OLUWASEYI OGUNDIRAN v. THE STATE
(2019)LCN/12898(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of March, 2019
CA/IL/C.88/2018
RATIO
COURT AND PROCEDURE: AN IDENTIFICATION PARADE
“In my considered view, the answer is not far-fetched. The answer to that pertinent question was once addressed in IKEMSON VS. THE STATE (1989) NWLR (Pt. 110) 455, where in the Apex Court aptly held: [A] An identification parade is only essential in the situations enunciated, in R. V. Turnbull & ORS (1976) 3 All E. A. 542 at 551. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstance he might not have had full opportunity of observing the features of the accused. In such a situation a proper identification will take into consideration the description of the accused to the police shortly after the commission of the offence, the opportunity the victim, had for observing the accused and what features of the accused noted by the victim and communicated to the police marks him out from other persons. Per Karibi-Whyte, JSC @ 472. See also ALABI VS. THE STATE (1993) LPELR ? 397 (SC).” PER IBRAHIM MOHAMMED SAULAWA, J.C.A.
COURT AND PROCEDURE: WHETHER IDENTIFICATION IS NECESSARY
“Indeed, it is trite, that it is not in all cases that an identification is necessary, especially where: (a) There is a clear and contradicted eye witness account and identification of the person who allegedly committed the crime; (b) Witness personally knew the accused previously; (c) The accused is linked to the offences by convincing, cogent and compelling evidence; and (d) The accused in his confessional statement identified or linked himself with the crime.
See OKIEMUTE VS. THE STATE (2016) 12 SCM 81 @ 93 – 94 PARAGRAPHS A ? C; AKPAN VS. STATE (2016) 8 SCM 1 @ 8 PARAGRAPHS F – H.” PER IBRAHIM MOHAMMED SAULAWA, J.C.A.
CRIMINAL LAW:PROOF AND INGREDIENTS OF ARMED ROBBERY
“The case is proved beyond reasonable doubt but nothing short of that suffice. See also ILORI VS. THE STATE (1980) 8 – 11 SC 81 @ 99; AKALEZI VS. THE STATE (1993) 2 NWLR (Pt. 273) 1 @ 13; OCHIBA VS. THE STATE (2011) SC (Pt. IV) 79. It has been settled in a plethora of authorities that to sustain or uphold the charge of armed robbery contrary to Section 1 (2) of the Armed Robbery and FireArms Act, CAP R 11 (Supra), the prosecution has an uphill task of proving beyond reasonable doubt certain fundamental ingredients, Viz: (a) That there was a robbery incident or series of robberies. (b) That the robbery was an armed robbery. (c) That the accused person had participated in the armed robbery. See AGUGUA VS. THE STATE (2017) 6 SCM 1 @ 3.” PER IBRAHIM MOHAMMED SAULAWA, J.C.A.
INTERPRETATION: MEANING OF CONSPIRACY
“The term conspiracy denotes an agreement by two or more persons to commit an unlawful act. In criminal jurisprudence, conspiracy is a distinct (separate) offence from the crime that is the object of the conspiracy. Also termed criminal conspiracy. See BLACK’S LAW DICTIONARY, 7th Edition, 1999 @ 305.” PER IBRAHIM MOHAMMED SAULAWA, 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
OLUWASEYI OGUNDIRAN Appellant(s)
AND
THE STATE Respondent(s)
IBRAHIM MOHAMMED SAULAWA, J.C.A.(Delivering the Leading Judgment):
The present appeal is against the judgment of the Kwara State High Court holden at Ilorin Judicial Division, which was delivered on April 4, 2017 in charge No. KWS/CM/3/2013. By the said Judgment the Court below, Coram T. S. Umar, J; convicted the Appellant to 21 years imprisonment upon each of the two counts charge under Section 97 of the Penal Code Law (For Criminal Conspiracy) and Section 1 (2) of the Robbery and Fire Arms (Special Provisions) Act CAP. R.11, Laws of the Federation of Nigeria, 2004.
BACKGROUND FACTS
The facts and circumstances surrounding the appeal are gleanable from the record of appeal, transmitted to this Court on July 18, 2018. It is obvious from the record, that the Appellant was initially arraigned before the Court below on June 14, 2013, along with two other co-accused Persons upon a two count charge of conspiracy and Armed Robbery, Viz:
COUNT ONE
That you Abiodun Adebayo (M), Oluwaseyi Ogundiran (M), Vincent Aniekwe, (M), Jubril Raji, (M), Dapo Olasehinde, (M), Ayo (A.Y. Pumping), (M) and T.J. (M), at large on or about 29th January, 2012 at about 2100 hours at Omu-Aran, Irepodun Local Government Area within the jurisdiction of this Honourable Court conspired and agreed to do an illegal act to wit Rob one Yemi Tunbosun of his Toyota RAV 4 Jeep, marked LR 730 EKY, a Toyota Avalon Sedan with Registration Number RH 1 KJA (Lagos), Home Theatre Sound System, One (1) LG Flat Screen Television Set, One (1) Digital Camera, Four (4) Mobile Phone Handsets, (sic) Jewelries and the Sum of Two Hundred Thousand Naira (N200,000) and thereby committed an offence contrary to Section 97 of Penal Code Law.
COUNT TWO
That you, Abiodun Adebayo (M) Oluwaseyi Ogundiran (M) Vincent Aniekwe (M), Jubril Raji (M), Dapo Olasehinde (M), Ayo (Pumping), (M) and T.J (M) at large on or about 29th January 2010 hours at Omu-Aran, in Irepodun Local Government Area within the jurisdiction of this Honoruable (sic) Court while armed with Guns robbed one Yemi Tunbosun of his Toyota RAV 4 Jeep, marked LR 730 EKY, a Toyota Avalon Sedan with Registration Number RH 1 KJA (Lagos), a Home Theatre Sound System, One (1) LG Flat Screen Television Set, One (1) Digital Camera, Four (4) Mobile Phone Handsets, Jewelries and the sum of Two Hundred Thousand Naira (N200,000) and thereby committed an offence punishable under Section 1 (2) of the Armed Robbery and Fire Arms (Special Provision) Act Cap R 11 Laws of Federation of Nigeria 2004.
The Appellant pleaded not guilty to both counts. The case proceeded to trial. At the end of which, the Court delivered the vexed judgment, thereby convicting the Appellant under both counts of the charge and sentenced him to terms of 21 years imprisonment for each of the two counts inquestion.
The Appellant?s notice of appeal was filed in the Court below on 14/05/18. By the said notice of appeal, the Appellant urged upon the Court to allow the appeal and set aside the judgment of the Court below.
On January 14, 2019, when the appeal came up for hearing, the learned counsel adopted the briefs of argument thereof, thereby resulting in reserving judgment. Most particularly, the Appellant?s brief, filed on 29/8/18, spans a total of 25 pages. At page 6 thereof, three issues have so far been formulated, Viz:
1. Whether the learned trial Judge was right when he convicted and sentenced the Appellant to 21 years imprisonment for the offence of criminal conspiracy and armed robbery without an identification parade as required by law.
2. Whether the learned trial judge was right when he convicted and sentenced the Appellant to 21 years imprisonment for the offence of armed robbery.
3. Whether the learned trial judge was right when he convicted and sentenced the Appellant to 21 years imprisonment for the offence of criminal conspiracy.
The issue No.1 is canvassed at pages 6 ? 12 of the said brief, to the effect that the Court below was wrong when it convicted and sentenced the Appellant to 21 years imprisonment for the offences of criminal conspiracy and robbery without an identification parade, as required by law.
The evidence of PW3 and PW7 (both victims of the offence) was copiously alluded to at pages 181, 182, 183, 223 and 225 of the record of appeal, to the effect that the scene of the armed robbery was dark, therefore, proper identification of the Appellant was of crucial importance. That in this circumstance, identification parade was a necessity. See WILFRED OKAFOR VS. STATE (2006) 43 WRN 123 @ 136.
It was contended, that the statements of the Appellant (Exhibits AA1 and AA2) are not confessional as to warrant dispensation with identification parade. See KAMILA VS. THE STATE (2018) 8 NWLR (Pt. 1621) 252 @ 271 paragraph B; ARCHIBONG VS. THE STATE (2004) 1 NWLR (Pt. 855) 448 @ 509 paragraphs E ? H, et al.
The Court is urged to so hold, and resolve this issue in favour of the Appellant.
The issue No. 2 is argued at pages 13 ? 17 of the brief, to the effect that the Court below was wrong when it convicted and sentenced the Appellant to 21 years imprisonment for the offence of armed robbery.
It was submitted, that the prosecution has not proved that the Appellant engaged in armed robbery as required by law to justify his conviction and sentence in question. It was argued that none of the (prosecution) witnesses linked the Appellant to the alleged armed robbery. And that there?s nowhere in Exhibits AA1 and AA2 that the Appellant admitted robbing the PW3 and PW7.
Further argued that the Respondent has failed to prove all the essential elements of robbery known to law. Therefore, the conviction and sentence of the Appellant are unjustifiable.
See AFOLALU VS. THE STATE (2010) 6 ? 7 M JSC 187 @ 219 ? 220 PARAGRAPHS G ? A.
The Court is urged to so hold and accordingly resolve the issue 2 in favour of the Appellant.
The issue No.3 is canvassed at pages 17 ? 21 of the brief, to the effect that there?s no justification for the findings of the Court below at page 270 of the record, that there was a meeting of the mind of the Appellant with others to rob. Allegedly, those findings and conclusions are mere speculative assumptions not borne from the evidence on record.
Further submitted, that the Appellant had denied the offence (pages 238 ? 239 of the Record) which denial was discredited by the Respondent. That on the part thereof, the PW2 PW3, PW4 and PW7 did not establish how the Appellant committed any offence of conspiracy. No direct or circumstantial evidence adduced by them linking the Appellant with the offence of conspiracy. Thus, the decision of the Court below does not accord with the interest of justice. And that where doubt exists in the case of the prosecution, same must be resolved in favour of the accused. SeeAL-MUSTAPHA VS. THE STATE (2013) 17 NWLR (Pt. 1383) 350 @ 416 paragraph A, et al.
The Court is urged to so hold, and resolve the issue 3 in favour of the Appellant.
Conclusively, the Court is urged to allow the appeal.
Contrariwise, the Respondent?s brief, filed on December 3, 2018, spans a total of 15 pages. At page 2 thereof, the learned chief state counsel deemed it expedient to adopt the Appellants? three issues for determination.
The issue No.1 is canvassed at pages 2 ? 6 of the said brief. In a nutshell, it?s submitted that the issue of identification was put in proper perspective by the Court below at page 272 of the record. It was further submitted, the assertion of the Court at the said page 272 of the record has received judicial approval in OKIEMUTE VS. STATE (2016) 12 SCM 81 @ 93 ? 94.
According to the Respondent?s learned counsel, the Appellant was linked to the crime by convincing circumstantial evidence and his confessional statements which established his culpability along with other direct evidence. See AKPAN VS. STATE (2016) 8 SCM 1, @ 8 paragraphs F ? G.
It was contended, that identification parade would not be necessary where an accused person identified himself with the crime. See OKIEMUTE VS. STATE (Supra).
The Court is urged to so hold.
The issue No.2 is argued at pages 6 ? 11 of the brief, to the effect that the prosecution has established all the three ingredients of the offence beyond reasonable doubt, contrary to the Appellant?s submission. Further submitted, that the PW3 and PW7 have firmly established the fact that there was robbery. And that the PW8 clearly showed that the Appellant participated in the robbery which afforded him the knowledge of the scene of the crime to which he led PW8.
It was equally postulated, that the Court below adequately gave the issue of circumstantial evidence its proper attention on page 272 of the record. Thus, making it evident that the sequence of testimony of the prosecution witnesses pointed to the direction of the Appellant as one of those who participated in the robbery.
The Court is urged to so hold, and resolve the issue No.2 in favour of the Respondent.
The issue No.3 is argued at pages 11 ? 14 of the said brief, to the effect that the evidence of PW4, together with the confessional statement of the accused person (Exhibits AA1, AA2, AA3, AA4, and AA5) are convincing enough to deduce that the Appellant conspired with the other accused persons to commit a crime.
The Court is urged to so hold, and accordingly resolve the issue against the Appellant.
Conclusively, the Court is urged upon to affirm the judgment of the Court below.
Having accorded an amply critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in their respective briefs of argument vis–vis the record of appeal, I cannot but deem it expedient to adopt the Appellant?s three issues for the ultimate determination of the appeal, anon.
ISSUE NO.1
The first issue of the Appellant raises the very crucial question of whether the Court below was right when it convicted and sentenced the Appellant to 21 years imprisonment term for the offence of criminal conspiracy and armed robbery without an identification parade as required by law. The first issue is apparently distilled from ground 1 of the notice of appeal.
It is obvious from the record of appeal, that on October 20, 2016, the Respondent filed an application to amend the charge. Consequent upon which, a fresh plea of the Appellant was taken and recorded by the Court below. Indeed, the Appellant pleaded not guilty to the two counts charge. See pages 253 – 257 of the Record of Appeal.
In the course of the said trial, the prosecution (Respondent) called a total of eight (8) witnesses and tendered various items admitted and marked as Exhibits 1, 2, AA1, AA2, AA3, AA4, and AA5, respectively. These exhibits include a Bajat Motorcycle with Registration No. QB 702 EKY, bond in regard to the motor cycle LR 730 EKY, statement of the 2nd Accused Person, dated 21/02/2012, and additional statement of the said 2nd Accused Person, dated 07/03/2014, respectively. The Appellant testified in his own defence and called one other witness.
As copiously alluded to above, the gamut of the learned counsel?s argument regarding the instant issue is that the conviction and sentence of the Appellant to 21 years imprisonment for the offences of conspiracy and armed robbery without an identification parade was improper.
Instructively, the term identification parade, otherwise known as ?Line Up?, (in the USA) denotes a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to confirm or determine whether the suspect can be identified as the perpetrator of the crime. See BLACK?S LAW DICTIONARY, 6th Edition, 1999 @ 941.
What then are the considerations that govern a proper identification? In my considered view, the answer is not far-fetched. The answer to that pertinent question was once addressed in IKEMSON VS. THE STATE (1989) NWLR (Pt. 110) 455, where in the Apex Court aptly held:
[A] An identification parade is only essential in the situations enunciated, in R. V. Turnbull & ORS (1976) 3 All E. A. 542 at 551. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstance he might not have had full opportunity of observing the features of the accused. In such a situation a proper identification will take into consideration the description of the accused to the police shortly after the commission of the offence, the opportunity the victim, had for observing the accused and what features of the accused noted by the victim and communicated to the police marks him out from other persons. Per Karibi-Whyte, JSC @ 472. See also ALABI VS. THE STATE (1993) LPELR ? 397 (SC).
In the instant case, the Court below has recorded to have found at page 272, line 19 ? 25, of the record:
On the issue of identification parade raised by the 2nd accused person (Appellant), PW3 and PW7 stated clearly that they could not identified (sic) the accused persons until they are (sic) shown to them that they are the ones that rob them. Identification parade is not necessary, especially where there is evidence linking the accused with the crime and also where the accused person had identified himself as the robber. See USUNG VS. THE STATE (2009) ALL FWLR (Pt. 162) PG 1203 AT 1236 ? 1237.
In my considered view, the foregoing findings of the Court below are cogent, unassailable and duly supported by the totality of the evidence on record and the trite principles of law. The evidence of the PW3 Victor Olayemi Tubosun, is contained at pages 181 ? 184 of the record. The fact that the PW3 had testified to the fact that he never knew, mentioned or described any of the accused persons (including the Appellant) is no longer in doubt, at all. Under cross examination by S. M. H. Kosemani Esq. for the 1st Accused Person, the PW3 testified (page 183, line 17 of the record):
Prior to the incidence, I did not know any of the accused.?
Again, under cross examination by Chief Ayo Ajumole, for the 2nd Accused Person, the PW3 had this to say at page 183 lines 25 ? 29 of the record:
Before the incidence, I did not know any of the 3 accused persons. The incidence took place in the night. I did not mention or describe any person that robbed me at the police station at Omu-Aran.?
The PW7, Mrs Olayinka Tubosun (the wife of the PW3 and victim) equally testified at pages 223 ? 226 of the record. Most especially, under cross examination by Mrs M. B. Alaya for the 1st Accused Person, the PW7 further testified at page 225 lines 8 ? 14 of the Record:
I told the Court we are (Sic) robbed on 29/1/2012. It is (Sic) about 4 years ago. As at the time the robbers came to our house, it was relatively dark. I was shocked to see the armed robbers in our house. I was afraid of my life and the life (Sic) of my children. It was when the accused person was brought to our house that was when I met them. I don?t know the accused persons, it was when the police brought them to our house that was when I met them. The 1st accused person was not arrested in my house.
The PW7 again stated under cross examination by Lawrence Opoola Esq. for the 3rd Accused Person:
My presence in the Court is to tell the Court that robbery took place in our house but not that I am saying the accused are the ones who robbed.
However, the fact that the PW3 and PW7 could not categorically assert their recognition or identification of the Appellant as one of those that invaded their home and robbed them of the various valuables, including the two motor vehicles in question notwithstanding. In the instant case as aptly found by the Court below (at page 272 lines 19 ? 25 of the record) in the vexed judgment, there is a cogent evidence linking the crime and the fact that the Appellant had identified himself as one of the robbers that invaded their house on the date of the robbery inquestion.
Undoubtedly, the finding of the Court below at page 272 lines 19 ? 25 of the record, is very much in line with well settled principle regarding the issue. Indeed, it is trite, that it is not in all cases that an identification is necessary, especially where:
(a) There is a clear and contradicted eye witness account and identification of the person who allegedly committed the crime;
(b) Witness personally knew the accused previously;
(c) The accused is linked to the offences by convincing, cogent and compelling evidence; and
(d) The accused in his confessional statement identified or linked himself with the crime.
See OKIEMUTE VS. THE STATE (2016) 12 SCM 81 @ 93 ? 94 PARAGRAPHS A ? C; AKPAN VS. STATE (2016) 8 SCM 1 @ 8 PARAGRAPHS F ? H.
In the instant case, the sequence of the evidence of the prosecution that eventually gave out the Appellant as one of the robbers, was that the PW4 heard the conversion on phone between the 1st and 3rd Accused Persons, to the effect that one of the vehicles stolen from the house of the PW3 and PW7 had broken down along Ibadan Road, Ife. The PW4 then informed the PW7 of the broken down vehicle who subsequently informed the PW3. The PW4 informed the PW2 who eventually recovered the vehicle at Ife. According to the PW2 at page 177 lines 26 – 29 of the Record:
All along, we went with the complainant. Those at the toll gate, the vehicle was shown to us. Immediately he saw it he identified it as his vehicle. The Registration No. of the vehicle is LR 730 EKY. The mechanics worked on the vehicle. I agrees that the vehicle was brought down to Omu-Aran.
I agree with the Respondent learned counsel’s postulate at paragraph 3.9 page 4 of the brief thereof, to the effect that a community reading of all the evidence of the prosecution witnesses, PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 (pages 175 – 230 of the Record) that the circumstantial evidence relied upon by the prosecution, duly upheld by the Court below in the vexed judgment, pointed to the guilt of the Appellant.
It is equally in evidence, that the Appellant and the 1st Accused Person led the PW8 to the scene of crime (the house of the PW3 and PW7). According to the PW8 under cross examination by Mr. Opoola (page 227 lines 21 ? 25 of the record):
The 1st and 2nd accused persons took us to the scene of crime. That is the house of the victims. The 1st accused person said the motorcycle they used in committing the crime, taking themselves one after the other got punctured. They called the 3rd accused to take the motorcycle and keep for them.
What’s more, the Appellant has admitted in his own statements (Exhibits AA1 and AA2) which he personally wrote, to the commission of the crime. Hear him:
Later around 7:30 pm he called me that I should waited for him around round about area or I should move to Adeyemo Hospital area and I did, later I saw one guy called Abbey love that meet me at the place I was waiting for Jubril, I send him to buy me bread and Akara (Beans Cake) not more than 20 minutes. A jeep packed by my side in which Jubril was driving the jeep and beside him Kayode Oniyangi he told me to enter and I do and Abbey Love entered the jeep too and he start the jeep and we start moving. He told us to drop again around Land mark University, Omu-Aran. He change his mind again and we started moving together along the way the jeep develop fault around or before Ile-Ife tollgate Jubril now call a friend of him that the car he was bringing develop fault and that they should come and pick him not more than 30 minutes one car arrived and we entered the car.
It is on record, that the PW3 testified that one of the items stolen from him (and PW7) was a jeep RAV4. The PW2 equally confirmed the recovery of the said jeep where it broke down along Ile-Ife tollgate. Under cross examination by Opoola Esq. the PW2 stated at page 178 of the record;
We met the vehicle in the possession of OC tollgate. The vehicle was not recovered by us on the high why. The vehicle was already with OC tollgate. We met the vehicle there.
Thus, not unexpectedly, the Court below in its wisdom came to the following findings at pages 268 ? 269 of the record:
I am impressed by the fact that the exhibits which are the statements of the accused persons contain some information about the social lives and family background which PW6, PW5 and PW8 would not have known if the accused persons had not disclosed them.
As a matter of fact the 2nd accused person wrote his own statement in his own hand writing. I find that the accused persons made exhibit AA3 and AA4, AA1, AA2 and AA5 voluntarily. And also signed them. I find that the evidence of PW4 corroborated by the confessional statements of the accused persons.
I am satisfied that these statements have passed the test for determining the veracity or otherwise of a confessional statement laid down in R. VS SKYES (1913) CAR 233?
I have no doubt in my mind whatsoever, that the foregoing findings of the Court below are cogent, unassailable and duly supported by the evidence on record and the well settled principles relating thereto.
In the circumstance, the answer to the first issue ought to be in the affirmative, and same is hereby resolved against the Appellant.
ISSUE NO.2
The second issue raise the question of whether the Court below was right when it convicted and sentenced the Appellant to 21 years imprisonment for the offence of armed robbery. The said second issue is distilled from ground 2 of the notice of appeal.
In the main, the Appellant vehemently submits under the second issue that the prosecution has not proved the offence of armed robbery beyond reasonable doubt against him.
Instructively, the finding of the Court below regarding the issue could aptly be located at page 272, last paragraph of the record, Viz:
I am convinced that the circumstantial evidence relied on by the prosecution pointed irresistibly to the guilt of the accused persons before the Court. The prosecution has therefore established the offence of criminal conspiracy and robbery against the three accused persons beyond reasonable doubt. I hereby convict each of the three accused persons for the offence of criminal conspiracy contrary to Section 97 of the Penal Code Law and Robbery punishable 1 (1) of the Section 1 (1) of the Robbery and Firearms (Special Provision) Act Cap R11 Laws of Federation of Nigeria, 2004.
Invariably, the term proof beyond a reasonable doubt denotes a proof that precludes every reasonable hypothesis excepting that which it tends to support. See BLACK?S LAW DICTIONARY 7th Edition 1999 @ 1231.
Over seven decades ago, the legendary common Law jurist, Lord Denning, J. (as the learned Lord then was) had postulated upon the connotation and significance of proof beyond a reasonable doubt in relation to criminal trials. That was the case of MILLER VS. MINISTER OF PENSION (1947) 2 ALL ER 371 @ 373 paragraph H, where in the learned jurist said:
The degree is well settled, it needs not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law will fail to protect the community if it admitted fanciful possibilities to defeat the course of justice. If the evidence is so strong against a man as to leave remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least possible. The case is proved beyond reasonable doubt but nothing short of that suffice. See also ILORI VS. THE STATE (1980) 8 – 11 SC 81 @ 99; AKALEZI VS. THE STATE (1993) 2 NWLR (Pt. 273) 1 @ 13; OCHIBA VS. THE STATE (2011) SC (Pt. IV) 79.
It has been settled in a plethora of authorities that to sustain or uphold the charge of armed robbery contrary to Section 1 (2) of the Armed Robbery and FireArms Act, CAP R 11 (Supra), the prosecution has an uphill task of proving beyond reasonable doubt certain fundamental ingredients, Viz:
(a) That there was a robbery incident or series of robberies.
(b) That the robbery was an armed robbery.
(c) That the accused person had participated in the armed robbery. See AGUGUA VS. THE STATE (2017) 6 SCM 1 @ 3.
In the instant case, the fact that there was an armed robbery incident at the family house of PW3 and PW7 on 29/01/2012 at Omu-Aran, is no longer in doubt. Both the PW3 and PW7 narrated in their testimonies how on 29/01/12 armed robbers invaded their house and carted away valuable items, including jewelries, phones, digital camera, Toyota RAV 4 and Avalon Cars at gun point. Thus, undoubtedly, the evidence of both the PW3 and PW7 is to the combined effect that there was indeed a robbery incident at their house on the 29/01/12 inquestion.
Regarding whether the robbery incident in question was an armed robbery, the PW3 had testified before the Court below (page 182 of the Record):
Without getting to the sitting room and lobby, I thought all was well. That the gate was locked when I got inside wanting to lock, I could not lock,
I discovered a pressure coming, from outside. I pushed the door to lock, at that point I heard a voice that if you don?t open the door, they will shoot it down. It downed on me that they are armed robbers. I was frightened. I banged back to the room with my baby on my hand. They entered with a gun. I saw a gun with the person at the front. My wife sitting in the couch right on the floor and we were ordered to lie down.
They ransacked the bag and took the sum of N250, 000? they took her phones, BB, Nokia, Samsung and all phones around? the wedding rings were also collected and she was asked to present all her jewelries that if she does not get them, they will kill her. She packed all the jewelries worth over 1 million naira.
They were demanding the number of cars we have. We said two. One Toyota RAV4, 2006 model and Toyota Avalon.
I handed over the keys to them.
After they locked us in the guest toilet. They went away with our valuables and the two cars leaving the gate open?.
The evidence of PW3 and PW7 is to the effect that the intruders that invaded their house on the day of the incident were armed with a gun. By virtue of the provisions of Section 2 of the Robbery and Firearms Act CAP R11 (Supra) a gun is a firearm. Thus, the second ingredient has equally been proved beyond a reasonable doubt. And I so hold.
Regarding the third ingredient, as to whether the Appellant took part in the commission of the robbery, the evidence of the PW8 in conjunction with that of the Appellant himself, have established beyond reasonable doubt that the Appellant did take part in the robbery on the 29/01/2012 in question.
As copiously alluded to under the first issue, the PW8?s testimony both in chief and under cross examination, has clearly established that the Appellant did participate in the armed robbery which undoubtedly afforded him the knowledge of the scene of the crime to which he led the PW8 and team thereof.
The fact that neither the PW3 nor the PW7 (the armed robbery victims) could recognize the Appellant notwithstanding. Exhibits AA1 and AA2 (the confessional statements in question) easily gave out the Appellant as one of the Robbers that participated in the robbery in the house of the PW3 and PW7 on the 29/01/2012 in question. The said Exhibit AA1 is to the effect, inter alia:
I know Ajayi Lateef Oba since the year 2009. He is a friend of mine and we have been a friend for about two years ago. Ajayi Lateef is somebody that I know very well and I use to sleep in his house. To God am serving he does not no (sic) about the robbery operation that took place on the 29th of January 2012. Actually I did not know? when Jubril keep the Gun that was used for the operation and may be Ajayi Lateef know I did not know but when? Jubril directed me to pick the gun in Ajayi Lateef passage he did not know. On 28th of January 2012, I myself Jubril, Nass and Kayode Oniyangi slept together at Omolade room one of my friend that was not around during the period but the building belongs to Ajayi Lateef Oba? That is all about my additional statement.
It is obvious from the foregoing excerpt of Exhibits AA1 and AA2 and other circumstantial evidence alluded to above, the Appellant’s complicity and responsibility in the commission of the crime of the armed robbery has been proved beyond any reasonable doubt against him.
Indeed, it?s a well-settled doctrine, that where persons have embarked upon a joint enterprise, each is liable criminally for the act committed in pursuance of the joint enterprise, including unusual consequences resulting from the execution of the joint enterprise. See KAZA VS. THE STATE (2008) 5 SCM 70 @ 95.
Thus, not unexpectedly, the Court below in the course of the vexed judgment thereof, aptly found at page 242 of the record:
I am convinced that the circumstantial evidence relied on by the prosecution pointed irresistably to the guilt of the accused persons before the Court. The prosecution has therefore established the offence of criminal conspiracy and robbery against the three accused persons beyond reasonable doubt.
I would want to believe and hold, that the foregoing finding of the Court below is aptly cogent, unassailable and duly supported by the evidence on record and relevant settled principles of law.
In the circumstance, the second issue is answered in the affirmative and resolved against the Appellant.
ISSUE NO. 3
The third Issue raises the question of whether the Court below was right when it convicted and sentenced the Appellant to twenty one (21) years imprisonment for the offence of criminal conspiracy. The third Issue is distilled from Ground 3 of the Notice of Appeal.
The Appellant’s contention, in the main, is that the prosecution has not established the offence of criminal conspiracy against the Appellant beyond reasonable doubt.
The term conspiracy denotes an agreement by two or more persons to commit an unlawful act. In criminal jurisprudence, conspiracy is a distinct (separate) offence from the crime that is the object of the conspiracy. Also termed criminal conspiracy. See BLACK?S LAW DICTIONARY, 7th Edition, 1999 @ 305.
In the case of KRULEWITCH VS. UNITED STATES, the US Supreme Court aptly postulated upon the definition of conspiracy, thus:
(Conspiracy is an) elastic, sprawling and perversive offence? so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special colouration from each of the many independent offences on which, it may be overlaid. It is always predominantly mental in composition? because it consists primarily of a meeting of minds and an intent. See 336 U.S. 440, 445 ? 48, 69 SCCT. 716, 719 ? 20 (1949) per Jackson, J.; BLACK?S LAW DICTIONARY (Supra) @ 305.
Indeed, conspiracy can be inferred from the circumstances surrounding the criminal disposition or conduct of the parties thereto. Thus, conspiracy can be inferred from the acts towards a common end, where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not to personally know themselves. The Court may draw inference from certain criminal acts or inactions of the respective parties concerned. See ONYENYE VS. THE STATE (2012) ALL FWLR (Pt. 643) 1810 @ 1833; KOLAWOLE VS. THE STATE (2015) 1 SCM 199 @ 212 G ? H; OGOGOVIE VS. THE STATE (2016) ALL FWLR (Pt. 847) 425 @ 447 ? 448 G.
In the instant case, the testimony of the PW4, in conjunction with Exhibits AA1, AA2, AA4, and AA5 is quite convincing enough to warrant the Court below to infer that the Appellant did conspire with other accused persons to commit the armed robbery in question. In Exhibit AA4, for instance, the 1st accused person has stated inter alia:
In the beginning we both planned the robbery operation together, that on 28/01/2012, I used my motorcycle to carry Seyi, Jubril and Nasiru and Kayode to Yinka?s house but they did not do anything that day, not until 29/01/2012 I carry Jubril, Kayode with motorcycle along the way the tyre of my motorcycle puncture and immediately Jubril used his handset and call Ayo and two others which I did not know their names.
On his part, the Appellant stated in Exhibit AA1 thus:
Later around 7.30p.m. he called me that I should waited for him around round about area or I should move to Adeyemo Hospital Area and I did?.
As aptly postulated by the Respondent?s learned counsel, it could be inferred rightly that the reference to Yinka house in Exhibit AA4 was that of the PW3 who was robbed at gun point on the 29/01/2012 in question.
Against the backdrop of the foregoing postulation, there is every cogent reason for the Court below to infer as it did, that there was a direct and circumstantial evidence that the Appellant and his co-travellers were conspirators in the commission of the armed robbery in question. And I so hold.
In the circumstance, the third and last Issue is hereby equally answered in the affirmative and resolved against the Appellant.
Hence, against the backdrop of the resolution of the three issues against the Appellant, the Appeal resultantly fails.
Accordingly, the Appeal is hereby dismissed. Consequently, the judgment of the Kwara State High Court holden at Omu-Aran Judicial Division and delivered by the Hon. Justice T. S. UMAR, J.; on April 4, 2017 in Charge No. KWS/CM/3/2013, is hereby affirmed.
HAMMA AKAWU BARKA, J.C.A.: The lead judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA, was made available to me in draft before now. Having also studied the record of appeal and the submissions of learned counsel, I entirely agree with the reasoning and the resolution of the issues in the appeal, and thereby arrive at the inevitable conclusion that this appeal lacks merit and hereby dismissed by me. The conviction and sentence imposed by T. S Umar J. in charge No. KWS/OM/3/2013 delivered on the 4/4/2017 is hereby affirmed.
BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I agree entirely with the reasoning and conclusion reached that this appeal lacks merit and should be dismissed. It is hereby dismissed by me. I affirm the judgment of Kwara State High Court delivered on 4th April 2017 by Hon. Justice T. S. Umar in respect of charge NO: KWS/OM/3/2013.
Appearances:
Taiye Oniyide, Esq. with him, Tomileye Omole, Esq. and Isaac Ajayi, Esq.For Appellant(s)
Abdulmumini Adebimpe Jimoh (DPP, Kwara State) with him, S. O. Dada, Esq. (Kwara State Ministry of Justice)For Respondent(s)
