HARUNA v. STATE (2020)

HARUNA v. STATE

(2020)LCN/14024(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/MK/15C/2019

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

KUDU HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN OF PROOF IN CRIMINAL MATTERS

On the authority of Section 135(1) and (2) of the Evidence Act, 2011, the burden of proving the guilt of the appellant fell on the prosecution. The standard of proof required was proof beyond reasonable doubt. The burden never shifts. Where the prosecution fails to prove its case beyond reasonable doubt, the accused must be discharged. It must however be stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. Rather, it means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. It also means a degree of compulsion which is consistent with a high degree of probability. If the evidence is strong against a man as to have only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. See Akpan V State (1990) 7 NWLR (Pt. 160) 101, Ikpo V State (2016) 10 NWLR (Pt. 1521) 501 and Sanmi V State (2019) 13 NWLR (Pt. 1690) 551. PER EKANEM, J.C.A.

FACTORS TO ESTABLISH THE OFFENCE OF ROBBERY

The offence of robbery is the illegal taking of property from the person of another or in the person’s presence by violence and intimidation. Armed robbery is committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or not. See Okanlawon V State supra. 472.
To succeed in establishing the charge of armed robbery, the following elements must be proved:
(i) that there was a robbery or series of robberies;
(ii) that the robber(s) was/were armed; and
(iii) that the accused was the armed robber or one of the armed robbers. See Bozin V State (1985) 2 NWLR (Pt. 8) 465, Ekeh V State (2011) All FWLR (Pt. 566) 430 and Okanlawon V State supra. PER EKANEM, J.C.A.

ESTABLISHMENT OF THE GUILT OF AN ACCUSED PERSON

I shall pause at this stage to state that the guilt of an accused person may be established by;
(i) the confessional statement of the accused person;
(ii) circumstantial evidence;
(iii) evidence of eye witnesses. See Dahiru V State (2018) 14 NWLR (Pt. 1640) 567, 580.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED SOLEY ON THE BASIS OF HIS CONFESSIONAL STATEMENT

The law still remains that an accused person can be convicted on the basis of his confessional statement alone once it is shown to be free, voluntary, positive, direct, unequivocal and properly proved without the need for corroboration. SeeKanu V State (1952) 14 WACA 30, Ogedengbe V State (2014) 12 NWLR (Pt. 1421) 338, 358, Dibia V State (2017) 12 NWLR (Pt. 1579) 196, 219 and 220 and Akeem V State (2017) 18 NWLR (Pt. 1597) 311, 340. The reason is that the strongest evidence establishing the guilt of an accused person is his own confession. There is no evidence stronger than a person’s own admission or confession. See Federal Republic of Nigeria V Barminas (2017) 15 NWLR (Pt. 1588) 177, 199.
Nevertheless, over time the Courts have developed the position that it is desirable though not mandatory for the Court to have some evidence outside the confession (no matter how slight) of circumstances which make it probable that the confession was true. See Busari V State (2015) 5 NWLR (Pt. 1452) 343, 367, Nalado V State (2019) 13 NWLR (Pt. 1688) 1 13 and Philip V State (2019) 13 NWLR (Pt. 1690) 509, 536 and 543. PER EKANEM, J.C.A.

TEST TO ASCERTAIN THE VERACITY OF A CONFESSIONAL STATEMENT

I have already stated that generally it is desirable to have outside a confessional statement some evidence of circumstances which make it probable that the confession was true. Courts have developed the following tests to ascertain the veracity of a confessional statement:
(i) Whether there is anything outside the confession which shows that it may be true;
(ii) Whether it is corroborated in any way;
(iii) Whether the relevant statement of fact made in it are most likely true as far as they can be tested;
(iv) Whether the accused had the opportunity of committing the offence;
(v) Whether the confession is possible;
(vi) Whether the alleged confession is consistent with other facts that have been ascertained and established. SeeAlo V State (2011) All FWLR (Pt. 600) 1357 and Okeke V State supra.
It should be stated that it is not mandatory that each and every of those tests must be analysed by the trial Court. It is sufficient if there is a general corroboration of the important incidents under consideration. SeeAsimi V State (2016) 12 NWLR (Pt. 1527) 414, 433 – 434 andJimoh V State (2012) 3 NWLR (Pt. 1286) 149, 168-169. PER EKANEM, J.C.A.

PROOF OF THE OFFENCE OF CONSPIRACY

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Nasarawa State, sitting at Lafia (“the trial Court” for short) delivered on 3/5/2018 in Charge No. NSD/LF/37C/2012. In the judgment, the trial Court (presided over by S.U. Dikko, C.J.) found the appellant guilty of the offences of conspiracy and armed robbery under Sections 6(b) and 1((1) and (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, 2004. He was sentenced to 21 years imprisonment for the offences.

The facts of the case leading to this appeal are that the appellant (as 1st accused person) was arraigned at the trial Court along with three other persons (one of whom was at large) on a seven count charge of conspiracy and armed robbery contrary to Sections 6(b) and 1(1) and (2)(a) and (b), respectively, of the Robbery and Firearms (Special Provisions) Act, 2004.

The respondent, to prove its case, called six witnesses and tendered exhibits including exhibits “I” and “N”, said to be the confessional statements of the appellant. The appellant testified in his

defence and did not call any other witness. The case of the prosecution against the appellant was that the appellant along with his co-accused persons on 24/1/2012 and 27/1/2012 at Abdullahi Adamu Housing Estate and Millionaires Quarters, Lafia, conspired to and did rob Mairiga Umar Mohammed, and Hassan Suleiman Nalaraba, Abdullahi Usaini, Isah Hassan Nalara, Esq. and Ahmad Hassan of valuable items including cash and phones while armed with deadly weapons including guns. The appellant testified as to his innocence.

At the end of the trial and after considering evidence led before it and the written addresses of counsel, the trial Court, as earlier stated, found the appellant and his co-accused persons guilty as charged and sentenced them.

Aggrieved by the decision, the appellant filed a notice of appeal to this Court on 30/7/2018.

Pursuant to the rules of this Court, appellant filed a brief of argument on 15/1/2020 and a reply brief on 13/3/2010. Both briefs which were settled by Matthew G. Burkaa, Esq., were deemed duly filed and served on 18/3/2020.

The respondent filed its brief of argument on 6/3/2020 and the same was settled by M.J.

Abokee, Esq. (Principal State Counsel – Ministry of Justice, Nasarawa State). The same was deemed duly filed and served on 18/3/2020.

At the hearing of the appeal on 18/3/2020, Matthew G. Burkaa, Esq. for the appellant adopted and relied on appellant’s briefs of argument in urging the Court to allow the appeal, set aside the judgment of the trial Court and discharge, and acquit the appellant.

Dr Abdulkarim A. Kana (the Honourable Attorney – General, Nasarawa State) adopted and relied on the respondent’s brief of argument in urging the Court to dismiss the appeal and affirm the conviction of and sentence on the appellant.
In the appellant’s brief of argument, the following issues are formulated for the determination of the appeal:
“1. Whether the trial Court was right to have convicted the Appellant for the offence of conspiracy. (Distilled from Ground 1 of the Notice of Appeal.
2. Whether in view of the entire circumstances and the evidence presented during trial, the trial High Court was right to have attached probative value to Exhibit “I” and “N”. (Distilled from Grounds 3

of the Notice of Appeal).
3. Whether the Respondent has proved its case beyond reasonable doubt to warrant the trial High Court to have convicted and sentenced the Appellant for the offence of Conspiracy and Armed Robbery. (Distilled from Grounds 2, 4 and 5 and 6 of the Notice of Appeal)”

In the respondent’s brief of argument, a single issue is formulated for the determination of the appeal. The issue is:
“Whether the trial Court rightly convicted and sentenced the appellant to 21 years imprisonment for conspiracy to commit armed robbery and armed robbery under Section 6(b) and 1(1) and (2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act, 2004”.

Since all the issues raised by appellant revolve around proof of the offences with which the appellant was charged, it is my view that the single issue formulated by the respondent’s counsel is more apt for the determination of the appeal than the issues formulated by appellant’s counsel. The single issue covers all the complaints of the appellant in his grounds of appeal. I therefore adopt the single issue formulated by the respondent’s counsel for the determination of the appeal.

Arguments of Counsel
Appellant’s counsel set out the ingredients of the offence of conspiracy and submitted that the prosecution did not establish the offence against the appellant. This, he stated, is because the prosecution did not establish any of the ingredients of the offence of conspiracy. It was his contention that the prosecution failed to prove the meeting of minds of the appellant and his co-accused persons to commit an offence.

Appellant’s counsel referred to Exhibits “I” and “N” which were held by the trial Court to be the confessional statements of the appellant. He noted that the trial Court primarily based its conviction of the appellant on the statements. He submitted that it is one thing to admit a confessional statement and another thing to attach probative value to it. Thus, he posited, the trial Court was wrong to have convicted the appellant on the basis of the confessional statements. He lamented that the trial Court did not subject the confessional statements to the test for their truth as laid down in Alo V State (2011) All FWLR (Pt. 600) 1357.

Continuing, counsel contended that Exhibit I was nothing but hearsay as it was impossible for PW5 through whom it was tendered to tender it as he was not the Police Officer who recorded the statement. It was his position that the PW5 could not tender the statement in Court since, according to him, another person who recorded the statement was also the interpreter of the statement. Referring to the case of FRN V Usman (2012) All FWLR (Pt. 632) 1639, he argued that the trial Court ought not to have attached probative value to the statement.

He noted that as regards Exhibit N which was tendered through the PW6, the PW6 testified that he and other Police Officers recorded the statement. He observed that the statement was not tied to any of the Police Officers. He therefore classified exhibits I and N as documentary hearsay which attracts no probative value though they were tendered and admitted without objection.

Counsel proceeded to argue that exhibits I and N were not direct, precise and unequivocal as to the commission of the offences alleged against the appellant.

It was his position that the prosecution did not prove it allegations

against the appellant beyond reasonable doubt and as such the trial Court was wrong to have convicted the appellant.
He further submitted that there were contradictions and uncertainties in the evidence of prosecution witnesses. He pointed out that the PW1 testified that he was lying prostrate during the robbery of 24/1/2012 yet he claimed to have recognized the alleged robbers. He noted that the PW3 testified that all the robbers carried torchlight while, PW4 said they carried guns. He then wondered how the appellant and his co-accused were able to rob the victims of their valuables at the same time.

Finally, counsel contended that the conviction of the appellant for the offences that occurred on 24/1/2012 was unjustified. This, he posited, is because it was based on the conclusion of the trial Court that though he did not partake in the crimes of that day, he was guilty of the crimes on account of agreeing to collect some of the stolen items.

On his part, respondent’s counsel submitted that the offence of conspiracy lies not in doing of the act for which the conspiracy is formed but in forming the scheme of agreement (to commit a crime)

by the parties. It was his further submission that the respondent established a case of conspiracy against the appellant. He posited that the trial Court adequately tested the veracity of exhibits I and N and came to the conclusion that it was consistent with other evidence led by the prosecution.

It was his view that the appellant failed to appreciate the position of the law that in indictment containing conspiracy and a substantive charge, the latter should be dealt with first before the former is considered.

Counsel contended that the proper time to raise objection to the admissibility of a confessional statement is at the point when the statement is tendered in evidence by the prosecution. He referred to and relied on Adetunji V State (2014) LPELR – 41065 (CA). It was his further contention that the trial Court was right in convicting the appellant on the basis of exhibits I and N after having tested and ascertained that they were consistent with evidence of PW1 – PW6.

He noted that the appellant testified in his defence that he attended secondary school and that he opted to testify in Hausa, not being so proficient in English Language.

He posited that the fact that the appellant signed exhibits I and N raised the presumption that he is literate. He therefore did not see the need to call the recorder of the statements especially as the recorder recorded the same as a police officer and as the prosecution is not obliged to call a host of witnesses to prove its case.

Counsel submitted that there were no contradictions in the evidence of the prosecution witnesses and that even if there were, they were not material.

It was finally submitted that the appellant had fore knowledge of the robbery of 24/1/2012 as can be seen in exhibits I and N and also shared in the proceeds thereof. This, he contended, made him culpable.

The reply of appellant’s counsel was a rehash or an extension of his argument in the appellant’s brief of argument. That is not the function of a reply. I shall therefore discountenance same.

Resolution of the Issue
Appellant, as earlier stated in this judgment, was charged with the offences of conspiracy and armed robbery. On the authority of Section 135(1) and (2) of the Evidence Act, 2011, the burden of proving the guilt of the

appellant fell on the prosecution. The standard of proof required was proof beyond reasonable doubt. The burden never shifts. Where the prosecution fails to prove its case beyond reasonable doubt, the accused must be discharged. It must however be stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. Rather, it means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. It also means a degree of compulsion which is consistent with a high degree of probability. If the evidence is strong against a man as to have only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. See Akpan V State (1990) 7 NWLR (Pt. 160) 101, Ikpo V State (2016) 10 NWLR (Pt. 1521) 501 and Sanmi V State (2019) 13 NWLR (Pt. 1690) 551.

Since the appellant was charged with both conspiracy and armed robbery, the position of the law, as rightly pointed out by respondent’s counsel, is that the substantive charge (armed robbery) is to be dealt with first and then the

Court would proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See Jimoh V State (2014) 10 NWLR (Pt. 14140) 105, 135 – 135, Okanlawon V State(2015) 17 NWLR (Pt. 1489) 445, 479 and Agugua V State (2017) 10 NWLR (Pt. 1573) 254, 274.
In keeping with the above, I shall first consider the counts on armed robbery.

I shall pause at this stage to state that the guilt of an accused person may be

established by;
(i) the confessional statement of the accused person;
(ii) circumstantial evidence;
(iii) evidence of eye witnesses. See Dahiru V State (2018) 14 NWLR (Pt. 1640) 567, 580.

In this instance, the trial Court seems to have relied primarily on confessional statement of the appellant (exhibit N) to convict him. At page 259 of the record of appeal, the learned trial Judge after reviewing the evidence proffered by the prosecution including the said exhibit reasoned as follows:
“With this confessional statement and without any proof from the prosecution, the accused person stands guilty of the charged preferred against them”.

Appellant’s counsel contended that the learned trial Judge was wrong in convicting the appellant on the basis of his confessional statements alone without testing their veracity. The law still remains that an accused person can be convicted on the basis of his confessional statement alone once it is shown to be free, voluntary, positive, direct, unequivocal and properly proved without the need for corroboration. SeeKanu V State (1952) 14 WACA 30, Ogedengbe V State (2014) 12 NWLR

(Pt. 1421) 338, 358, Dibia V State (2017) 12 NWLR (Pt. 1579) 196, 219 and 220 and Akeem V State (2017) 18 NWLR (Pt. 1597) 311, 340. The reason is that the strongest evidence establishing the guilt of an accused person is his own confession. There is no evidence stronger than a person’s own admission or confession. See Federal Republic of Nigeria V Barminas (2017) 15 NWLR (Pt. 1588) 177, 199.
Nevertheless, over time the Courts have developed the position that it is desirable though not mandatory for the Court to have some evidence outside the confession (no matter how slight) of circumstances which make it probable that the confession was true. See Busari V State (2015) 5 NWLR (Pt. 1452) 343, 367, Nalado V State (2019) 13 NWLR (Pt. 1688) 1 13 and Philip V State (2019) 13 NWLR (Pt. 1690) 509, 536 and 543.
The mere fact however that a conviction was based on a confessional statement alone without such evidence of corroboration will not by itself lead to a reversal of the conviction. In Okeke V State (2016) 7 NWLR (Pt. 1512) 417, 439 – 440 M.D. Muhammad, JSC, stated as follows:
“Learned respondent’s counsel is also correct in

his submission that although it is desirable for the trial Court to avail itself with some evidence outside the confessional statement in proof of the offence, the absence of such additional evidence would not be fatal to the trial Court’s conviction of the accused on the confessional statement provided the confession is positive, direct and unequivocal”. See also Ogedengbe V State supra. 358.
In Exhibit I, the appellant stated as follows:
“Yesterday being 27/01/2012, I follow them (his co-accused) went out for night operation, that is robbering. We entered in one house and robbed, three of them entered the house, while I stood at the gate watching. When people raise alarm that thief, thief I ran and left the three of them inside”. (Words in bracket are mine for clarity).
The appellant was even more explicit in exhibit “N” where he stated in part, as follows:
“… we waited at one uncompleted house near the Yahaya’s house till around 8 PM to 9 PM then Sunday now said we should enter and carry out our operation so I said I will wait outside to watch while Sunday, Dauda and Jamilo now

entered the house. During the robbery operation I was at the gate watching and to direct them ways of escaping since I am in Lafia town, Dauda was carrying a toy gun, Jamilo was holding something but I did not know what he was carrying while Sunday was carrying a double barreta locally made gun and as the robbery was going on a little girl now ran out of the compound to nearby mosque and alerted some people that were sitting at the mosque that some group of armed robbers are attacking his father so those people now stood up and ran to the house and as they were coming I now ran away…”
Given the foregoing, it is not correct for appellant’s counsel to argue that the confessional statements are not direct, precise and unequivocal, particularly as to the offences of 27/1/2012. The statements are positive, direct, precise and unequivocal and the trial Court was right in convicting on them in regard to the offences of 27/1/2012.
I have already stated that generally it is desirable to have outside a confessional statement some evidence of circumstances which make it probable that the confession was true. Courts have developed the

following tests to ascertain the veracity of a confessional statement:
(i) Whether there is anything outside the confession which shows that it may be true;
(ii) Whether it is corroborated in any way;
(iii) Whether the relevant statement of fact made in it are most likely true as far as they can be tested;
(iv) Whether the accused had the opportunity of committing the offence;
(v) Whether the confession is possible;
(vi) Whether the alleged confession is consistent with other facts that have been ascertained and established. SeeAlo V State (2011) All FWLR (Pt. 600) 1357 and Okeke V State supra.
It should be stated that it is not mandatory that each and every of those tests must be analysed by the trial Court. It is sufficient if there is a general corroboration of the important incidents under consideration. SeeAsimi V State (2016) 12 NWLR (Pt. 1527) 414, 433 – 434 andJimoh V State (2012) 3 NWLR (Pt. 1286) 149, 168-169.
Even though the trial Court did not specifically look for corroborative evidence nor did it specifically or generally apply the test above, there is enough evidence on record to ascertain the

veracity of the confessional statements viz – a – viz the events of 27/1/2012.

In exhibits I and N, the appellant stated how he accompanied his co-accused persons to rob between 8 PM and 9 PM, how he was outside the house at the gate watching to facilitate the escape of his “comrades –in-arms” and how he escaped when neighbours were alerted as to the robbery operation. The PW2 testified that on 27/1/2012 he visited his elder brother around 7:30 PM and that three armed robbers invaded the house to rob while one of them was by the gate. The PW3 testified to the same effect. It is therefore my view that it was safe for the trial Court to convict the appellant as there was enough corroborative evidence.

Appellant’s counsel contended that in respect of exhibit I, the PW5 through whom it was tendered was not the recorder and the interpreter thereof, and so it should not have been admitted in evidence or probative value should not have been attached to it. The first point to be made is that the trial Court made a ruling admitting the statement. There is no ground of appeal which attacks the ruling and so it subsists. The

issue of the admissibility of the statement therefore does not arise in this appeal. Furthermore, the PW5, through whom the statement was tendered and admitted without objection, testified that he was the leader of the investigation team; that he recorded the statements of appellant’s co-accused persons while another member of his team recorded exhibit I; that he would recognize the statement recorded by the other member of the team because he knew his handwriting. (See page 138 of the record). He indeed identified the statement of appellant recorded by Cpl. Augustine Tyonum, a member of his team which was tendered without objection as exhibit I. It is my view that being the leader of the investigating team and knowing the handwriting of his team member, the statement was properly tendered through him.
I draw support for my position above from the case of Sanmi V State supra. 582 where Galumje, JSC, stated as follows:
“The Nigerian Police is an institution, where any of its officers can take over investigation of a case from another officer and indeed produce documents that were executed by the previous officers and tender them in Court

for the purpose of proving the prosecution’s case”
In Oloye V State (2018) 14 NWLR (Pt. 1640) 509, 530, Aka’ahs, JSC, opined thus:
“The objection taken by the counsel that only the recorder of the statement can tender it is misleading. The only occasion where a valid objection can be considered is where the statement of an accused is recorded through an interpreter and the accused makes his statement in his mother tongue which is recorded and later translated into English. In such a situation before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into English must be called to testify; otherwise the translated version of the statement will at best be treated as secondary evidence while the one recorded in the mother tongue is taken to be primary evidence”.
It was the contention of appellant’s counsel, as I have already stated, that Augustine Tyonum acted as both the recorder and interpreter of exhibit I and therefore his testimony was vital for the admission of the statement and for weight to be attached to it. There is no evidence on record

which bears out the contention that the appellant made his statement in a local language while Augustine Tyonum interpreted and recorded it. The PW5 testified that the said Tyonum recorded the statement of appellant. The appellant testified that a police officer brought a paper with a writing on it and asked him to sign which he did upon being induced to do so. He did not at all say that he gave his statement in any local language while the police officer interpreted and recorded it. The storm in the tea cup about interpretation of exhibit I is a completely fresh point out of the blue, as it were, raised by appellant’s counsel. It does not avail him. The same consideration applies to exhibit N.

What is more, the two statements were tendered and admitted in evidence without objection. Appellant cannot now seek to attack their efficacy and validity. In Nwabueze V People of Lagos State (2014) 3 NWLR (Pt. 1314) 401, 429 Ikyegh, JCA, held that
“… the appellant who did not object to the admission of his statement to the police in evidence as an exhibit at the Court below cannot turn round on appeal to cast doubt on its validity and

cogency”
In Ogheneovu V Federal Republic of Nigeria (2019) 13 NWLR (Pt. 1689) 235, 255 the Supreme Court held that a confessional statement which is tendered and admitted without objection does not need corroboration.
The trial Court was therefore right to have convicted the appellant of conspiracy and armed robbery that took place on 27/1/2012.

The contention of appellant’s counsel that there were contradictions in the evidence of prosecution witnesses is nothing but the appellant clutching at straws. The point as to PW1 lying prostrate and yet being able to identify the robbers is of no moment as it relates to the offence of 24/1/2012. The further contention as to the exact date of the arrest of the 3rd co-accused person is of no moment as it has no effect on the guilt of the appellant. In any event, it is the law that where there is a contradiction in prosecution’s case and the accused admits the commission of the offence, the contradiction is rendered irrelevant. See Lalapu V COP (2014) 16 NWLR (Pt. 1699) 476, 496.

In respect of the offences in counts 1 and 2 of the information which relate to the offence of armed

robbery that occurred on 24/1/2012, I agree with counsel for the appellant that the trial Court erred in convicting the appellant for the same. At pages 259 – 260 of the record of appeal, the learned trial Judge found as follows:
“It is on record that the 1st accused did not partake in 24-01-2012 robbery but he was given his share as stated by the co-accused persons. For agreeing to collect something from the items stolen, I hold the 1st accused person to be culpable for the robbery of 24-01-2012”.

The evidence that appellant collected a share of the loot of the robbery of 24/1/2012 can only be found in the confessional statements of his co – accused persons. There is no evidence of the accused person adopting in any way the confessions of his

co – accused persons and so they cannot be used against him to prove armed robbery. Assuming, though it is not so, that there was an acceptable evidence of the appellant receiving a share of the loot, there is a difference between the offence of armed robbery and the offence of receiving stolen property knowing it to be stolen. The mere fact that the appellant agreed to collect some of the stolen items stolen in the armed robbery operation of 24/1/2012 did not retrospectively make him guilty of the offence of armed robbery. Mere foreknowledge of a plan to commit an offence does not make the person with the foreknowledge guilty of the offence. It must be shown that the person committed the offence or that he aided and abetted the commission of the offence. There is no such evidence in this regard. I therefore set aside the conviction of the appellant in respect of count 2.

I now turn my attention to the offence of conspiracy.
Conspiracy generally is an agreement between two or more persons to do an unlawful act or to carry out a lawful act by unlawful means. See Oloye V State supra. 525-526. Direct evidence of conspiracy is not always available.

Therefore, generally at common law, it is a matter of inference deducible from certain criminal acts of the parties accused, done in pursuit of an apparent criminal purpose in common between them. See Adepoju v State (2018) 15 NWLR (Pt. 1641) 103, 115 and Friday V State (2016) 16 NWLR (Pt. 1538) 242.
All that is necessary for the proof of conspiracy is for the prosecution to establish some common effort on the part of the accused persons aimed at committing a crime. See Adepoju supra. 115 and Gbadamosi V State (1991) 6 NWLR (Pt. 196) 204. The conspirators need not know themselves and it need not be shown that they met at a particular place and were seen coming out together from that place with conspiratorial mien.
In this instance, in respect of Count 3, there is evidence on record that the appellant and his co-accused persons worked together to execute a common end, to wit; robbing while armed. The trial Court could therefore infer the meeting of minds of the appellant and his co-accused persons. SeeEgbe V State (2019) 15 NWLR (Pt. 1695) 201, 216 and 219. Again since the ingredients of armed robbery had been established in respect of counts 4, 5, 6

and 7, criminal conspiracy could therefore be properly inferred. See Sale V State (2016) 3 NWLR (Pt. 1499) 392, 411.
The trial Court was therefore right in convicting the appellant of the offence of conspiracy as laid in count 3.

The conviction of the appellant in respect of count 1 for the conspiracy to commit armed robbery on 24/1/2012 cannot stand as there was no meeting of minds between him and his co-accused persons. In exhibit N the appellant stated that when his co-accused persons suggested that he should join them in the robbery operation of that date, he told them that he was not used to such thing and he went home.

I therefore set aside his conviction in count 1 and discharge and acquit him in respect thereof.

I enter an affirmative answer to the issue for determination except in respect of counts 1 and 2.

On the whole the appeal fails and is hereby dismissed except in respect of counts 1 and 2 of the charge. I accordingly affirm the conviction and sentence of the appellant in respect of counts 3, 4, 5, 6 and 7 and set aside his conviction in respect of counts 1 and 2.

He is discharged and acquitted on those counts.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in advance the lead Judgment of my learned brother, HON. JUSTICE J.E. EKANEM, JCA and am in total agreement with his reasoning and conclusion that this Appeal is unmeritorious, There is no need to add more to the well-researched and scripted Judgment of my Noble Lord. I adopt all that he had said in respect of the Appeal and also dismiss same except for Counts 1 and 2 Of the charge preferred against the Appellant from which he is also hereby discharged

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph E. Ekanem,. JCA, made available to me in advance, a draft copy of the Judgment just delivered in which this appeal has been dismissed. The issues arising for determination have been fully considered and resolved.

I agree with the predictable conclusion that this appeal is without merit. I also dismiss the appeal and affirm the conviction and sentence of the Appellant.

Appearances:

Matthew Burkaa, Esq. (with him, Abubakar Musa, Esq.) For Appellant(s)

Dr Abdulkarim A. Kana (Hon. Attorney-General, Nasarawa State) (with him R.I. Addra, Esq. (Chief State Counsel, Ministry of Justice, Nasarawa State) and M.j. Abokee, Esq. (Principal State Counsel, Ministry of Justice, Nasarawa State) For Respondent(s)

LawCare Nigeria

admin

YOU MAY HAVE MISSED

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

admin

Related Story

YOU MAY HAVE MISSED