SHEHU USMAN KWALI v. THE STATE
(2012)LCN/5528(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of July, 2014
CA/IL/C.48/2013
RATIO
CRIMINAL LAW: INGREDIENTS OF SUSTAINING A CHARGE OF CRIMINAL CONSPIRACY UNDER THE ROBBERY AND FIREMANS ACT
To sustain a charge of criminal conspiracy pursuant to section 6(b) of the Robbery and Firearms Act, the prosecution is expected to establish the following:-
(a) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
(b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically that each of the accused individually participated in the conspiracy. See State vs. Salawu (2010) All FWLR Pt 614 at page 29. Adekunle vs. The State 1989 12 SCNJ 184, Nwosu vs. The State (2004) All FWLR (Pt 218) 916. PER MUSA HASSAN ALKALI, J.C.A.
CRIMINAL LAW: HOW CAN CONSPIRACY BE INFERRED
Conspirators, in law need not be in direct communication in respect of the offence charged. A court of law can infer conspiracy from the criminal acts of the parties including evidence of complicity. See Iwuneze vs. The State (2010) 5 NWLR 658 page 550 at 560 – 561 and Osondu vs. FRN (2000) 12 NWLR 682 page 483 at 501 – 502. PER MUSA HASSAN ALKALI, J.C.A.
EVIDENCE: DISTINCTION BETWEEN CONTRADICTION AND DISCREPANCIES
In Jerry Ikpenikan vs. The State (2011) 1 NWLR (Pt. 1229) 449 at 454 the Apex court made a clear distinction between contradiction and discrepancies in evidence of witnesses thus:-
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence state. In effect, two pieces of evidence contradict one another when they are themselves inconsistent. But a discrepancy in evidence occurs when a piece of evidence stops short, or contains a little more than what another piece of evidence says, or contains some minor difference in details. In the instant case, the contradiction in the evidence of the prosecution witnesses as to the date when the robbery was reported was not enough to discredit their evidence”. PER MUSA HASSAN ALKALI, J.C.A.
JUSTICE
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
SHEHU USMAN KWALI Appellant(s)
AND
THE STATE Respondent(s)
MUSA HASSAN ALKALI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kwara State High Court of Justice Ilorin delivered on the 21st day of December, 2012 by Hon. Justice H.O. Ajayi in which judgment the appellant was convicted and sentenced to 14 years imprisonment for the offence of attempted robbery punishable under Section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation, 2004.
The appellant and one Muhammed Mama Yalia were charged before the High Court of Justice Kwara State sitting at Ilorin for the offences of criminal conspiracy and armed robbery contrary to sections 6(6) and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Laws of the Federation of Nigeria 2004.
The appellant and one Muhammed Mama Yalia were in court from the beginning to the end of the trial. Each court of the charge was read, translated into English Fulfulde and vice versa. The appellant and other Muhammed Mama Yalia pleaded not guilty to the charge.
COUNT ONE
That you Shehu Musa Kwali and Muhammed Mamah Yalia sometimes in June, 2011 at Lata junction, Kwara State within the jurisdiction of this Honorable court conspired to commit an illegal act to wit rob one Alhaji Abubakar Mai-Arewa of the sum of N650,000.00 and you thereby commit an offence punishable under section 6(B) of the Robbery and Firearms Act Cap. R 11 Laws of the Federation of Nigeria 2004.
COUNT TWO
That you Shehu Musa Kwali and Muhammedu Mamah Yalia sometimes in June, 2011 at lata Junction, Kwara State within the jurisdiction of this Honorable Court robbed Alhaji Abubakar Mai-Arewa of the sum of N650,000.00 and you thereby commit an offence punishable under section 1(2) of the Robbery and Firearms (Special Provision) Act Cap. R 11 Laws of the Federation of Nigeria 2004.
Five witnesses testified for the prosecution. Twenty-One wrap of weeds suspected to be Indian hemp and one Cutlass and also the extra-judicial statements of the appellant to the police were marked as exhibit. At the close of the defence written addresses were filed by counsels on both sides.
In convicting the appellant, the trial court said inter alia thus-:
“I am of the view that prosecution has not proved its case of armed robbery beyond reasonable doubt and thus the two accused persons cannot be convicted for armed robbery. I am however of the view that the prosecution has proved the offence of attempted robbery having testified that there was robbery that the two accused persons participated in the robbery. The two accused persons are hereby convicted for the offence of attempted robbery punishable under section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Laws of the Federation of Nigeria 2004.”
Sentence. The court hereby sentenced them to a prison term of 14 years each with no option of fine but hereby orders or deducts the two years spent while awaiting trial; from the said 14 years, thus they will have 12 years each, sentence to run concurrently.
Dissatisfied by the judgment, the appellant has lodged the instant appeal against his conviction and sentence.
Notice of appeal containing seven grounds of appeal dated and filed 7/3/2013. Appellant’s brief of argument was settled by Abdulwahab Bamidele Esq. He adopted the said brief as the appellant brief of argument in this appeal and urge the court to allow the appeal, set aside the judgment of the trial High court, order that the appellant be discharged and acquitted of the offences of criminal conspiracy, and attempted robbery.
Parties to this appeal exchanged their respective briefs in accordance with the Rules of the court.
The respondent’s brief of argument was settled by Kamaldeen Ajibade Esq. Hon. Attorney General and Commissioner for Justice Ministry of Justice Ilorin. He adopted the said brief as Respondent’s brief of argument in this appeal and urge the court to dismiss the appeal, affirm the judgment of the court below.
On behalf of the appellant, the learned counsel raised two issues for determination out of seven grounds. The issues read as follow:
ISSUE 1
Whether the defence of alibi raised by the appellant was properly investigated or investigated at all by the police and whether the lower court could in the circumstances of this case rightly conclude that the defence of alibi did not avail the appellant.
ISSUE 2
Whether the totality of the evidence presented by the prosecution amounts to a proof beyond reasonable doubt of the offences of criminal conspiracy and attempted robbery against the appellant as found by the lower court.
ISSUE NO 1
(This issue No. 1 covers grounds 3, 4, and 5 of the grounds of appeal in the appellant’s notice of appeal). Legal submissions in support.
On behalf of the appellant the learned counsel submitted that the law is settled that once the question of the presence of an accused person at the scene of the crime is in issue in a criminal proceeding, the court must be satisfied from available evidence that the accused person was the person that committed the offence in question before other issues in the case are dealt with as the defence of alibi is an absolute and complete defence in Law. In the case of Almu vs. State (2009) 4-5 SC (Pt 11) 33 the Apex court at page 50 held:
“The Law is settled that in a situation where the court entertains even the slightest of doubt, that doubt should be resolved in favour of the accused” also at page 53 held thus:
“The burden is on the prosecution to prove beyond reasonable doubt that the appellant was not only at the scene of the crime but that he committed the offence charged.”
Learned counsel went further the law is settled that the police, investigating a criminal allegation against a person who has raised a defence of alibi, is under a mandatory duty in law to investigate the defence of alibi so raised at the earliest opportunity. It is not for police to investigate an aspect of the case and leaving the other aspect as the police must conduct a full and detailed investigation of any criminal allegation.
See Azeez vs. State (2006) All FWLR (Pt 337) 485 (where the Court of Appeal of this noble Division decided on 21/2/2005 at page 495 that once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate and rebut such evidence in order to prove the case against the accused beyond reasonable doubt and that there is no onus on the accused to prove the alibi beyond that of introducing the evidence).
Learned counsel went further to say the failure of the prosecution to adduce evidence at all on the alibi raised by the appellant as affirmed by the findings of the court is a sufficient ground for setting aside the conviction of the appellant as the burden to prove the allegation brought against the appellant is squarely on the prosecution and not otherwise. The onus to prove in particular that the appellant and 2nd accused person were the actual persons that robbed PW2 at the scene of the crime as alleged necessitates the need for the prosecution to thoroughly investigate the defence of alibi raised by the appellant or the need for the lower court to be circumspect or vary about the evidence of the prosecution on the issue which was not done in this case by reason of which substantial miscarriage of justice has been occasioned to the appellant.
See Udosen Vs. State [2007] All FWLR (Pt 356) 669.
It was decided that if at the end of the whole case there is a reasonable doubt created by the evidence given either by the prosecution or the prisoner, as to whether the offence was committed by him, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
See also Ekpe vs. The State (1994) 12 SCNJ 131 and Woolmington vs. The D.P.P. (1935) 25 C.A.R. T2.
The respondent’s counsel adopted all the issues formulated by the appellant for determination in this appeal.
In response to issue 1 the learned counsel, on behalf of the respondent submitted that the defence of alibi raised by the appellant before the trial court is devoid of the necessary evidential weight solid enough to disprove the evidence of the prosecution in this case.
He further submitted that a general defence of alibi without sufficient facts to warrant an investigation is clearly poros and vague and can not avail an accused person. See Udoebre vs. The State (2001) FWLR part 59, 1244 at 1259.
He further submitted that to take advantage of this defence, the appellant must have given a detailed particularization of his whereabouts on the crucial day of the offence which will include not just the specific place(s) where he was, additionally, the people in whose company he was and what if any transpired at the said time and place(s). Clearly such comprehensive information furnished by the accused person must unquestionably be capsule of investigation by the police should they wish to do so. See Udoebre vs. The State (supra) at page 1258.
He further stated that the appellant in his extra-judicial statement admitted as exhibit P5 before the trial court said:-
“It was not true that it was myself, Muhammadu Namah Yalia and Danlodo that robbed Seriki Abubakar Mai-Arewa along late village road last month June, 2011. When Seriki Abubakar Mai-Arewa alleged that he was robbed I was having eyes pain and I could not go anywhere.”
He further submitted that the narration of the whereabouts of the appellant is vague, unascertainable and lacking in any serious fluidity for a serious investigator to set out to cross check. He alleged he did not go anywhere, presumably he was at home. But with who was he? What was he doing? All these are facts he did not supply for any useful investigation.
He further said that the learned trial judge on page 73 of the record found that the appellant and his partner did not state the exact date they claimed they work for the said Gajere. It was also the finding of the learned trial judge that the 2nd accused in exhibit P4 mentioned that he went to work with one Kunliya of Essanti village and his Lordship finally concluded that the appellant was inconsistent with his story on alibi. See page 74 of the record.
He further submitted that the principle underlying the defence of alibi vis a vis the role of the investigating police officer were apply captured by per Ajike JSC (as he then was) in Udoebre vs. The State supra at page 1259 of the judgment thus:
“Where a defence of alibi consist of vague accounts which are simply placed before the court as mere make beliefs of plea of that defence, and which are completely devoid of material or sufficient facts worthy of investigation, the police in the circumstances would least be expected to mark on a wild goose chase, all in the name of investigation. In such a situation, the court would have nothing before it to consider by way of alibi.”
I hereby resolved that the defence of alibi will not avail the appellant. I have rejected the defence as lacking in any merit. In Nwaturuocha vs. State in suit No. S.C.197/2010 delivered 11/3/11 the supreme court held “that where the appellant was identified by the prosecution witness, without any equivocation, a straight issue of credibility will arise, that is to say where an alibi has been raised and there is visual positive identification of the accused which is believed by the trial court, the appellate court should not disturb such a finding i.e. where there is more credible evidence fixing the accused person with the commission of the crime, the defence of alibi will not avail him per J.A. Fabiyi JSC His lordship went further to say that proof beyond reasonable doubt is not proof beyond all iota of doubt, and would not be stretched beyond reasonable limit otherwise it will cleave”.
Therefore issue 1 that covered grounds 3, 4 and 5 of the grounds of appeal in this appeal has no merit and accordingly failed.
ISSUE NO 2
This issue covers grounds 1, 2, 6 and 7 of the grounds of appeal in the appellant’s notice of appeal.
Legal submissions in support.
The learned counsel said that the evidence of PW1, PWA and PW5 in totality relates to the roles respectively played by PW1 as all Exhibit keeper, PW4 as an investigator and PW5 as an investigator respectively. The evidence of PW1, PW4 and PW5 cumulatively did not show or establish any of the critical ingredients of the two offences brought against the appellant and the 2 accused person particularly in relation to the issue or question of whether or not the appellant and the 2 accused person were indeed the persons robbed PW2 at night on 20/06/2012.
To determine whether or not the evidence presented by the prosecution could sustain the conviction and sentence of attempted robbery and criminal conspiracy. It is pertinent to refer to the evidence available to the lower court. The evidence of PW2 from line 14 of page 40 of the record is that:
“I then called on Okada man called Audu who took me from that place going to lata, at a corner where there is a sandy soil, I saw three people come out from the bush, they started abusing and shouting on us, the full light of the Okada man reflected on them and I recognized the 3rd of them. The 3rd people were holding cutlass and stick, the 1st accused beat me with a stick and the 3rd of them started beating me and felt down to the ground. I wanted to remove my money and throw it off, the 1st accused then caught my hand, the 2nd accused held my leg and felt money, used his cutlass to cut my trouser, removed the money and ran away”.
He further submitted that the prosecution did not call the person which allegedly rescued PW2 from the scene of the crime neither did the prosecution call PW6 son (Gambo) whom PW2 asked to report the incident to the police as to determine the veracity of PW2 that the appellant and 2nd accused person were the persons that robbed PW2 in the night of 20/06/2011 and whose names were asked to be reported to the police. The prosecution did not also call the member(s) of the vigilante that PW3 claimed he brought to the scene of the crime immediately after the robbery incident. It is however to be appreciated that both PW2 and PW3 made statements to the police and were listed as prosecution witnesses before they proffered their respective evidence to the lower court.
He further submitted that the lower court concluded that the evidence presented by prosecution showing that there was robbery and that the appellant and the 2nd accused person participated in the robbery has established the offence of attempted robbery. It is our contention that the ingredients of the attempted robbery have been established.
The essential ingredients of the offence of robbery are that, there was robbery or series of robbery, that each robbery was an armed robbery and that the accused was one of those who robbed. See Bello vs. State (2007) 10 NWLR (Pt.1043) 564, Alabi vs. The State (1985) 2 NWLR (Pt 8) 465 at 469 and Nwaturuocha vs. State (2011) 2-3 SC (Pt 1) 111 at 135. On the contrary the language of section 2(1) of the Robbery and Firearms (Special Provisions) Act pursuant to which the appellant was convicted provides:
“Any person who, with intent to steal anything assaults any other person and at or immediately after the time of the assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.” The critical ingredients of the offence of attempted robbery under section 2(1) of the Robbery and Firearms (Special Provisions) Act are:-
(1) Assault of the victim of the alleged robbery incident.
(2) The use of Violence and or threat of use of violence on the victim.
It is submitted that the law is settled that testimonies or evidence of witnesses are said to be contradictory when they are inconsistent with accounts of the same event as in this case.
See Eke vs. State (2011) 1-2 SC (pt 11) 219 and Ikemson vs. The State (1989) 6 SC (pt 11) 144.
In the former case of Eke vs. State (supra) the Supreme Court at page 222 held that.
“For contradictions in the evidence of witnesses to vitiate a decision, they must be material and substantial. Such contradiction must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified, or as to the reliability of such witness. In firm, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party.”
He contented that the reliance of the lower court on the material contradicted evidence of both PW2 and PW3 on the assault and use of violence on PW2 when he was said to have been attacked has occasioned substantial miscarriage of justice to the appellant in his conviction for attempted robbery. The contradicted piece of evidence of PW2 and PW3 were heavily relied upon by the lower court without which the lower court would have no other evidence for convicting the appellant and the 2nd accused person.
In response to issue 2, the learned counsel for the respondent submitted that from the totality of evidence adduced by the prosecution the offences of criminal conspiracy and attempted Robbery was sustained at the trial court beyond reasonable doubt. To sustain a charge of criminal conspiracy pursuant to section 6(b) of the Robbery and Firearms Act, the prosecution is expected to establish the following:-
(a) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
(b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically that each of the accused individually participated in the conspiracy. See State vs. Salawu (2010) All FWLR Pt 614 at page 29. Adekunle vs. The State 1989 12 SCNJ 184, Nwosu vs. The State (2004) All FWLR (Pt 218) 916.
It is our further submission that to sustain conspiracy all that the prosecution is required to do is to prove the inchoate or rudimentary nature of the offence and the inference of meeting of minds of the accused persons. Conspirators, in law need not be in direct communication in respect of the offence charged. A court of law can infer conspiracy from the criminal acts of the parties including evidence of complicity. See Iwuneze vs. The State (2010) 5 NWLR 658 page 550 at 560 – 561 and Osondu vs. FRN (2000) 12 NWLR 682 page 483 at 501 – 502.
Learned counsel submitted that a community reading of the evidence of PW2 and PW3 rightly lead the learned trial judge to only one conclusion that the two accused persons herein and their cohort on crime one Danloto jointly conspired to rob PW2 some times in the month of June, 2011. Submitted further that the evidence of PW2 on the way and manner the two accused and one other at large robbed him fully establishes an inference from which the learned trial judge rightly infer an agreement to commit the act of armed robbery. PW2’s evidence on this was properly corroborated by the evidence of PW3 who was with PW2 on a motorcycle at the scene of the crime on that day.
In the instant case, the capsule summary of evidence of PW2 and PW3 was that sometimes on June, 2011 as they were coming on a motorcycle from Maraba to Lata, the two accused persons and one Danloto attacked them at a junction and dispossessed PW2 of all his money. These pieces of evidence was not rebutted nor controverted under cross examination. It therefore becomes good evidence upon which the trial judge acted. See Ebeinwe vs. The State (2011) 7 NELR Pt 1246, 402 at 408, Ukwuyok vs. Ogbwu (2010) 5 NWLR Pt.1187; 316 at 321.
Learned counsel further submitted that to constitute an attempt in Law, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence, See Geoffrey Ozigbo vs. Cap. (1979) 2 SC 67 at 74.
He went further to say there is no dispute that by the evidence before the trial court the victim of the robbery, PW2 knew the appellant and his partner very well before the crime and the appellant knew the victim very well for over five years. See page 49 of the record.
Also that the evidence of PW2 and PW3 who are eyes witness account of the robbery disclosed a clear case of attempted robbery beyond reasonable doubt as it clearly manifested the role played by lack of the accused persons in the cause of the robbery operation.
The above argument cannot stand in view of the evidence of PW2 on page 40 of the record where he stated thus:-
“I saw three people came out from the bush, they started abusing and shouting on us, the full light of the Okada man reflected on them and I recognized the three of them.”
And in the same manner PW3 who was riding the motorcycle conveying both of them said in page 40 of the record thus:-
“I flashed them with full light of my machine and as the full light showed on the two accused, another person came out of the bush and started beating me with stick and my motorcycle fell down.”
In Jerry Ikpenikan vs. The State (2011) 1 NWLR (Pt. 1229) 449 at 454 the Apex court made a clear distinction between contradiction and discrepancies in evidence of witnesses thus:-
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence state. In effect, two pieces of evidence contradict one another when they are themselves inconsistent. But a discrepancy in evidence occurs when a piece of evidence stops short, or contains a little more than what another piece of evidence says, or contains some minor difference in details. In the instant case, the contradiction in the evidence of the prosecution witnesses as to the date when the robbery was reported was not enough to discredit their evidence”.
Learned counsel further submitted that the pieces of evidence highlighted by the appellant are mere discrepancies with no substantial contradictions. For example PW2 said three people came out of the bush while PW3 said he saw two people and one other (making 3) came out of the bush. PW2 said they attacked him with cutlass and sticks, PW3 said they attacked with sticks, a little more than what PW2 said. PW3 said he ran away shortly after the attack and was hearing PW2 shouting of pain as he fled. Of course it follows that the shouting was as a result of the beating. So where lies the contradiction?
Certainly none.
Submitted further that the prosecution is not bound to call all and every witness present at the locus criminis. It is only to call witnesses who would give relevant evidence in proof of its case. See Iziren vs. The State (1993) 9 NWLR Pt 420 page 385 at 390.
That the evidence of PW3 clearly shows that there was a robbery attack on PW2 on the 20/6/2011. His evidence further, shows that three people well responsible for the attack which PW2 suffered on that day at the scene of crime. There was no way this piece of evidence contradicts one another on the subject matter to wit attack on PW2. PW3 was also beaten and had to flee for his life leaving PW2 at the scene. He heard PW2 shouting as he was running away. This is a clear narrations of events devoid any ambiguity.
Even in the case of Eke vs. The State (2011) 1 – 2 SC (Pt 11) 219 cited by the appellant counsel; the Supreme Court made it clear when it held that:-
“In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party”.
The Supreme court in Charles Anyaele and others vs. The State SC.299 (1971) delivered on February 23rd, 1973 made this distinction when it held:-
“When considering the value of the identification of an accused person by witness, a distinction should be drawn between a witness who has merely made a brief acquaintance with the person being identified and one who knows him well. And since in the present case the witness who testified against the appellants knew them well, the acceptance of their evidence by the trial judge was proper and was not open to any objection”.
I carefully perused the submissions of both counsel on issue 2. Later come to resolve that the appellant’s issue has no merit as well as all the grounds of appeal in this appeal. Accordingly resolve this issue in favour of the respondent that.
(1) The defence of alibi raised by the appellant before the trial court cannot avail him.
(2) From the totality of evidence before the trial court, the prosecution established the offences of criminal conspiracy and attempted armed robbery beyond reasonable doubt.
I hereby dismissed the appeal, affirmed the conviction and sentence of the trial High court of Justice Kwara State dated 21st day of December, 2012.
DR. HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Musa Hassan Alkali, J.C.A, just rendered. I fully agree with him that for the reasons set out in the said judgment, this appeal should be dismissed.
I therefore dismiss this appeal on the reasons ably advanced in the lead judgment.
UCHECHUKWU ONYEMENAM, J.C.A.: I agree.
>
Appearances
Abdulwahab Bamidele Esq.For Appellant
AND
Kamaldeen Ajibade Esq. Honorable Attorney General Commissioner for Justice Ministry of JusticeFor Respondent
