OVUEFE v. STATE
(2020)LCN/15428(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/AS/407C/2016
RATIO
CRIMINAL LAW: CONSPIRACY: RELEVANCE OF THE FACT THAT THE ACCUSED WAS ABSENT AT THE COMMISSION OF THE OFFENCE
I am not unmindful that in a charge for conspiracy, the law is that the mere fact that the accused was not present at the commission or that the substantive offence was not committed is of no moment, however, as the Supreme Court stated inPhillip Vs. State (2019) 3 NWLR pt 1690, page 509 at 546, the evidence relied upon must be of such quality that it irrestibly compels the Court to make an inference as to the guilt of the accused. Per Kekereke Ekun, JSC. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
BRUME OVUEFE (ALIAS PREYE) APPELANT(S)
And
THE STATE RESPONDENT(S)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of his Lordship Hon. Justice T. O. Uloho, of the High Court of Justice, Delta State sitting at Orerokpe delivered on the 22nd day of July 2015 convicting and sentencing the Appellant and 2 other co-accused persons to death for the offence of conspiracy to commit armed robbery.
STATEMENT OF FACTS
The appellant was arraigned on a two (2) count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act Cap RII, volume 14, Laws of the Federation of Nigeria 2004 respectively. It was alleged that the appellant conspired with the 1st and 3rd accused persons and robbed a Peugeot 504 saloon car with registration No. CK199 EKY belonging to one Emosaga Ufuoma while armed with guns.
The appellant pleaded not guilty to the two count charge and in the course of the trial, the prosecution called three (3) witnesses; P.W.1 Lucky Ighoyivwi, PW2-lnpector Samuel Asuquo and PW3 Sergeant New world Osagie respectively and tendered five (5) exhibits, namely exhibits A,B,C,D and E respectively and at the close of the prosecution’s case, the appellant and the 1st and 3rd accused person testified in their defence and did not call any witness. And by an order of the honourable Court, the defence and the prosecution filed and adopted their respective written addresses and in a considered judgment delivered on the 22nd day of July, 2015, the trial Court convicted and sentenced the appellant and the 1st and 3rd accused to death by hanging in respect of count one (1) conspiracy to commit armed robbery but discharged and acquitted the appellant and the 1st and 3rd accused person in respect of count two (2) armed robbery.
It is upon the facts as succinctly captured above that the Appellant and his co-accused were convicted and sentenced for conspiracy to commit armed robbery, though they were discharged and acquitted on the substantive offence of armed robbery charged as count two.
Dissatisfied, the Appellant herein filed his Notice of Appeal upon 2 Grounds of Appeal on pages 136-137 of the Record of Appeal and are reproduced herein after verbatim and literatum for their aptness, thus:
GROUNDS OF APPEAL
i) GROUND NO.1
The learned trial judge erred in law when she held that the prosecution proved beyond reasonable doubt the offence of conspiracy to commit armed robbery against the 2nd accused person.
PARTICULARS OF ERROR
1. The trial Court held rightly in the judgment in respect of Count II that there was no piece of evidence before her to suggest or establish that a Peugeot 504 vehicle property of Ufuoma Emosoga driven by one Osheri was robbed at gun point on the 19th day of August, 2011, the same offence the accused persons, including the 2nd accused person, are now convicted of conspiring to commit.
ii) GROUND NO. 2
The learned trial judge erred in law when she held that the evidence of PW1 and PW3 corroborated the confessional statements of the 1st, 2nd and 3rd accused person.
PARTICLARS OF ERROR
1. The trial Court held rightly in the judgment in respect of Count II that there was no piece of evidence before her to corroborate the statements of the 1st, 2nd and 3rd Accused persons ‘in Exhibits ‘B’, ‘C’, ‘0″ and ‘E’ that’ a Peugeot 504 vehicle was robbed at gun point and that the veracity of the I”, 2nd and 3rd Accused persons’ story on Exhibits ‘8’,’ ‘C’, ‘O’ and ‘E’ to the effect that they robbed a Peugeot 504 vehicle on the 19th day of August, 2011 was not corroborated.
2. The trial Court held rightly in her judgment in respect of Count II that the evidence of PW1 was that he did not see any of the Accused robbing anybody but was briefed by the DPO of Orerokpe Police Station.
3. The trial Court held rightly in her judgment in respect of Count II that the evidence of PW2 and PW3′ the Investigating Police Officers attached to the Nigerian Police Station, Orerokpe and the Special Anti-Robbery Squad, Asaba respectively is not that of an eye witness account and that the evidence given by PW2 and PW3 are hearsay evidence.
4. Material contradictions in the evidence of PW2 and PW3. PW2 gave evidence that the case of armed robbery against the accused persons was reported at the Orerokpe Police station on the 20th day of August, 2011 and that he obtained Exhibit ‘A’ and Exhibit ‘8’ on 21/8/11 and 24/8/11 respectively from’ the 1ST accused person before the case was transferred to Asaba but PW3 gave contradicting evidence that the case was transferred to Asaba on the 19th day of August” 2011 from the Orerokpe Division to the Special Anti-Robbery Squad (SARS) Asaba.
iii) The judgment is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced.
Further grounds may be filed upon receipt of the records of appeal.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
To allow the appeal, set aside the judgment of the Trial Court and discharge and acquit the appellant of the charge.
Upon the regularization of the Record of Appeal by order granted on 26-9-2019 and deeming the Record of Appeal transmitted on 24-10-2016 as regularly transmitted, the Appellant’s Brief of Argument filed pursuant thereto on 12-11-2019 was also regularized. The Respondent filed the Respondent’s Brief of Argument on 17-3-2020 and which was also regularized at the hearing.
The Appellant, by his Brief of Argument couched from the sole Issue thus;
“Whether having regard to the (sic) totality of the evidence on record, the learned trial judge was right when she convicted the appellant for the offence of conspiracy to commit armed robbery.
It is crystal clear that this sole issue simply raises the question as an Issue “whether the guilt of the Accused Appellant had been proved behold reasonable doubt to warrant the conviction for the offence of conspiracy to commit Robbery.”
Arguing the sole Issue, it was submitted that it was wrong to have convicted for conspiracy to commit armed robbery under Section 6 (b) of the Robbery and Firearms Special Provisions Act Cap R11. Laws of the Federation of Nigeria, 2004 after holding that there was no evidence to corroborate the statements of 1st, 2nd and 3rd Accused persons in Exhibit B, C, D and E that a Peugeot 504 was robbed at gun point and that the veracity of their said statements were not corroborated.
That the trial judge having held upon the evidence led, that “—————-“ was wrong to have proceeded upon the same evidence to hold as follows: “the content of …………..”
The learned counsel concedes that, there is no questioning the fact that a person may be convicted of conspiracy to commit a substantive offence if there is evidence to that effect, where the prosecution failed to prove the substantive offence.
But that in this case, a finding had been made that the fact of armed robbery was not established. That there could not be culpability for a non-existent act. That the Court had already held that there was no armed robbery on 19-8-2011. That more importantly it was the Exhibits A B C D and E that needed to be corroborated and not the fact of the alleged Robbery of 19-8-2011 that required corroboration.
That conviction was based on the exhibits that had been denied. That those pieces of evidence had to be tested for their veracity, even if they are retracted confessional statements.
The cases of Bello Okashetu Vs. The State (2016) AFWLR (pt 861) p. 1262 at 1270 ratio 8 and Idowu Okanlawon V. The State (2016) ALL FWLR (pt 825) page 369 at 366 ratio 11 were relied upon. Emmanuel Edoikun Vs. The State (2018) ALL FWLR (pt 936) 1522 at 1530 was also relied upon and submitted that the evidence outside the confessional evidence strengthens the retracted confession and adds weight to it such that conviction could be founded upon it as corroborated. The learned counsel, after, reproducing and agreeing with the learned trial Judges reliance and application of the 6 way test in R vs Skyes (1913) CAR 113 thus; “………………………………” submitted that it was a decision in self-contradiction and reversal to turn round to say Exhibits A,B,C,D and E were corroborated. That those exhibits were the same exhibits considered in respect of count 2 of the substantive offence of Armed Robbery.
That the facts, witnesses and circumstances being the same at the trial Court was wrong in making contradictory conclusion in respect thereto for the two counts charged.
The learned counsel reproduced the portion of the judgment thus: ………………………………. And observed ………………………………….
That holding that the Evidence of PW1 was corroborated by the contents of Exhibits A,B,C and D is like putting the horse before the horse. That it is the evidence of PW1 that should be corroborating the Exhibits.
That there was no evidence corroborating the statement on agreement to rob. That the evidence must be independent of and outside or external to the Exhibits.
That the evidence of PW1 cannot be said to be corroborative of the Exhibits ABCD and E as he is not an eye witness but a hearsay ‘testifier.” That the PW1 had admitted at the hearing while testifying that his evidence was based on what the DPO Orerokpe Police Station told him when they were invited to the police station by the DPO and his evidence had already been held to be hearsay.
There was conflicting accounts on the period of the arrest of the Appellant as he insist that he was only arrested at about 10am on 19-8-2011 at Eruemu Kowhorien by the vigilante and taken to the police station.
That there been no other account of the Appellant’s arrest as the purported date of 24-10-2011 touted by the prosecution was denied and the PW3 (IPO) evidence testifying to arrest sometime in November 2011.
That the arrest and detention at Ekpan Police Station was not testified or accounted for by the prosecution who did not deny the arrest and detention thereat. It was argued that the evidence led by the Appellant as to when he was arrested and what transpired must be accepted. That the Appellant could not have been in a meeting with the 1st and 3rd Accused persons in the evening of the same 19-8-2011. He could not have had the opportunity to have a meeting or to conspire with anybody in the evening of 19-8-2011 when he had already been arrested earlier in the morning of that date by the police.
That there was no proof beyond reasonable doubt. That the language of the Exhibit A,B,C,D and E shows that the confession was not possible as they appear to be cut and paste statements from information passed to PW1 and others by the DPO at the Orerokpe Police Station.
That the narrative and such expressions as “operational guns ‘cut to size gun’ and, ‘confrontation with the police’ featuring in all the said confessional statements. That the Appellant denied making any statement to the PW3 at SARS, Asaba.
That it was apparent that the complaints on Robbery and armed Robbery was not investigated in this case. That the 1st Accused person was taken to the Federal Task Force on 20-8-2011.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
There was no proof of agreement by the Appellant and anybody, as the evidence of PW and PW2 and PW3 are conflict. That the case was not investigated, and there was no crime proved let alone beyond reasonable doubt to have warranted the conviction and sentence to death as made.
In response the Respondent by his Brief of Argument contended that the prosecution had proved the offence of conspiracy to rob beyond reasonable doubt. After referring to the standard of proof and its burden in the proof of criminal offences as enshrined in Section 135 of the Evidence Act, 2011 (as Amended) and the three means or ways of proof to wit by:
1. Direct evidence of witnesses
2. Circumstantial evidence
3. By admissions and confession and the case of Oguonzee Vs State (1998) LRCN 3512 at 3551; Edamine V State (1996) 3 NWLR (pt 58) 530 at 531 Victor Onyemaechi Okoh Vs the State (2013) LPELR 21009; Itu V. The State (2016) 5 NWLR, (pt 1506) 445 submitted on what constitutes conspiracy and how to prove same and contended that there must be an agreement which is an advancement of the intention conceived in the mind of each person secretly, which secret intention must have been translated into overt act or omission, or mutual consultation or agreement.
Tanko V. State (2009) ALL FWLR (pt 456) 2013
That the statements of the Appellant and Co-accused in Exhibits A,B,C,D and E shows an agreement between them to commit the offence of 19th August 2011.
That Appellant’s Statement in Exhibit C was clear on it, that where there was the slight support of the statement, it was sufficient corroboration, and that this existed in the evidence of the other witnesses. That the substantive offence was a separate and distinct offence and failure to prove the ingredients of the substantive offence did not make the difference.
Okanlawon V State (2015) 63 NSCQR 128 at 181 was relied upon in support of the view.
On the whole, it was urged that this Court should affirm the conviction and sentence on the ground that it was based on confessional statement that was fully corroborated.
That the appeal be dismissed as lacking in merit.
RESOLUTION
This appeal is rather a unique one. The facts and evidence led was lazy and hazy; but the adjudication more determined than the investigation and which was not to reach the prosecutorial goal intended in the first place. Appellant had been found not guilty of the offence of Armed Robbery as charged in count 2 of the charge, because the offence of robbery simpliciter was not proved; the evidence founded upon having been held to be hearsay and uncorroborated. The evidence of the statement of the Appellant and those statements of the co-accused who were also discharged on the count of Armed Robbery were held to be unreliable evidence that did not prove the offence of robbery.
Section 135 of the Evidence Act 2011, provides for the proof beyond reasonable doubt of the guilt of any person charged with a criminal offence.
If it is not so proved, the accused convict is entitled to an order of acquittal and discharge.
See the case of ALOR V State 1998 1 LRCN 125.
The Appellant was not proved as a conspirator who had committed the principal offence of armed robbery. See Okosun Vs. Attorney General, Bendel State (1985) 11 SC 194; Yaro V. State (1998) NWLR (pt 69), 256.
In the case at hand, there was no scintilla of proof by any evidence of the confederacy in agreement to commit any offence or the offence of Robbery.
Indeed, Robbery, not having been proved as rightly held by the trial Court, there was no basis to use the statements of the Accused/convicts properly found to be suspect to found a conviction for conspiracy to commit the more heinous offence of armed robbery. There was no evidence of the recovery of the said object of Robbery, ie the car from the Appellant or any of those persons he allegedly conspired with; so as to draw any inference of possession by a co-accused of the object to which the alleged robbery related.
By Section 5 of the Robbery and Fire Arms Act, LFN 2004, a person may be convicted and sentenced as a principal offender if he aids, procures or facilitates the commission of the offence, if the commission of the offence i.e. its execution is accomplished; It does not matter that he was not present physically, there at the commission.
This is not the case here. This is a case where even the lesser offence of Robbery punishable with a term of imprisonment to not less than 21 years was found and held by the trial Court not to have been proved. It is strange and illogical to convict for conspiracy to commit armed robbery punishable with death, therefore, in the circumstances.
Where was the robbery and the use of arms or offensive weapons or companionship of persons in possession or aiding, such that any acts or words of the Appellant in furtherance of same could be interpreted or inferred for conspiracy? The conviction which was based not on proof beyond reasonable doubt, but on suspicion that the accused committed the offence cannot stand. See Abieke V. The State (1975) 9-11 SC 97.
There is no evidence outside the findings of the trial Court on the wrongful reliance on the statement’s ie Exhibit A,B,C,D,E to support the conviction and sentence passed. This appellate Court ought, in the circumstance, to reverse the decision of the trial Court. See Lengbe Vs. Imale (1959) WRNLR 325.
How for instance can reliance be placed on the Exhibits CD and E, relied upon by the trial Court for its conviction when, as rightly submitted by the Appellant’s counsel, the PW3 contradicted them in the fact that one Ejire said to be a co-conspirator and five star General and their leader was alife and absconded contrary to the statements when they said he had been killed by the police.
Both the Exhibits and the evidence of PW3 were prosecution evidence, and being in conflict; were unreliable moreso to found a conviction thereon.
I agree with Appellant’s counsel that the case was not investigated but prosecuted upon a supposition. The complainant’s driver from whom the car was purportedly snatched did not testify. No reason was proffered. No effort was made. The PW2 knew nothing about the offence nor even knew the Appellant herein. Whilst the PW1 was only told of what he testified to ie the event of 20-8-2011 and before the 21-8-2011, the day of the making of the earliest exhibits which were relied upon as purported confessional statements on conspiracy.
Clearly, the prosecution of this case leaves much to be desired such that botched, as it were, by the investigation, the Appellant herein could not safely, in law, be found guilty of the crime of conspiracy to commit armed robbery, a heinous crime; as the presumption of innocence exists in his favour until the subjection of his guilt to a merciless scrutiny proves otherwise. See Shande Vs State (2005) LRCN/2006 SC.
In Maideribe vs FRN (2014) 5 NWLR (pt 1399) 68 @ 100 Akaah’s JSC (rtd) stated thus:
“Due process must be followed to establish the guilt of an accused. The prosecution should not ride rough-ghod of the constitution and it is the sacred duty of the Judges not to bow to public sentiments in finding an accused person guilty.”
I am not unmindful that in a charge for conspiracy, the law is that the mere fact that the accused was not present at the commission or that the substantive offence was not committed is of no moment, however, as the Supreme Court stated inPhillip Vs. State (2019) 3 NWLR pt 1690, page 509 at 546, the evidence relied upon must be of such quality that it irrestibly compels the Court to make an inference as to the guilt of the accused. Per Kekereke Ekun, JSC. Where were the proved facts and circumstances from which the inference could be drawn that the so-called confessions in the statements Exhibits A B C D and E were true? There was none; that made reliance thereon for the conviction most unsafe.
My Lords, in the course of writing this judgment my mind went back to the conflicting statements of the prosecution that the so-called Leader and King-pin of the Appellant Accused/convicts was at large, whereas, one of the Accused said he was dead.
I was also availed the benefits of the decision of this Court at the Benin Division in respect of an Appeal by one of the convicts in the same matter. The case is that appeal in Appeal No. CA/B/380C/2015 – ERIGA BENSON VS. THE STATE decided on 19th February, 2018 whereat this Court dismissed the Appeal and affirmed the decision of the trial High Court convicting and sentencing the Appellant thereat to death for conspiracy to commit Armed Robbery contrary to Section 6 (6) (b) of the Robbery and Firearms Act.
My Lords, the conspiracy to commit Armed Robbery for which the Appellant was charged relates to a Robbery Committed on 19th August 2004 at Eku/ Warri Road within the Orerokpe Judicial Division of the Trial Court. See the PARTICULARS OF THE CHARGE ON BOTH THE COUNTS OF ARMED ROBBERY AND CONSPIRACY TO ROBB.
This Court interpreted this and found against the Appellant in a trial based on the same facts, evidence and circumstances as in the instant appeal.
Must this Court stick glued to that previous position taken in the spirit of judicial precedent and consistency of its decisions? No doubt, there are arguments for the need to stick to previous decisions so as to ensure certainty in the law; (2) to maintain the doctrine of hierarchy of Courts such that a Court does not constitute itself into an Appellate or supervisory Court over itself (3) to avoid the risk of usurpation or breach of statutory powers in a Court of higher jurisdiction and thus breaching the separation of powers doctrine against the legislature.
However, on the other prism, is the compelling view and practice that the judex, ie the (Courts) as the custodian of public morality will not allow injustice to perpetuate where it is obvious and can be remedied by it.
It is for this reason that a Court may depart from its previous decision(s) in some instances. These are, where;
1) If the decision was given per incurriam and it was manifestly erroneous.
2) If rigid adherence to it may perpetuate injustice or
3) If it unduly restricts the proper growth of the law.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
See Utih Vs. Onoyivwe
On the decision, earlier on being given per incuriam of the statute, earlier quoted ie the Robbery and Fire Arms Act, LFN 2004, I implore my Lords to note the underlined words in the section of the law. Section 6 (2) (b) …..
In Buhari Vs INEC & Ors (2009) Vol. 167 LRCN1 at 112 the Supreme Court, speaking through Tobi; JSC of blessed memory, had this to say – “The expression per incuriam is one of Latinism. It generally means – through in advertence, in law, it means the judge giving a Judgment in ignorance or forgetfulness of an enabling statute or some binding authority on the Court.”
I think, this Court forgot or inadvertently did not advert to the clear particularity or specificity of the nature of the charge of conspiracy charged. By its “PARTICULARS OF OFFENCE”, it was tied to armed robbery defined by the specific reference to the victims thereof, object, date and time. This is as expected by the enabling Robbery and Fire Arms Act.
The specific object had not been proved in the sense that it did not exist at all, even in its lesser form of robbery. Where are the snipets of acts by or linked to the Appellant on the 19th August 2004 along the locus in auo of conspiracy as charged?
Indeed, the decision of the apex Court that every ingredient of an offence must be subjected to a merciless scrutiny, see Shande Vs. State (2005) LRCN1, also includes the offence of conspiracy such as herein. This stance was not reckoned by this Court particularly that there was only a galore of contradictory evidence and hearsay evidence, that ultimately did not disclose the existence of robbery.
Indeed, adherence to the stance earlier taken will perpetuate injustice, as justice must be seen in the light of and in relation to the facts of a given case. The facts of the instant case and of the previous are the same and we cannot afford to exercise “justice in inverted commas and therefore injustice” as the apex Court stated in Buhari Vs INEC & Ors at page 112 EE-JJ of the Report (Supra).
My Lords, the apex Court has reminded thus “Departing from a judgment of a Court, particularly by a Court which delivered it, is a matter of hard law which should be taken with all the caution or precaution. The Court should be able to overrule the decision not just for the asking, to err is human”. The Courts are not immuned from errors; they are however, not entitled to perpetuate their errors merely because they have so decided in a particular manner.
It was Oputa, JSC of blessed memory that stated … we are infallible because we are the last Court, we are not in the last Court because we are infallible by one of the parties to favour him; but to do justice in the case before it”. Underlining mine for emphasis
My Lords, it is to do justice in the case before us now and presently, that we have suo motu adverted to our previous decision to advert perpetuation of the stance taken hitherto.
Now, the Section 6 of the Robbery and Firearms (Special Provisions Acts) LFN, 2004 provides as follows any person who
a) aids, counsels abets or procures any person to commit an offence under Section 1,2,3 or 4 of this Act; or
b) conspires with any person to commit such an offence; or
c) supplies, procures, or provides any fire arms for use to commit an offence under Section 1 or 2 of this Act whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished under the Act.
It is obvious, therefore, that the principal offence in which the conspiracy relates, must have either been committed or executed or attempted.
That it was botched or frustrated, will not exempt from culpability. The prosecution must have had in mind, the commission of the offence of Armed Robbery on 19th August 2004 at Eku/Warri Road within the Orerokpe Judicial Division.
The conspiracy was tied to the Act of Robbery and which “snippets of act” as in Omisade Vs. State 1963 WRNLR/ALLNLR must be proved, so as to have constituent facts or acts or omission in proof of “conspiracy”. Why was the driver of the vehicle said to have been robbed? The subject of the conspiracy charge? That is why, the conspiracy charge is tied down to the 19th day of August 2011 at Eku/Warri Road within the rerokpe Judicial Division.
In Almu vs the State, (2009) NWLR (pt 11-43) 32 the apex Court stated thus:
“There are too many loose ends in the facts of this case that make me feel very unsafe to sustain the conviction and sentence of the appellant as it is settled law that where any doubt exists in the facts of the case in a criminal trial, the doubt should be resolved in favour of the Appellant because it is better to allow nine quality men to go free than to convict and punish one innocent man.”
In abiding faith Obeisance to this hallowed ex-cathedral postulation of justice by the apex Court, this Court in Onyirimba Vs. The State as far back as 2002, (2002) 11 NWLR (pt 777) 83 @ 96-98 per Ikongbe, JCA held as follows:
“Where there are questions that raise clouds of doubt, no Court can or allowed to ignore such in a criminal trial.
The accused might indeed be the guilty party, but then again he might not. The Court has to be absolutely sure before it convict because the Court believes in the principle of Justice that in case of doubt it is far better to let go free a hundred persons who might be guilty, than to let one innocent man hang.”
In Lateef vs FRN (2010) LPELR 9144 it was held that where the same facts constitute the evidence of the charge of conspiracy and the substantive offence, the charge of conspiracy may not be made out where the substantive offence has not been proved.
Therefore, the facts should be scrutinized vis a vis the evidence led. It is in this wise that my Lord, Ariwoola, JSC in Adesina Kayode vs The State (2016) LPELR 40028 (SC) held that the substantive offence should be proceeded with first and then see whether from the facts, the conspiracy charge had been proved.
Clearly, it is implicit that the prosecution had that in mind.
In Patrick Njovens & Ors Vs The State LPELR 2042 SC (1973) ALL NLR 371 the Apex Court held “that the offence of conspiracy can be imputed on accused persons when the overt act or omission which evidences conspiracy is the actus reus and the actus reus of each an every conspirator must be referable and very often is only proof of the criminal agreement which is called conspiracy….”
Was it proved that the substantive offence of Armed Robbery was abandoned or aborted at a stage of execution, to come to the conclusion that it does not matter that it was not executed?
Is it a crime to boast that one is an Armed Robber? It could be a clue for a thorough investigation, as it is not as in the colonial legislations where, for instance, it was an offence to confess to being a witch. The apex Court had held …… Again, to be said is that to establish conspiracy all that is expected of the prosecution is to prove the inchoate or rudimentary nature of the offence and the inference from which the meeting of the minds of the accused persons; nor is it necessary to establish that the conspirators had been in any direct communication one with the other or others as the case may be. No hard and fast rule as to how to infer conspiracy as even the mere evidence of complicity is sufficient. I place reliance on Ikwunne V. The State (2000) 5 NWLR (pt 658) 550 at 560 – 561. Osondu V. FRN (2000) 12 NWLR (pt 682) 482 at 501-502 JSC. However, “Complicity” entails the existence of a state of things to wit where the Robbery or Armed Robbery was committed or attempted to be committed; he shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this act.
My Lords, in respect of the offence of conspiracy, in the instant appeal, there was nothing from the unreliable evidence of the prosecution witnesses which was jettisoned and rightly too, by the trial Court, to infer conspiracy as they did not show that robbery was committed or attempted on the date and at the locus as alleged. The trial Court, found that there was no robbery proved. See Ikwunne V. The State (2000) 5 NWLR (pt 658) 550 at 560-561. Osondu V. FRN (2000) 12 NWLR (pt. 682) 483 at 501-502 where there was enough evidence of complicity embedded in the evidence proferred, by the clear attempt proved; conspiracy was inferred to strengthen the statements. That was not the case here. Adeyemi Vs. State 2017 LPELR – 42584 (SC). Though a proved conspirator may be proceeded for liability as a principal offender and to be dealt with as such, however if there is, an inchoate act, not proximate as to be reckoned with in law as an attempt, but a preparation, it cannot found liability for the substantive offence in the notion of conspiracy as an offence, under the Robbery and Fire arms Act.
It is clear to me, that conspiracy is not the same as “malice afore thought” of two or more persons expressed, and which cannot be an offence. The law does not punish for “Animus”, ‘intent” or preparation as a principal (offence) as the uncertainty of proof and its effect as an actual infraction, causing public harm is remote, slimy and undecipherable.
The clear legislative rider to the Section 6 (b) of the Robbery and Fire Arms Act is …. Whether or not he is present when the offence is committed or attempted to be committed. It, therefore, stands to reason from the text of the Act that conspiracy punishable with death is statutorily defined. It is unlike conspiracy under the common law which may be inferred from confessions and other inferences simpliciter.
There is no doubt that the statements of the Accused/convicts are “chilling” tales of horrendous criminal escapedes; this means that the prosecution had enough facts to investigate upon thoroughly and to prosecute for unlawful possession of offensive weapons as may be discovered or even for loitering and vagaboncy or persons who cannot give reasonable account of themselves; and having been given a clue for honest and painstaking services to humanity for diligent investigation, why the hasty conclusion? Ours appears to be a society of “Now”. A step in the direction of developed societies where even Nazi war crimes or world war crimes or some otherwise hideous and complicated mysteries are followed up for “donkey” years to a conclusion/discovery for certainty of justice, appears to be an illusion in Nigeria? Time does not run against the state.
That the Appellant and his co-convicts may have been hardened kingpins with the skills of trail cover and decoy in thwarting of criminal investigation solely or in consult, is a different matter for socio-criminology and the theology of carmic laws.
The Appeal is allowed.
The Judgment is set aside and the conviction and sentence to death passed on 22/07/2011 by the High Court of Delta State in charge No HOR/18C/2012 as relating the Appellant herein as 2nd Accused/Convict are quashed.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, M.A. DANJUMA, JCA in the instant appeal.
This is to state that I agree with the reasoning of his lordship in coming to the conclusion that the instant appeal be allowed. This is more so, as his lordship has, in my considered view clearly demonstrated why this Court as presently constituted should not be bound by the decision of the Benin Division of this Court delivered on 19th February, 2015 in APPEAL NO: CAB/380/2015 – ERIGA BENSON VS. THE STATE. Indeed, the appeal under reference is reported as (2018) LPELR.43817(CA).
Accordingly, I too, find the instant appeal meritorious and allow the same. The judgment of the High Court of Delta State delivered on 22/712011, in Charge No: HOR/18C/2012, as it relates to the 2nd accused person/Appellant, is set aside. Consequently, his conviction and the death sentence passed on the said Appellant, are quashed. Appellant is hereby acquitted and discharged in respect of the counts in the Information preferred against him.
ABIMBOLA OSARUGUE OBASEKI ADEJUMO, J.C.A.: My learned brother, MOHAMMED AMBI – USI DANJUMA obliged me with the leading judgment just delivered.
I agree with his reasoning and conclusion that the quality of evidence relied upon in a charge for conspiracy should irresistibly compel the Court to make an inference as to the guilt of the accused, see PETER OGU v COMMISSIONER OF POLICE (2017) LPELR – 43832 (SC); BABATUNDE MOSES v FEDERAL REPUBLIC OF NIGERIA (2019) LPELR – 47747 (CA).
The prosecution failed to uphold the tenets of Section 135 of the Evidence Act, 2011; which provides for proof beyond reasonable doubt. It is trite that failure to prove so would lead to an order of acquittal and discharge.
In PHILIP JONATHAN v FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 46715 (CA); this honourable Court held on the effect of failure of prosecution to prove a criminal case beyond reasonable doubt thus;
“l entirely agree with my learned brother, that the confessional statement allegedly made by the appellant, having been refuted at the trial, the prosecution was duty bound to adduce independent corroborative evidence showing that the appellant committed the offence with which he was charged. Having failed to do so, the lower Court ought to have discharged and acquit the appellant for there being no evidence proving the commission of the offence by the appellant as required by Section 135 (1) of the Evidence Act 2011…”
per BDLIYA, JCA (PP. 41 – 42, PARAS. D – E)
See also; THE STATE v EMMANUEL GBAHABO & ORS (2019) LPELR – 48117 (SC).
In light of the above, and the reasonings in the lead judgment, I also hold that the appeal is meritorious and it is accordingly allowed.
The judgment (and death sentence) of Hon. Justice T. O Uloho of the High Court of Delta State, Orerokpe division delivered on July, 2011 is hereby set aside.
Appearances:
Chief O. A. Orugbo For Appellant(s)
P. A. Okoh Esq. For Respondent(s)
