, the learned trial Judge believed the version of the prosecution and disbelieved the version of the Appellant which he described as a Cork and bull story that does not hold water at all. He proceeded to convict and sentenced the Appellant to death.
Dissatisfied with the judgment, the Appellant appealed to this Court vide a Notice of Appeal filed on the 4th of June, 2015 which contained three Grounds of Appeal. (See pages 121 ? 124 of the Record of Appeal)
Learned Counsel for the Appellant O. N. Idogun distilled a sole issue for determination thus:-
?Whether having regard to the evidence on record and the circumstances of this case the learned trial Judge was right in holding that the prosecution proved the two Count Charge against the Appellant beyond reasonable doubt.
Learned Counsel for the Respondent C. O. Agbagwu Esq. adopted the sole issue distilled by learned counsel for the Appellant.
I will adopt the sole issue distilled by counsel for the Appellant in the determination of this Appeal.
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Taking the sole issue, learned counsel for the Appellant, O. N. Idogun Esq. contended, in summary, that the prosecution failed to call vital witnesses like the Soldiers and boys who handed the Appellant to the police Investigating Officer PW2. He cited
– ALAKE VS. STATE (1992) LPELR ? 403 SC.
– STATE VS. AJIE (2000) FWLR (PT.16) 2831 at 2844 among others.
Counsel argued that the Prosecution failed to tender credible evidence in support of the inference that the Appellant conspired with others. He submitted that the learned trial Judge relied on the use of the word ?we? in both his oral and written testimony to indicate that the Appellant acted along with the two boys he carried on his Motorcycle on the day of the incident even though the Appellant had stated that those two boys compelled him to act under duress.
Counsel also posited that there was no evidence linking the Appellant with the possession of Exhibits A, B, C and D i.e. the cut to size single barrel Gun, Live Cartridge, the Statement of the Appellant, and three shells of expanded Cartridges.
?Reacting to the foregoing, Learned Counsel for the Respondent, C.O. Agbagwu Esq. referred to
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the evidence of PW1 and PW2 and contended that the prosecution proved all the ingredients of the offences of armed robbery and Conspiracy to commit armed robbery against the Appellant beyond reasonable doubt.
Counsel reproduced relevant portions of the testimonies of PW1 and PW2 to show that elements of the offences were proved beyond reasonable doubt. He cited
– DIBIE VS. THE STATE (2004) 14 NWLR (PT. 893) PG 257 at Page 284 ? 285.
– SALAMI VS. STATE (2015) 2 NWLR (PT. 1444) PG 595 at 606 -607 among others.
He submitted that failure to call the Sergeant and boys who handed over the Appellant to PW2 was in no way fatal to the case of the prosecution. Counsel argued that all the material evidence from which the trial Court deduced Conspiracy to commit armed robbery and armed robbery were covered in the evidence of PW1 and PW2. He cited ADEJOBI VS. STATE (2011) 12 NWLR (PT. 1261) Pg. 347 at 378 ? 379 among numerous others.
Counsel further argued that there is no principle of law requiring the tendering of the weapon of an armed robbery in order to establish the guilt of the accused person and citing OLAYINKA VS. THE STATE
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(2007) 9 NWLR (PT. 1040) PG 561 at 575.
I wish to start with the first Count, Conspiracy to Commit Armed Robbery before going into the offence of Armed Robbery proper.
It is trite that the offence of Conspiracy is difficult to prove. This is understandable because it is often contrived in secrecy. Circumstantial evidence is often resorted to in pointing out the fact that the Conspirators had agreed on the plan to commit the Crime.
There must therefore be an act done in the open to justify the inference of Conspiracy. The offence of Conspiracy is said to have taken place when people have acted by agreement or in concert.
In the instant case the offence of Conspiracy can be inferred from the evidence of PW1 who is also the victim. She testified that the Appellant in company of two other boys used a Motorcycle they were riding to block the Motorcycle conveying her to her destination. She testified that a demand was made for her gold necklace and when she refused, in reaction, the Appellant pointed a gun at her and cut off her necklace. The Appellant and the other two boys sped off on their Motorcycle.
?The question then is could it be by
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coincidence that the Appellant and the other two boys met at the scene of the robbery at the same time, participated in the armed robbery and left at the same time in the same Motorcycle? The only reasonable inference to be drawn is that they were at the scene of crime in pursuance of a common purpose which was to rob PW1 of her belongings under gun point.
The defence put up by the Appellant (accused) person at the trial Court that the two other boys were his passengers who suddenly threatened him with a gun and ordered him to block the Motorcycle conveying PW1 which order he obeyed in my view sounds like tales by moon light, a nursery rhymes and simply a cork and bull story. I so hold.
In SALAMI VS. THE STATE (2015) 2 NWLR (PT. 1444) PG 595 at 610, the Supreme Court per Kumai Akaahs JSC stated thus:
?In a Charge for an offence which is linked with Conspiracy, the actual presence of the accused person where the offence is committed together with prior abetment means participation in the offence.?
Akaahs JSC went further to state:
?Once the Court arrives at a conclusion, that the prosecution has established some
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community effort by the accused persons aimed at committing a crime, it will be safe to convict them of Conspiracy.?
Now on the second count of Armed Robbery. In an offence of Armed Robbery, the burden of proof is on the prosecution to prove the following beyond reasonable doubt:
a. That there was robbery or series of robbery
b. That the said robbery was an armed robbery.
c. That the Appellant was one of those who took part in the armed robbery.
See ATTAH VS THE STATE (2010) 10 NWLR (PT. 1201) PG. 190 at 224.
In proof of the ingredients of the offence of armed robbery, PW1 Jessica Atuge, who incidentally was both the victim and eye witness of the said robbery in her examination-in-chief, testified as follows:
?I know the accused person. The accused was among the boys that robbed me. In September, 2008, I was coming from Church?Christ Embassy along Esisi Road, Warri on top of a Motorcycle as a passenger in the morning. Three boys on Okada blocked the rider carrying me. They asked me to surrender the gold chain on my neck. Before I could say anything, the accused pointed a gun at me threatening to shot. The
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accused forcibly took the gold chain from my neck. I started to shout Ole Ole Ole! My alarm attracted some boys in the area who pursued the boys who robbed me. Luckily the Soldiers on Patrol pursued them. The Okada man carrying me also pursued them. The accused was caught at Emebiren.?
Under cross examination PW1 stated further:
?It was the accused who rode the Okada. The accused had a hand controlling the Okada while the gun was on the other hand It was the accused who robbed me. It was a clear and bright day. I saw the accused very well.? (See pages 79 ? 80 of the Records)
PW2 the I.P.O also in his examination-in-chief stated thus:
?I know the accused. On the 7th of September, 2008 while at B Division we heard loud noise within the premises when my boss ? ASP Omagbemi asked me to check what was amiss. I came out and observed some Okada riders and Soldiers with the accused and one girl the 1PW who told me that the accused and others robbed her at gun point. I arrested the accused from the Soldiers with a cut to size gun and one live Cartridge. This is
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the said gun. No objection.
Court: One gun shall be exhibit ?A?. This is the live Cartridge tendered. No objection.
Court:- Live Cartridge shall be exhibit ?B?.?
In his cross examination PW2 stated further:
?I arrested the accused along with the Exhibit ?A? and ?B? The 1PW identified the accused as the one who cut her handbag containing her handset and money. The accused was the rider of the bike who blocked her.?
The above evidence of PW1 and PW2 show that there was threat of violence and actual violence when the Appellant and his cohorts while armed with a gun forcefully and violently collected PW1?s bag containing her handset and money and also her gold chain which she wore on her neck.
The testimonies of PW1 and PW2 left no one in doubt that there was robbery on the 7th of September, 2008 at Emebiren Street/Okere Road in Warri and that the robbery was an armed robbery as clearly testified by PW1.
?Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap. 398, Vol. 22 defines ?Firearms? to include any canon, gun,
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rifle, Carbine, Machine Gun e.t.c. it follows therefore that a Cut to size gun Exhibit ?A? is a gun within the meaning of Section 15(1) of the said Firearms Act.
Learned Counsel for the Appellant made heavy weather about what he termed inconsistencies in the evidence adduced by witnesses for the prosecution.
It is trite that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not where there is just a minor discrepancy between them.
A mere variation and difference in the use of language is a natural phenomenon and should not count as material contradiction. Individual differences in perception are a factor which should also always be taken into consideration and not disregarded. This is because a prototype or straight jacket and repetitive narration should indicate possible tutoring.
Learned Counsel for the Appellant also alluded to failure by the prosecution to call the soldiers and the boys who handed over the Appellant to PW2.
?I had earlier reproduced relevant portions of the evidence of PW1 and PW2. The evidence of both witnesses sufficiently proved the
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prosecution?s case that the Appellant and his cohorts conspired to rob PW1 while armed with a gun.
There was also attack on the inability of the investigating Police Officer PW2 to record statement from the Soldiers and boys who caught the accused.
The Appellant had narrated how he was apprehended. The inability of the I.P.O (PW2) to record statement on how the Appellant was caught becomes immaterial and I so hold.
The Supreme Court per Olufunlola Adekeye JSC in ADESINA VS. THE STATE (2012) 14 NWLR (PT. 1321) 452, stated:
?It is the prerogative of the prosecution to call witnesses relevant to its case. Furthermore, the prosecution is not bound to call all probable witnesses or every person that was linked to the scene of crime by physical presence or give evidence of what he saw. Once persons who can testify to the actual commission of a crime have done so, it suffices for the satisfaction of proof beyond reasonable doubt in line with Section 138 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990.?
On whether the Appellant was found with a gun and where the gun was recovered, it is trite that
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failure by the prosecution to tender the offence weapon cannot result in the acquittal of the accused person. Once the prosecution is able to prove the elements of the offence of armed robbery beyond reasonable doubt, it is not compulsory that the weapon of an armed robbery must be tendered.
The pertinent questions in this case are
1. Was there a robbery?
2. Was the robbery an armed robbery?
3. Was the Appellant one of those who took part in the armed robbery?
In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side to believe. He did so extensively in relation to both Counts on the information where he found inter alia, at page 112 of the Records as follows:
?According to him in his statement made at the earliest Opportunity, he on his own volition blocked the Motorcycle carrying the 1PW. What is the inference? The 1PW Motorcycle was blocked as a product of the arrangement by the accused and the other boys to commit a crime and in this case armed robbery. I believe
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there is evidence before me to establish confederacy between the accused and others to commit the offence of armed robbery and that the accused took part in the offence of robbery and that the robbery was an armed robbery.?
The above is a clear and succinct finding of fact which this Court has no reason or justification to reverse.
In the same manner, the trial Court made impeccable findings on the matter of conspiracy to commit Armed Robbery.
In the premise the sole issue is resolved against the Appellant and in favour of the Respondent. This appeal is unmeritorious and is hereby dismissed.
The judgment of the trial Court in Charge No. W/168C/2010 delivered on the 27th of February, 2013 by M. Umukoro, J, (now CJ) sitting at the Warri Division of the Delta State High Court, the conviction and sentence to death are hereby affirmed.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, CHIOMA EGONDU NWOSU-IHEME, JCA (Ph.D)
I am in total agreement with the issue thus raised and adopted and also with the reasoning and conclusion arrived thereat. I too
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resolve the sole issue against the Appellant and in favour of the Respondent as it is hereby adjudged unmeritorious.
I also dismiss it accordingly.
The Judgment of the trial Court in Charge No.W/168C/2010 delivered on the 27th of February, 2013 by M. Umukoro, J, (now CJ) sitting at the Warri Division of the Delta State High Court, the conviction and sentence to death are hereby affirmed.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree
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Appearances:
O. O. Erhuritu
For Appellant(s)
C. O. Agbagwu (Deputy Director, Delta State M.O.J) with him, E. E. Erebe (Deputy Director, Delta State M.O.J)For Respondent(s)
Appearances
O. O. ErhurituFor Appellant
AND
C. O. Agbagwu (Deputy Director, Delta State M.O.J) with him, E. E. Erebe (Deputy Director, Delta State M.O.J)For Respondent
