IGWE v. STATE
(2020)LCN/14447(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, July 24, 2020
CA/B/159CA/2018
Before Our Lordships
Samuel Chukwudumebi Oseji Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
STANLEY IGWE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE CRIMINAL OFFENCE OF CONSPIRACY
At any rate, the true position of the law is that conspiracy is a distinct offence from its target offence and so does not fail simply because a substantive offence charged along with it failed. See Balogun v. A.G. of Ogun State (2002) 2 S.C. (PT 11) 89 @ p. 96 – 97 where it was said by the apex Court (Uwaifo, J.S.C., in lead judgment) that:
“It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted, or even impossible to commit.”
Interestingly too, Karibi-Whyte, J.S.C., whose obiter dictum in Albert Ikem v. State (1985) LPELR-1472 (SC) was also cited by Mr. Afolabi for his contention that a conspiracy charge must fail once a target offence charged fails, had also confirmed the opposite of his obiter dictum in Albert Ikem’s case when he said inIkemson v. The State (1989) LPELR-1473 (SC) p.39; (1989) 3 NWLR (PT 110) 455 @ 477 (four years after Albert Ikem v. State (supra) but thirteen years before Balogun v. A.G. of Ogun State) that:
“An offence of conspiracy can be committed where persons have acted either by agreement or in concert. Bare agreement to commit offence is sufficient. The actual commission of the offence is not necessary.” (Italics mine). PER UGO, J.C.A.
WHETHER OR NOT ALL CONFESSIONAL STATEMENTS OF AN ACCUSED PERSON MUST BE CORROBORATED
On the issues appellant tried to raise about the use the trial Court made of his confessional statements, it is settled law that a confessional statement once direct, positive and unequivocal and shown to have been made voluntarily can on its own sustain conviction, regardless of whether the confession is retracted by the maker at the trial; recourse to corroborative evidence in that case only becomes a matter of prudence by the Court: See Obasi Onyenye v. State (2012) LPELR-SC 306/2010 where it was said (I.T. Mohammed, J.S.C., now C.J.N) that:
“It is not in all cases that confession must be corroborated. Just not long ago this Court stated in the case of Olabode v. The State (2009) 11 NWLR (PT 1152) 254 that:
“It is settled that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict”.”
See also Idowu v. State (2000) 7 SCNJ 245 @ 286, it was also stated (Uwaifo, J.S.C.) that:
“It has been laid down as good law that a free and voluntary confession of guilt by an accused person which is direct and positive, so long as it is possible, is sufficient to warrant his conviction, provided the Court is satisfied of the truth of the confession. It will only then be a matter of prudence to look for any corroborative evidence.”
See also Ojegele v. State (1988) 1 NWLR (PT 71) 414 @ 424-426, 428; Okeke v. State (2015) 11 NWLR (PT 1366) 435 (S.C.); Ikemson v. The State (1989) LPELR-1473 (SC) p.37; Salawu v. State (2011) LPELR-9351 (SC) p. 36, 48; Achabua v. State (1976) 12 S.C. 63 @ 69. PER UGO, J.C.A.
WHETHER OR NOT STATEMENTS OF A CO-CONSPIRATOR IN FURTHERANCE OF THE CONSPIRACY MADE DURING THE PENDENCY OF THE CONSPIRACY MAY BE ADMITTED INTO EVIDENCE
The essence of the offence [Conspiracy] is the mutual agreement of the parties to the conspiracy, not the acts done to accomplish its object. Moreover, the agreement is implied from the acts of the parties and the circumstances surrounding their activities. Furthermore, all the conspirators do not need to join the conspiracy at the same time. (Italics mine).
On the evidence necessary for proving conspiracy, they said thus (at p. 90):
Indeed, statements by a co-conspirator in furtherance of the conspiracy made during the pendency of the conspiracy may be admitted into evidence. Statements that have been made ‘in furtherance of’ the conspiracy include statements to inform other conspirators of the activities or the status of the conspiracy and those identifying other conspirators. Federal Courts have upheld the use of statements as to the source or purchasers of controlled substances. See for example, United States v. Patton, 504 F. 2d 444 (5th Cir. 1979).
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Edo State of 31st March 2017 convicting appellant of the offence of conspiracy to commit armed robbery. Appellant was charged along with two other persons for conspiracy as well as commission of the substantive offence of armed robbery of a Nissan Vanette Bus. They were all acquitted of the substantive offence of commission of armed robbery but convicted for conspiring to commit it and sentenced to death.
The case of the prosecution against appellant and his co-accused persons as presented by its only two witnesses, the police officers that investigated the case, Mr. Iguma Monday (P.W.1) of Okhoro Police Station and Solomon Bat (P.W.2) of State Criminal Investigation Department (S.C.I.D), Edo State Police Command, was that, acting on information that a group of young men suspected to be robbers were gathered at Edo Lodge Street, Off Medical Stores Road, Benin City, policemen from Okhoro Police Station, including P.W.1, at about 12 noon on 4/8/2011 swopped on the place and arrested appellant with the Nissan Vanette Bus he and his
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co-accused persons were subsequently charged for conspiring to rob and robbing while armed. Under cross-examination from counsel to the appellant, P.W.1 related the rather dramatic fashion appellant was identified and arrested. He said:
I already had information that the bus was about to be sold and already had the phone number of the person who wanted to sell it. When I got to the scene, I called the number and it rang in the possession of the 1st accused [appellant]. It was then I identified him as the suspect for arrest.
It is undisputed that appellant was actually arrested with the said Nissan Vanette Bus with Registration Number XJ970 and was taken back to the police station for interrogation. His interrogation led to the further arrest of his two co-accused persons Bright Edeye and Obinna Uchechukwu. Following a search conducted in their house, a cutlass was recovered.
Further investigation led to the arrest of one Osita Nwachkwu who was fourth accused in the charge but later jumped bail. From the home of the said Mr. Nwachukwu was recovered the engine of the said robbed Nissan Vannette, its radiator propeller, engine seat, seat cover,
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and manifold all of which were by then already dismantled for sale to the said Mr. Nwachukwu, according to the evidence at the trial. Also recovered during the search was a photocopy of the vehicle particulars.
The police at P.W.1’s Okhoro Police Station and at S.C.I.D. obtained statements from appellant and his co-accused persons. The said statements tendered and admitted in evidence at the trial as Exhibits A-F, G, H, J and K all turned out confessional. The statements of appellant are Exhibits A, E and G. Appellant and his co-accused persons however retracted their statements at the trial, but not on grounds of voluntariness of their making so they were admitted in evidence without trial within trial and the weight to be attached to them decided by the trial judge at the end of the trial.
The prosecution closed its case with the two police officers after which appellant and his three co-accused persons testified in their defence. Appellant in his defence not only denied the two charges but even the manner of his arrest as described by P.W.1. He claimed instead, that on the 17/07/2011 of his arrest he was returning home from Eyitan Road in
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Benin City where he had gone to look for work as a bricklayer, alighted from the transport bus that was returning him and was walking home when his shoulder was brushed by the side mirror of a bus at Federal Road. He accosted the driver of the bus for that act and they were on the issue when two men suddenly rushed out of that same vehicle and began to chase people who were running. One of them according to his story turned back and slapped him twice for banging at their bus, and he, appellant, held onto his assailant’s shirt. While they were still on that, his assailant’s colleagues came back and dragged him into their vehicle saying it was because of him they missed the people they were chasing. They then put him on handcuffs and took him to Okhoro Police station, detained him there and later took him to make a statement which he said he refused to sign because the police did not read it over to him. He said he was later transferred to State C.I.D. Benin City where he heard for the first time that he was arrested for robbery. The IPO at SCID (apparently P.W.2), according to his story, merely copied what police wrote for him at Okhoro Police
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station and told him to sign it but he again refused. He said he was later beaten to sign it and arraigned in Court.
In his judgment of 31/3/2017, the learned trial judge first considered the substantive armed robbery charge against appellant and his co-accused persons and held it not proved, anchoring that decision mainly on the fact that the prosecution did not call the owner of the vehicle alleged snatched. On the charge of conspiracy however, he found all of them guilty as charged on the basis mainly of their confessional statements and sentenced each of them to death.
Appellant is dissatisfied with his said conviction and has brought this appeal on three grounds (he erroneously numbered them as four) which I here set out here without their particulars:
Ground 1: The learned trial judge erred when he convicted the appellant when the prosecution failed to call a vital witness to prove a crucial fact.
Ground 2: The lower Court erred when he convicted the appellant on the purported confessional statement.
Ground 3: The lower Court erred by failing to consider the defence of the appellant.
From these three grounds, appellant
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framed the following three issues which were also adopted by the respondent:
1. Whether having regards to the totality of the evidence adduced and the entire circumstances of this case particularly the fact that there is no victim of the alleged armed robbery, the trial judge rightly convicted him
2. Whether his purported confessional statements, ExhibitS A, E and G, could be safe plank to anchor his conviction.
3. Whether the learned trial judge did consider the defence raised by him.
The thrust of the argument of appellant on his first issue, as presented by his counsel Mr. E.O. Afolabi, is that since he was tried and charged not only for conspiracy to commit armed robbery but also for actually committing the substantive offence of robbing a driver, Mr. Amadin John, of his Nissan Vanette Bus, the said driver was a vital witness not only to the charge of armed robbery but also to that of conspiracy to commit it so the prosecution’s failure to call him was fatal to both counts.
Mr. Inam Wilson who represented the State submitted on the other hand that appellant wrongly lumped together the charge for the substantive offence of
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armed robbery with the charge for conspiracy. Counsel argued that both offences though related are completely different and distinct from each other in terms of their requirements for conviction and that applies to who is considered a vital witness for either of them. Learned counsel set out the elements of armed robbery, namely (1) that there was a robbery or series of robberies, (2) the robbers were armed and (3) the accused person was the robber or one of them. Conspiracy on the other hand, he submitted correctly, is an agreement by two or more persons to do or cause to be done an illegal act or do a legal act by an illegal means and it is that agreement that constitutes the offence. Given this difference between the two, counsel submitted, the role of a victim of the substantive offence of armed robbery starts at the point of attack and not the planning stage which constitutes the conspiracy so the contention of the appellant that the driver of the stolen vehicle was a vital witness for proof of the charge of conspiracy was a non-issue. A vital witness, he stressed, is one who can speak to the ingredients of the offence charged, which the driver of the
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stolen vehicle is not as it relates to the conspiracy charge. The conviction of appellant, he further pointed out, was founded on his confession to conspiracy to commit armed robbery as contained in his extra-judicial statements to the police and same was corroborated by the uncontested evidence of the P.W.1 relating to how he was arrested so he was on the whole properly convicted for that offence.
On issue 2, appellant attacked the use the trial Court made of his confessional statements in convicting him. He argued first, that having retracted his said confessional statements in his defence the Court ought to have tested them by subjecting them to the six-way test of R. v. Sykes (1913) 8 C.A.R. 233 @ 236 as adopted and confirmed in so many Nigerian cases. He submitted that there was no corroboration of the said confessional statements, particularly as the driver of the stolen vehicle was not called to give evidence to identify him as one of those that snatched the car from him. He impugned the evidence of P.W.1 on which the trial judge found corroboration. He said P.W.1’s evidence was not effective corroboration as far as the stolen vehicle was
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not tendered. He said, too, that the trial judge having earlier branded the confessional statements unreliable to prove the count of armed robbery was wrong in using them to find him guilty of conspiracy to commit armed robbery.
Mr. Wilson responded by submitting that appellant failed to fully appreciate the reasoning of the lower Court in reaching different verdicts in respect on the armed robbery charge and that of conspiracy to commit that offence. He submitted that a conviction can even be founded solely on a confession, even though retracted, provided the confession is direct, positive and unequivocal. Exhibits A, E and G he argued were direct, positive and unequivocal and corroborated by the confessions of his co-accused persons in their own extra-judicial statements Exhibits B, C, H and J and as such were also admissible against appellant as they were an exception to the hearsay rule even though made in appellant’s absence. In support of that, it cited Mumuni & Ors v. State (1975) LPELR-1926 (SC). The State also found further corroboration in the evidence of P.W.1 regarding how appellant was arrested. Citing Balogun v. Attorney General of Ogun State
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(2002) LPELR-726 (SC) and Eriga Benson v. The State (2018) LPELR-43817 (CA), it again made the point that the crime of conspiracy is complete at the point of agreement to commit an offence and it is immaterial that the substantive offence was eventually not committed or the plan abandoned.
In his Reply brief for appellant, Mr. Afolabi made the fresh argument that appellant having been acquitted of the substantive offence of armed robbery could not have been properly convicted of conspiracy. In support of this argument counsel cited the cases of Albert Ikem v. The State (1985) LPELR-1472 (SC); Adenose Clement v. F.R.N. (2019) LPELR 47232 (CA) at p.17 and Seyi Oyeneye v. The State (2016) LPELR 41432 (CA) at p.19.
Resolution of issues 1 and 2
I must first point out that not only is this later argument of Mr. Afolabi of a conspiracy charge failing once a substantive offence charged fails not covered by appellant’s grounds of appeal, it did not also arise from the respondent’s brief to warrant a Reply brief pursuant to Order 19 Rule 5 of the Rules of this Court 2016. In other words, that argument goes to no issue.
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At any rate, the true position of the law is that conspiracy is a distinct offence from its target offence and so does not fail simply because a substantive offence charged along with it failed. See Balogun v. A.G. of Ogun State (2002) 2 S.C. (PT 11) 89 @ p. 96 – 97 where it was said by the apex Court (Uwaifo, J.S.C., in lead judgment) that:
“It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted, or even impossible to commit.”
Interestingly too, Karibi-Whyte, J.S.C., whose obiter dictum in Albert Ikem v. State (1985) LPELR-1472 (SC) was also cited by Mr. Afolabi for his contention that a conspiracy charge must fail once a target offence charged fails, had also confirmed the opposite of his obiter dictum in Albert Ikem’s case when he said inIkemson v. The State (1989) LPELR-1473 (SC) p.39; (1989) 3 NWLR (PT 110) 455 @ 477 (four years after Albert Ikem v. State (supra) but thirteen
11
years before Balogun v. A.G. of Ogun State) that:
“An offence of conspiracy can be committed where persons have acted either by agreement or in concert. Bare agreement to commit offence is sufficient. The actual commission of the offence is not necessary.” (Italics mine)
By reason of these authoritative statements of the true legal position, the decisions of this Court in Adenose Clement v. F.R.N. (2019) LPELR 47232 at 17 (Talba, JCA) and Seyi Oyeneye v. The State (2016) LPELR 41432 at 19 (Daniel-Kalio, JCA) also cited by Mr. Afolabi in support of his same argument of conspiracy count failing once main or target offence charged fails will have to give way.
I shall not be truly satisfied ending this discourse here without drawing further attention to what I consider some basic statements of the law on conspiracy and its proof as contained in the book Criminal Law, Fourth Edition, by John M. Scheb (Retired Judge, Florida Court of Appeal, 2nd District) and Professor John M. Scheb 11. The father and son duo had these to say about the offence of conspiracy in their book. First, they said (at p.89) that:
The essence of the offence
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[Conspiracy] is the mutual agreement of the parties to the conspiracy, not the acts done to accomplish its object. Moreover, the agreement is implied from the acts of the parties and the circumstances surrounding their activities. Furthermore, all the conspirators do not need to join the conspiracy at the same time. (Italics mine).
On the evidence necessary for proving conspiracy, they said thus (at p. 90):
Indeed, statements by a co-conspirator in furtherance of the conspiracy made during the pendency of the conspiracy may be admitted into evidence. Statements that have been made ‘in furtherance of’ the conspiracy include statements to inform other conspirators of the activities or the status of the conspiracy and those identifying other conspirators. Federal Courts have upheld the use of statements as to the source or purchasers of controlled substances. See for example, United States v. Patton, 504 F. 2d 444 (5th Cir. 1979). Before receiving this type of evidence, a Court must receive independent evidence that a conspiracy has been committed. In some instances, Courts receive the hearsay evidence subject to it being tied into the
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offence by independent evidence of the conspiracy.
“Courts have held that once formed, a conspiracy continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act. Cline v. State, 319 S.W. 2d 227 (Tenn. 1958).
“These unique aspects are significant. They assist the prosecution in proof of cases that might be otherwise improvable. Perhaps the law has established these exceptions in recognition of the difficulties of prosecuting persons involved in the conspiracies, which are generally formed in secret.
As to whether conspiracy merges into its target offence, they stated thus (at p.91):
“Conspiracy is regarded as a separate and distinct crime; therefore, it usually does not merge in the target offense. See People v. Carter, 330 N.W. 2d 314 (1981). As the New Jersey Supreme Court has pointed out, a conspiracy may be an evil in itself, independent of any other evil it seeks to accomplish. State v. Lennon, 70 A. 2d 154 (N.J.1949). A pragmatic consideration is that by not merging conspiracy into the target offense the law can more effectively deter efforts of organized crime. (Italics mine).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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They also cited (at p.91) Raphael Prober and Jill Randall’s Law Article titled Federal Criminal Conspiracy 39 Am. Crim. L. Rev. 571 (Spring 2002) where it was said that:
Conspiracy, the prosecutor’s “darling,” is one of the most commonly charged federal crimes. The offence of conspiracy is construed broadly by Courts and is therefore applied by the prosecutors to a variety of situations…. a conspiracy charge gives the prosecutors certain unique advantages and ….one who must defend against such a charge bears a particularly heavy burden.
I endorse these statements of the law as they also represent the state of the law in this country. See again Balogun v. A.G. of Ogun State (supra) and Ikemson v. The State (supra) on conspiracy to commit a crime not merging in the target offence so its success does not depend on proof of the target offence.
For the fact that the offence of conspiracy is rarely carried out in the open so evidence in proof of it is seldom direct and is rather more commonly gathered from circumstances disclosed in the evidence: see Okosun v. A.G. of Bendel State(1985)3 NWLR (PT 12) 285 @ p. 291
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to 292 & 297 (SC).
Also settled in this country is that, unlike other offences, what one conspirator says in the absence of other conspirators is admissible evidence against his co-conspirators, such evidence being an exception to the hearsay rule: See Mumuni & Ors v. State (1975) 1 ALL NCR 294, (1975) LPELR-1926 (SC).
Applying all these to the first issue of appellant, it becomes very clear that while the evidence of the driver of the stolen vehicle may have been important to prove the crime of armed robbery that was the target offence of appellant’s conspiracy with his co-conspirators, his evidence cannot be said to be very vital and indispensable for proof of the offence of conspiracy which is complete upon the agreement of the conspirators to commit the target offence, agreement to carry out an illegal act or carry out a legal act in an illegal way being the gist of the offence of conspiracy. I have already reproduced the evidence of P.W.1 regarding the circumstances of appellant’s arrest, which on its own also suggests appellant’s agreement with his confederates to commit the target offence of armed robbery. What is
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more, appellant in his statement to the police (Exhibit G) also said thus on his agreement with the said persons to commit robbery:
I went into armed robbery only last month being sometime in the month of July 2011. It was one Ebuka surname yet unknown who brought one cut-to-size from their house while I carried a machete for the armed robbery operation. That day, we robbed from a certain driver by the Ring Road, Benin City. I was carrying a gun which Ebuka brought while I exchanged my own machete with him, Ebuka. Bright was introduced to me by the said Ebuka who has now escaped after the operation. (Emphasis all mine)
That is evidence coming from appellant of his agreement with his co-conspirators to commit ‘the’ specific armed robbery in question. Add that to the steps appellant was said to have taken to dispose of the stolen vehicle as narrated to the Court by P.W.1 without challenge and the case for appellant’s conviction for the prosecutor’s ‘darling’ offence of conspiracy becomes as concrete as cement exposed to the elements.
On the issues appellant tried to raise about the use the trial Court made of
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his confessional statements, it is settled law that a confessional statement once direct, positive and unequivocal and shown to have been made voluntarily can on its own sustain conviction, regardless of whether the confession is retracted by the maker at the trial; recourse to corroborative evidence in that case only becomes a matter of prudence by the Court: See Obasi Onyenye v. State (2012) LPELR-SC 306/2010 where it was said (I.T. Mohammed, J.S.C., now C.J.N) that:
“It is not in all cases that confession must be corroborated. Just not long ago this Court stated in the case of Olabode v. The State (2009) 11 NWLR (PT 1152) 254 that:
“It is settled that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict”.”
See also Idowu v. State (2000) 7 SCNJ 245 @ 286, it was also stated (Uwaifo, J.S.C.) that:
“It has been laid down as good law that a free and voluntary confession of guilt by an accused person which is direct and positive, so long as it is possible, is sufficient to warrant his
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conviction, provided the Court is satisfied of the truth of the confession. It will only then be a matter of prudence to look for any corroborative evidence.”
See also Ojegele v. State (1988) 1 NWLR (PT 71) 414 @ 424-426, 428; Okeke v. State (2015) 11 NWLR (PT 1366) 435 (S.C.); Ikemson v. The State (1989) LPELR-1473 (SC) p.37; Salawu v. State (2011) LPELR-9351 (SC) p. 36, 48; Achabua v. State (1976) 12 S.C. 63 @ 69.
Here there was corroborative evidence from P.W.1 to the effect that appellant was caught red-handed while trying to sell the stolen car that was the target of his admitted conspiracy with his co-conspirators. The trial judge referenced all this in his judgment when he ruled thus:
“Now in Exhibits A, E and G, statements and additional statements of the 1st accused, he told the police how he planned a robbery operation with the other accused persons and how the police arrested him. The 2nd and 3rd accused persons repeated the same story of how they planned to rob a bus. But the evidence of 1st P.W did not say that a bus was recovered from the 2nd and 3rd accused person but that the statement of the 1st accused had led to
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their arrest. The position therefore is that Exhibits A, B and G, extra judicial statements of the 1st accused, were corroborated by the 1st P.W. as far as the count of conspiracy is concerned.”
I do not see how he can be faulted on that.
As for the contention by appellant that the trial judge was also wrong to rely on the same confessional statements he had held unreliable to prove the charge of armed robbery, the trial judge was very conscious of this and first posed the question to himself thus in his judgment while dealing with the count of conspiracy:
Now there is my finding that I cannot rely on the statements to find that the accused persons had participated in the armed robbery charged. The question may therefore be asked if I cannot convict the accused persons for the substantive offence of armed robbery based on their confessional statements, can I convict them for conspiracy to rob?
After stating the correct position of the law, to the effect that the offence of the conspiracy lies in the agreement to commit an offence, that the crime of conspiracy does not merge in the target offence and its success does not depend on the
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success of the substantive offence charged, His Lordship found corroboration of appellant’s confession in the unchallenged evidence of PW1 as well as the confessions of appellant’s co-conspirators regarding their agreement to commit robbery and convicted appellant accordingly. I do not see how he can be faulted. I only want to add, once again, that the pronouncements of the lower Court regarding appellant’s confessional statements while dealing with the offence of armed robbery, which it held not proved, must be kept separate from the constituent elements of conspiracy to commit armed robbery, which is agreement by two or more persons to do an illegal act or to do a legal act by an illegal means. That was undoubtedly proved by the prosecution. In the result, I resolve these issues 1 and 2 against the appellant.
The contention of appellant on Issue 3 was that the lower Court is bound to consider all the defences available to him even when not raised by him. He then charged that the trial judge failed to consider his denial of participation in armed robbery or his version of how he was arrested while returning home, innocently, from a
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fruitless job search on 4/8/2011 and brought up once again the issue of the prosecution’s failure to produce the stolen vehicle or call its driver in evidence. Mr. Wilson in response submitted that the trial judge considered in detail the defence of appellant both in his confessional statements and his evidence in Court and rightly rejected it so appellant’s complaint of non-consideration of his defence by the Court is of no moment. Assuming but without conceding that the trial judge did not even consider appellant’s defence, counsel further submitted his said defence was a mere sham contrived to mislead the cause of justice so any omission to consider it was not fatal – in support of which counsel cited Nwuzoke v. State (1988) LPELR-2135 (SC) p.11 para B-E.
Having read the judgment of the lower Court, it also appears to me that appellant is being uncharitable in asserting that the lower Court did not consider his defence. In fact he seems to mix up rejection of his defence with non-consideration of same. He seems to reason that by rejecting his defence, which the trial Court is entitled to do if the evidence before him justified
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it, the trial judge failed to consider his defence. Here were two competing stories one by the prosecution pointing to his complicity in the crimes charged and the other by appellant in evidence denying it. It was thus up to the trial judge to put both stories on the imaginary scales of justice taking into account which version was not challenged and or supported by other evidence before him, which version was contradicted by the witnesses or the surrounding circumstances, the demeanour of witnesses that testified, statements made by witnesses including accused at the earliest opportunity, and reach a decision accepting one story and rejecting the other. That the trial judge did meticulously and I see no reason to fault him.
In the final analysis, the appeal fails on all the three issues it was argued on and is here dismissed while the judgment of the lower Court convicting appellant for conspiracy to commit armed robbery is affirmed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, B.M. UGO, JCA.
I agree with the reasoning and conclusion that this appeal lacks merit and should be
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dismissed. I also dismiss the appeal and abide by the consequential orders made in the leading judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, BOLOUKUROMO MOSES UGO, JCA and I am in agreement with the reasoning and conclusions in dismissing the Appeal as lacking in merit. I subscribe to the consequential orders made thereto.
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Appearances:
E.O. Afolabi, Esq., with him, Mrs F.O. Igbineweka For Appellant(s)
Inam Wilson, Esq., with him, Itohan Okungbowa, Esq., Chief State Counsel and Mrs M.E. Obayuwana, Assistant Chief State Counsel, both of Edo State Ministry of Justice For Respondent(s)
