ODILI v. STATE (2021)

ODILI v. STATE

(2021)LCN/15508(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/AK/90C/2020

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

CHARLES ODILI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WAYS OF PROVING CONSPIRACY TO COMMIT THE OFFENCE OF ROBBERY

The fact that the Appellant was in company of others at large and armed proved that there was conspiracy to rob while armed. There was also a Robbery proved based on the evidence adduced in the Court below. The Appellant had admitted knowing one Tope who was part of his gang, but who escaped. There was therefore a conspiracy between him and others unknown to rob while armed – acts which are unlawful. The Appellant and his gang had a common unlawful purpose. See OKOH V STATE (2014) 8 NWLR (PT. 1410) P. 502 AT P. 523. PER PEMU, J.C.A.

WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State Akure Judicial Division delivered on the 16th of December, 2019 in Suit No. AK/124C/2018, whereby the Appellant was sentenced to death for conspiring to commit Armed Robbery and Armed Robbery contrary to Section 6(b) and Section 1(2)(a) respectively of the Robbery and Firearms (Special Provisions) Act, Cap R. 11. Vol. 14. Laws of the Federation of Nigeria 2004.

FACTS OF THE CASE
The Appellant, Charles Odili was tried on a two counts charge of conspiracy to commit armed Robbery and Armed Robbery contrary to Section 6(b) and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Vol. 14 Laws of the Federation of Nigeria 2004.

In the course of the trial, the Respondent called four (4) witnesses. The Appellant testified on his behalf and called no witness. Seven exhibits were tendered by the Respondent – Exhibits A, B, C1, C2, C3, C4 and C5.

At the end of the trial, the Appellant was found guilty as charged. He was convicted and sentenced to death on the two counts. Dissatisfied, the Appellant, desirous of appealing the judgment, filed Notice of Appeal on the 28th of February, 2020. There is an amended notice of Appeal filed on the 29th of June 2020 encapsulating four (4) Grounds of Appeal.

The Appellant filed his brief of argument on the 29th of June, 2020, but same was deemed filed on the 20th of January, 2021. It is settled by Femi Onibalusi Esq.

The Respondents’ brief was filed on the 18th of September, 2020. Same was deemed filed on the 20th of January, 2021. It is settled by Shehu Wada Abdullahi Esq.

The Appellant proffered two (2) issues for determination from the Grounds of Appeal. They are:
“1. WHETHER THERE IS A MATERIAL INCONSISTENCY IN THE EVIDENCE OF THE PROSECUTION WITNESSES PARTICULARLY OF THE PW1, TO VITIATE THE PROOF BEYOND REASONABLE DOUBT, OF THE CHARGES OF THE CONSPIRACY TO COMMIT ARMED ROBBERY AND ARMED ROBBERY AGAINST THE APPELLANT.
2. WHETHER THE EVIDENCE OF PW1 IS CORROBORATED BY THE TESTIMONY OF PW2, PW3 AND PW4.”
The Respondent proffered a sole issue for determination viz: “WHETHER WITH REGARD TO THE FACT OF THE CASE AND THE EVIDENCE LED BY THE PROSECUTION, THE TRIAL COURT WAS NOT RIGHT IN CONVICTING THE APPELLANT.”

On the 20th of January, 2021, the parties adopted their respective briefs of argument.

I shall consider this appeal based on the Appellant’s issues for determination.

ISSUE ONE
The Appellant submits that the statement of PW1 in Exhibit B is inconsistent with the testimony of PW1 at the trial. For example, in Exhibit B, PW1 did not mention the fact that any gun or cartridge was found on the Appellant when he was arrested. That if the Appellant was in possession of a gun, the people who arrested him would have said so. That indeed PW1 and PW2 having apprehended and arrested him, PW1 would have so stated in Exhibit B which is the statement of the PW1 to the Police shortly after the robbery incident.

That in Exhibit B, facts stated therein was different from the scenario painted by the testimony of PW1 at the trial. Because he did say that “the gun he was holding injured me and the gun fell down”.

He submits that the Court of Appeal cannot pick and choose to believe one version against the other.

Submits that where the facts stated is different from oral evidence adduced, the whole evidence on the material fact must be inadmissible. That in this case, the issue of possession of gun and cartridges is a material fact and the evidence regarding it is contradictory. See EDOHO V STATE (2010) 14 NWLR (PT. 1214) P. 651 AT P. 695.

Submits that in a situation such as this, the Court below should have rejected the evidence and disregard same.

ISSUE TWO
He submits that when the Court held that “the PW4’s evidence corroborates that (of) the PW1 and PW2 to the effect – “that a cut to size gun and some cartridges were recovered from him” – holding also that “the evidence of the PW4 Inspector Erinfolami Fatai is in consonance with the evidence of the PW1 – PW3”. He submits that these findings are not supported by the evidence of the witness before the Court below.

Submits that PW3 and PW4 were not eyewitness to the robbery. Their evidence constitutes hearsay and cannot be said to be corroborative of the evidence of the Complainant PW1 – citing SARAKI V FRN (2018) 16 NWLR (PT. 1646) P. 405 AT P. 449; ANDREW V INEC (2018) 9 NWLR, P. 507 AT P. 558. That when PW1 testified that:
“Later my boy stood up where he was lying and grabbed the defendant. I too stood up to join him in holding the Defendant. The gun he was holding injured me and the gun fell down.”

It was incumbent on the Respondent to prove that the Appellant was armed with a gun and cartridges at the time of the robbery. Then PW1 stated in his evidence that he dispossessed the Appellant of the shotgun before the arrest of PW2.

Submits that the evidence of PW1 was not corroborated by PW2. Indeed, PW2 in his own statement did say that it was after the Appellant had been apprehended that “these bullets and shot gun was found inside the pocket of the Defendant.”

Submits that there is doubt as to whether the Appellant ever had a gun and cartridges on him at the time of the robbery.

Submits that the contradictions in the evidence of PW1, PW3 and PW4 constitute a reasonable doubt as to whether the Appellant was guilty of the offences of conspiracy to commit armed Robbery and armed Robbery. See OLAYINKA V STATE (2007) 9 NWLR (PT. 1040) P. 561 AT P. 584. RESOLUTION
I shall consider issues 1 and 2 together. In considering this appeal, it is pertinent indeed desirable to take a look at the testimony of PW1, PW2, PW3 and PW4, particularly that of PW1 and PW2.

PW1 – He is the victim and the Complainant. He testified that on the 31st of July, 2018, “he heard a noise while he was sleeping in his home which woke him up. As he opened the door to the home, “he saw 3 gun points with big torchlight”. He continued “I put on my torch. I saw three of them.” That they entered his room forcibly. They opened the sitting room where his boy was sleeping. They woke the boy. They demanded for our handset and money. Two of them left after robbing him remaining the Defendant inside his parlour. The two others used their legs to open the door of his sitting room. They went to my landlord and tenant who raised alarm.”

His boy stood up from where he was lying and grabbed the Defendant. He too stood up to join him in holding the Defendant. The gun the Defendant was holding injured him and the gun fell down. The security that was employed in the street inflicted a matched cut on the right hand of the Defendant. The other robbers ran away but the Defendant could not run. He became unconscious.

Under cross-examination, he said he had known the Defendant before the robbery incident. That the incident happened at 1 am – 2 am.

PW2 – Victor Akpan did say in his testimony that the robbery incident took place about 1am – 2am in the night. He is a security guard. On the day of the incident, he was patrolling when he heard shout of “thief, thief”. He ran to the direction. One of the Robbers shot at him. Another was caught at the scene. He said: “After the Defendant had been apprehended, the Police was informed of the development. The Police came and they took the Defendant to the station. The Defendant told the Police that they were four in number. He gave the Police their names and one of the names is Tope. That three bullets and a short gun were found inside the pocket of the Defendant.”

Under cross-examination, he did say that it was only the Defendant that was arrested and taken to the Police Station. That he fell down when he was shot.

PW3, Sergeant Ayodele Olawale attached to SARS office with MyF/N 457376 testified that he knows the Defendant. That he was involved in the armed robbery which took place at Idanre on the 1st of August, 2018 at midnight.

That he and one Inspector Joshua Alademomi were detailed to investigate the crime. They went to the scene of crime. They took statement from the Complainant – Mr. Michael Jimmy.

The Defendant’s statement was taken down in the presence of a lawyer T. S. Asake.

In his defence, the Appellant denied making his confessional statement and a trial within trial was conducted. The Court below ruled that the statement was made voluntarily – pages 22 of the Record of Appeal – it was admitted as Exhibit “A” accordingly.

PW3 had testified that a cut to size barrel gun with some cartridges were recovered from the Appellant. A hood cap was also recovered from him.

PW4 is AP No. 178947, Inspector Erinfolami Fatai. He knows the Defendant in this case. He corroborated the evidence of PW3.

Attempting to tender the confessional statement of the Appellant, the Court ruled that no evidence was led by the Prosecution showing that the requirement and procedure stipulated in Section 10(3) of the Administration of Criminal Justice Law were followed. That failure to comply with the said steps renders the statement of the Defendant inadmissible.

The Court below therefore rejected the Statement of the Appellant Exhibit C1 – Cap; Exhibit C2 – Shot gun and Exhibit C3–C5, cartridges were tendered. PW4 testified that the cartridges fit the gun.

There is one thing that run across the evidence of PW1 and PW2. That is the positive identification of the Appellant as one of the robbers that robbed on the night in question at Idanre.
More so, certain items were recovered from his person, including a gun and cartridges.
It is enough if only one witness identifies the culprit. It does not have to be a multitude of witnesses. Failure to call PW1’s landlord is not fatal to the case of the prosecution.

The Appellant had made a confessional statement – Exhibit A, where he resiled from. The law is trite that when a situation such as this arises, the Court will reject the entire evidence of the person.

In this case, the Court below had ruled that the confessional statement of the Appellant was properly taken down, without duress.
I cannot find any contradiction in the testimony of PW1 and PW2 that shows that the Appellant did not come alone to rob.

The Appellant was apprehended at the scene of crime. Bullets and a shot gun were found on him and recovered.

The evidence of PW3 and PW4 corroborates that of PW1 and PW2, that the Appellant was apprehended at the scene of the crime. A cut to size gun and cartridges were recovered from the Appellant there.

What was the Appellant doing there at that time of the night with a gun and cartridges?
The Court below had observed thus:
“In his statement to the Police which is Exhibit “B” which I have particularly read, the PW1 related facts which are on all fours with his evidence in chief in this Court.
He was emphatic that out of the robbers that came, only the Defendant was caught at the scene of crime, and that the robbers including the Defendant came well-armed. That a shotgun was recovered from the Defendant with some ammunition.
It is indicative that the evidence of PW1 was not conjectured or an afterthought where particularly that it is in tandem with the evidence made to the Police (Exhibit B) when the evidence was still fresh in his memory.”

PW3, a Police Officer who visited the scene of crime recovered a cut to size gun and cartridges from the Appellant.

The Court below, who had the privilege of seeing the witnesses and the Appellant, rightly in my view summed up the evidence and evaluated same properly.

The Appellant cannot escape from this, because the evidence elicited from the Prosecution witness was so direct and credible in the circumstances of the case.

The Appellant robbed in the company of others who escaped. He was apprehended, and positively identified by PW1 and PW2.
Offensive weapons were recovered from him as well as firearms.
The fact that the Appellant was in company of others at large and armed proved that there was conspiracy to rob while armed. There was also a Robbery proved based on the evidence adduced in the Court below. The Appellant had admitted knowing one Tope who was part of his gang, but who escaped. There was therefore a conspiracy between him and others unknown to rob while armed – acts which are unlawful. The Appellant and his gang had a common unlawful purpose. See OKOH V STATE (2014) 8 NWLR (PT. 1410) P. 502 AT P. 523.

The Court below found as a fact that there was a robbery on the 31st of July, 2018 at the residence of PW1 – Michael Jimmy at Idanre.

It was found as a fact that the Robbery was carried out by a gang of robbers, of which the Appellant was one.

That PW1 saw the robbers including the Appellant who was armed and robbed PW1. He was in fact in possession of a cut to size gun with some cartridges.

In considering the defence, the Court below disbelieved the evidence of the Appellant in all its ramifications. It regarded his evidence as a tissue of lies and an afterthought.

I find no reason to disturb this opinion in the circumstances of the case.
The Appeal fails and same is dismissed by me.

The judgment of the High Court of Justice Akure delivered in Suit No. AK/124C/2018 on the 16th day of December, 2019 is hereby affirmed by me. The conviction and sentence of the Appellant is hereby affirmed and upheld.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother RITA NOSAKHARE PEMU, JCA just delivered was made available to me in draft.

I agree with the reasoning and the conclusion arrived at to the conclusion that the appeal lacks merit and should accordingly be dismissed.

Onnoghen, J.S.C. in Lasisi vs The State (2013) 1 NWLR (pt. 1358) 74 at 111 – 112, emphasized the point that where a trial Court conducts a trial within trial in determining the voluntariness of the statement of an accused person, a Court sitting on appeal will seldomly interfere with that decision being that the finding on the demeanour and evaluation based on credibility by the trial Court cannot be easily set aside.
Exhibit A having been admitted as having been voluntarily made; that alone settled the guilt of the appellant. I also see no merit in the appeal and accordingly dismiss the same. The decision of the Ondo State High Court in charge No. AK/124C/2018, delivered on the 16/12/2019, wherefore appellant was convicted and sentence to death is hereby affirmed.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the judgment delivered by my Learned brother, RITA NOSAKHARE PEMU, J.C.A.

The reasoning and conclusion reached by his Lordship is adopted by me, same being the result of a meticulous consideration of the vital issues arising from the arguments of counsel in their briefs of argument.

Therefore, I have nothing useful to add. This leads me to the dismissal of the appeal as same is unmeritorious.

Consequently, the judgment of the lower Court delivered on 16th December, 2019 is hereby affirmed.

Appearances:

Femi Onibalusi, Esq. For Appellant(s)

Shehu Wada Abdulahi, Esq. with him, Opeyemi Ajekigbe Esq. For Respondent(s)