OLUWASEYI SOWEMIMO V. THE STATE
(2010)LCN/4066(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of November, 2010
CA/I/252A/06
RATIO
OFFENCE OF ARMED ROBBERY : ESSENTIAL INGREDIENTS THAT MUST BE PROVED TO SECURE A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY
With respect to the offence or crime of Armed the law provides that three essential ingredients must be proved. These are as follows – 1. That there was a robbery or series of robberies; 2. That the robberies were armed robberies; 3. That the accused persons were or some of the robbers who took part in the robberies. The following cases amongst numerous others amply illustrate this legal requirement – ALABI V. STATE (1993) 7 NWLR (PART 307) 511 at 523, 524; BOZIN V. THE STATE (1985) 2 NWLR (PART 8) 465 at 469. PER STANLEY SHENKO ALAGOA, J.C.A.
MEANING OF ROBBERY AND ARMS WITHIN THE CON OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT (CAP 398) LAWS OF THE FEDERATION OF NIGERIA 1990 AS AMENDED BY THE TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS) DECREE 1999
I think it is necessary at this stage before proceeding further to come to terms with the definition of some important and recurrent words in this write up. What for example is “Robbery” and what are “Arms” in the con of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments) Decree 1999. Of “Robbery” section 15(1) of the above Act states as follows, “Robbery means stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
“Arms” under this section means or is made to include “Firearms and other offensive weapon”. “Offensive weapon” would invariably include any weapon or instrument which creates in the mind of the victim reasonable apprehension that were it used on his/her person it would cause death or some grievous bodily harm or hurt and will include axe, knife, machete, dagger, spear, cudgel, iron rod etc.”
WHETHER A PROSECUTION HAS A DUTY TO CALL A HOST OF WITNESSES BEFORE IT CAN BE SAID TO HAVE SUCCEEDED IN ESTABLISHING ITS CASE
I think it is also necessary to address at this stage the notion, somewhat widespread that the prosecution must call, a host of witnesses as distinguishable from the quality of witnesses before it can be said to have succeeded in establishing its case. This notion is wrong and does not represent the correct position of the law. A single potent witness can indeed create more damage to the defence than a host of witnesses who come to court to re-enact the same story. That this is the true position of the law is buttressed by a long line of judicial authorities. See MICHEAL V. THE STATE (2008) 34 (PART 2) NSCQR 700 at 728; OGBODU V. THE STATE (1987) 2 NWLR (PART 54) 20 at 27; ADAJE V. THE STATE (1979) 6-9 SC 18 at 28. The point to be made here is that the defence cannot say to the prosecution, “Why did you rely only on the evidence of so and so persons. Why didn’t you call so and so and so person.” Achike JSC (of blessed memory) very aptly put the position of the law in proper perspective in IJIOFOR V. THE STATE (2006) 6 NSCQR (PART 1)209 at 237 thus:- “The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they field as witnesses.” PER STANLEY SHENKO ALAGOA, J.C.A.
DOCTRINE OF RECENT POSSESSION : WHAT THE DOCTRINE OF RECENT POSSESSION ENTAILS
By the doctrine of recent possession if a person is found in possession of property recently reported stolen, the presumption is that he is either the thief or knew the property to be stolen. See OSENI V. THE STATE (1984) 11 SC 44; ISIBOR V. THE STATE. See also S. 149 of the Evidence Act. PER STANLEY SHENKO ALAGOA, J.C.A.
IDENTIFICATION PARADE : WHETHER IDENTIFICATION PARADE IS A SINE QUA NON TO CONVICTION
…the Supreme Court has held with just about the same emphasis that an identification parade is not a sine qua non to conviction. See UKPABI V. STATE (2004) 7 SCM 189 AT 199-200; IKESON V. STATE (1989) 3 NWLR (PART 110) 455 where the Supreme Court alluded to the fact that identification of an accused can be so “informal and spontaneous” shortly after the robbery as to make an identification parade unnecessary. See also ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129. PER STANLEY SHENKO ALAGOA, J.C.A.
WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT; WHAT ARE THE TESTS A CONFESSIONAL STATEMENT MUST BE SUBJECTED TO ASCERTAIN ITS VERACITY
It is still the law that an accused person can be convicted solely on his confessional statement. See NWACHUKWU V. THE STATE (2008) 4 WRN 1; (2007) 17 NWLR (PART 1062) 31; (2007) 12 SCM (PART 2) 447 & 455; IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468 – 469. Nevertheless what appears to be steadily gaining ground in our courts is to subject the alleged confessional statement of an accused to further tests to ascertain its veracity. The six tests are as follows – 1. Is there anything outside the confessional statement to show that it is true? 2. Is it corroborated? 3. Are the facts stated in the confessional statement true as far as can be tested? 4. Was the accused a man who had the opportunity of committing the offence? 5. Is the confession possible? 6. Is it consistent with other facts which have been ascertained and proved? See on the same subject matter the following cases NSOFOR V. THE STATE (2004) 18 NWLR (PART 905) 292 at 310-311; OJEGELE V. THE STATE (1988) 1 NWLR (PART 710) 414; AKPA V. THE STATE (2007) 2 NWLR (PART 1019) 500. PER STANLEY SHENKO ALAGOA, J.C.A.
MEANING AND NATURE OF CONSPIRACY
Blacks Law Dictionary 8th edition at page 329 defines conspiracy as, “An agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s objective. It involves a meeting, of minds of the conspirators and a manifestation by some overt act to do an unlawful act or a lawful act by unlawful means and is usually based on circumstantial evidence. See ODENYE V. THE STATE (2001) 2 NWLR (PART 697) 311 at 324; PATRICK NJOVENS V. THE STATE (1973) 5 SC 17; UPLAR V. THE STATE (2003) CNWL 30 at 293. The trial court may also infer Conspiracy from a set of facts through which a common purpose is achieved. See GBADAMOSI V. THE STATE (1991) 6 NWLR (PART 196) 182; AJE V. THE STATE (2006) 8 NWLR (PART 982) 345 at 363. PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
OLUWASEYI SOWEMIMO Appellant(s)
AND
THE STATE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Lokulo-Sodipe J. (as he then was) of the High court of Ogun State holden at Abeokuta in Charge No.AB/9R/2001 THE STATE V. OLUWASEYI SOWEMIMO & ANOR delivered on the 28th March 2006 wherein the Appellant Oluwaseyi Sowemimo as 1st accused and one Oke Utuyorume were arraigned, tried, convicted and sentenced to death on a two count charge of conspiracy to commit the offence of armed robbery and armed robbery. The charge against the accused persons in the court below is as follows –
COUNT 1: That You Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th January 2001 at Abeokuta in Ogun State conspired to commit a felony to wit: Armed Robbery and there by committed an offence contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendment etc) Decree 1999.
COUNT 2: That You Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th day of January 2001 at Abeokuta in Ogun State, while armed with gun robbed one Omowunmi Bakare of the sum of N418,000.00 and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. Cap 398, Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendment etc) Decree 1999.
They pleaded, not guilty to the two count charge and the case went on to be tried in the course of which the prosecution called four (4) witnesses and tendered a number of exhibits. The Appellant as 1st accused called no witnesses and adduced no evidence of his own against the two count charge. At the end of addresses for the prosecution and the defence, the learned trial Judge in a considered judgment delivered on the 28th March 2006 herein before referred to found them guilty of the charges of conspiracy to commit armed robbery and armed robbery and accordingly sentenced them to death. It is this judgment that is the subject of this appeal by the convicted 1st accused turned Appellant Oluwaseyi Sowemimo.
The case for the prosecution in the court below was that on the 4th January 2001, the Appellant Oluwaseyi Sowemimo, one Oke Utuyorume and another (now at large) went to the Shop of one Omowunmi Bakare (PW1) who sold commodities at No. 33 Kuto Road pretending to be customers who wanted to purchase rice and as soon as they entered PW1’S shop they pulled out guns and demanded for money whereupon PW1 Omowunmi Bakare who owned the shop opened the drawer where she usually kept money and the accused persons made away with N418,00.00. When PW1 noticed that the Appellant Oluwaseyi Sowemimo and his two other companions were no longer in site, she raised an alarm which attracted sympathizers who gave chase and caught up with the Appellant and Oke Utuyorume while the third person fled. The Appellant and Oke Utuyorume were said to have been arrested at the back M.K.O. Abiola Stadium. A search of their persons was said to have resulted in the recovery of some of the money allegedly robbed from PW1’s shop, a toy pistol, spent cartridges and a locally made gun. The Appellant and his partner were taken to Ibara police station first from where they were later transferred to SARS Adatan. Both the Appellant Oluwaseyi Sowemimo and his partner Oke Utuyorume were thereafter arraigned on a two count charge of conspiracy to commit armed robbery and armed robbery which they both denied committing. After a full trial in the court below, the Appellant and his companion Oke Utuyorume were found guilty on each of the two count charge and accordingly sentenced to death.
The convicted 1st accused Oluwaseyi Sowemimo simply now referred to as the Appellant has filed an appeal against his conviction and sentence by his Notice of Appeal dated the 26th April 2006 and filed on the 28th April 2006. It consists of four Grounds of Appeal. By his motion on Notice dated the 26th February 2009 and filed on the 3rd March 2009 and brought pursuant to section 243 of the Constitution of the Federal Republic of Nigeria 1999, Order 16 Rule 3(3) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court, Appellant sought for the following orders –
1. An Order granting leave to the Appellant/Applicant to a mend the grounds of appeal contained in the Appellant’s Notice of Appeal dated the 26th April 2006 set out in the proposed Amended Notice of Appeal annexed to the affidavit in support hereof as Exhibit “A”.
2. An Order deeming the Amended Notice of Appeal already filed and served as properly so filed and served.
The application came up for hearing and was granted on the 23rd April 2009. The effect of the grant by this Court of the application is that the Amended Notice of Appeal dated the 19th January 2009, filed on the 22nd January 2009 and deemed properly filed and served on the Respondent on the 23rd April 2009 supersedes the original Notice of Appeal filed by the Appellant and dated the 26th April 2006. The Amended Notice of Appeal id reproduced in its entirety below –
“IN THE COURT OF APPEAL
HOLDEN AT IBADAN
APPEAL NO.CA/I/252/06
SUIT NO. AB/9R/2001
BETWEEN
OLUWASEYI SOWEMIMO…APPELLANT
AND
THE STATE …RESPONDENT
AMENDED NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision/judgment of the Hon. Justice Ayobode Lokulo-Sodipe of the High court of Justice of Ogun State Coram Abeokuta, Judicial Division delivered on the 28th day of March, 2006 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4 hereunder.
And the Appellant states that the names and addresses of the persons directly affected by this appeal are set out in paragraph 5 hereof.
2. PARTS OF THE DECISION COMPLAINED OF
The whole decision including the conviction and sentencing of the Appellant on the two counts.
3. GROUNDS OF APPEAL
A. GROUND ONE
That the learned trial judge committed a grave error in law in convicting the Appellant of the offences of Conspiracy and Armed Robbery and sentencing him to death by hanging when the law under which the charge was brought is in
PARTICULARS OF ERROR
a. Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 provides that any other law which is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall, to the extent of its inconsistency be void.
b. Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 specifies that –
“Every person who is charged with a criminal offence shall be entitled to-
(a) be informed promptly in the language that he understands and in details of the nature of the offence.”
c. Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments Etc) Decree, 1999 does not give any description or detail of the offence of armed robbery either as to what constitutes the offence or as to the ingredients of the offence.
d. Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunal (Certain Consequential Amendment Etc) Decree 1999 is inconsistent with the provision of section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 and is therefore void to the extent of its inconsistency.
e. The Learned trial Judge was aware or ought to have been aware of this inconsistency and of the fact that by the said inconsistency there was no charge before him for which the Appellant could be tried but misdirected himself by continuing with the trial and convicting and sentencing and the Appellant thereby leading to a grave miscarriage and a travesty of justice.
B. GROUND 2
The Learned Trial Judge erred in law in convicting and sentencing the Appellant of the offences of Conspiracy and Armed robbery when the prosecution failed to prove that there was an incidence of armed robbery.
PARTICULARS OF ERROR
a. Section 138 of the Evidence Act Cap. E14, Laws of the Federation of Nigeria 2004 stipulates that burden of proving beyond reasonable doubt that any person is guilty of a crime rests on the one who asserts it i.e. on the prosecution. The duty of proving that a crime was committed and that the Appellant was a party to the crime rests on the prosecution;
b. The prosecution failed completely to prove that the crime alleged to wit; an armed robbery occurred at a shop which (by the account of PW1) formed part of a row of shops at No. 33, Kuto road, Abeokuta in broad daylight beyond reasonable doubt;
c. Material witnesses to the alleged crime, who were identified by name or other witnesses who could be identified by location e.g. the occupants of Shop 3, were not called by the prosecution and the prosecution failed completely to explain why no independent person, who could have corroborated the incident that allegedly occurred in broad daylight, was called;
d. Apart from PW1, no other witness was called by the prosecution to give evidence of the fact of (i) the incidence of armed robbery (ii) the fact that the robbery involved guns and not some other type of offensive weapons (iii) that the Appellant was one of the people that carried out the armed robbery; and
e. PW1 never gave specific evidence that the Appellant of the 2nd Accused person in the charge before the High Court was armed with a gun neither did she identify the Appellant with any specific weapon. The evidence of PW1 that the persons who attacked her were armed with guns was not corroborated.
f. The prosecution did not explain why material prosecution witnesses were not called.
g. Material witnesses to prove a material point ought to be called;
h. The absence of material witnesses renders the case of the prosecution unsustainable.
C. GROUND 3
The Learned Trial Judge erred in law and completely misdirected himself when he held that the Appellant was apprehended when fleeing the scene of the crime during the commission of the alleged offence and that the victim was present and positively identified him thus obviating the need for the holding of an identification parade.
PARTICULARS OF ERROR
a. From the evidence adduced by the prosecution witnesses (even where the material contradictions contained therein are disregarded), the Appellant was not arrested or apprehended at the scene of the alleged crime neither was he arrested whilst fleeing the scene of the alleged crime;
b. The evidence of PW1 is that she was not there when the Appellant was arrested and the evidence given by PW1 and PW2 as to the place of the arrest (which was neither the scene of the crime nor in an attempt to flee from it) was materially different;
c. By virtue of the testimonies of PW1 and PW2, the basis on which the Learned Trial Judge found that there was no need for an identification parade does not exist.
d. There was no identification parade conducted in disregard of the provisions of the law that the identification of a suspect must be very carefully conducted.
D. GROUND 4
The Learned Trial Judge erred in law when he held that the contradictions and discrepancies in the evidence given by PW1 were not material.
PARTICULARS OF ERROR
a. The Learned Trial Judge found that there were contradictions as to certain issues in the evidence of PW1 but held same not to be material;
b. PW1 contradicted herself on several issues which are essential to the determination of the charge;
c. The Trial Judge admitted that there were contradictions in the evidence of PW1 and PW2 as to the place of arrest of the Appellant;
d. The testimonies of the prosecution witnesses must be taken together and not piecemeal.
4. RELIEF SOUGHT FROM THE COURT OF APPEAL
To set aside the conviction and sentence of death imposed on the Appellant and in its stead to enter a verdict of discharged and acquitted.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL
NAME
1. THE APPELLANT
ADDRESS
c/o His Counsel
Olakunle Agbebi Esq.
Olakunle Agbebi & Co
7th Floor (Left Wing)
Mandilas Building
35, Simpson Street
Lagos.
2. THE RESPONDENT
Attorney-General &
Commissioner For Justice
Ogun State Ministry of Justice
Abeokuta
Ogun State
Dated this 19th day of January, 2009
(sgd.)
OLAKUNLE AGBEBI ESQ.
OLAKUNLE AGBEBI & CO
APPELLANT’S COUNSEL
7TH FLOOR (LEFT WING)
MANDIIAS BUILDING
35, SIMPSON STREET
LAGOS.
PARTICULARS OF TRIAL AND CONVICNON
1. Date Trial commenced – 9th January, 2002
2. In What Court tried – High Court of Justice Abeokuta, Ogun State
3. Sentence – Death by hanging
4. Date of Conviction – 28th March, 2006
5. Trial Judge – Hon. Justice A. Lokulo-Sodipe
FOR FERVICE ON:
THE RESPOPNDENT
c/o ATTORNEY-GENERAL &
COMMISSIONER FOR JUSTICE
OGUN STATE MINISTRY OF JUSTICE
ABEOKUTA OGUN STATE.”
As can be seen the Amended Notice of Appeal consists of four (4) Grounds of Appeal. From the four Grounds of Appeal contained in the Amended Notice of Appeal, the Appellant has, in his Brief of Argument dated the 12th November 2009, filed on the 13th November 2009 and deemed properly filed and served on the Respondent on the 23rd November 2009 following the grant by this Court of the Appellant’s motion on Notice dated the 12th November 2009 and filed on the 13th November 2009 and brought pursuant to Order 7 Rule 10(1) and Order 16 Rules 2 and 3(3) of the Court of Appeal Rules 2007 for an order of court extending time for the Appellant to file his Brief of Argument and to deem the said Brief of Argument as duly filed and served on the Respondent, distilled two issues for the determination of this Court. The said issues which are referred to in paragraph 5.01 at page 4 and paragraph 5.02 at page 5 of the Amended Appellant’s Brief of Argument are as follows –
ISSUE 1 –
Whether the provisions of section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc.) Decree, 1999 are not inconsistent with the provisions of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 and therefore void? (Ground 1)
ISSUE 2 –
Whether the learned trial Judge was right in holding that the prosecution proved a case of Armed Robbery against the Appellant beyond reasonable doubt particularly in the light of the evidence adduced? (Grounds 2, 3 & 4)
The Respondent has in paragraph 3.01 at page 3 of the Respondent’s Brief of Argument dated the 14th April 2010, filed on the same day and deemed properly filed and served on the Appellant on the 27th April 2010 following the grant on that day of the Respondent’s motion on Notice dated the 14th April 2010 and filed same day and brought pursuant to Order 7 Rule 10(1) of the court of Appeal Rules 2007 for an order of court for an extension of time to file the Respondent’s Brief of Argument and to deem the said Brief of Argument as properly filed and served on the Appellant, formulated the following two issues for the determination of this Court –
(i) Whether having regards to the proceedings held by the trial court, it can be said that the trial, conviction and sentence of the Appellant are inconsistent with the provisions of section 36(6)(a) of the Constitution of the Federal Republic of Nigeria.
(ii) Whether having regard to the totality of the evidence adduced during the trial, the learned trial Judge was right in holding that the prosecution had proved a case of Armed Robbery against the Appellant beyond reasonable doubt.
It is not difficult to discern that the issues formulated by the Appellant and Respondent are the same and I have no hesitation in adopting and retying on them in the determination of this appeal. Suffice it to say that when this appeal came up for hearing on the 25th October 2010 both Counsels for the parties adopted and relied on the respective briefs of argument as their arguments in the appeal. Olakunle Agbebi counsel for the Appellant also adopted and relied on an Appellant’s Reply Brief dated the 28th April 2010 and filed same day and urged this court to allow the appeal and set aside the conviction and sentence passed on the Appellant by the trial court below while Mrs. Y. Oresanya, Director of Commercial Services, Ogun State Ministry of Justice and counsel for the Respondent urged us to (state) dismiss the appeal and affirm the judgment of the lower court.
I shall follow the issues as set our in the Appellants Brief of Argument which as I have already said are virtually the same with those formulated by the Respondent save for the issue by issue difference in phraseology.
Issue 1 is –
WHETHER THE PROVISIONS OF SECTION 1 (2)(A) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT CAP 398 LAWS OF THE FEDERATION OF NIGERIA 1990 AS AMENDED BY THE TRIBUNALS (CERTAIN CONSEQUENTIAL AMENDMENTS ETC.) DECREE UNDER WHICH THE APPELLANT WAS TRIED, CONVICTED AND SENTENCED IS NOT INCONSISTENT WITH THE PROVISIONS OF SECTION 36(6) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AND THEREFORE VOID?
Appellant’s Counsel referred to section 1(3) of the constitution of the Federal Republic of Nigeria 1999 which provides that where any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and that other law shall, to the extent of its inconsistency be void. Counsel went on to spell out the provisions of section 36(6)(a) of the 1999 constitution and section 1(2)(a) of the Robbery and Firearms (special Provisions) Act cap 398, Laws of the Federation of Nigeria as amended by the Tribunals (Certain Consequential Amendments etc) Decree 1999. He submitted that section 1(2)(a) of the Act does not give any description of the nature or detail of the offence of armed robbery either as to what constitutes the offence or as to the ingredients of the offence. Counsel went on to say that words in a statute must be given their natural and ordinary meaning. The following cases were relied upon in support of this legal position – B.M. LTD. V. WOERMANN-LINE (2009) 13 NWLR (PART 1157) 149; KSIEC V. PDP (2005) 6 NWLR (PART 920) 25; MOGHALU V. NGIGE (2005) 4 NWLR (PART 914) 11; AWOLOWO V. SHAGARI (1979) 6-9 S.C. 51.
Appellant’s counsel went on to further submit that there is no offence known as “armed robbery” in section 1(2)(a) of the Robbery and Firearms (special Provisions) Act Cap 398 and that the Appellant was not tried under the punishment section of the Act. He further submitted that the learned trial Judge knew that there was no charge before him for which the Appellant could be tried but misdirected himself by continuing with the trial and convicting and sentencing the Appellant thereby leading to a grave miscarriage and a travesty of justice. He likened the position in this case to that of Brett F. J’s judgment in OBUMSELU V. COMMISSIONER OF POLICE (1958) 3 FSC 40 where the learned justice held at page 41 that,
“The Charge in this case alleged that a felony was concerned and gave sufficient particulars to enable the Appellant to know the nature of the felony alleged and the case he had to meet and any defect there may have been was, in our opinion cured by the verdict.”
In another breath Counsel said the position in OBUMSELU (supra) is different from this one. Counsel then went on to further/submit that the effect of the provisions of section 1(3) of the 1999 constitution in this case is that there was no valid law under which the Appellant was charged with the substantive offence the provisions of section 1(2)(a) of the Robbery and Firearms (special Provisions) Act (as amended) being void because of its inconsistency with the provisions of section 36(6) of the constitution, counsel therefore urged the court to allow the appear, set aside the conviction and sentence and in its place enter a verdict of acquittal.
Respondent submitted that the charge against the Appellant read to him in a language which he said he understood (English) and he thereafter took his plea having understood the charge as read to him. Respondent’s counsel went further to say that the Robbery and Firearms Act expressly defines what constitutes the offence of armed robbery without leaving the Appellant in doubt. Reference was made by counsel to section 1(1) of the Robbery and Firearms Act which provides that,
“Any person who commits the offence of Robbery shall upon trial and conviction under this act be sentenced to imprisonment for not less than 21 years and if armed with any firearm or any offensive weapon shall upon conviction be sentenced to death.”
It is therefore absurd for Appellant’s Counsel to say or argue that section 1(2)(a) & (b) run contrary to section 36(5) of the 1999 Constitution.
Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 provides that,
“Every person who is charged with a criminal offence shall be entitled to be informed promptly in the language he understands and in details the nature of the offence.”
This provision should create no problems whatever. Before the Appellant’s plea was taken it was ascertained that he understood the language (English) in which the charge was read to him. There is nothing in the records to even remotely suggest that Appellant did not understand the charge that was read out to him. There certainly was no objection from the Appellant or his counsel to the charge being read to the Appellant in the English Language which he appeared perfectly to understand. His plea of “Not guilty” to the two count charge was predicated upon the premise that he understood the charge and its contents. The nature of the charge is conspiracy to commit armed robbery and armed robbery and detailed particulars as to the nature of the offence, time and place, weapon/s used in the commission of the offence etc are all stated in the charge. Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree provides that:
(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than 21 years.
(2) If –
(a) Any offender mentioned in subsection (1) of this section is armed with any offensive weapon or is in the company with any person so armed; or
(b) At or immediately before immediately after the time of the robbery the said offender wounds or uses any personal violence to any person the offender shall be liable upon conviction under this Act to be sentenced to death.”
There is absolutely no inconsistency between section 1(2)(a) of the Robbery And Firearms Act and section 36(6) of the constitution. What should be borne in mind is that the charge alone gives details of the offence. The law creating the offence does not do that but only makes a general provision creating the offence.
Issue No. 1 is therefore resolved in favour of the Respondent and against the Appellant.
Issue 2 is –
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE PROSECUTION PROVED A CASE OF ARMED ROBBERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT PARTICULARLY IN THE LIGHT OF THE EVIDENCE ADDUCED?”
Appellant referred to section 138(1) of the Evidence Act and submitted that in criminal trials, proof is beyond reasonable doubt and such proof is on the prosecution and until it is discharged the burden does not shift. Reliance was placed on AIGBAGBON V. STATE (2000) 7 NWLR (PART 666) 686 AT 704 AND BOZIN V. STATE (1985) 2 NWLR (PART 8) 465 AT 469. COUNSEL ALSO REFERRED TO ALABI V. STATE (1993) 7 NWLR (PART 307) 511 AT 523 to submit that the ingredients that constitute the offence of armed robbery which the prosecution must prove are –
(a) That there was a robbery;
(b) That the robbery was an armed robbery;
(c) That the accused person was the robber.
Appellant’s Counsel submitted that the learned trial Judge was in error to have held that the prosecution had proved its case in line with ALABI V. THE STATE (SUPRA) when the evidence of PW1 remained uncorroborated by the evidence of other material witnesses. Reliance was placed on USUFU v. THE STATE (2007) 2 NWLR (PART 1020) 94. Failure by the Prosecution to call material witnesses, Appellant’s counsel further submitted is, fatal to the prosecution’s case. He contended that the alleged confessional statement of the Appellant lacked corroboration. Reliance was placed on EDIGHERE V. STATE (1996) 8 NWLR (PART 464) 1; ATANDA V. AJANI (1989) 2 NWLR (PART III) 511 AT 539.
It was the further submission of the Appellant’s counsel that assuming but without conceding that there was a robbery on the 4th January 2002 in the shop of PW1 Omowunmi Bakare, it could not have been an armed robbery as PW2 testified that what he recovered from the Appellant was one toy gun and an expended cartridge (Exhibits 2 and 3) and a locally made gun (Exhibit 4) from the 2nd accused. Counsel went further to say that there is nothing on record to indicate that exhibits 2 and 4 are offensive weapons within the con of the law. Exhibit 2, a toy gun will certainly not qualify as a firearm within the meaning of the Firearms Act, he said and neither can it qualify as an offensive weapon. Counsel relied on C.O.P V. ERIABE (1980) NCR 181 at 184 where according to him the court held that,
“The essential part of the definition of firearm in the Firearms Act is that the weapon be capable of firing a bullet of shot when loaded thus distinguishing it from an article that merely bears an external resemblance to a gun.”
On the issue of properly identifying an accused as being the perpetrator of a crime, Counsel referred to the case of EYISI V. STATE (2000) 15 NWLR (PART 691) page 555 at 587 where the Supreme Court per Ogundare, JSC held as follows,
“Whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the court must closely examine and receive with caution the evidence alleged before convicting the accused in reliance on the identification. What a trial court must bear in mind in all cases of identification is that care must be taken in accepting and relying on evidence of such identification to convict more so where the defence contends that it is mistaken.” (Underlining mine for emphasis).
Counsel also drew the attention of the court to alleged inconsistency in the prosecution’s evidence as to when the robbery took place and when report of the robbery was made to the police. According to Counsel, the evidence of PW1 was that the robbery took place between 12 noon and 1 p.m. while PW2’s evidence is that the arrest based on PW1’S report to the police was effected between 1.30 p.m. and 2 p.m. counsel submitted that PW1 never pointed out the robbers at the scene of the arrest. Pointers of the armed robbers were other people who were not called as witnesses and PW1’S description of one of the robbers as – “the short one” is dubious. Counsel said nothing short of an identification parade would have been appropriate. He relied on OKEKE v. STATE (1995) 4 NWLR (PART 329) PAGE 676 at 708-709 where according to him the Court held as follows –
“The proper and only valid way by which the prosecution can prove the identity of an accused when it is in issue and thereby prove its case beyond reasonable doubt is to prove that an identification parade was conducted in the proper way as a result of which a witness identified the accused.”
Reliance was also placed on ALABI V. STATE (1993) 7 NWLR (PART 307) page 524. Counsel submitted that Appellant could not have been arrested in the bush and in a stream at the same time and the learned trial Judge’s contention that such contradictions were immaterial was untenable. Counsel referred to tests to ascertain the correctness of confessional statements of accused persons and submitted that the confessional statement of the Appellant had not been fully subjected to those tests.
With respect to the charge of conspiracy, Appellant’s counsel relying on the case of MUMUNI v. THE STATE (1975) 1 All NLR (part 1) 294 submitted that the prosecution failed to adduce any evidence of the role played by the Appellant other than the discredited evidence of PW1 and any doubts should be resolved in favour of the Appellant. Reliance was placed on ABU ANKWA V. THE STATE (1969) ALL NLR 129; OKONJI V. THE STATE (1987) NSCC 291 AT 302 paras, 13-14. Counsel therefore urged this court to allow the appeal.
By the provisions of section 138(1) of the Evidence Act, the standard of proof in all criminal trials is proof beyond reasonable doubt. That section provides as follows,
“If the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal it must be proved beyond reasonable doubt.”
That this burden is always on the shoulders of the prosecution and never shifts is sacrosanct and settled on the authorities. That this is the position of the law is aptly put in NWOSU V. THE STATE (1998) 8 NWLR (PART 562) 433 AT 444 thus:-
“In all criminal trials the burden of proof is always on the prosecution in proving beyond reasonable accused. Failure to do so will automatically read to the discharge of the accused. The burden never charges.”
With respect to the offence or crime of Armed the law provides that three essential ingredients must be proved. These are as follows –
1. That there was a robbery or series of robberies;
2. That the robberies were armed robberies;
3. That the accused persons were or some of the robbers who took part in the robberies.
The following cases amongst numerous others amply illustrate this legal requirement – ALABI V. STATE (1993) 7 NWLR (PART 307) 511 at 523, 524; BOZIN V. THE STATE (1985) 2 NWLR (PART 8) 465 at 469.
I think it is necessary at this stage before proceeding further to come to terms with the definition of some important and recurrent words in this write up. What for example is “Robbery” and what are “Arms” in the con of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments) Decree 1999. Of “Robbery” section 15(1) of the above Act states as follows,
“Robbery means stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
“Arms” under this section means or is made to include “Firearms and other offensive weapon”. “Offensive weapon” would invariably include any weapon or instrument which creates in the mind of the victim reasonable apprehension that were it used on his/her person it would cause death or some grievous bodily harm or hurt and will include axe, knife, machete, dagger, spear, cudgel, iron rod etc.”
I think it is also necessary to address at this stage the notion, somewhat widespread that the prosecution must call, a host of witnesses as distinguishable from the quality of witnesses before it can be said to have succeeded in establishing its case. This notion is wrong and does not represent the correct position of the law. A single potent witness can indeed create more damage to the defence than a host of witnesses who come to court to re-enact the same story. That this is the true position of the law is buttressed by a long line of judicial authorities. See MICHEAL V. THE STATE (2008) 34 (PART 2) NSCQR 700 at 728; OGBODU V. THE STATE (1987) 2 NWLR (PART 54) 20 at 27; ADAJE V. THE STATE (1979) 6-9 SC 18 at 28.
The point to be made here is that the defence cannot say to the prosecution, “Why did you rely only on the evidence of so and so persons. Why didn’t you call so and so and so person.” Achike JSC (of blessed memory) very aptly put the position of the law in proper perspective in IJIOFOR V. THE STATE (2006) 6 NSCQR (PART 1)209 at 237 thus:-
“The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they field as witnesses.”
With these as parameters, let us come back to the case now on appeal. Was there a robbery in the shop of Omowunmi Bakare (PW1) at No. 33 Kuto road Abeokuta, Ogun state on the 4th January 2001? The evidence of PW1 Omowunmi Bakare is that on the 4th January 2001, three men visited her shop at No. 33 Kuto road posing as potential customers. She approached them to inquire from them what they wanted to purchase. They then produced guns demanding money from her. While one of them kept guard outside the shop, the other two helped themselves to her money totaling N418,000.00 from a drawer which she opened for them where the money was kept. When the men were no longer in sight she raised an alarm. Her shop girl upon noticing that the men brought out guns fled to another shop. The evidence of PW1 was not contradicted, tainted or destroyed by cross examination and satisfied the requirement that there was a robbery and an armed robbery at that on PW1’s shop on the 4th January 2001. It can safely be stated at this stage that whoever the three men were, they were not only robbers but armed robbers. Thus the 1st & 2nd requirements would appear to have been satisfied by the prosecution.
Was the Appellant one of the three robbers on the day? To determine this question is admittedly much more complex. PW1 Omowunmi Bakare’s words are as follows,
“I know the accused persons. On the 4th January 2001 the accused persons came to my shop. I thought they were prospective customers. I approached them to find out what they wanted to buy. Surprisingly they pulled out their guns. Immediately my shop girl ran to the 3rd shop. These persons who entered my shop including the accused persons say they were interested in my money or did I want to die? They asked me to handover the money I had. I opened the drawer on which I kept money for them. The short one (PW1 at this stage pointed at the Appellant) and the third person that escaped were the ones that offloaded the money from the drawer and another carton in which they found money. The tall one (at this stage PW1 pointed at the 2nd accused Oke Utuyorume) was outside parading the front of the shop and called to others that everything was alright. When the shop was silent I looked up and noticed that the 1st accused (Appellant) and the 3rd person that escaped had left the shop. I however saw the 2nd accused across the road entering into one footpath leading to Kuto market. I remained on the floor as I did not want to attract his attention and cause him to come back. I looked a second time and when the 2nd accused was no more visible to me I rushed out and raised an alarm that I had been robbed.”
(Underlining mine for emphasis)
By her evidence which was not controverted PW1 –
I. Gave the number of persons who took part in the robbery in her shop on the 4th January 2001.
II. Was able to vividly recount the part each of the accused persons including the Appellant played in furtherance of the armed robbery operation.
III. Was able to describe the armed robbers even by their height.
IV. Was able to still recognise the 2nd accused after the armed robbers were no longer within the immediate vicinity of PW1’s shop.
P.W.1 had also testified that as a result of the alarm which she raised that she had been robbed sympathizers pursued the robbers following her description of the direction the robbers had fled. Some of the, robbers even threw part of the money they had robbed at the pursuing sympathizers in an attempt to distract them which money the sympathizers returned to PW1. Some of the sympathizers informed her (PW1) that the robbers were behind M.K.O. Abiola Stadium and that if she reported to the police the robbers would be apprehended. She reported the incident at Ibara police station. She accompanied the police assigned to her to the back of M.K.O. Abiola stadium where the Appellant and his robbery partner were caught. The Appellant and his partner in crime had some money on them and guns at the time of their arrest. Under cross examination she said that even if the armed robbers were paraded amongst two hundred people that looked like them, she would be able to identify them.
The question is whether PW1’s evidence can wholly be trusted and relied upon as representing the correct account of what transpired on the 4th January 2001? To answer this question a number of considerations must be examined. How for example does PW1’S account tally with other pieces of evidence on this same subject matter. PW2 is Assistant Superintendent of Police Felix Nwaebo. His evidence is at pages 33 and 34 of the Record and it is to the effect that he was detailed to effect the arrest of some armed robbers on the 4th January 2001 and with some information from some sympathizers to PW1 that some robbers had fled to the back of M.K.O. Abiola stadium he and his team of policemen went there and arrested the Appellant and his co-accused. PW2 said he personally searched Appellant and his co-accused and recovered a toy pistol, expended cartridges and a locally made single barrel shot gun from them. He also recovered N78,100.00 from them.
By the doctrine of recent possession if a person is found in possession of property recently reported stolen, the presumption is that he is either the thief or knew the property to be stolen. See OSENI V. THE STATE (1984) 11 SC 44; ISIBOR V. THE STATE. See also S. 149 of the Evidence Act.
The sum of N78,100.00 was recovered from the Appellant and his partner soon after PW1 had been robbed in her shop. She had followed PW2 behind M.K.O. Abiola Stadium following a tip off by sympathizers where she was able to identify the Appellant and the other accused person as two out of the three persons who had robbed her in her shop on the 4th January 2001. PW2’s evidence is undoubtedly corroborative of PW1’s evidence in at material particulars such as to make fabrication improbable. As earlier highlighted even the evidence of one credible witness suffices to establish the commission of a crime. Why was the shop girl not cared to give evidence? Why were some of the sympathizers who chased the armed robbers until they fled behind M.K.O. Abiola stadium not called to give evidence as witnesses? Let me say for the umpteenth time that it is the prosecution that decides what persons to call as witnesses to establish its case and the quality of evidence it desires to give. If for example the prosecution considered the evidence of a fleeing shop girl who was so frightened she could not possibly have been able to identify the robbers, it would be pointless relying on her evidence td prove its case. There is no evidence that the sympathizers were near enough to the robbers to have positively identified any of them. Evidence from PW1 is that it was she (PW1) that gave the direction that the fleeing robbers had taken and the robbers tried to keep the sympathizers at bay by spraying them with some of their ill gotten loot. Of what benefit would it then be to invite any of the sympathizers to testify. Though hypothetical it is not easy to place oneself in the shoes of the prosecution wanting to field witnesses that it thinks are credible and will enhance its case. Heavy weather has been made of the fact that the prosecution did not conduct an identification parade to ascertain the true identity of the Appellant and the other accused person. That it is desirable WHERE NECESSARY to conduct an identification parade is settled on the authorities. See CHRISTOPHER OKOSI & ANOR V. THE STATE (1989) 1 NWLR (PART 100) page 642; ZEKERI ABUDU V. THE STATE (1985) 1 NWLR (PART 1) 55 at 62; R. V. TURNBULL (1976) 3 WLR 455. But the Supreme Court has held with just about the same emphasis that an identification parade is not a sine qua non to conviction. See UKPABI V. STATE (2004) 7 SCM 189 AT 199-200; IKESON V. STATE (1989) 3 NWLR (PART 110) 455 where the Supreme Court alluded to the fact that identification of an accused can be so “informal and spontaneous” shortly after the robbery as to make an identification parade unnecessary. See also ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129. That PW1 saw the robbers and even had a chat with them as to what they wanted to purchase from her shop is evidence that has not been punctured by the defence. Little wonder she could identify them. Evidence adduced is that the Appellant went to the shop is broad daylight with others. That they portrayed themselves as prospective customers meant that they were not hooded and could be identified by PW1 who had spoken to them when they entered her shop. With respect to the confessional statements-exhibits 5 & 6, Appellant’s Counsel has submitted that they were not subjected to the six tests enunciated in R. V. SYKES (1913) 13 CR. APP. REPORTS 233; KANU V. R. 14 WA 30; DAWA V. THE STATE (1980) 8-11 SC 236 which are tests for the verification of the veracity of confessional statements by accused persons.
It is still the law that an accused person can be convicted solely on his confessional statement. See
NWACHUKWU V. THE STATE (2008) 4 WRN 1; (2007) 17 NWLR (PART 1062) 31; (2007) 12 SCM (PART 2) 447 & 455; IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468 – 469.
Nevertheless what appears to be steadily gaining ground in our courts is to subject the alleged confessional statement of an accused to further tests to ascertain its veracity.
The six tests are as follows –
1. Is there anything outside the confessional statement to show that it is true?
2. Is it corroborated?
3. Are the facts stated in the confessional statement true as far as can be tested?
4. Was the accused a man who had the opportunity of committing the offence?
5. Is the confession possible?
6. Is it consistent with other facts which have been ascertained and proved?
See on the same subject matter the following cases NSOFOR V. THE STATE (2004) 18 NWLR (PART 905) 292 at 310-311; OJEGELE V. THE STATE (1988) 1 NWLR (PART 710) 414; AKPA V. THE STATE (2007) 2 NWLR (PART 1019) 500.
It has been argued by Appellant’s Counsel that the Appellant’s alleged confessional statement was a fabrication. To these questions, Respondent has submitted the following answers –
1. Yes there is something outside the confession to show that it is true. These are the evidence of PW1, PW2, PW3 and PW4 and exhibits recovered from the Appellant – some money, guns both toy and real.
2. Yes the Appellant’s statement is corroborated by the evidence of PW1 and exhibits 2 and 3.
3. Yes the relevant statement made in exhibits 5 & 6 are true as far as can be tested. The Appellant was in Kuto Abeokuta around the time the robbery was committed. Exhibits 2 and 3 were also recovered from his person.
4. Yes the Appellant had the opportunity of committing the crime. He admitted that he was in Kuto around the time of the robbery.
5. Yes the evidence of all the prosecution witnesses makes the confession possible.
6. Yes the statement is consistent with the fact that PW1 was robbed and she identified the Appellant as one of the robbers while PW1 and PW2 arrested the Appellant with exhibits 2 and 3.
I cannot agree more with the Respondent’s Counsel’s submissions. Soon after the alleged armed robbery operation PW1 had, in the safe company of PW2 and other policemen gone to the back of M.K.O. Abiola stadium Abeokuta where Appellant was arrested. Heavy weather has been made by the defence on the recovery of a toy pistol on the Appellant. Would that in itself make any difference if Appellant was arrested in the company of his robber partner in whose possession a locally made shotgun was recovered? I think not. Even an unarmed member of a robbery gang proved to be acting only as a lookout while the commission of a robbery is in progress would be just as guilty as the actual perpetrators of the robbery.
With respect to conspiracy, once it is shown that the prosecution has proved its case of armed robbery against the Appellant and his comrade in robbery, a case of Conspiracy would have been made out against the Appellant.
Blacks Law Dictionary 8th edition at page 329 defines conspiracy as,
“An agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s objective.
It involves a meeting, of minds of the conspirators and a manifestation by some overt act to do an unlawful act or a lawful act by unlawful means and is usually based on circumstantial evidence. See ODENYE V. THE STATE (2001) 2 NWLR (PART 697) 311 at 324; PATRICK NJOVENS V. THE STATE (1973) 5 SC 17; UPLAR V. THE STATE (2003) CNWL 30 at 293. The trial court may also infer Conspiracy from a set of facts through which a common purpose is achieved. See GBADAMOSI V. THE STATE (1991) 6 NWLR (PART 196) 182; AJE V. THE STATE (2006) 8 NWLR (PART 982) 345 at 363.
There is no doubt that the Appellant acted in concert with others to rob PW1. That the Appellant and his co-armed robbers assigned roles to themselves in the facilitation of the robbery operation are borne out by the evidence of PW1. I find the offence of conspiracy to commit armed robbery and armed robbery proved beyond reasonable doubt and I have no cogent reasons to disturb the finding of guilt against the Appellant and the conviction and sentence passed by the learned trial Judge.
The appeal therefore lacks merit and it fails and is accordingly dismissed and the judgment of Lokulo-Sodipo J. (as he then was) of the High court of Justice Abeokuta delivered on the 28th March 2006 is hereby affirmed by me.
SIDI DAUDA BAGE, J.C.A.: I was privilege to read in advance the lead judgment delivered by my learned brother, S. S. ALAGOA, J.C.A. I agree with his reasoning’s and conclusion reached.
I entirely agree that the appeal lacks merit and it ought to be dismissed and I hereby dismiss same. I abide by the consequential order contained in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of reading in advance the comprehensive judgment delivered by my learned brother, ALAGOA, J.C.A, with which I am in absolute agreement. For the sake of emphasis, however, I make these general comments on the first issue (Issue I) framed by the appellant.
The grain of the submission of the learned counsel for the appellant on issue I is that section 1(2)(a) of the Robbery and Firearms (special provisions) Act Cap.398 of the Laws of the Federation of Nigeria, 1990, as amended, (hereafter called the Act), under which the appellant was tried and convicted does not describe in details the nature of the offence of armed robbery contrary to section 36(6)(a) of the constitution of the Federal Republic of Nigeria, 1999, (the 1999 constitution).
Section 1(2)(a) of the Act (supra) is the punishment section. It does not require to contain the definition of the offence. The traditional style of drafting criminal legislation is to separate the definition section of the offence from the punishment section of the enactment – see The Criminal Procedure of the Southern States of Nigeria by Fidelis Nwadialo at page 75:
“An offence may be defined in one section and declared punishable by a prescribed penalty in another section (e.g. Robbery in sections 401 and 402 of the Criminal Code respectively). In such a case, the usual practice is to refer to the penal section. The authority for this practice no doubt derives from the fact of its adoption in the models of charges given in the second and Third schedules of the Criminal Procedure Act, and which models are by virtue of section 463 good and sufficient in law…”
I agree with the above proposition by the learned author, Mr. Nwadialo, (now of blessed memory).
I believe the draftsman adopted the same traditional method of legislation by providing a composite definition section in section 15(1)(a) of the Act for the offences of ordinary robbery and armed robbery under the various headings of the said Act.
Section 1(2)(a) of the Act (supra) under which the appellant was tried and convicted and the relevant part of section 15(1) of the same Act defining the ingredients of armed robbery would be read or considered together to answer the complaint of the appellant under issue I. They are not to be read in isolation: interrelated provisions of a statute are enjoined to be construed together to discover the true intention of the draftsman – see Unipetrol Nigeria Plc. V. Edo Board of Internal Revenue (2006) 4 SCNJ 99 at 110:
“It is equally important, however, that a statute should always be looked at as a whole.”
The appellant’s learned counsel chose to consider section 1(2)(a) of the Act (supra) without reference to section 15(1)(a) of the same enactment. If he had taken the two sections of the Act together into account, he would have escaped the error he fell into under issue I. In my respectful opinion, section 1(2)(a) of the Act (supra) does not violate section 36(6)(a) of the 1999 Constitution.
As rightly submitted by Mrs. Oresanya for the respondent, the appellant was not misled by the two counts of the charge. The two counts stated in clear terms that the appellant, in the company of one Oke Utuvoruma and another person at large, robbed one Omowunmi Bakare of the sum of N418,000 on or about 4.1.2001 at Abeokuta while armed with a gun.
The appellant took his plea to the two counts after they were read and explained to him as reflected on pages 12 and 13 of the compiled record of appeal. He was represented by counsel. No objection was taken against the charge in any way whatsoever. His learned counsel cross-examined all the prosecution witnesses with the charge in mind or contemplation. The appellant did not point to any miscarriage of justice arising from the charge as framed by the respondent in the court below. I see none in the present case – see by analogy Ogbomor V. The State (1985)1 NWLR (pt.2) 223 at 237
“Appellant was throughout the trial represented by counsel… Furthermore, appellant was charged under the provisions of section 1(2)(a) of the Robbery and Firearms (special provisions) Decree No.47 of 1971 which corresponds completely with the offence as laid in the information … There is also no doubt that it create the offences under which appellant was charged. It is in the circumstances of little moment to contend that the statute stated in the information did not create any offence. What is material, in my opinion, is whether appellant was charged with an offence known to law … As long as appellant was not misled…, no miscarriage of justice has occurred and the conviction is right.”
I, too, resolve issue I against the appellant and abide by the lucid judgment of my learned brother, Alagoa, J.C.A., together with the consequential orders dismissing the appeal and affirming the conviction and sentence of the appellant by the court below.
Appearances
Olakunle Agbebi Esq.For Appellant
AND
Mrs. Y. Oresanya, Director of Commercial Services, Ogun State Ministry of JusticeFor Respondent
