JAPHET OBAZEE v. THE STATE (2019)

JAPHET OBAZEE v. THE STATE

(2019)LCN/13669(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of July, 2019

CA/B/409C/2017

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

JAPHET OBAZEE Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE CRIMINAL OFFENCE OF CONSPIRACY

Conspiracy is the meeting of minds of at least two persons to carry out an unlawful purpose or carry out a lawful purpose in an unlawful manner. There can be no conspiracy unless at least two persons conspire. See IKEMSON VS. THE STATE (1989) 1 C.L.R.N Pg 1. The offence of conspiracy is difficult to prove. This is understandable because it is often contrived in secrecy. Circumstantial evidence is often resorted to in pointing to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy. The offence of conspiracy is said to have taken place when people act by agreement or in concert. PER NWOSU-IHEME, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

Now to the offence of Armed Robbery. In an offence of Armed Robbery, the burden of proof is on the prosecution to prove the following beyond reasonable doubt:
a. That there was robbery or series of robbery
b. That the said robbery was an armed robbery.
c. That the Appellant was one of those who took part in the armed robbery.
See ATTAH VS. THE STATE (2010) 10 NWLR (PT. 1201) Pg. 190 at 224. PER NWOSU-IHEME, J.C.A.

THE CRIMINAL OFFENCE OF ATTEMPTED ROBBERY

On the Count of Attempted Armed Robbery, a person is said to attempt:
?If a person intends to commit an offence and in the process of putting his intention into execution by means he has adopted to its fulfillment and thereby manifest his intention by some overt act, but actually falls short of his intention to commit that offence either through an intervening act or involuntary obstruction, he is said to commit the attempt of that offence.?
See JEGEDE VS. THE STATE (2003) 3 ACLR Pg. 86.
To constitute an attempt to commit an offence, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. The offender must have crossed the ?Rubicon and burnt his boat.? The acts proved against an offender must be such as would show that he had done all he needed to do to complete the act before he was stopped. See SHURUMO VS. THE STATE (2010) 19 NWLR (PT. 1226) Pg. 73. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned before the High Court of Edo State, Benin Division in Charge No. B/CD/154C/16, presided over by Ohimai Ovbiagele, J., on an information of a three Count Charge of Conspiracy to Commit Armed Robbery, Armed Robbery and Attempted Armed Robbery, punishable under Sections 1(2)(a) and 2(b) respectively, of the Robbery and Firearms (Special Provisions) Act, Cap. RII Laws of the Federation of Nigeria, 2004.
In a considered judgment delivered on the 23rd of March, 2017, the learned trial Judge convicted the Appellant on Counts 1 and 3 but found him not guilty in Count 2 for Armed Robbery but for the lesser offence of attempted armed robbery. He was sentenced to five years in Count One and Twenty Five years in count Three. The sentences are however to run concurrently, in other words, the Appellant is to go to jail for Twenty Five years. This appeal is predicated on the said Judgment.

SUMMARY OF FACTS:
The Appellant and others now at large were said to have conspired and robbed one Nosa Okundia (PW1) of his Phone

at Gun point and also attempted to rob one Christopher Okundia (PW2) at gun point.

PW1 Nosa Okindia testified that he was in his father?s house at No. 1 Okundia Lane, Benin City, at about 9p.m, their generator suddenly went off and he went to find out what went wrong. He was slapped by one of the Robbers and a gun pointed at him, he was also hit with a cutlass and his hands and legs tied together. Someone raised alarm and shouted ?thief thief!? and the robbers took to their heels. He was later untied by which time his mobile phone had been stolen.

The following day, someone called PW1 to come and see somebody, it turned out to be the Appellant inside a well. They called the Police who came with a ladder and brought the Appellant out of the well. The Appellant confessed that he planned the robbery that took place the previous night with his cohorts. The Appellant later made statement to the police. PW2 Christopher Okundia?s own version was in line with the story of PW1.
?
The PW3 Sergeant Isaac Eguakan who took the confessional statement of the Appellant Exhibit ?A? also testified corroborating the story of PW1

and PW2.

In his defence the Appellant who testified as DW1 denied the Charge. He also denied falling into a well but that he was arrested along Stadium Road, Benin on his way to sell Mobile phone Charger to one Uyi?s Store. He also denied knowing PW1 and PW2.

In a considered Judgment, the learned trial Judge believed the version of the Prosecution and disbelieved the Appellant. He then proceeded to convict and sentence the Appellant on counts One and Three to twenty Five years imprisonment.
?
Dissatisfied with the said judgment the Appellant has filed this appeal asking this Court to set aside the said judgment. Learned Counsel for the Appellant Mrs. F. I. Okhae distilled two issues for determination which I find rather too long and winding, as follows:
1. ?Whether, in the face of the inconclusive, inchoate and ineffective investigation carried out in this case and thereby making it obvious that the entire Charge was never subjected to discreet and thorough investigation, coupled with the fact that the Appellant was discharged and acquitted with respect to count two of the Charge (which deals with the substantive offence of Armed

Robbery), the trial Court was justified when it held that the Respondent proved beyond reasonable doubt counts ones and three of the Charge (which deals with the inchoate offences of conspiracy to commit Armed Robbery and Attempted Armed Robbery against the Appellant?
2. Was the voluntariness of Exhibit ?A? proved positively and affirmatively beyond reasonable doubt by the Respondent in the mini trial conducted by the Court below before same was duly admitted in evidence.

Learned Counsel for the Respondent R. O. Oauhimire Esq. on the other hand distilled a sole issue for determination thus:
?Whether on the evidence of the prosecution witnesses and the confessional statement of the Appellant, the trial Court was right in convicting the Appellant of the offences of conspiracy to commit Armed Robbery and Attempted Armed Robbery.?

The issues raised by both Counsel can conveniently be compressed into one straight forward issue of narrow compass thus:
?Whether the learned trial Judge was right in rejecting the defence of the Appellant and held that the Prosecution proved Counts One and Three beyond reasonable

doubt and proceeded to convict and sentence the Appellant.?

Taking the issues he formulated learned Counsel for the Appellant F. I. Okhae Esq., contended, in summary, that investigation into the entire Charge at the trial Court remained inconclusive, inchoate and ineffective. Citing authorities to drive home his points, counsel argued that the evidence at the trial Court was speculative. That Exhibit A which was admitted after the trial within trial was inadmissible and urged this Court to set aside the conviction and sentence of the Appellant.

Reacting to the foregoing, learned Counsel for the Respondent, R. O. Oaihimire Esq., referred to the evidence of PW1 ? PW3 and argued in summary, that, the prosecution proved the Charge of Conspiracy to Commit Armed Robber and Attempted Armed Robbery beyond reasonable doubt to justify the conviction and sentence passed on the Appellant. Counsel contended that the learned trial Judge was right in admitting the confessional statement of the Appellant Exhibit ?A? and relied on same. He cited authorities in support of his submission.
?
Let me start with the offence of Conspiracy to commit

Armed Robbery before going into the offence of Attempted Armed Robbery and Armed Robbery.

In the instant case, the offence of conspiracy can be inferred from the evidence of the prosecution witnesses.

PW1 in his testimony at page 35 of the Record of Appeal stated as follows:
. At about 9p.m, our generator was working, suddenly the light went off. I heard my father?s voice, he called me. He said I should go and check what

was wrong with the generator. I came outside through the front door with my phone. The next thing I heard was a slap, I received a slap and a gun was pointed at me. Before I could shout one of them hit me with a cutlass on my back. They grabbed me and my hands were tied backwards?.. I heard a sound as if somebody was trying to hit our door with wood. I then heard ?thief?. I discovered that it was my father who shouted ?thief?. Then the thieves ran away leaving their Gun behind.?

PW2 Christopher Okundia in his own testimony at page 37 of the Records stated thus:
. I know the accused, he was the one who was found in a well in my house. On the 16th of December, 2015 around 10p.m?.. I heard noise outside, so I ran out through the back door, I was not even putting on my clothes. I picked up a wood, I saw three boys with my son, so I used the wood to hit one of the boys, the one holding a gun, as I was about to hit the other two, they all escaped.?

?The question then is could it

be by coincidence that the Appellant and the other men met at the scene of the robbery at the same time and participated in the armed robbery at the same time? The only reasonable inference to be drawn is that they were at the scene of crime in pursuance of a common purpose which was to rob PW1 and PW2 of their belongings while armed with Cutlass and Gun.
In SALAMI VS. THE STATE (2015) 2 NWLR (PT. 1444) Pg. 595 at 610, the Apex Court per Kumai Akaahs JSC stated thus:
?In a charge for an offence which is linked with conspiracy, the actual presence of an accused person where the offence was committed, together with Prior abetment, means participation in the offence.?
His Lordship also held:
?Once the Court arrives at a conclusion that the prosecution has established some community effort by the accused persons aimed at committing a crime, it will be safe to convict them of conspiracy.?

robbery was an armed robbery.
c. That the Appellant was one of those who took part in the armed robbery.
See ATTAH VS. THE STATE (2010) 10 NWLR (PT. 1201) Pg. 190 at 224.

In proof of the ingredients of the offence of Armed Rob7, PW1 and PW2 who were the victims as well as eye witnesses in their testimony in Court, part of which I already reproduced earlier in this judgment, stated categorically the role played by the Appellant and his gang.

PW3 who investigated the case gave evidence as to his findings that PW1 was robbed and the robbers attempted to rob PW2 and that the robbery was an armed robbery. In EBEINWE VS. THE STATE (2011) VOL.201. LRCN Pg. 224, the Apex Court held as follows:
?It is immaterial in whichever form stealing/theft of anything is executed by an accused person, once the act involved extortion by force or infusing fear of instant death or hurt, it would amount to armed robbery.?

The evidence of PW1 shows clearly that there was threat of violence and actual violence when the Appellant and his cohorts while armed with Cutlass and Gun forcefully and violently collected PW1?s phone. The

testimony of PW1 left no one in doubt that there was robbery on the 16th of December, 2015 at No. 1 Okundia Lane, Off Iguyan Road, Ekenwan Barracks, Benin City at about 10p.m and that the robbery was an armed robbery.

It could also be gleaned from the testimony of PW1 and PW2 that the Appellant was among the robbers that were armed with Cutlass and Gun and robbed PW1 of his phone and attempted to rob PW2 before he hit one of them and raised alarm.

That fact that the Appellant fell inside the well does not make his offence less. Once it is shown that the Appellant and his cohorts acted in agreement or in concert. The inference of conspiracy is drawn. In this case the robbers including the Appellant acted in the open when they pounced on PW1, hit him with a cutlass on the head, threatened him with a Gun before tying his hands.

commit that offence either through an intervening act or involuntary obstruction, he is said to commit the attempt of that offence.?
See JEGEDE VS. THE STATE (2003) 3 ACLR Pg. 86.
To constitute an attempt to commit an offence, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. The offender must have crossed the ?Rubicon and burnt his boat.? The acts proved against an offender must be such as would show that he had done all he needed to do to complete the act before he was stopped. See SHURUMO VS. THE STATE (2010) 19 NWLR (PT. 1226) Pg. 73.

The learned trial Judge who watched the witnesses testify at page 96, lines 9 ? 12 held:
?In Count two, I find the accused not not (sic) guilty of the offence of armed robbery. I however find him guilty of the lesser offence of attempted armed robbery. He is accordingly convicted.
In Count three, I find him guilty as Charged. He is accordingly convicted.?
?
Surprisingly, at page 98, lines 5 ? 10, the learned trial Judge in sentencing the

Appellant after the Allocutus, stated thus:
?I (sic) Count One: the accused is sentenced to five years imprisonment with hard labour.
In Count two, he is sentenced to twenty five years imprisonment with hard labour.
In Count three, he is sentenced to twenty five years imprisonment with hard labour.
All the sentences are to run concurrently.?

One then wonders why the learned trial Judge who in very clear terms on page 96 stated that in Count two the Appellant (accused) is found not guilty of the offence of Armed Robbery would turn somersault and sentence the same Appellant to twenty five years imprisonment with hard labour when he had already been found not guilty of the same offence.

Sentencing is a very serious business and the future of a human being at that moment is dependent on the sentencing. Sentencing should therefore be very clear, unambiguous and very specific. We who sit in judgment over others should therefore take sentencing very serious and give it the maximum attention which it deserves.
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The prosecution witnesses kept no one in doubt as to the fact that the Appellant was one of the armed robbers and

that he fell inside a well and that was where the police got him out with the aid of a ladder. The Appellant confessed to the offence in Exhibit ?A?. Even though counsel for the Appellant made heavy weather about Exhibit A and its inadmissibility. I am of the view that the trial Judge was well within the law when he admitted the said confessional statement as Exhibit A after trial within trial.

It is therefore clear that the Appellant even though he fell inside a well from where he was rescued by the police, he is still guilty of attempted armed robbery of PW2.

Section 8 of the Criminal Code is apt on this type of situation and scenario. It provides:
?When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.?
?
The prosecution at the trial Court failed to prove beyond reasonable doubt the Appellant?s involvement in the substantive offence of

Armed Robbery. They however proved Attempted Armed Robbery which is a lesser offence and does not carry the death penalty.

In the premise, I resolve the sole issue against the Appellant and in favour of the Respondent. This appeal succeeds in part. I affirm the conviction of the Appellant in Count One for Conspiracy to Commit Armed Robbery and also in Count three for Attempted Armed Robbery. I discharge and acquit the Appellant in Count two for the offence of Armed Robbery.

The sentence of Twenty Five years imprisonment in Counts one and three which I consider excessive is hereby reduced as follows: In count one, for Conspiracy to commit Armed Robbery, the Appellant is sentenced to Ten years imprisonment. In Count three for Attempted Armed Robbery, the Appellant is sentenced to Ten years imprisonment. The sentences are to run concurrently. In other words, the Appellant is to be in jail for Ten years with no option of fine. The Ten years imprisonment will start to run on Friday the 19th of July, 2019, the day of delivery of this judgment.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft, the

judgment just delivered by my learned brother, Chioma Egondu Nwosu Iheme, JCA (Ph.D), I cannot but concur with the reasoning and conclusion reached in the lead Judgment, to the effect that the appeal succeeds in part.
I abide by the orders reached in the lead judgment.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Chioma Egondu Nwosu-Iheme, J.C.A.

I agree that the appeal succeeds in part and the sentence imposed on the appellant, by the trial Court, is hereby reduced to the term explicitly set out in the leading judgment.

Appearances:

O.T. Okeke, Esq. (Legal Aid Officer, P.D.S.S)For Appellant(s)

Mrs. R.O. Oaihimire (SSC, Edo State M.O.J) with her, J.U. Osewinge, Esq. and D.Y. Otenaike, Esq.For Respondent(s)

Appearances

O.T. Okeke, Esq. (Legal Aid Officer, P.D.S.S)For Appellant

AND

Mrs. R.O. Oaihimire (SSC, Edo State M.O.J) with her, J.U. Osewinge, Esq. and D.Y. Otenaike, Esq.For Respondent