SEMIU AFOLABI v. THE STATE (2010)

SEMIU AFOLABI v. THE STATE

(2010)LCN/3592(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of February, 2010

CA/I/102/2008

RATIO

CRIMINAL LAW: WHAT SHOULD THE COURT BEAR IN MIND IN CASES OF IDENTIFICATION

In THEOPHILUS EYISI (Alias SUNDAY EYISI) & 2 ORS V. THE STATE [2000] 15 NWLR PART 691 PAGE 555 pages 587-588, the Supreme Court per Ogundare JSC had this to say,

‘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.’ PER STANLEY SHENKO ALAGOA, J.C.A.

CRIMINAL LAW: BURDEN OF PROVING THE OFFENCE OF ARMED ROBBERY

(i) That there was a robbery or series of robberies;

(ii) That each robbery was an armed robbery;

(iii) That the accused was one of those who took part in the armed robberies.

It was also held in that case that there is no onus on the accused to establish his innocence. See also ALABI V. THE STATE (1993) 7 NWLR (PART 3(7) PAGE 511 at 523. Thus the burden on the shoulders of the prosecution is quite heavy and if the above provisions are as I understand them, the prosecution still has to go on and prove the case against the accused beyond reasonable doubt even when the accused is seen by his own evidence to have admitted the commission of the offence with which he is charged. PER STANLEY SHENKO ALAGOA, J.C.A.

CRIMINAL PROCEDURE: PROCEDURE FOR TAKING THE PLEA OF AN ACCUSED PERSON

When a charge is read to an accused person, he takes his plea based on the contents of the charge and that is why an accused is asked before he takes his plea whether he understands the charge read out to him. And having taken his plea on the charge read out to him, it is the duty of the prosecution to prove every ingredient of the offence upon which the accused is charged and this the prosecution must do beyond reasonable doubt. PER STANLEY SHENKO ALAGOA, J.C.A.

WORDS AND PHRASES: MEANING OF CONSPIRACY

Conspiracy has been held in a plethora of authorities to mean a meeting of the minds of the Conspirators to do an unlawful act or to do a lawful act by unlawful means. It consists of an intention to do the act by the Conspirators and is more often than not predicated on circumstantial evidence. See the following cases- PATRICK NJOVENS & ORS V. THE STATE (1973) 5 SC 17; UPLAR V. THE STATE (2003) CNW1 230 at 239; ODENYE V.THE STATE (2001) 2 NWLR (PART 697) 311 at 324. PER STANLEY SHENKO ALAGOA, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

SEMIU AFOLABI 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 Sodeke J. of the High Court of Justice, Abeokuta, Ogun State in Charge No. RFT/41/97 – ATT. GEN. OF OGUN STATE V. SEMIU AFOLABI delivered on the 28th April, 1999, wherein the Appellant was convicted and sentenced to death on a two count charge of (1) Conspiracy to commit a felony to wit: Armed Robbery contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990; (2) Robbery contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria 1990. The Appellant was alleged to have, on or about the 9th September 1995 at Akute Village in Sango Ota, Ogun State conspired with others now at large to rob one Rasaki Usman of his Suzuki Motorcycle Model 120 with Registration Number OD 7339 K valued at N32,000.00 and a sum of N70,000.00 being armed at the time with offensive weapon to wit: bottle and thereby committed the offence of Armed Robbery. The Appellant had denied the charge, submitting that he was at Gogo bus stop a distance of about 2 km from Akute on the day in question when he overheard people shouting ‘thief’, ‘thief’ and what he knew next was his arrest as the said thief of the Suzuki Motorcycle. Four witnesses testified for the prosecution while the accused/Appellant testified in his own defence. Exhibits A-D were tendered in the court below. After trial and addresses of counsel, the learned trial Judge in a considered judgment convicted and sentenced the accused/Appellant on the two count charge, having found him guilty on both counts. It is against this conviction and sentence that the Appellant has appealed to this Court by his Notice of Appeal at pages 44-47 of the record of appeal which has the following Grounds viz:
GROUND 1
That the trial Judge erred in law in convicting the Appellant of the offence of Armed Robbery and sentenced him to death when the ingredients of the offence of Armed Robbery were not proved at all.
GROUND 2-
The learned trial Judge erred in law in convicting the Appellant of the offence of Armed Robbery when he failed to resolve the issue of the proper identification of the Appellant.
Three issues have been distilled by the Appellant for the determination of this Court the identity of the Appellant in this case.
(2) Whether the learned trial Court was right in holding that the prosecution proved a case of armed robbery against the Appellant beyond reasonable doubt.
(3) Whether the learned trial Judge did not exceed his jurisdiction in sentencing the Appellant to death having found that the prosecution failed to prove the existence of the offensive weapon mentioned in the charge.
These issues are contained in paragraphs 4.01-4.03 at page 3 of the Appellant’s Brief of Argument dated the 1st June, 2009 and filed on the 2nd June, 2009 but deemed properly filed and served on the Respondent on the 3rd June, 2009 following the grant by this Court of a motion on Notice dated the 1st June, 2009 and filed on the 2nd June, 2009 brought pursuant to Order 7 Rule, 10(1) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court for an order to extend time within which the Appellant/Applicant may file his Brief of Argument and to deem the Appellant’s Brief of Argument already filed and served as having been properly filed and served. This Brief of Argument was, on the 25th January 2010 when this appeal came up for hearing adopted and relied Upon by Olakunle Agbebi of Counsel for the Appellant as the Appellant’s argument in this appeal.
The Respondent has for its part formulated from the Grounds of Appeal, the following sale issue for this Court to determine
‘Whether the prosecution proved the offence of conspiracy and armed robbery against the accused/Appellant beyond reasonable doubt.’
This issue is contained in paragraph 3.00 at page 4 of the Respondent’s Brief of Argument dated the 16th October 2009 and filed on the 19th October, 2009 but deemed properly filed and served on the and October 2009 following the grant by this Court of an application on Notice by the Respondent to extend time for the Respondent to file its Brief of Argument and to deem the Respondent’s Brief of Argument already filed and served as properly filed and served. The application which was brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules 2007 is dated the 16th October 2009 and was filed on the 19th October 2009. The Respondent’s Counsel Miss F. F. Fakolade, State Counsel, Ministry of Justice Ogun State adopted and relied on the said Respondent’s Brief of Argument on the 25th January 2010 as the Respondent’s argument in this appeal.
The issues canvassed by the Appellant are undoubtedly quite comprehensive as they cover every aspect of this case and I intend to hear and determine this appeal based on them.
Issue 1 is as to whether the prosecution properly established the identity of the Appellant in this case.
On this issue Appellant has submitted that by virtue of section 138(1) of the Evidence fact Cap E14 Laws of the Federation of Nigeria, the prosecution must prove its case beyond reasonable doubt and until this burden is discharged it does not shift. The Appellant has also submitted that by virtue of section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 an accused person is presumed innocent until proved guilty. Reliance was placed on the following cases – NWOSU V. THE STATE (1998) 8 NWLR (PART 562) 433 at 444; AIGBAGBON V. THE STATE (2000) 7 NWLR (PART 666) PAGE 686 at 754; IDEMUDIA V. THE STATE (999) 7 NWLR (PART 610) PAGE 202 at 215; ESANGBEOO V. THE STATE (1989) 4 NWLR (PART 113) 57. Counsel further submitted that one of the essential ingredients in proof of armed robbery is the identification of an accused as the robber or one of the robbers and that an identification parade will be necessary to ascertain whether an accused person is the robber or one of the robbers in the following circumstances:-
(a) Where the victim did not know the accused before and his acquaintance with him was during the offence.
(b) Where the victim or witness was confronted by the offender for a very short time.
(c) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.
Appellants relied on the following cases- BOZIN V. THE STATE (1985) 2 NWLR (PART 8) 465; ARCHIBONG V. THE STATE (2004) 1 NWLR (PART 855) 488 at 509; IKEMSON V. THE STATE (1998) 3 NWLR (PART 110) 445.
Counsel went on to say that in this case no identification parade was conducted and this is fatal to the prosecution’s case. Appellant’s counsel. submitted in his brief of Argument that neither of the prosecution witnesses claimed to have known the Appellant before the incident and PW1 the alleged robbery victim did not have the opportunity of seeing his assailants for more than a few seconds particularly if pepper was administered on his eyes as he claimed and the incident took place at night on a busy road. Counsel submitted that the duty of properly establishing the identity of the Appellant as the robber or one of the robbers is that of the prosecution and it is not for the learned trial Judge to make out a case for the prosecution where it has failed to do so. Reliance was placed on the cases of DANIELS V. THE STATE (1991) 8 NWLR (PART 212) 715 at 732; THE STATE V. OGBUBUNJO (2001)1 SCNJ 102. Respondent for its part has submitted that the identity of the accused/Appellant is not in issue in this case as PW2 in his evidence stated that the accused/Appellant and another person were apprehended on PW1’s motorcycle shortly after it was stolen and the arrest of Appellant alone could be effected because the other person escaped.
What this issue attempts to address is, whether the identity of the accused/Appellant was sufficiently determined by the prosecution beyond reasonable doubt. From available evidence only PW1 and PW2 had any direct contact with the Appellant however limited on the day of the incident and it is worth our while to go into the records and see what they had to say. Their evidence is at pages 15-17 of the Record of Appeal. PW1 Razak Usman said in evidence that on the day of the incident being the 9th September 1995 he was going from NEPA quarters to Akute in Ifo when the accused/Appellant and another man stopped him and as a Commercial Motorcyclist, he had thought they were passengers. They ran over him and stabbed him with a broken bottle. They applied dried pepper over his face and forehead. He fell down and when he struggled and got up from the ground, he realized that they were thieves and had taken away his motorcycle and were riding it away. He shouted ‘thief, thief’ and some of his fellow commercial motorcyclists gave chase and were able to arrest one of the alleged robbers. Under cross examination by Mr. Taiwo Bankole Counsel for the Appellant, PW1 said he saw two people that stopped him on the day of incident and one of them was carrying a nylon bag. It was at the police station that the accused/Appellant was shown to him. He was not the one who arrested the accused/Appellant. Other persons helped him to arrest the accused/Appellant.
PW2, Ayinde Adegboyega is also a Commercial Motorcyclist like PW1. His evidence on oath is that he was at the motorcycle park when a Motorcyclist brought PW1 with blood dripping from the back of PW1’s head, and upon information that PW1’s motorcycle had been snatched by robbers he gave chase in his own motorcycle and caught up with the motorcycle snatchers at Rogo bus stop. The accused/Appellant was then arrested and taken to the police station Ajuwon. Under cross-examination by Mr. Bankole for the accused/Appellant, PW2 said that he and another person were riding on his motorcycle with him (PW2) doing the actual riding while the other sat behind when they gave chase and caught up with the accused/Appellant and another man on PW1’s motorcycle and it was indeed his (PW2’s) companion on PW2’s motorcycle that pushed down the accused/Appellant and the man who was with him from PW1’s motorcycle. The accused/Appellant did not tell him that he was a passenger on PW1’s motorcycle but instead told him (PW2) before they all got to the police station that they were in fact three of them and that he (accused/Appellant), did not want to go on the operation with the other two but had been forced by them to do so.
What can one make out from the evidence of PW1 and PW2 as to identification of the accused/Appellant? Their evidence to my mind appears not to have been shaken but rather strengthened by cross’-examination that they were referring to the accused/Appellant. My view is further strengthened by the statement of the accused/Appellant at the SIIB Abeokuta at page 7 of the Record of Appeal which made reference to the 9th September, 1995 when he and two of his companions had set out and snatched a motorcycle and he was the only unlucky one that had been apprehended. PW2’s evidence under cross-examination that the accused/Appellant had told him before they got to the police station that there were indeed two other persons with him (accused/Appellant) was corroborated by the statement of the accused/Appellant at the SIIB Abeokuta.
In THEOPHILUS EYISI (Alias SUNDAY EYISI) & 2 ORS V. THE STATE [2000] 15 NWLR PART 691 PAGE 555 pages 587-588, the Supreme Court per Ogundare JSC had this to say,
‘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.’
In the present case under consideration, there is enough evidence especially from the evidence of PW2 under cross-examination and the statement of the accused/Appellant, that there is no mistake as to the identity of the accused/Appellant which is enough to make an identification parade unnecessary. Uwaifo JSC at page 595 of EYISI (supra) had alluded to this when he said as follows at paras. C-E:
‘As regards the question of the identification of the Appellants, the evidence of PW2 and PW3 was such that a formal identification parade was unnecessary. The two witnesses on separate occasions were able spontaneously to recognize them as those who accosted them that night. This was when PW2 saw them for the first time thereafter at the police station and PW3 saw 3rd Appellant at his residence at No. 6 Pam Lane in company of the police. There is nothing to suggest that they were prompted or guided to pick on the Appellant so as to make the identification an accomplished fact – a ‘fait accompli’.
Whenever a set of facts point to an accused person or an accused person is apprehended as he is committing a crime, the question of an identification parade becomes unnecessary. A case in point is where hooded men invade a house, carting away valuable property and as they are about to make good their escape, an alarm is raised, a neighbourhood vigilante group gives chase and apprehends the thieves unmasking them in the process. What is the necessity of an identification parade? See also IBE V. THE STATE (1992) 5 NWLR (PART 244) 642; THE STATE V. AIGBANGBEE (1988) 3 NWLR (PART 84) 548. I therefore hold that the prosecution properly established the identity of the accused/Appellant in this case.
Issues 2 and 3 have been merged together in the Appellant’s Brief of Argument and I shall follow that pattern – Could the trial court have been right in holding that the prosecution had proved a case of armed robbery against the Appellant beyond reasonable doubt and did the court not exceed its jurisdiction in sentencing the Appellant to death when the prosecution failed to prove the existence of the weapon mentioned in the charge?
Appellant has submitted in his Brief of Argument that the only person capable of giving evidence of the event of robbery is PW1 as the evidence of the other prosecution witnesses relate to arrest and investigation. Appellant’s counsel submitted that the learned trial Judge while holding that he did not believe the evidence of PW1 that he (PW1) was stabbed with a bottle, nevertheless held that he believed the evidence of PW1 that he was slapped and his motorcycle snatched from him when there is no such evidence from PW1 that he was slapped. Counsel went further to submit that the evidence of PW1 that he had pepper rubbed into his eyes was not corroborated by any of the prosecution witnesses neither did any of them say anything remotely addressing that condition. PW2 only said he saw blood at the back of PW1’s head. Counsel urged the Court to discard in its entirety the evidence of PW1 as being unreliable and full of untruths and contradictions. Appellant’s counsel faulted the findings of the learned trial Judge after the trial within trial wherein he admitted Exhibit A, the alleged confessional statement. He went on to submit that the defence put forward by the Appellant at the trial within trial ought to have been disproved by the prosecution by leading evidence to show that it was not viable. It is not the duty of the trial court to disprove the Appellant’s defence. Reference was made to Archbold – Criminal Pleadings, Evidence and Practice 2000 Article 19-44 at page 1632 in support of the Court of Appeal of England in R. V. WHEELER 52 Cr. ADD. R. 28 at 30. Appellant’s Counsel while not unaware of the decision of the Supreme Court in a plethora of cases that Conviction can be sustained on the confessional statement of an accused person nevertheless drew the attention of this Court to another decision of the Supreme Court in DAWA V. THE STATE (1980) 8-11 SC 236 in reliance on the English decision in R..V. SYKES (1913) 18 CR. APP. R. 233 and cited in KANU V. R. 14 WACA 30 for the verification of confessional statements before any evidential weight can be attached to them. The six tests are as follows:
1. Is there anything outside it to show that it is true?
2. Is it corroborated?
3. Are the statements made in it of fact, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and which have been proved?
Learned Counsel then submitted that had the learned trial Judge applied these tests to the alleged confessional statements Exhibits A and A1, he would have found that they were not documents he could rely on. Counsel further submitted that once all the wrongly admitted evidence is jettisoned, there will be nothing left to sustain the conviction of the trial court and the Appellant must be entitled to the reasonable doubt created and shorn of any evidence of any firearm or offensive weapon or credible evidence of physical violence visited on PW1, the learned trial Judge exceeded his jurisdiction in sentencing the Appellant to death. Counsel went on to say that in the unlikely event that this Court finds that there was indeed an incident of robbery which is however not conceded, the Court should find and hold that it was not armed robbery. Counsel urged the Court to set aside the conviction and sentence passed on the Appellant on the count of armed robbery and in its place enters a verdict of discharged and acquitted. Appellant’s Counsel has also submitted that proof of the offence of conspiracy is most often inferred from proof of the main offence for which a person is charged and in this case the complete failure of the prosecution to establish any case against the Appellant as to whether in fact there was a robbery which was an armed robbery and to properly identify the Appellant as the robber or one of the robbers has eroded any inference in that regard. He therefore urged the Court to discharge and acquit the Appellant of the charge of conspiracy.
The Respondent on its part referred to the confessional statement made by the Appellant- exhibits A and A1 wherein the Appellant stated that he and two others conspired to rob PW1 on the said day which they did and how he was later arrested by PW2 while his accomplice escaped. Respondent’s Counsel further submitted that the trial court relying heavily on the confessional statements could rightly convict the accused/Appellant. Reliance was placed on NWACHUKWU V. THE STATE (2007) 12 SCM PART 2 PAGE 447 at 455 where it was held that a confessional statement is the best evidence in criminal procedure and that once a confessional statement is admitted in evidence it becomes part of the prosecution’s case which the trial court is bound to consider. Counsel urged this Court not to disturb the lower court’s finding that the confessional statement of the Appellant (Exhibits A and A1) is sufficiently positive and direct. On conspiracy, Counsel submitted that it is sometimes open to the Court to infer conspiracy and that in convicting the accused/Appellant for conspiracy, the trial Judge relied on his confessional statements (Exhibits A & A1) where he confessed to conspiring with others to rob PW1 and that it is in evidence that PW1’s motorcycle was recovered from him and another who eventually escaped.
Section 138(1) of the Evidence Act, Laws of the Federation of Nigeria 2004 states that the standard of proof in a criminal trial is proof beyond reasonable doubt while subsections 2 and 3 of the same section place this burden on the prosecution and until this burden is discharged it does not shift.

In SAMUEL BOZIN V. THE STATE (1985) 2 NWLR PART 8 page 465 at 467 the Supreme Court held that for the prosecution to succeed in proof of the offence of armed robbery there ought to be proof beyond reasonable doubt:
(i) That there was a robbery or series of robberies;
(ii) That each robbery was an armed robbery;
(iii) That the accused was one of those who took part in the armed robberies.
It was also held in that case that there is no onus on the accused to establish his innocence. See also ALABI V. THE STATE (1993) 7 NWLR (PART 3(7) PAGE 511 at 523. Thus the burden on the shoulders of the prosecution is quite heavy and if the above provisions are as I understand them, the prosecution still has to go on and prove the case against the accused beyond reasonable doubt even when the accused is seen by his own evidence to have admitted the commission of the offence with which he is charged.
In count 2 the accused/Appellant is charged with having committed the offence of armed robbery while armed with offensive weapons to wit: bottle (Underling mine for emphasis). The prosecution never tendered any bottle allegedly used by the Appellant throughout the proceedings at the lower court. The learned trial Judge had this to say as to the use of bottle by the Appellant in his judgment at page 40 of the Record of Appeal,
‘I have expressed a doubt if broken bottle was actually used against PW1 in that if it had been used, PW4 would have had to take PW1 to the hospital for treatment or explain what was done to alleviate the pains that resulted from any injury suffered by PW1 as a result of stabbing by the accused and his gang.’
The learned trial Judge then went on to observe as follows,
‘Having said that this Court has to determine whether slapping and the rubbing of pepper on 1st PW constitute use of ‘offensive weapon’ in section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 …’
A number of questions beg for answers from the learned trial Judge’s observation. The first question is, whether the charge to which the accused/Appellant pleaded not guilty made any mention of slapping or rubbing of pepper on PW1. The answer is NO. The second question is whether PW1 Razak Usman, the alleged armed robbery victim ever said in his evidence at pages 15 and 16 of the Record of Appeal that he was slapped by the Appellant. The answer yet again is NO. While PW1’s evidence made mention of the rubbing of dried pepper over his face and forehead, PW2 Ayinde Adegboyega, PW1’s fellow commercial motorcyclist said at page 16 of the Record of Appeal that he saw blood at the back of PW1’s head. He did not make any mention of the application of pepper on the face and forehead of PW1. Could that not have deserved some mention in his evidence that at the time PW1 was brought to him PW1 was in serious pains and was either not seeing or not seeing properly from some painful substance rubbed on his eyes? A third question, is whether the Appellant in his confessional statement at pages 7 and 8 of the Record of Appeal ever said he applied pepper on PW1’s face and forehead? The learned trial Judge in my view was making out a case for the prosecution which he could not have done, and which is different from the charge upon which the Appellant took his plea.
When a charge is read to an accused person, he takes his plea based on the contents of the charge and that is why an accused is asked before he takes his plea whether he understands the charge read out to him. And having taken his plea on the charge read out to him, it is the duty of the prosecution to prove every ingredient of the offence upon which the accused is charged and this the prosecution must do beyond reasonable doubt. The question to my mind is not whether slapping and the rubbing of pepper on PW1’s face constitute the use of offensive weapon as observed by the learned trial judge but whether the accused/Appellant took his plea upon these new set of facts not contained in the charge. If the learned trial Judge found as a fact that the PW1 could not have been stabbed with a broken bottle or a bottle and so the Appellant could not have been armed with a bottle as contained in the charge, does it not stand to reason that whatever else may have been his reasons for conviction of the Appellant on the charge of armed robbery was flawed and not on a sound premise? Is that not the crux of the matter in the charge of armed robbery upon which the Appellant has pleaded not guilty? I must at this stage say a bit more about Exhibits A and Al the alleged confessional statements of the Appellant. Learned counsel for the Appellant has faulted the findings of the learned trial Judge at the trial within trial which led to the admission of Exhibit A. Following the rule to be applied in testing the veracity of an accused’s confessional statement in R. V. SYKES (supra) and cited with approval in KANU V. R. (supra), there is evidence of PW2 outside the Appellant’s confessional statements to show that the alleged confessional statement is true, corroborated and consistent with other facts. PW2 Ayinde Adegboyega had stated in his evidence-in-chief at page 16 of the Record of Appeal how the arrest of the appellant was effected by him and another colleague of his and under cross-examination at page 17 of the Record of appeal, PW2 said inter alia as follows:
‘When the accused was arrested at Raga bus stop, before we got to the Police Station, he told us that they were three who came and that he had not wanted to go on the operation with the other two but that he had been forced by the other two persons.’
This piece of evidence corroborates that of the Appellant at page 7 of the Record that Appellant on the day of the incident was with two other persons when he said as follows:
‘As we are going on the road, Tubosun and Taofik discussed with me that we would still snatch another motorcycle today, immediately I heard these, I supported them because this is not our first time doing such operation.’
As to exactly how the Appellant was arrested, PW2 had stated in his evidence-in-chief at page 16 of the Record of Appeal:
‘We met them at Rogo bus stop. I crossed the machine they were riding and ordered them to park…’
(Underlining mine.)
This is a corroboration of Appellant’s confessional statement at pages 7 & 8 of the Record of Appeal where he stated as follows, ‘Tunbosun is the one drove the motorcycle while I was with him at the back. Taofik has joined another vehicle to meet us at home. As we are driving the motorcycie towards Agege, we never drove more than one kilometer before we see another motorcycle double cross our motorcycle, immediately Tunbosun started (sic) the men pursuing them, he dropped the stolen motorcycle and ran into the bush. I was only arrested with the motorcycle and I was taken to Ajuwon Police Station.’
(Underlining mine.)
These pieces of evidence in addition to putting to rest any doubt as to the identity of the Appellant earlier dealt with, show that the alleged confessional statements by the Appellant were indeed so made by him and the learned trial Judge was right to have admitted them in evidence. I do not have any doubt as to the procedure adopted by the learned trial Judge in the trial within proceedings.
Having said this, what do these confessional statements Exhibits A and A1 portend vis a vis the charge and the other pieces of evidence adduced at the trial in the court below? Has the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt as required by law? While the offence of Robbery may have been established by the prosecution beyond reasonable doubt, I do not think the same can be said of the armed robbery charge against the Appellant from a proper evaluation of the totality of the evidence adduced. The charge on count two for armed robbery ought therefore to fail and I so hold.
Count 1 is on Conspiracy to commit a felony to wit Armed Robbery. Conspiracy has been held in a plethora of authorities to mean a meeting of the minds of the Conspirators to do an unlawful act or to do a lawful act by unlawful means. It consists of an intention to do the act by the Conspirators and is more often than not predicated on circumstantial evidence. See the following cases- PATRICK NJOVENS & ORS V. THE STATE (1973) 5 SC 17; UPLAR V. THE STATE (2003) CNW1 230 at 239; ODENYE V.THE STATE (2001) 2 NWLR (PART 697) 311 at 324. In the present case, the Appellant in his statement at pages 7-10 of the Record but more specifically at pages 7 and 8 stated how he and two others Taofik and Tunbosun had hatched out a plan to snatch a motorcycle on the day of the incident. It was Tunbosun and Taofik who first hatched the idea and discussed it with the Appellant who agreed to undertake the operation with them as they had undertaken similar operations in the past. PW2 Ayinde Adegboyega under cross-examination by Mr. Bankole at page 17 of the Record had said just as much and that the Appellant upon being arrested had told him (PW2) that three of them had agreed to carry out the motorcycle snatching operation. I do not have any doubt that the prosecution has successfully proved that there was conspiracy to commit the offence of robbery if not of armed robbery. The learned trial Judge clearly exceeded his jurisdiction by convicting and sentencing the Appellant for conspiracy to commit Armed Robbery and Armed Robbery having found inter alia that the prosecution failed to prove the existence of the offensive weapon mentioned in the charge upon which the Appellant had taken his plea. The learned trial Judge interestingly found that even if such a weapon existed (bottle mentioned in the charge) it was never used in inflicting injury on PW1 or else PW4 would have been required to take PW1 to the hospital. Where the evidence adduced by the prosecution supports the conviction for a lesser offence than that for which an accused is charged an appellate court can convict for such lesser offence. I find the Appellant not guilty of the offence of Conspiracy to Commit Armed Robbery and Armed Robbery but guilty of the lesser offence of Conspiracy to Commit Robbery and Robbery. Section 1(1) of the Robbery and Fire-Arms (Special Provisions) Act under which the Appellant is charged provides as follows:
‘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 (twenty one years):
In the premises I set aside the conviction and sentence to death of the Appellant passed by Sodeke J. and in its place convict and sentence the Appellant as follows:
COUNT 1 – to 21 (Twenty one) years imprisonment without an option of fine.
COUNT 2 – to 21 (Twenty one) years imprisonment without an option of fine.
The sentences shall run concurrently. Sentences shall begin to run as from the 28th April 1999 being the date of conviction and sentence of the Appellant at the High Court of Justice Abeokuta, Ogun State.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment read by my learned brother S. S. Alagoa, JCA.
His Lordship dealt with the issues comprehensively and I adopt same as mine.
The offence of armed Robbery which requires the proof of use of ‘offensive weapon’ in committing armed robbery was not proved by the prosecution. For sure, the offence of conspiracy to commit robbery and robbery were proved by the prosecution. I agree with the reasoning and conclusion convicting the appellant for the lesser offences of conspiracy to commit robbery and Robbery. I also set aside the judgment of the trial High Court of Ogun State of 28/4/99 sentencing the appellant to death and substitute same with a conviction for conspiracy to commit robbery and Robbery, with twenty one (21) years imprisonment in each of the offences. Sentences to run concurrently.

MODUPE FASANMI, J.C.A: I have read before now the judgment just delivered by my learned brother S.S. ALAGOA J.C.A.
I entirely agree with the reasonings and conclusions reached therein.
I adopt same and abide with the consequential orders made.

Appearances

Olakunle AgbebiFor Appellant

AND

Miss F. F. Fakolade, State Counsel Ogun State M.O.J.For Respondent