PATRICK EJEH v. THE STATE (2019)

PATRICK EJEH v. THE STATE

(2019)LCN/13922(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2019

CA/AK/66C/2015

RATIO

CRIMINAL LAW AND PROCEDURE: ATTEMPT TO COMMIT A CRIME: INGREDIENTS: WHAT HAPPENS IF THE CRIME IS PREVENTED FROM BEING COMMITTED

In the case of OSETOLA V. STATE (2012) 17 NWLR (PT.13), the Court held as follows: when an accused person is prevented from committing the complete offence, a conviction for attempt to commit the offence may be sustained. To succeed on a charge to commit armed robbery the prosecution must lead evidence to show the steps taken by the accused person to commit armed robbery. The last act by the accused person immediately before the main act that would have resulted in the commission of the armed robbery is an attempt to commit robbery provided the steps taken by the accused person are proved beyond reasonable doubt. Put in other way, the last overt act of an accused person, proximate to the commission of an offence is an attempt to commit the offence. PER  RIDWAN MAIWADA ABDULLAHI, J.C.A.

CRIMINAL LAW AND PROCEDURE: CONFESSIONS: WHETHER A CONFESSION OF GUILT IS SUFFICIENT TO LEAD TO THE CONVICTIONS OF AN ACCUSED REGARDLESS OF WHETHER IT IS RETRACTED OR NOT

A confession of guilt if proved to be satisfactory made, free and voluntary may be a basis for conviction, its retraction notwithstanding. The law is trite that a mere retraction of a confessional statement by the accused person will not make it inadmissible. It is only a question of weight to attach to same. An accused can be safely convicted on his retracted confessional statement if the Court was satisfied that the accused made that statement. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was made; retraction does not render a confession inadmissible and it does not also deter a Court from acting thereon. A confession once properly proved, is sufficient to ground conviction. See OKOH V. STATE (2014) LPELR 12 22589 (SC); SUNDAY V. STATE (2017) LPELR 42259 (SC); SALIU V. STATE (2014) LPELR 22998 (SC); SIMON V. STATE (2017) LPELR 41988 (SC) and ASUQUO V. STATE (2016) LPELR 40597 (SC).   PER  RIDWAN MAIWADA ABDULLAHI, J.C.A.

CRIMINAL LAW AND PROCEDURE: CONSPIRACY: THE ELEMENTS OF OR DEFINITION OF CONSPIRACY

Conspiracy is a confederacy or an agreement between at least two persons with the aim of committing a criminal act or doing a lawful act by an unlawful means. Conspiracy being an agreement between two persons, one person cannot be guilty of conspiracy, the actual agreement though shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. The offence is complete when there is established an agreement to do an unlawful thing or to do something which is lawful by unlawful means. It is usually inferred from facts and evidence led. See STATE V. GWANGWAN (2015) 13 NWLR (PT. 1477) 600 and AYO V. STATE (2015) 16 NWLR (PT. 1486) 247. To secure a conviction on a charge of conspiracy, it must be established beyond reasonable doubt there is a meeting of minds of the conspirators. See SHODIYA V. STATE (2013) 14 NWLR (PT. 1373) 234 and POSU V. STATE (2011) 2 NWLR (PT. 1234) 393. PER  RIDWAN MAIWADA ABDULLAHI, J.C.A.

CRIMINAL LAW AND PROCEDURE: WITNESSES: THE IMPORTANCE OR RELEVANCE OF WITNESSES IN PROVING  A CASE

On the contention of the learned counsel for the appellant that, the prosecution failed to call a vital witness to proof its case and thus fatal to his case. The law is trite that the prosecution is not required to call a host of witnesses to proof the ingredient of an offence. However, the law requires it to call a vital witness, a witness whose evidence will prove a vital ingredient of an offence. The failure will be fatal to prosecution case if he defaults in calling such a vital witness. See SMART V. STATE (2016) 9 NWLR (PT. 1518) 447, SALE V. STATE (2016) 3 NWLR (PT. 1499) 392 and NWEKE V. STATE (2017) 15 NWLR (PT. 1587) 120. PER  RIDWAN MAIWADA ABDULLAHI, J.C.A.

 

 

Before Their Lordships

MOHAMMED AMBI-USI DANJUMAJustice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHIJustice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUDJustice of The Court of Appeal of Nigeria

Between

PATRICK EJEH Appellant(s)

AND

THE STATE Respondent(s)

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State sitting at Akure Judicial Division presided over by Honourable Justice D. I. Kolawole delivered on 12th May, 2014. The appellant was charged on a two-count charge of Conspiracy to Commit Robbery and attempted Robbery Contrary to Sections 6(b) and 2(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14 Laws of the Federation of Nigeria, 2014.
Briefly, the facts of the case as related by the prosecution was that on the 9th August, 2012 at about 5:25pm. One Yemi Suleiman (PW1) the Deputy Registrar of Rufus Giwa Polytechnic Owo after closing office, he went to his church for a short prayer and after prayers he left for his car which was parked in front of the church. He sat on the driver?s seat while waiting for his driver who he sent on an errand.

That one young man entered the car through the passenger seat and the young man brought out a gun and pointed it at him and told him that if he moved he would be dead. That when he looked at the other side, he saw another young man by the drivers doors which was not closed as one of his leg was outside and the other man also pointed a gun at him. That he was able to escape from the car and raised alarm after he escaped and some people chased the two young men and one of them was caught while the other was able to escape. That the person caught was the defendant, he was able to recognise him as the first young man that entered his car through the passenger?s seat and had a bag that contained a gun. That people wanted to lynch him and he appealed to them not to do so and thereafter they contacted and the defendant was taken to B Division Owo and later transferred to SARS Akure.

In the proof of its case, the prosecution called two witnesses and tendered exhibit which was admitted in evidence as exhibit ?A?. The accused in his defence testified in his own behalf and called no other witness.

At the conclusion of hearing, the learned trial Judge in his judgment delivered on 12th May, 2014 found the appellant guilty, convicted him for the offences of conspiracy and attempted robbery and sentenced him as charged.
The appellant, being dissatisfied with this judgment appealed to this Court in an Amended Notice of Appeal filed on the 23rd October, 2017 but deemed properly filed on the 13th February, 2018. In it the appellant raised the following eight Grounds of Appeal:

GROUND 1
The learned trial Judge erred in law in convicting the accused of Robbery.
PARTICULARS OF ERROR
1. The necessary ingredient to prove in an offence of Robbery is an intention to deprive another of his good.
2. There was no such intention shown in this case.
GROUND 2
The learned trial Judge erred in law in convicting the appellant of Robbery by relying heavily on exhibit A.
PARTICULARS
1. Exhibit A was a confessional statement allegedly made by the accused.
2. The appellant denied the said statement in its entirety yet the Court relied heavily on it.
3. After denial of the statement there was no evidence outside exhibit A to prove the alleged offence.
GROUND 3
The learned trial Judge erred in law in convicting the appellant of conspiracy.
PARTICULARS
1. Meeting of the minds is an essential ingredient of conspiracy.
2. There was no such meeting of minds established in this case.
GROUND 4
The learned trial Judge erred in law in holding that Exhibit A was the statement made by the accused.
PARTICULARS
1. The accused stated that the statement he made was not Exhibit A.
2. He stated further that the statement he made was torn by PW2.
3. This learned Judge did not consider at all and led to a miscarriage of justice.
GROUND 5
The learned trial Judge erred in law convicting the appellant of the offence charged.
PARTICULARS
1. It is trite in any criminal trial there must be proof beyond reasonable doubt before any conviction can be sustained.
2. No such standard of proof beyond reasonable doubt was established in this case.
GROUND 6
The learned trial Judge erred in law in convicting the appellant of the offence of Robbery.
PARTICULARS
1. The appellant was alleged to have robbed the PW1 with a gun.
2. It was also alleged that the appellant was caught with the gun.
3. No gun was tendered in this case.
GROUND 7
He learned trial Judge erred in law failing (sic) to consider the defence of the accused.PARTICULARS
1. The accused raised the defence that he was shot on the head.
2. The learned trial Judge did not consider this despite the fact that the gunshot wound was shown to the Court.
3. All other facts of his defence were equally not considered by the learned trial Judge.
GROUND 8
The learned trial Judge erred in law failing( sic) in behaving the evidence of PW1 as to the identification of the appellant.
PARTICULARS
1. The PW1 had only an encounter of 5 minutes with the supposed robber.
2. There was no way a proper identification could have been made in such.

Both parties filed and exchanged their briefs of argument in this appeal. In support of his appeal and from the eight grounds of Appeal, the appellant filed an Amended Appellant?s Brief of Argument on 13th March, 2019 but deemed properly filed on 25th March, 2019. While the respondent?s brief of argument was filed on 28th March, 2018 but deemed properly filed on 25th March, 2019.

During the hearing of the appeal on 25 March, 2019 learned counsel for the appellant Malachy Omeye Esq. adopted the appellant brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the conviction and sentence of the appellant by the lower Court. Similarly, learned counsel for the respondent F. K. Salami Esq. (DCL) M.O.J. Ondo State adopted the respondent brief as his reaction against the appeal and urged the Court to affirm the judgment of the lower Court.

The learned counsel for the appellant in his Amended Brief of Argument formulated two issues for determination to wit:
1. Whether the learned trial Judge was right when he found that exhibit A was made by the appellant (Ground 2 &4)
2. Whether the learned trial Judge was right when he convicted the appellant for attempted robbery and conspi