IBRAHIM YISA v. THE STATE
(2019)LCN/12882(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/IL/C.127/2018
RATIO
COURT AND PROCEDURE: WHERE A CHARGE CONTAINS OFFENCE OF CONSPIRACY AND SUBSTANTIVE OFFENCE
“…it has been held severally to such extant that it has become trite law that where a charge contains offence of conspiracy and a substantive offence, the proper approach for the trial Court is to first deal with the substantive offence before proceeding to determine whether or not there was conspiracy to commit the substantive offence. The reason being that, though the offence of conspiracy is a separate offence from the completed offence, but it can be proved by inference derived from the commission of the substantive offence itself. See Orisa Vs. State (2018) LPELR-43896 (SC), Okanlawon Vs. State (2015) LPELR-24838 (SC) and Oladejo Vs. State (2018) 11 NWLR (pt. 1630) 238 at 244 paragraph C.” PER BALKISU BELLO ALIYU, J.C.A.
CRIMINAL LAW: THE DOCTRINE OF RECENT POSSESSION
“…the doctrine of recent possession, which is embedded in our jurisprudence by Section 167 (a) of the Evidence Act 2011. That Section provides that the Court may presume that- a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.” The Supreme Court has in the case of Ehimiyein Vs. State (2016) LPELR-40841 (SC), (per Rhodes-Vivour JSC) described the doctrine of presumption provided in the above Section 167(a) of the Evidence Act, as a presumption of facts being from the logical inference drawn from other known facts. All that the prosecution has to do for the doctrine of presumption to be activated is to prove that the accused person either alone or jointly with others was found in possession of the stolen goods. The legal consequence of arriving at this presumption is to call on the Appellant to produce contrary evidence. See Osakwe Vs. Queen (1963) LPELR-15482 (SC) and Taiye Vs. State (2018) LPELR- 44466 (SC).” PER BALKISU BELLO ALIYU, J.C.A.
CRIMINAL LAW: WHERE AN ACCUSED IS CHARGED WITH A LESSER OFFENCE
“However, Section 218 (1) and (2) of the Criminal Procedure Code, Cap. C23, Laws of Kwara State 2007 empowers a trial Judge to convict an accused for a lesser offence other than the one charged, which was established by evidence. This Court and the Apex Court have had cause severally to interpret similar provisions with Section 218(1) and (2) of the CPC of Kwara State. For instance in the case of Ali Vs. Kano State (2018) LPELR- 44201(CA), Sections 217 and 218 of Criminal Procedure Code of Kano State (same as Section 218 of CPC Kwara State) were interpreted by the Kaduna Division of this Court and it held that it was not necessary to frame a new charge or for the accused person to be put on notice where the Court decides to convict for the lesser offence. This is because since the accused had notice of the aggravated offence, he is also deemed to have notice of the lesser offence for which he could be convicted because the greater includes, by necessary implication, the lesser. All that is relevant is that the evidence relied upon by the trial Court relates to and is cogent enough to warrant the conviction for the lesser offence. See also Segun Vs. State (2018) 14 NWLR (pt. 1638) 122 at 131 to 132 (SC), and Kada Vs. State (1991) LPELR-1641 (SC). It is therefore not necessary to charge the accused for the lesser offence proved before he could be so convicted and this will not in anyway amount to the infringement of the accused’s right to fair hearing as contended by the Appellant in this case.” PER BALKISU BELLO ALIYU, J.C.A.
EVIDENCE: WHERE THE STATEMENT OF AN ACCUSED IS CONTRADICTORY
“See the cases of Isong Vs. State (2016) LPELR- 40609 (SC) and Tajudeen Vs. State (2017) LPELR- 43159 (CA) both to the effect that where an accused person gives evidence that is inconsistent with his earlier statement made by him to the police, such evidence is unreliable and the statement is not regarded as evidence upon which the Court can act. See also Hassan Vs. State (2001) LPELR- 1358 (SC) where the Apex Court per Kastina-Alu JSC held that: “…it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial Judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words, the statement will be subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case.” PER BALKISU BELLO ALIYU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
IBRAHIM YISA – Appellant(s)
AND
THE STATE – Respondent(s)
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the Kwara State High Court, Ilorin Judicial division delivered on the 16th July 2014 by Hon. Justice I. A. Yusuf in respect of Charge No: KWS/13C/2013. The Appellant was arraigned before the lower Court on a two counts charge for the offences of conspiracy to commit armed robbery and armed robbery contrary to Sections 97 of the Penal Code and Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federal Republic of Nigeria 2004.
The background facts of the case are that on 24th January 2012 one Olajide Olayode Olayemi who was travelling in his car, a Honda Bullet with Registration number AQ 674 KEY from Bida and was heading to Ilorin. At about 9:30 p.m., he was robbed after Sekun village along Ilorin road by some persons carrying cutlasses and guns. The robbers had blocked the road with rocks and wood and he was forced to stop. The robbers ordered him to exit his vehicle and lie down on the road. He obeyed and they beat him up with their cutlasses after which they went away with his car containing his mobile phones, drivers’ licence, ATM cards and the sum of N2000.
On the same night at about 2:30 am the police stationed at Enagi Police checkpoint stopped the Appellant while driving the stolen car with three persons inside. Upon being asked for the particulars of the car the Appellant was driving, the police got suspicious and asked the occupant to step out of the car. The two occupants of the car, then ran into the bush, while the police were able to arrest the Appellant and the car, later discovered to be the robbed car belonging to Olajide Olayode Olayemi.
In proof of the charge, the Prosecution called four witnesses including the owner of the car who testified as PW2. The Appellant testified in his defence, but did not call any other witness. At the end of the trial, the trial Court made the following findings at page 83 of the record of appeal against the Appellant:
The evidence adduced by the prosecution on the offence of criminal conspiracy against the accused is overwhelming and believable, the prosecution has successfully established the ingredients of the offence against the accused beyond reasonable doubt. In the same vain, I am satisfied from the evidence adduced in this case that the accused knowingly received Exhibit D a property obtained in the robbery attack on PW2.
I find the accused guilty of the offence of conspiracy under Section 97 of the Penal Code, and the offence of receiving property obtained in an armed robbery contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act, CAP. R11 Laws of the Federation of Nigeria, 2004. He is accordingly convicted.
Consequently, the Appellant was sentenced to seven (7) years imprisonment for the offence of conspiracy and life imprisonment for the offence of receiving property obtained in an armed robbery. Being aggrieved by the judgment the Appellant filed a notice of appeal on the 12th October 2018, relying on five grounds. The record of appeal was compiled and transmitted to this Court on the 18th October 2018.
The Appellant?s brief of argument was settled by Kolapo Sogbetun Esq. and filed on 13th November 2018. The Respondent?s brief of argument was settled by Jimoh Adebimpe Mumini Esq., the Director of Public Prosecution, Ministry of Justice, Ilorin, Kwara State and filed on the 10th December 2018.
On the 14th January, 2019, when this appeal came up for hearing, the learned counsel for the Respondent J.A. Mumini Esq. (DPP), leading S. O. Dada Esq. (A.C.S.C.), informed the Court of the Respondent’s preliminary objection to this appeal which was raised and argued at page 3, paragraphs 3.0 to 4.4 of the Respondent?s brief of argument. The Respondent’s objection is mainly on the ground that this appeal is incompetent having been filed outside the 90 days prescribed by Section 25(2)(b) of the Court of Appeal Act. The learned DPP adopted his arguments and submissions in support of the preliminary objection in urging us to strike out this appeal.
Mr. Sogbetun adopted his reply to the objection of the Respondent contained at paragraphs 2.0 to 2.4 of the Appellant’s reply brief in urging us to dismiss the objection and to proceed to determine the appeal on its merits.
ARGUMENT ON THE PRELIMINARY OBJECTION
In arguing the Respondent’s notice of objection, the learned DPP relied on the provisions of Section 25(2)(b) of the Court of Appeal Act to submit that the judgment of the trial Court appealed against was delivered on the 10th July 2014 as shown at page 55 of the record of appeal. But the Appellant filed his notice of appeal on the 12th October, 2018 as shown at pages 85-87 of the record of appeal. The notice of appeal was filed outside the 90 days stipulated by the aforementioned section 25(2)(b), thus making this appeal incompetent. It was further argued that the Appellant did not obtain the leave of Court pursuant to Section 25(4) of the Court of Appeal Act before filing his notice of appeal, therefore the Appellant failed to comply with the condition precedence to this Court?s exercise of its jurisdiction to determine this appeal. The appeal is therefore liable to be struck out. We were referred to the cases of Alor Vs. Ngene (2007) 17 NWLR (pt. 1062) 163, Chief Etete Owoh & Ors. Vs. Chief Kingston U. Asuk & Anor. (2008) LPELR- 2853 SC and APGA VS. PDP & Ors. (2003) LPELR- 7200 in urging us to so hold.
As stated earlier, the Appellant’s response to the preliminary objection of the Respondent is contained at paragraphs 2.1 to 2.5 of the Appellant’s reply brief filed on the 14th January 2019. Mr. Sogbetun referred to the Appellant’s motion on notice filed before this Court on the 21st September, 2018, which was moved on behalf of the Appellant before the Court on 11th October 2018. By that motion, the Appellant sought for extension of time within which the Appellant could file his notice of appeal against the judgment, which is the subject of this Appeal. This Court granted the Appellant?s prayer and ordered him to file the notice of appeal within 14 days, pursuant to which he filed the notice of appeal on the 12th October 2018.
Mr. Sogbetun submitted that in view of the leave granted to the Appellant by this Court in its proceedings of 11th October 2018, he had regularized his appeal in conformity with the law. As such his notice of appeal filed on the 12th October 2018 is competent, valid and does not violate the provisions of Section 25(2)(b) of the Court of Appeal Act as contended by the Respondent. The learned counsel urged us to dismiss the objection of the Respondent.
DETERMINATION OF THE PRELIMINARY OBJECTION
In determining the Respondent’s objection, I will start by stating the principle of law that has long been settled, that the Court can only exercise jurisdiction to determine any matter before it where the condition precedent to the exercise of such jurisdiction has been fulfilled, that is, the matter has been brought to Court by due process. This Court as an Appellate Court lacks the competence to determine an appeal where there is failure to fulfill any condition precedents to the filing of the appeal such as filing notice of appeal outside the time prescribed by law. See Nzei Vs. UNN (2017) 6 NWLR (pt. 1561) 300 at 338 C-F and Okorocha Vs. PDP (2014) 7 NWLR (pt. 1406) 213 at 274-275 Para. A-A among others.
The ground of the objection of the Respondent is that the notice of appeal was filed four years after the judgment appealed against was delivered. The Appellant had referred us to our proceedings of 11th November 2018 in which he sought for leave to file this appeal out of time. This Court like any other Court is entitled to look into its record in order to determine an issue in controversy raised before it. See Abiodun Vs. FRN (2018) LPELR- 43838 (SC) and Nuhu Vs. Ogele (2003) LPELR-2077 (SC).
Our record of proceedings of 11th October 2018 revealed that the Appellant moved this Court through his motion on notice registered as CA/IL/CM 114/2018- IBRAHIM YISA VS. THE STATE, filed on the 21st July 2018 praying for extension of time to file notice of appeal and leave to appeal against the judgment of the Kwara State High Court, which is the subject matter of this appeal. On that date, the Respondent was represented in Court by M. A. Z. Usman Esq. (S. C. 1) who had not objected to the application. Consequently, the Appellant was granted extension of time to file his notice of appeal within fourteen days from that date. The notice of appeal was filed on the 12th October 2018 as shown at page 85 of the record of appeal. Thus the Appellant had actually complied with the provisions of Section 25(4) of the Court of Appeal Act and his notice of appeal is competent. In the circumstances, the objection of the Respondent is baseless. Having participated in the proceedings in which the Appellant was granted extension of time to appeal, it is rather embarrassing that this objection was raised by the DPP. It only shows that the learned DPP was not in touch with his officers on this case. In the circumstance, the preliminary objection is dismissed without much ado. I will proceed to determine this appeal on its merits.
ARGUMENT ON THE APPEAL
The Appellant formulated and submitted four issues from his five grounds of appeal for determination as follows:
1. Whether the trial Court was right in grounding a conviction of the Appellant on count 1 for the offence of conspiracy to commit an illegal act to wit; armed robbery on alleged subsequent conducts and meeting between the Appellant and other unknown persons.
2. Whether the trial court?s sentence of the Appellant to a mandatory life imprisonment for receiving a property obtained in an armed robbery under Section 5 of the Robbery and Firearms Act Cap. R11 Laws of the Federation of Nigeria 2004, without a charge for that same offence is not a breach of Appellant?s right to fair hearing.
3. Whether the trial Court was right in the grounding the conviction of the Appellant for the offence of conspiracy to commit an illegal act to wit; armed robbery and receiving property, proceeds of armed robbery on alleged extra-judicial confessional statement of the Appellant which was in conflict with his oral testimony before the Court.
4. Whether having regards to the totality of the evidence adduced on record and the oral testimony of the Appellant, the Court below was not right in convicting the Appellant for the offences of conspiracy under Section 97 of the Penal Code and the offence of receiving property obtained in an armed robbery (contrary to) the Robbery and Firearms (Special Provisions) Act, Cap. R 11 Laws of the Federation of Nigeria 2004.
In arguing issue one, Mr. Sogbetun, learned counsel for the Appellant relied on the definition of the offence of conspiracy under Section 96 of the Penal Code and submitted that the prosecution failed to prove any direct or circumstantial evidence linking the Appellant with any plan or agreement with others to commit armed robbery. The Court was referred to the written statement of the Appellant and his testimony in court in which he stated that he deposited money with one Yakubu for the purchase of pick up van, but that the said Yakubu brought him the robbed car (Exhibit D) which he did not know that it was stolen car. It was further argued that the fact that the Appellant drove the stolen car does not necessarily make him privy to the plan and agreement to commit armed robbery. The trial Court was therefore wrong to have arrived at this conclusion and to convict the Appellant for the offence of conspiracy solely on the ground that the stolen car was found with him. The learned counsel further argued that the fact that the car was found with the Appellant after it was stolen was subject to two interpretations, one against the Appellant and the second interpretation in his favour. In this circumstance, the standard of proof required of the prosecution beyond reasonable doubt cannot be met. To support the argument and submissions on issue one, we were referred to the cases of Ajayi Vs. State (2013) 9 NWLR (pt. 1360) 589, Ubani Vs. State (2003) 18 NWLR (pt. 851) 224 at 241 and State Vs. Fatai Azeez Vs. Ors. (2008) ALL FWLR (pt. 424) 1423 at 1461- 1462.
On the Appellant’s issue two, it was submitted that the learned trial Judge erred in law in sentencing the Appellant to a mandatory life imprisonment for receiving property obtained in an armed robbery under Section 5 of the Robbery and Firearms Act without being charged for that offence. It was contended that this was done in contravention of the Appellant’s right to fair hearing guaranteed by Section 36(1) of the Constitution of Nigeria 1999 (as amended). That the Appellant was entitled to know the details of any criminal charges preferred against him in advance to enable him prepare for his defence, and the failure to do this is fatal to the conviction of the Appellant for the said offence. The Court’s attention was drawn to the fact that the Appellant was not charged under Section 5 of the Robbery Act, but under Section 1(2) thereof.
It was further argued that the offence of receiving property that was obtained in a robbery under Section 5, under which the Appellant was convicted and sentenced are not the same with the offence of armed robbery under Section 1(2) of the same Act with which the Appellant was charged. The two offences have different elements. Therefore the trial Court was wrong to have convicted the Appellant for a lesser offence under Section 5 and so the conviction is liable to be set aside on appeal. We were referred to the cases of Adoba Vs. State (2018) LPELR-44065, The Nigerian Airforce Vs. Kamaldeen (2007) 7 NWLR (pt. 1032) 164 and Akeem Agboola Vs. The State (2013) 11 NWLR (pt. 1366) 619 to support the argument on issue two.
On issue three, it was argued that the learned trial Judge was wrong to convict the Appellant based upon his extrajudicial statement alone because the extrajudicial statement of a witness in a criminal trial is inadmissible. For this contention, the learned counsel placed on the decision of this Court in Afam Okeke Vs. The State (2016) LPELR-40024 per Ogunwumiju JCA, in which the learned counsel quoted Ogunwumiju JCA as holding that the extrajudicial statement of a witness is inadmissible as evidence for either sides, and that the only admissible evidence is the evidence given under oath by the witness who was subjected to cross-examination. It was further submitted that, in this case, the Court wrongly relied upon the extra judicial statements admitted as Exhibits E and F in grounding the conviction of the Appellant. It was submitted that the onus was on the prosecution to cross-examine the defendant when he gave oral evidence before the Court that was inconsistent with his earlier extra judicial statement. That there is nothing on record to show that the Appellant was confronted with his statement to the police which was in conflict with his oral testimony before the Court in accordance with Section 199 of the Evidence Act 2011.
On the Appellant’s issue four, it was argued that from the totality of the evidence adduced on record, especially the oral evidence of the Appellant vis–vis that of PW2, the trial Court was wrong in convicting the Appellant for the offences of conspiracy and receiving property obtained in an armed robbery. To support this contention, we were referred to the extra judicial statements of the Appellant contained at pages 8 to 13 of the record of appeal, to further submit that the statements were inadmissible evidence because they were not signed by the Appellant and that their contents were in conflict with the oral testimony of the Appellant. The statements were also not taken in the presence of the defence Counsel, who ought to be invited when the witnesses were translating the statements in to English language. We were urge upon to note that none of the witnesses including PW2 (victim of the robbery) had identified the Appellant as being at the scene of the robbery. That the PW2 had first stated that he knew the Appellant, but under cross-examination he admitted that he did not identify the Appellant to the police as one of the persons who robbed him. It was submitted that this inconsistency should have been resolved in favor of the Appellant. See the case of Orisa Vs. State (2018) 11 NWLR (pt. 1631) 453 at 474 paragraph A-D.
Upon the submissions and argument of the learned Appellant?s Counsel, this Court was urged to set aside the Appellant’s conviction because it was grounded on faulty premise and misdirection in law.
On her part, the Respondent submitted two issues for the determination of this appeal contained at page 4 of her brief of argument as follows:
1. Whether the learned trial Judge was right to have convicted the Appellant for the offence of criminal conspiracy (grounds 1 and 2 of the Appellant?s grounds of appeal).
2. Whether the learned trial Judge was right to have convicted the Appellant for a lesser offence of receiving property obtained from armed robbery contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act CAP. R11
Laws of the Federation of Nigeria 2004 (related to grounds 3, 4 and 5 of the Appellant?s grounds of Appeal).
In answering issue one in the affirmative, the learned DPP referred the Court to the fact that the offence of conspiracy under Section 97 of the Penal Code on which the Appellant was convicted has the same provisions with Section 6(b) of the Robbery and Firearms (Special Provisions) Act. To prove this offence, the prosecution was required to prove an agreement between two or more persons to do or cause to be done an illegal act; that in furtherance to such agreement, some act was done by one or more of the parties and that each of the accused persons individually participated in the conspiracy. Reference was made to the cases of State Vs. Salawu (2010) ALL FWLR (pt. 614) 1 at 29; Adekunle Vs. The State (1989) 12 SCNJ 184 among others, in support.
It was further argued that the trial Court was entitled to infer the offence of criminal conspiracy from the acts of the parties including evidence of complicity, and so it was not necessary for the prosecution to prove that the conspirators actually met before carrying out the illegal act. See Iwuneve Vs. The State (2000) ALL FWLR (pt. 614) 550 at 560-561 and Osondu Vs. FRN (2000) 12 NWLR (pt. 682) 483 at 501-502. The learned DPP reviewed the evidence of the prosecution’s witnesses contained at pages 40 to 52 of the record of appeal, which in his view, contained the facts upon which the learned trial Judge rightly inferred the offence of conspiracy and found the Appellant guilty thereof.
We were urged to agree with the findings of the learned trial Judge at page 79 of the record of appeal and to uphold same.
On the Respondent’s issue two, the learned DPP again drew our attention to the findings of the learned trial Judge at page 97 of the record of appeal to the effect that the Appellant having been found in possession of the robbed car had failed to satisfactorily account for his possession. The facts relied upon by the learned trial judge to arrive at the above findings were stated by the learned counsel, to have included the admission of the Appellant that the stolen car was found in his possession. It was thus submitted that the presumption of law under Section 167(a) of the Evidence Act is that the Appellant found in possession of the stolen car was either the armed robber or the receiver of the robbed property.
In response to the Appellant’s argument that his conviction for a lesser offence without a charge violated his fundamental right to fair hearing, the learned DPP submitted on the authority of the case of Nwachukwu Vs. The State (supra) (but the citation for this case was not given supra in the Respondent’s brief of argument), that the procedure to follow when a Court decides to act under Section 179(2) of the Criminal Procedure Act has nothing to do with the right to fair hearing under Section 33 of the 1979 Constitution. That when acting under its powers conferred by Section 179(2) of the CPA, the trial Court or an Appellant Court is not obliged to call further addresses before convicting the accused of any lesser offence established by the evidence, because the greater offence include the lesser offence and any address on the greater offence will naturally cover the lesser offence first before dealing with the aggravation which produces the greater offence.
The Appellant had further argued that before a Court can convict an accused of a lesser offence than the one he is charged with, the elements of the offence charged must be the same. In reply to this argument, the learned Respondent?s counsel submitted that the argument of the Appellant does not accord with the law because it is sufficient in law (to convict for lesser offence) where some of the ingredients of the lesser offence can be traceable or deducible from the main offence charged. He quoted Section 5 of the Robbery and Firearms Act to further submit that the elements that must be proved are deducible from the offence of armed robbery under the Act. It was further argued that in this case, it was clear from the evidence before the trial Court that obtaining the property from an armed robbery remains a common ingredient to both offences of armed robbery and receiving the proceeds of the armed robbery under the Act. Thus, the learned trial Judge was perfectly in order when he convicted the Appellant for a lesser offence of receiving proceeds of armed robbery contrary to section 5 of the Act. The Court was urged to resolve the two issues in favour of the Respondent.
In his reply brief, the Appellant insisted that he never conspired with anybody to carry out armed robbery attack on the complainant and therefore the learned trial Judge was wrong to have convicted him based on the unsubstantiated circumstantial evidence of what happened after the robbery incident. The fact that the police refused to further investigate and arrest the 2 escaped suspects meant that the charge was not proved beyond reasonable doubt and this Court was urged to so hold. The learned counsel for the Appellant repeated his argument from the Appellant’s brief of argument to the effect that before the Court can convict an accused for a lesser offence than the one charged, the elements of the two offences must be similar. He placed reliance on the cases of Adoba Vs. State (2018) LPELR-44065 (SC, Adeyemi Vs. The State (1991) 6 NWLR (pt. 195) 1 in support.
DETERMINATION OF THE APPEAL
I have given due consideration to the issues formulated by the Appellant and the Respondent in their respective briefs of argument. The issues raised by both parties are the same but the Respondent’s two issues are more lucid and have captured the complaints of the Appellant in his grounds of appeal. I will therefore determine this appeal on the two issues submitted by the Respondent.
Issue one raised the question whether the trial Court was right to have convicted the Appellant for criminal conspiracy to commit the offence of armed robbery with which he was charged in count one. The contention of the Appellant was that there was no direct or circumstantial evidence before the Court that linked the Appellant with any agreement with others to commit the offence of armed robbery. That the circumstances of his arrest cannot be used to infer the agreement to commit the offence of armed robbery.
Issue two on the other hand, raised the question whether the learned trial Judge was right to convict the Appellant for a lesser offence of receiving property obtained in an armed robbery instead of the offence of armed robbery the Appellant was charged with in count two of the charge. It is the position of the Appellant that the failure of the learned trial judge to frame a charge under Section 5 before convicting him of the offence under the section infringes on the Appellant?s right to fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The learned trial Judge decided to deal with the main offence of armed robbery contrary to Section 1(1) of the Robbery and Firearms Act, with which the Appellant was charged in count two before determining whether or not the offence of conspiracy could be inferred against the Appellant. This is the correct approach because it has been held severally to such extant that it has become trite law that where a charge contains offence of conspiracy and a substantive offence, the proper approach for the trial Court is to first deal with the substantive offence before proceeding to determine whether or not there was conspiracy to commit the substantive offence. The reason being that, though the offence of conspiracy is a separate offence from the completed offence, but it can be proved by inference derived from the commission of the substantive offence itself. See Orisa Vs. State (2018) LPELR-43896 (SC), Okanlawon Vs. State (2015) LPELR-24838 (SC) and Oladejo Vs. State (2018) 11 NWLR (pt. 1630) 238 at 244 paragraph C.
Since there is no complaint against the decision of the trial judge to determine the substantive charge before that of conspiracy, I will follow the same pattern by determining issue two first before issue one.
The case of the prosecution against the Appellant at the lower Court was that the Appellant having been arrested driving the victim’s car (Exhibit D) immediately after the robbery, he was one of the robbers that had snatched it from the victim. The prosecution relied on the testimonies of the PW2, the victim of the armed robbery, contained at pages 39 to 42 and that of the PW4, the arresting officer, contained in pages 46 to 49 of the record of appeal. In addition to the evidence of the victim and the arresting officer, the prosecution also relied on the extra-judicial statements of the Appellant recorded after his arrest, which were admitted in evidence as Exhibits E and F respectively. The two extra-judicial statements of the Appellant, which he made to the police are contained at pages 8 to 13 of the record of appeal.
In his evidence, the victim PW2 narrated how at about 9:30 pm on 24/01/2012 he was travelling in his car along old Ilorin-Jebba road and after negotiating a corner, he came into a road block with big rocks and there was no way he could pass. He was forced to apply the breaks and stopped. Suddenly 10-armed men, six of them on his right and four on his left surrounded him. He said the robbers were holding cutlasses, sticks and gun and they ordered him out of his car. He obeyed and was told to lie down. The robbers took N2000 from his pocket, his telephone handsets and they also removed other items from his car. As this robbery was going on, two vehicles, a 19-sitter bus and a pick up came from the opposite direction and the robbers left the PW2 and went on to rob the passengers in the two vehicles as well. The PW2 jumped and ran into the near by bush from where he was watching what was going on. After robbing the passengers, the robbers went away with the bus, pick up and his car. From the scene of the robbery, he trekked to the next village where he passed the night and the next day he and the vigilante members reported the incidence to the Share police station. He was later informed on that day that Enagi police had found his car and he went to Enagi to recover the car. PW4 testified as the arresting officer that on 25th January 2012 at about 2:30a.m. while on duty at a police mounted checking point with other police officers, he saw the Honda Bullet car coming from the direction of Mokwa and heading towards Bida. He stopped the car and the Appellant was the driver with two other occupants in the car. PW4 said he demanded the particulars of the car, but the Appellant told him he did not have them and that the car belonged to one Alhaji who had sent them to get some herbs for him. Upon Checking the vehicle himself, PW4 found a document that contained the name of Dr. Olajide and he told them this fact. At this stage, the two other persons in the car ran into the bush but he was able to arrest the Appellant with the help of his colleagues and the police took him and the car to their station.
The next morning, PW4 said he went through the documents that he found in the car and he discovered a telephone number, which he called. The wife of PW2 answered the call and told him that her husband was robbed of his car the previous night at gunpoint on his way to Ilorin. PW4 said he proceeded to record the statement of the Appellant which was admitted as Exhibit ?F? before handing the Appellant and the recovered car over to SARS office Ilorin.
The learned trial Judge having examined the evidence of the witnesses and the circumstances of the case held at pages 72 to 73 that:
The fact that Exhibit D was recovered from the accused person some hours after it was stolen from PW2 is not in dispute. He is presumed to either be the thief or receiver of the stolen car knowing it to be stolen, unless he can account for his possession.
The above finding of the learned trial Judge is the correct position of law, and it is referred to as the doctrine of recent possession, which is embedded in our jurisprudence by Section 167 (a) of the Evidence Act 2011. That Section provides that the Court may presume that- a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.”
The Supreme Court has in the case of Ehimiyein Vs. State (2016) LPELR-40841 (SC), (per Rhodes-Vivour JSC) described the doctrine of presumption provided in the above Section 167(a) of the Evidence Act, as a presumption of facts being from the logical inference drawn from other known facts. All that the prosecution has to do for the doctrine of presumption to be activated is to prove that the accused person either alone or jointly with others was found in possession of the stolen goods. The legal consequence of arriving at this presumption is to call on the Appellant to produce contrary evidence. See Osakwe Vs. Queen (1963) LPELR-15482 (SC) and Taiye Vs. State (2018) LPELR- 44466 (SC).
There was uncontroverted evidence that a robbery had taken place and the car snatched from PW2. And then five hours later the car was found being driven by the Appellant. The learned trial Judge was therefore rightly entitled, in view of the evidence before him, to presume that the Appellant was either one of the robbers who robbed the PW2 of his car or that he received it from the robbers with the knowledge that it was a proceed of the robbery. It was then left to the Appellant to rebut this legal presumption by satisfactorily accounting for his possession. It is pertinent to note the time that PW2 said he was robbed of his car was around 9:30pm of 24/01/12 while PW4 stopped the Appellant driving the same car at about 2:30 a.m. of 25/01/12 a period of five hours from the time the car was snatched. In my view, the doctrine of presumption was perfectly applicable to this case.
The learned trial Judge proceeded to consider the explanation given by the Appellant on how he came to be in possession of the stolen car so soon after it was snatched in the armed robbery. The Appellant’s oral testimony is contained at pages 50 to 51 of the record of appeal. His story was that he had asked one Yakubu (one of the two persons that escaped) whom he said was a motor vehicles dealer that he wanted to buy a pick up for his farm work. He paid Yakubu the sum of N500, 000 for the pick up. Yakubu called him to come to Mokwa to collect the car. The Appellant said he reached Mokwa at 2p.m. and called Yakubu, who met him at Mokwa at 5pm with the car. Yakubu told him that the money he paid was not sufficient to buy a pick up, so he decided to buy this car for him. The Appellant said he rejected the car because he wanted a pick up and yet he entered the car in which they then left for Lapai that night. That on their way, Yakubu asked him to drive the car and he agreed to drive it.
The police arrested him while driving the car and Yakubu and one other person who were with him in the car escaped into the bush.
The learned trial Judge considered the above explanation given by the Appellant and held at page 73 of the record of appeal that:
In this regard, the defence of the accused person is that Exhibit D was given to him by his friend Yakubu to drive and that he was innocent of the robbery attack on the PW2. His counsel also described him as a victim of circumstance. I have painstakingly considered the defence of the accused and the submissions of his counsel. I do not believe the defence of the accused. His evidence is slippery, evasive, shifty and full of contradictions as described by the prosecution’s counsel.
The above conclusion was reached by the lower Court based upon the comparism of the oral evidence of the Appellant before the Court with his earlier extrajudicial statements that he made to the police after his arrest. As stated earlier, these statements were relied upon by the prosecution and admitted by the Court as Exhibits ‘E’ and ‘F’. Exhibit ‘F’ was recorded by the arresting police officer (PW4) on the same day the Appellant was arrested (25th January 2012) and Exhibit ‘E’ recorded by PW3 on 30th January 2012 at the SARS office Ilorin. It is pertinent to point out here that the Appellant denied making Exhibit ‘E’ at the point it was tendered in evidence but under while testifying as DW1, he admitted under to have made statement to the Enagi police. See page 47 and 51 of the record of appeal. At page 47 of the record, the counsel of the Appellant objected to the admission of Exhibit ?E? on the ground that he did not made it only for the Appellant to state in his evidence in chief as DW1 at page 51 that he made statements both at Enagi police station and at SARS office.
The learned trial Judge after analyzing the oral testimony and the earlier statements of the Appellant, found and pointed out the contradictions between the Appellant’s oral testimony and his previous statements. See pages 73 to 79 of the record of appeal where the learned trial Judge extensively reviewed the two statements of the Appellant upon which he made the following findings: Exhibits F and E and the oral evidence of the accused are full of contradictions. He told the Court that he went to Mokwa town in respect of the pick-up van he paid for. He discovered that a car and not pick-up van was to be delivered to him and he rejected it. He was however arrested while driving the rejected car to Lapai, which was different from his village! The accused person was not saying the truth when he told the Court that Yakubu arrived Mokwa, Niger State with the stolen car around 5pm on 24th January 2012. The unchallenged evidence of PW2 is that he was dispossessed of the car at about 9:30 pm on the same day in Kwara State. He told the Court that he paid the sum of N500, 000 to Yakubu to assist him to buy a pick up van but in Exhibit ‘F’ it was a fairly used car the accused wanted to buy from Yakubu?s friend, and to be paid for on installments. In Exhibit E, it was Aminu who purchased the car for this friend, Yakubu. He said Yakubu requested for financial assistance from him.
These inconsistencies and contradictions clearly show that the accused is not a witness of truth. The learned trial Judge was correct in analyzing the evidence before him and in making comparism between the earlier statements of the Appellant to the police and his oral testimony before the Court before arriving on the above findings. See the cases of Isong Vs. State (2016) LPELR- 40609 (SC) and Tajudeen Vs. State (2017) LPELR- 43159 (CA) both to the effect that where an accused person gives evidence that is inconsistent with his earlier statement made by him to the police, such evidence is unreliable and the statement is not regarded as evidence upon which the Court can act. See also Hassan Vs. State (2001) LPELR- 1358 (SC) where the Apex Court per Kastina-Alu JSC held that:
“…it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial Judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words, the statement will be subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case.
I therefore cannot fault the findings of the trial Court quoted supra. The Appellant?s learned counsel had argued at page 13, paragraphs 5.5 to 5.8 of the Appellant?s brief, that the Appellant was not confronted with the contradictions or inconsistencies between his extrajudicial statements and his oral testimony under cross-examination for him to provide explanations before his evidence can be treated as unreliable. To support this argument the learned counsel relied on the case of Hausa Vs. State (1994) 6 NWLR (pt. 350) 281 at 322. In that case, the Supreme Court interpreted the provisions of Sections 198, 209 and 210 of the Evidence Act, Cap. 112 of Laws of Federation 1990 now Sections 232 and 233 (c) of the current Evidence Act 2011. The witness in that case had testified and was cross-examined on his statement, which he had previously made to the police but the statement was not tendered and admitted by the court as evidence. The Apex Court held that:
As already seen in the present case, PW3 was cross-examined on the statement he made to the police (identification A). If the purpose of the cross-examination was to discredit PW3 or impeach his credit, the statement was not put in evidence through him (PW3) nor through PW5 but was tendered for identification only. It is not the duty of the trial Judge to admit the statement in evidence if counsel for the defence tendered it for identification only, it was not evidence that the trial Judge could act upon
In the present case leading to this appeal, the extrajudicial statements of the Appellant were tendered and admitted in evidence by the prosecution and admitted in evidence by the trial Court. Both statements were already evidence before the trial Court. This scenario is distinct from what happened in the case of Hausa Vs. State (supra), because in that case, it was the defendant?s counsel who tendered a document for identification only and it was not the defendant that was testifying, but the prosecution?s witnesses through whom documents were tendered for ID only.
Therefore the case of Hausa Vs. State relied upon by the Appellant?s learned counsel is not applicable to this case. In any event, the defence counsel could have also drawn the Appellant?s attention to any contradiction that his oral testimony had with his earlier statements. After all the statements were already in evidence before the Appellant testified. Having failed to lead the Appellant to clear any discrepancies that might be between his testimony and the statements, why would he blame the prosecution for not doing the same. After all, being the representative of the Appellant at the trial Court, the learned defence counsel takes full charge of the conduct of the Appellant’s case. See Peter Vs. State (2015) LPELR-24427 (CA).
Moreover, it was in the course of the analysis of the evidence presented by the prosecution and that of the Appellant that the Court on its own discovered the discrepancies in the Appellant’s testimony and his previous statements. The Court has the duty to examine all the evidence placed before it in order to arrive at a conclusion. See the case of FRN Vs. Iweka (2011) LPELR-9350 (SC) where it was held that:
“The evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity of seeing, hearing and assessing witnesses. In my view the trial Court has properly evaluated the evidence before it and its findings in the facts before it are not perverse. This Court will not interfere with such findings.? Per GALADIMA, J.S.C (P. 59, paras. A-C).
In this appeal, I also hold that the learned trial Judge?s findings were based on the evidence before him and I find no fault therein.
I will now proceed to consider the complaint of the Appellant that his conviction for a lesser offence of receiving property obtained in an armed robbery under Section 5 of the Robbery Act instead of the offence of armed robbery that he was charged with under Section 1(2) of the same Act, without a charge notifying the Appellant of this offence, was an infringement of the Appellant’s right to fair hearing under Section 36 of the Constitution of Nigeria 1999 (as amended). The Appellant contention was that a charge for the lesser offence ought to have been framed against him and be read to him before he could be convicted of it.
However, Section 218 (1) and (2) of the Criminal Procedure Code, Cap. C23, Laws of Kwara State 2007 empowers a trial Judge to convict an accused for a lesser offence other than the one charged, which was established by evidence. This Court and the Apex Court have had cause severally to interpret similar provisions with Section 218(1) and (2) of the CPC of Kwara State. For instance in the case of Ali Vs. Kano State (2018) LPELR- 44201(CA), Sections 217 and 218 of Criminal Procedure Code of Kano State (same as Section 218 of CPC Kwara State) were interpreted by the Kaduna Division of this Court and it held that it was not necessary to frame a new charge or for the accused person to be put on notice where the Court decides to convict for the lesser offence. This is because since the accused had notice of the aggravated offence, he is also deemed to have notice of the lesser offence for which he could be convicted because the greater includes, by necessary implication, the lesser. All that is relevant is that the evidence relied upon by the trial Court relates to and is cogent enough to warrant the conviction for the lesser offence. See also Segun Vs. State (2018) 14 NWLR (pt. 1638) 122 at 131 to 132 (SC), and Kada Vs. State (1991) LPELR-1641 (SC). It is therefore not necessary to charge the accused for the lesser offence proved before he could be so convicted and this will not in anyway amount to the infringement of the accused’s right to fair hearing as contended by the Appellant in this case.
Moreover, in this case, the learned trial Judge had relied on the doctrine of recent possession in determining that the Appellant received the stolen car (Exhibit D) knowing it to be stolen which was one of the two options given by the provisions of Section 167(a) of the Evidence Act. In choosing the option of convicting the Appellant for receiving property, the trial Judge needed not to frame any charge in the circumstances. I cannot fault the learned trial Judge?s decision. I resolve issue 2 against the Appellant.
Issue one raised the question whether the trial Judge was right in convicting the Appellant for the offence of conspiracy as charged in count one of the charge. For clarity and guidance in determining this issue, I will quote count one of the charge as follows:
That you Ibrahim Yisa and others now at large on or about the 24/01/2012 at Sekun village along Share/Ilorin high way within the jurisdiction of this Honourable Court conspired to commit an illegal act to wit; while armed with guns and cutlass rob one Olajide Olayode Olayemi of his Honda Bullet car with registration number AQ 674 KEY and other items like two Nokia hand sets, one driver?s license and cash the sum of N5000 and thereby committed an offence punishable under Section 97 of the Penal Code.”
In deciding whether the offence of criminal conspiracy has been proved against the Appellant, the learned trial judge relied on the extrajudicial statements of the Appellant (Exhibits ?E? and ?F?) to infer that the Appellant had conspired with the armed robbers to rob the victim (PW2). See pages 80 to 83 of the record of proceedings where the learned trial Judge found the Appellant guilty of conspiracy to rob PW2 as charged above. His
Lordship held that:
From the evidence adduced in this case, the fact PW2 was robbed on 24 January, 2012 by some bandits is established. The coming together of those who robbed him is the manifestation of their common agreement to carry out the robbery.
Offence of conspiracy is complete when two or more persons agreed to do an unlawful act or to do a lawful act by unlawful means. The evidence of PW2 clearly established the 1st and 2nd ingredients of conspiracy. On the third ingredient that the accused must have participated in the conspiracy, I agree with the prosecution that it can be rightly inferred from the circumstances of this case. The fact that the accused person had to wait in Mokwa up to midnight on 24 January 2012 as stated in his statements, to receive Exhibit D when law abiding citizens were fast asleep, is an indication that he was involved in the agreement to rob PW2 in my considered view?. I am in agreement with the prosecution that the driven (sic) of Exhibit D by the accused after it had been forcefully taken away from its owner is an act done by him in furtherance of his agreement with other other conspirators to rob PW2 of his car. I am further in agreement with the prosecution that the fact that the accused stated in exhibits ‘E’ and ‘F’ that he was told that exhibit ?D? was snatched from its owner, is evidence of his complicity in the in the robbery. I hold that the three ingredients of the offence of conspiracy against the accused have been proved.
To begin with, the Appellant was not convicted for the offence of armed robbery but of receiving Exhibit D knowing same to be obtained from armed robbery. Secondly, though the prosecution has proved that some bandits robbed PW2 of his car while armed with cutlasses and guns, he could not identify any of them. That was perhaps the reason why the learned trial Judge chose to convict the Appellant of the offence of receiving the car obtained from the armed robbery. In effect, he had doubt as to whether the Appellant participated in the robbery, but having been found driving the car that was robbed some few hours after the robbery, he presumed that the Appellant had received the car knowing that it was stolen, which is the lesser offence than the armed robbery he was charged with. Thirdly, having found as unreliable the statements of the Appellant to the police (Exhibits ‘E’ and ‘F’) which were inconsistent with the oral evidence of the Appellant, the result is that both should be treated as unreliable and therefore the Court cannot act upon these statements to infer conspiracy as it did in the quoted portion of its judgment above. See Isong Vs. State (supra) and Tajudeen Vs. State (supra).
There was therefore no justification for convicting the Appellant for the offence of conspiracy to commit armed robbery in the circumstances of this case. There was no evidence before the trial Court that supported the conviction of the Appellant for this offence and therefore its decision to convict him for the offence of conspiracy was wrong and perverse having not been supported by any reliable evidence before the Court. The conviction of the Appellant for the offence of conspiracy to commit armed robbery is hereby set aside. Issue one is resolved in favour of the Appellant.
In conclusion the appeal succeeds partly. While the conviction and sentence of the Appellant for the offence of receiving property (Honda Car) obtained by armed robbery is hereby affirmed, but his conviction and sentence for the offence of conspiracy to commit armed robbery are hereby set aside.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, B. B. Aliyu, JCA, had accorded me the privilege of perusing the draft of the Judgment just delivered. Having equally read the briefs of argument of the respective learned counsel vis–vis the record of appeal, I cannot but concur with the reasoning and conclusion reached in the said judgment to the effect that the instant appeal succeeds in part.
Most instructively, the finding of the Court below at page 83, lines 7 ? 12 of the record is to the following conclusive effect:
The evidence adduced by the prosecution on the offence of criminal conspiracy against the accused is over whelming and believable, the prosecution has successfully established the ingredient of the offence against the accused beyond reasonable doubt. In the same vein, I am satisfied from the evidence adduced in this case that the accused knowingly received Exhibit D, a property obtained in the robbery attack on PW2. I find the accused guilty of the offence of conspiracy under Section 97 of the Penal Code, and the offence of receiving property obtained in an armed robbery contrary to Section 5 of the Robbery and Fire Arms (Special Provisions) Act, CAP. R 11 Laws of the Federation of Nigeria, 2004. He is accordingly convicted.
Of the four issues canvassed by the Appellant?s learned counsel in the brief thereof, the second issue is most instructive:
2. Whether the trial Court?s sentence of the Appellant to a mandatory life sentence for a property obtained in an armed robbery under Section 5 of the Robbery Act Cap. P11 Laws of the Federation of Nigeria 2004 without a charge for that same offence is not a breach of Appellant?s right to fair hearing.
The second issue in question has been far-reachingly postulated upon at pages 8 ? 12 of the Appellant?s brief. In the main, it was argued that the Court below has erred in law when it sentenced the Appellant to a mandatory life imprisonment for receiving a property obtained in armed robbery under Section 5 of the Robbery and Fire Arms Act (Supra) without a charge for that same offence.
It is a well settled principle, that a trial Court has the power to convict an accused person for a lesser offence, though not charged, if it is of the paramount opinion that the facts and circumstances proved by the prosecution do not establish the offence charged, but constitute the lesser and related offence. In such a circumstance, either the prosecution or the defence can appeal against the sentence, as appellant and cross appellant respectively. See NDUKWU VS. THE STATE (1999) LPELR 6735 (CA) @ 13 paragraphs C – E.
In the case of SEGUN VS. THE STATE (2018) LPELR – SC.9771 2015, the Apex Court aptly held:
In his extra judicial statement which was admitted in evidence, though he resiled from it, the appellant gave account of how the offence was hatched and executed. The learned trial Judge refused to convict him for the principle offence because he felt there was nothing to corroborate the contents of the resiled confessional statement?
My Lords, I have no doubt in my mind that the Court below was right when it upheld the conviction and sentence of the appellant. The evidence against the appellant is over whelming and I accept that a lesser offence of receiving the stolen car was proved beyond reasonable doubt.
Section 179 A (2) of the Criminal Procedure Law was appropriately invoked to convict the appellant of a lesser offence when the appellant received the stolen car which was snatched under gun point, when he removed the number plate and obliterated the Registration number on the wind screen by the use of ‘super glue’, he knew or ought to have known that the law was waiting for him around the corner. He should not complain but thank God that the two Courts below decided to convict him of a lesser offence than that which sentence of death.
In the present circumstance, I concur with the reasoning of my learned brother, to the effect that ?In choosing the option of convicting the Appellant for receiving property, the trial Judge needed not to frame any charge in the circumstance. I cannot fault the learned trial Judge?s decision. I resolve issue 2 against the Appellant.?
Having wholeheartedly adopted the reasoning and conclusion reached in the judgment as mine, I too hereby allow the appeal in part and accordingly abide by the consequential orders made therein.
HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother Balkisu Bello Aliyu JCA, just delivered. I agree with her that there is no evidence on record roping the appellant on the allegation of conspiracy, since he cannot legally conspire with himself alone. I however agree with the lead judgment that appellant was properly convicted on being in possession of a stolen car just after it had been stolen, and the appeal on that score is dismissed.
The appeal succeeds in part. The conviction of the appellant on the 1st count of the charge in conspiracy is hereby set aside, and appellant discharged and acquitted of the count of the charge. His appeal with regards to the 2nd count of the charge is dismissed and his conviction and sentence hereby affirmed.
Appearances:
Kolapo Sogbeton, Esq.For Appellant(s)
J.A. Mumini, Esq. (DPP, MOJ Kwara State) with him, S. O. Dada, Esq. (A.C.S.O, MOJ Kwara State)For Respondent(s)
