SUNDAY CHINEMEREM OBASI v. THE STATE
(2019)LCN/12788(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/IL/C.87/18
RATIO
CRIMINAL LAW: TO SUCCEED IN THE CHARGE OF ARMED ROBBERY
“To succeed on a charge of attempted armed robbery, the prosecution must lead evidence to show the steps taken by the accused person to commit armed robbery. That is to say, the last act by the accused person before the main act which would have resulted in the commission of armed robbery had he not been interrupted. The essential elements are: a. A physical act by the accused which is sufficiently proximate to the consummation of the actual offence that is preparations towards the commission of armed robbery. b. An intention on the part of the accused person to complete the offence attempted to be committed, armed robbery.
The steps taken by the appellant must therefore be proved beyond reasonable doubt. See, OSETOLA and ANOR VS. THE STATE (2012) LPELR 9348 (SC) PP. 43 – 44, PARAS C – A; (2012) 17 NWLR (PT. 1329) P. 251 and OLOMO VS. STATE (2014) LPELR 22517 (CA) PP. 36 – 38, PARAS. C – A.” PER CHIDI NWAOMA UWA, J.C.A.
CONFESSION: CONFESSION OF AN ACCUSED PERSON
“On the confession of an accused person, this Court had held that the: ‘evidential value of a confession of truth is very great indeed. It is very much sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See: REP. VS. CHARTWOOD (1980) 1 WLR 874; JAMES OBI ACHABUA VS. THE STATE (1976) 12 SC 63 at 68; JIMOH YESUFU VS. THE STATE (1976) 6 SC 167.’ INUSA SAIDU VS. THE STATE (1982) 4 SC 41 at 58 – 59. In OGOALA VS. THE STATE (1991) this Court per Olatawura, JSC (of blessed memory) stated that ‘a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part taken by an accused. See, OKEKE VS. STATE (2003) 15 NWLR (PT. 842) 2 SC and OBOT VS. STATE (2014) LPELR 23130 (CA). Contrary to the submission of the learned counsel to the appellant, outside Exhibit P13 the evidence of the PW2, PW4 and PW5 was clear and precise as to the role the appellant played on that day, before, during and after the incident. The appellant would have committed the substantive offence of armed robbery had he and his gang not been stopped.” PER CHIDI NWAOMA UWA, J.C.A.
INTERPRETATION: MEANING OF THE TERM ‘CONSPIRACY’
‘The general definition assigned to the word ‘conspiracy,’ in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the respondent was charged, Section 96 thereof defines ‘conspiracy’ as follows: ‘(1) when two or more persons agree to do or cause to be done ? (a) An illegal act; or (b) An act which is not illegal by illegal means.’ See, also KAYODE VS. STATE (2016) LPELR 40028 (SC) P. 32, PARAS. A – B; IRENE NGUMA VS. ATTORNEY – GENERAL, IMO STATE (2014) LPELR & 22252 (SC) PP. 31 – 32, PARAS F & A; (2014) 7 NWLR (PT. 1405) P. 115, GABRIEL OGOGOVIE VS. THE STATE (2016) LPELR -40501 (SC) P. 25, PARAS. A – C; OBIAKOR & ANOR VS. STATE (2002) LPELR 2168 (SC) P. 13, PARAS. C & F and OLOYE VS. STATE (2018) LPELR 44775 (SC) PP. 29 – 30, PARAS. F & E.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
SUNDAY CHINEMEREM OBASI Appellant(s)
AND
THE STATE Respondent(s)
CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment):
The Kwara State High Court, presided over by S.D. Kawu, Chief Judge on the 26th day of May, 2014 in its judgment convicted the Appellant for the offences of Criminal Conspiracy to commit Armed Robbery and Attempt to commit Armed Robbery contrary to Sections 6(b) and 2(2)(a) of the Robbery and Firearms Act, Cap. R.11 Laws of the Federation of Nigeria, 2004 respectively. The Appellant was thereafter sentenced to death by hanging and life imprisonment respectively.
The background facts are that when the appellant was arraigned, he pleaded not guilty to the charge. The prosecution called seven (7) witnesses and tendered fourteen (14) Exhibits. The Appellant?s extra judicial statement was tendered as Exhibit P13. The Appellant testified in his defence.
The Appellant who was dissatisfied with his conviction appealed against same. From his four (4) grounds of appeal, three (3) issues were distilled for the determination of the appeal thus:
1. Whether the learned Chief Judge was right when he convicted and thereafter sentenced the Appellant to life imprisonment for the offence of Attempt to commit Armed Robbery.
2. Whether the learned Chief Judge was right when he convicted and thereafter sentenced the Appellant to death for the offence of Criminal Conspiracy to commit Armed Robbery.
3. Whether the learned Chief Judge was right when he convicted and thereafter sentenced the Appellant to death and life imprisonment respectively for the offence of Criminal Conspiracy and attempt to commit Armed Robbery without an identification parade as required by law.
The Respondent on its part adopted the three issues formulated by the Appellant.
In arguing the appeal, the learned counsel to the Appellant Tomileye Omole Esq. adopted and relied on his brief of argument filed on 29th August, 2018 in urging us to allow the appeal and set aside the judgment of the trial Court. In arguing his first issue, it was submitted that the learned Chief Judge was wrong to have convicted and sentenced the Appellant to life imprisonment for the offence of attempt to commit armed robbery. It was argued that the Respondent did not prove the ingredients of the offence of attempt to commit armed robbery against the Appellant.
Reliance was placed on the cases of SHURUMO V. STATE (2010) 16 NWLR (PT. 1218) P.65 at 126-127, PARAGRAPHS H-B; P.128 PARAS. A-C; G-H; P.129 PARAS. A-C; DICKSON VS. STATE (2012) ALL FWLR (PT. 611) P.1534 at 1558 at PARAS. B-D; P.1559 PARAS. B-C. Further, that there was nothing in the evidence of the PW2 (Owolabi Temitope) the only eye witness, page 52-53 of the printed records of appeal, that suggested that the appellant attempted to rob on 24/5/12. It was argued that Exhibits P8, P9 and P10 (Photographs of the Appellant with another person) were made by the Respondent to prejudice the mind of the trial Court that money was recovered from the Appellant contrary to the evidence of the PW4 (Okoli Chigbo) that no money was recovered. It was argued that Exhibit P2 (the barretta pistol) was not an instrument of robbery and was not used. Also, that no ballistic test was carried out on Exhibit P2 to show that it was fired.
It was contended that there is nothing outside Exhibit 13 (Appellant’s confessional statement) to show that his admission to the offence of attempt to commit armed robbery is true. It was argued that the said Exhibit was not contradicted in any way for the trial Court to have relied on same to convict the Appellant for the offence of attempt to commit armed robbery. Further, that the Respondent did not prove that the Appellant formed the intention to commit the offence of attempted robbery or that the Appellant made preparations towards the commission of armed robbery as required by law. It was argued, that the learned Chief Judge substituted his views for the missing link in the appellant’s case because the evidence of the eye witnesses is not credible and the circumstantial evidence did not lead irresistibly to the conclusion that the Appellant and no one else committed the offences levied against him. It was submitted that the appellant denied the contents of the charges against him. It was concluded on this issue that the ingredients of the offences were not proved, reliance was placed on the cases of AFOLALU VS. STATE (2010) 6 -7 MJSC 187 at 219 – 220 PARAGRAPHS G & A, EYO VS. STATE (2014) 1 NWLR (PT. 1335) P. 324 at 340 PARA. C and ABIODUN VS. FRN (2009) 7 NWLR (PT. 1141) 489 at 509 PARAGRAPHS E – G.
On the appellant’s issue two, it was submitted that the appellant denied knowledge of his co-accused person. It was argued that the Respondent did not discharge the burden on it that the Appellant conspired with another to attempt to commit armed robbery. Reliance was placed on the cases of YAKUBU VS. STATE (2014) 8 NWLR (PT. 1408) PAGE 11 at PAGE 123, PARAS. F – H; OBASANJO-BELLO VS. FRN (2011) 10 NWLR (PT. 1256) PAGE 605 at 626, PARAGRAPHS B – C; USUFU VS. STATE (2007) 1 NWLR (PT. 1020) PAGE 94 at 113 PARAGRAPHS F – H and GARBA VS. COP (2007) 16 NWLR (PT. 1060) P. 378 at 405 PARAGRAPHS A – B.
It was submitted that the Respondent failed to prove that the appellant took part in the alleged conspiracy in that the specific role played by the appellant in the alleged conspiracy to commit armed robbery was not stated. See, AKPA VS. STATE (2008) 14 NWLR (PT. 1106) 72 at 101 PARAGRAPHS E – F, ADEPETU VS. THE STATE (1998) LPELR – 135, FOTOYINBO VS. A.G. OF W.N (1996) WNLR 4, 7; UDEDIBIA VS. THE STATE (1976) 11 SC 133; ADIE VS. THE STATE (1980) 1 – 2 SC 116; OMOGODO VS. STATE (1981) 5 SC and SALISU ISIAKA VS. THE STATE (2011) LPELR – 8833 (SC).
In the appellant’s issue three, the learned counsel faulted the appellant’s conviction in absence of an identification parade. It was submitted that the eye witness, the PW2 (Owolabi Temitope) admitted under cross examination that he had never set eyes on the Appellant before the incident. It was argued that his meeting with the Appellant, if at all was brief and he had no knowledge of the characteristic nature of the Appellant; reference was made to page 54 of the printed record of appeal. It was stressed that an identification parade ought to have been conducted which would have made a difference in the outcome of the judgment of the learned Chief Judge. See, OKANLAWON VS. STATE 17 NWLR (2015) (PT. 1489) PAGE 445 at PP. 473 – 474, PARAS. D ? B, ARCHIBONG VS. STATE (2004) 1 NWLR (PT. 855), 488 at 509 PARAS. E – H and ADAMU VS. STATE (1991) 4 NWLR (PT. 187), 530. It was argued that proper identification is necessary in the trial of an accused person especially where circumstances exist to cast doubt on the identity of the accused person. See, ANI VS. STATE (2009) 16 NWLR (PT. 1168) PG. 443 at PARAS. D ? E. It was the contention of the learned counsel to the appellant that, the appellant was neither apprehended at the scene of the crime nor at the time the offence took place, therefore a formal identification parade ought to have been conducted. See, MARTINS VS. STATE (1997) 1 NWLR 481, 355 at 370 PARAGRAPHS B – G. It was concluded that failure to conduct a proper identification parade occasioned a miscarriage of justice on the Appellant.
In response, the learned Chief State Counsel, Kwara State Ministry of Justice (CSC), M.O. Yusuf Esq adopted and relied on his brief of argument filed on 2/10/18, in urging us to dismiss the appeal and affirm the judgment of the lower Court. In response to issue one, the learned CSC reviewed the provisions of Section 2(1) of the Robbery and Firearms (Special Provisions Act) where attempted robbery was defined as well as Section 2 (2)(a) and (b) of the same law which provides for the necessity of being armed with any firearm or any offensive weapon or being in company of any person so armed in respect of any offender mentioned in Subsection (1) of Section 2 above. Reference was made to the case of DICKSON VS. STATE (2012) ALL FWLR (PT. 611) 1538 at P. 1559, PARAS. B – D.
In outlining what needs to be proved in an offence of attempted robbery, it was submitted that the prosecution must establish that the accused persons had taken some steps and done some acts which established beyond reasonable doubt that those steps or acts were directed towards the commission of the offence of armed robbery. Further, that the evidence of the PW2, PW4 and PW5, pages (52 – 78 of the record) would no doubt lead to the conclusion that had the Appellant not been intercepted by the Crowd, he would have successfully dispossessed Taiye Badero of his money but, escaped before he was arrested.
It was contended that the evidence of the PW2 (an eye witness) with the evidence of the PW4 who arrested the appellant and the 1st accused person with the contents of Exhibit P.13 (Statement of the Appellant) established all the ingredients of the offence of attempted armed robbery against the appellant. The evidence of the PW2 and PW4 was said to have been in line with that of the PW5 upon whose instruction the PW2 acted which corroborated the contents of Exhibit P.13, pages 20 -22 of the record of appeal. It was argued that the appellant?s confession alone is enough for his conviction. See,OKERE VS. STATE (2013) 5 SCNJ 131 at 189 and MATHEW OKE ONWUMERE VS. THE STATE (1991) 5 SCNJ at 163. Also, that the Respondent need not prove that Exhibit P.2 was fired, a threat to use violence surfices. See, EDET ASUQUO BASSEY VS. THE STATE (2012) 12 NWLR (PT. 1314) PAGE 209.
It was further argued that from the evidence of the PW2, PW3, PW4 and the contents of Exhibit P.13, the appellant had done all that he needed to do to complete the commission of the substantive offence of armed robbery had he not been interrupted by the intervention of the crowd that was attracted to the scene by the gun shot by the appellant’s colleague and the immediate arrival of the police patrol team at the scene. See, SHURUMO VS. THE STATE (2011) ALL FWLR (PT. 568) 864 at P. 890, PARAS. B – E.
In arguing the second issue, it was submitted that the prosecution established a case of criminal conspiracy against the Appellant beyond reasonable doubt pursuant to Section 6(b) of the Robbery and Firearms (Special Provisions) Act (supra). It was submitted that conspiracy can be inferred and that all the prosecution needed to prove was a meeting of the minds of the accused persons. Further, that the conspirators need not be in direct communication in respect of the offence charged. See, IKWUNNE VS. THE STATE (2000) 5 NWLR (PT. 658) PAGE 550 at 560 ? 561 and OSONDU VS. FRN (2000) 12 NWLR (PT. 682) PAGE 483 at 501 – 502. Agreement it was argued, could be inferred. See, also ONYENYE VS. STATE (2012) ALL FWLR (PT. 643), 1810 at 1832 – 1833 and OGOGOVIE VS. STATE (2016) ALL FWLR (PT. 847) 425, 447 – 448 PARAS. G ? B. Further, that the evidence of the PW2, an eye witness and the evidence of the PW6 who lodged the Appellant and the 1st accused person (at the trial) in the hotel a night before the incident via Exhibit P14, with Exhibit P.13, pages 19 – 22 of the record would lead this Court to only one inference that the appellant, the 1st accused person and others at large conspired to rob the victim, Taiye Oladapo Badero of his money on or about the 24th day of May, 2012. It was contended that the prosecution led cogent and compelling evidence to show that the appellant acted in concert with other armed robbers to rob. The evidence of the PW4, PW5 and PW6 were said not to have been controverted or debunked by the appellant. It was concluded that the learned trial Chief Judge was right to have held that the appellant and his team are conspirators in crime.
In arguing issue three, it was submitted that, the identification of the appellant was not in doubt before the trial Court. Further, that an identification would only be necessary where the arrest and the circumstances of same is based on suspicion as opposed to proper identification of the appellant by the PW2. It was submitted that the PW2 gave an accurate account in his testimony before the Court. It was re-argued that the evidence of the PW2, PW4, PW5 and PW6 proved beyond reasonable doubt that the appellant is one of the robbers that attempted to rob the victim on the 24th day of May, 2012.
It was submitted that the appellant and his co-accused led the police detectives to the scene of the crime where the victim was shot and the pool of blood was still in sight. This piece of evidence was said not to have been controverted. See, ADAMU VS. THE STATE (1991) 4 NWLR (PT. 187), 530 at 537 – 538. Also, that the appellant confessed to the crime therefore, that the issue of improper identification did not arise. It was argued that the appellant could be lawfully convicted on the confession alone. See, USUNG VS. THE STATE (2008) ALL FWLR (PT. 402) 1203, 1236 – 1237. See, also ADISA VS. THE STATE (1991) 1 NWLR (PT. 168) 490 at 506 PARAS. B – D to the effect that an identification parade is unnecessary where the suspect is caught in the act or immediately after, also where the suspect admits committing the offence. It was also argued that apart from the identification of the appellant by the PW2, PW4 and PW5 who were present during the arrest of the appellant, all the surrounding facts fixed the appellant at the scene of the crime. See,OKANLAWON VS. STATE (supra) at PAGES 473 – 474, PARAS. D ? B.
It was concluded that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. See, MILLER VS. MINISTER OF PENSION (1947) 2 ALL ER 371 at 373 H; LORI VS. STATE (1980) 8 ? 11 SC 81 at 99 and AKALEZI VS. THE STATE (1993) 2 NWLR (PT. 273) 1 at 13 CA.
The Appellant was charged and convicted for the offence of criminal conspiracy to commit Armed Robbery pursuant to Section 6(b) of the Robbery and Firearms Act, Cap R. 11 Laws of the Federation of Nigeria, 2004 (hereafter referred to as the Act).
Section 6 provides as follows:
6 ‘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 person with firearms 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 accordingly under this Act.’
The Appellant was also charged and convicted for the offence of Attempt to Commit Armed Robbery contrary to Section 2 (2)(a) of the Robbery and Firearms (Special Provision Act) which provides as follows:
Section 2 (2) (a) ‘ Any offender mentioned in Subsection (1) of this section is armed with any firearms or any offensive weapon is in company with any other person so armed; or
(b) at or immediately before or immediately or immediately after the time of the assault the said offender wounds or uses any other personal violence to any person, the offender shall upon conviction under this Act be sentenced to imprisonment for life.’
To succeed on a charge of attempted armed robbery, the prosecution must lead evidence to show the steps taken by the accused person to commit armed robbery. That is to say, the last act by the accused person before the main act which would have resulted in the commission of armed robbery had he not been interrupted. The essential elements are:
a. A physical act by the accused which is sufficiently proximate to the consummation of the actual offence that is preparations towards the commission of armed robbery.
b. An intention on the part of the accused person to complete the offence attempted to be committed, armed robbery.
The steps taken by the appellant must therefore be proved beyond reasonable doubt. See, OSETOLA and ANOR VS. THE STATE (2012) LPELR 9348 (SC) PP. 43 – 44, PARAS C – A; (2012) 17 NWLR (PT. 1329) P. 251 and OLOMO VS. STATE (2014) LPELR 22517 (CA) PP. 36 – 38, PARAS. C – A.
The PW2 (CPL Owolabi Temitope) a commercial motorcyclist gave account of how he monitored the appellant and his colleagues at the bank, with the help of the police they were arrested after shooting one of their victims Taiye Oladapo Obadero who had come out from the bank. Two of the appellant?s colleagues escaped while the appellant was arrested with his colleague who was armed with a gun; pages 52 ? 53 of the record of appeal. The account of the incident given by the PW2 was supported by that of the PW4. The PW4 (Sgt Monday Ogidi Agba) was on duty outside the bank where the incident took place, his account of the incident tallied with that of the PW2. The PW4 in company of the PW2 arrested the appellant and his colleague from whom he recovered one automatic barreta pistol N0. 7787 with seven (7) rounds of ammunition. The evidence of the PW5 (Gbenga Ojo, SP) supported the evidence of the PW2 who acted upon his instruction after he was alerted by the happenings around their park and the Banks in the area, pages 78 ? 79 of the record.
Further, the statement of the appellant made to the police, Exhibit P13 is clear as to the role the appellant played on the day of the incident. Part of Exhibit P13 reads thus:
So on Tuesday 22/05/2012 Okei (m) came to me in Owerri to pick me. Okei (m) came with one Emeka (m) and one other boy whom I did not know…
Four of us that came from Owerri together slept in one Hotel. We were two each in a room. On Wednesday 23/05/2012 I did not go out with them for any armed robbery operation as I was in my Hotel room throughout.
On Thursday 24/05/2012 Okei left us in the Hotel in the morning and Emeka (m) was the one that drove Okei Honda car with me and the Akwa – Ibom boy (inside) to the premises of fFirst Bank Plc Unity Road Ilorin where we met Okei on top of one Daylong Motorcycle which he asked me to take over and that I should carry Emeka with it while Okei and the Akwa – Ibom boy took over Okei (m) Honda car. While at the premises of the first Bank, Chiboy and his gang came with Avalon car and two motor cycles. While still at first Bank Okei (m) the Akwa – Ibom boy, Chiboy, Okute and Iyke went inside the Bank to monitor the customers who are withdrawing money.
As Iyke came out he showed us a young man that came out from the Bank and asked us to trail him. So I carry Emeka, Morris from Chiboy gang carried Oscar while the Akwa – Ibom boy carry Okute and we started pursuing the young man who has already boarded a commercial motorcycle going through Obbo road and on getting to Total filling station near Post Office the man we were pursuing jumped down from the commercial motorcycle and started running with the black nylon containing the money he withdrew from the Bank, so Okute (m) brought out a pistol and shot him three times. As crowd came out we all abandoned the man and escaped with our motorcycles to the front of Skye Bank along Muritala road Ilorin where Okei and Chiboy were already in the Skye Bank premises with their cars monitoring unsuspected victims. While myself (and) the Akwa – Ibom boy and Obasi were on top of our motorcycles waiting for our victims some policemen and spirited individual came and arrested us. When Obasi was immediately searched by the police at the spot one English made pistol was recovered from him. The Jaylong motorcycle and the jincheng motorcycle Obasi (m) was riding were recovered to SARS office Ilorin, other members of my gang who were hanging around the Skye Bank escaped together with Okei and Chiboy who were also in the Skye Bank premises also escaped with their cars.
The statement of the appellant to the police, Exhibit P13 is clear and leaves no room for doubt that he was one of the gang members that stormed the bank inside and outside and tried to rob their victims while armed, shot Taiye Oladapo Badero who was carrying a polythene bag (supposedly money) from the bank. The confession of an accused person is usually the best evidence, coming from the horse’s mouth so as to say in a criminal trial. An admission of having committed the offence is the best evidence in a trial and plays a major role in the determination of the guilt of the accused person and the Court can rightly convict on the confession if it comes to a conclusion that the confession is voluntary. In the present case, the learned trial Chief Judge after the trial within trial did hold that Exhibit P13 was voluntarily made, therefore the issue of the voluntariness does not arise here. The confession alone put an end to speculation as to the criminal responsibility of the appellant. On the effect of a confession of truth, In TIRIMISIYU ADEBAYO VS. THE STATE (2014) LPELR 22988 (SC) PP. 46 – 47, PARAS. E – B his lordship Ariwoola, JSC explained it thus:
On the confession of an accused person, this Court had held that the: ‘evidential value of a confession of truth is very great indeed. It is very much sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See: REP. VS. CHARTWOOD (1980) 1 WLR 874; JAMES OBI ACHABUA VS. THE STATE (1976) 12 SC 63 at 68; JIMOH YESUFU VS. THE STATE (1976) 6 SC 167.’ INUSA SAIDU VS. THE STATE (1982) 4 SC 41 at 58 – 59. In OGOALA VS. THE STATE (1991) this Court per Olatawura, JSC (of blessed memory) stated that ‘a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part taken by an accused. See, OKEKE VS. STATE (2003) 15 NWLR (PT. 842) 2 SC and OBOT VS. STATE (2014) LPELR 23130 (CA). Contrary to the submission of the learned counsel to the appellant, outside Exhibit P13 the evidence of the PW2, PW4 and PW5 was clear and precise as to the role the appellant played on that day, before, during and after the incident. The appellant would have committed the substantive offence of armed robbery had he and his gang not been stopped.
On whether there was need to prove that Exhibit P2 (pistol) was fired/shot or not, I hold that a threat to use violence to obtain or retain the item intended to be stolen (in attempted robbery) or to prevent or to overcome resistence to the act of stealing or retaining the stolen item is enough to ground and sustain conviction for attempted armed robbery. See, Section 2 (2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act, earlier highlighted in this judgment.
A threat to use violence/force to obtain what was to be stolen is enough. In the present case, the targets were those customers coming out of the bank, presumably with money, as shown by the polythene bag collected from the victim who was shot before the appellant and his colleagues were apprehended while others ran away. The Appellant in this case, had done all that he needed to do to commit the offence of armed robbery had he and his gang not been stopped or interrupted by the crowd that was attracted to the scene by the gun shot by the appellant’s gang and the quick arrival and intervention by the police at the scene. What constitutes an attempt was summed up in OZIGBO VS.COP (1976) LPELR 2890 (SC) P. 12, PARAS. F ? G, REV. KING VS. STATE (2016) LPELR 40046 (SC) P. 64, PARAS. A – B and SHURUMO VS. STATE (supra). In OZIGBO VS. STATE (supra) his lordship Alexander, JSC held thus:
To constitute an attempt, 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 R V. EAGLETON, DEARS 515; R V ROBINSON, 11 CR. APP. R. 124; COMER VS. BLOOMFIELD 55 CR. APP. P. 305.
The evidence of the PW2 (an eye witness) is significant and was relied on by the learned trial Chief Judge alongside the contents of Exhibit P13. Part of the evidence of the PW2 who was at the scene of crime, at pages 52 – 53 of the printed records is as follows:
‘I looked at the faces of those sitting on the motorcycles I saw they were stranger i.e. they were not Okada riders plying our area/parks. Immediately I called O/C SARS and told him what I observed. He told me to be monitoring the people. Few minutes later two people came out of the first Bank and joined those on the motorcycles and headed towards Obbo Road, Ilorin. I called the O/C SARS and told him of the situation. He told me to be following those on the motorcycle. I followed them and discovered that a third motorcycle was going in front of the two which took off from the premises of the First Bank. The third motorcycle in front carried a person holding a polythene bag. One of two motorcycles behind shot the man carrying a polythene bag in the front motorcycle. The man carrying the polythene bag in the front motorcycle got down front the motorcycle and started running on his legs. Fortunately one of the people on the motorcycles behind shot the man with the polythene bag.
I showed the robbers to SGT Monday and team and they got the two robbers outside the bank arrested while the other two were inside the bank. Myself and the Police Officers got the two robbers arrested while the other two escaped. The two accused persons before the Court are those we arrested. We found a gun in the pocket of the 1st accused person. We took them into police custody. It was myself and one of my colleagues by name Abaya that found and arrested the accused persons. Myself and Abaya were in the same motorcycle. I rode it while Abaya sat at the back.’
After examining the evidence of the PW2 and Exhibit P13, the learned trial Chief Judge at pages 108 ? 111 of the record found as follows:
The evidence of PW2 fixed the two accused persons at the scene of crime at the time the crimes alleged were committed. His evidence also showed that both accused were arrested together at the premises of Skye Bank Plc Muritala Mohammed Way Ilorin. Both accused denied the evidence of PW2.
After examining the evidence of PW2 and that of the two accused on where the accused were arrested, I prefer the evidence of PW2 and hold that both accused were arrested at the premises of Skye Bank Plc Muritala Muhammed Road Ilorin and not at Unity road as stated by 1st accused and Post Office as stated by 2nd accused.
My reasons for this are:-
(1) The evidence of PW2 is supported by PW4 and PW5 who were present when both accused were arrested.
(2) The statements of the two accused persons admitted as exhibits P12 and P13 supported the evidence of PW2 that they were arrested at the premises of Skye Bank Plc.
The learned trial Chief Judge resolved that the accused persons were arrested at Skye Bank Plc Ilorin and determined that they were at the scene of crime and not elsewhere when the crime was committed and held thus:
‘My conclusion that both accused persons were arrested at the premises of Skye Bank Plc Muritala Mohammed Way, Ilorin is in line with the evidence of PW2 that he trailed the two accused persons and others at large from the premises of First Bank Plc through Obbo road, where one of them shot a passenger on a commercial motorcycle through lower Taiwo road and Unity road before ending up at the premises of Skye Bank Plc where they were arrested. PW2 was never discredited under cross-examination and his evidence is, in addition corroborated by the evidence of PW4 and PW5.’
The learned trial Chief Judge found the PW2 to be a reliable witness. The trial Court further held that:
‘Contrary to the submissions of learned defence counsel, I am satisfied that PW2 properly identified the accused persons because there was no break in the claim (sic) of events from the time that PW2 stop (sic) them in front of First Bank Plc, through Obbo road where they shot the victim and proceeded through lower Taiwo road, Unity road before they were eventually arrested at the premises of Skye Bank Plc. Both accused persons also confirmed the evidence of PW2 in their statements to the police admitted as exhibits P12 and P13.’
I am of the humble but, firm view that the learned trial Chief Judge properly evaluated the evidence before the Court before arriving at his decision. I cannot fault same.
The oral evidence of the PW4 confirmed the evidence of the PW2 who gave details of the chain of events on the fateful date. He gave a credible account of what transpired at Obbo road, Ilorin and at Skye Bank Plc. The PW2 also gave a good and credible account of how the Appellant and his co-accused took him to Obbo road junction, near a Total filling station where the victim Taiye Oladapo Gbadero was shot, on getting there, they saw a pool of blood and a gathered crowd. The PW6 a staff of Dimension Guest House confirmed that the appellant and his gang lodged at the Guest House before the incident. The PW4 gave evidence that after the arrest of the Appellant and his colleague, both took him to the same Guest House where they lodged before the operation. The evidence of the PW2, PW3, PW4, PW5 and PW6 tallied with the contents of Exhibit P13. The contents of Exhibit P13 is direct and the facts as given account of by the prosecution witnesses is consistent with it thus, making it true. The lower Court was right to have relied on it to convict the Appellant of attempted armed robbery. The first issue is resolved against the Appellant.
On the second issue, it is trite that the offence of conspiracy could be inferred since it is virtually impossible to prove criminal acts of the accused person by direct evidence done in pursuance of a criminal purpose in common in agreement with one another. The Appellant was charged with criminal conspiracy pursuant to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act (supra). Conspiracy generally has been variously defined by the Apex Court in STATE VS. SALAWU (2011) LPELR 8252 (SC) PP. 38 – 39, PARAS E & A, (also reported in (2011) 18 NWLR PT. 1279 P. 580) his lordship Muhammad, JSC defined it thus:
‘The general definition assigned to the word ‘conspiracy,’ in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the respondent was charged, Section 96 thereof defines ‘conspiracy’ as follows:
‘(1) when two or more persons agree to do or cause to be done ? (a) An illegal act; or (b) An act which is not illegal by illegal means.’
See, also KAYODE VS. STATE (2016) LPELR ? 40028 (SC) P. 32, PARAS. A – B; IRENE NGUMA VS. ATTORNEY – GENERAL, IMO STATE (2014) LPELR & 22252 (SC) PP. 31 ? 32, PARAS F & A; (2014) 7 NWLR (PT. 1405) P. 115, GABRIEL OGOGOVIE VS. THE STATE (2016) LPELR -40501 (SC) P. 25, PARAS. A – C; OBIAKOR & ANOR VS. STATE (2002) LPELR 2168 (SC) P. 13, PARAS. C & F and OLOYE VS. STATE (2018) LPELR 44775 (SC) PP. 29 ? 30, PARAS. F & E.
The trial Court was satisfied with the contents of Exhibit P. 13, the Appellant?s confessional statement, where he gave a graphic account of their hatching of their plan to go and rob. The PW2 gave account of the role the Appellant played at the scene while operating with his gang members. The PW6 also gave evidence that he lodged the appellant in the Guest House where he worked, the night before the incident. It could be rightly inferred that the appellant and his gang mates conspired to rob their victim Taiye Oladapo Badero of his money on that fateful day, 24/5/12 along Obbo Road, Ilorin, Kwara State. The Appellant in his statement, gave a detailed account of how he and his gang mates planned and positioned themselves in and outside the bank before the operation that led to their arrest and recovery of the pistol from Okute one of his gang members.
I agree with the submission of the learned Chief State Counsel that the prosecution led cogent and compelling evidence to show that the appellant acted in concert with his gang mates. The evidence of the PW2, an eye witness, the PW4 who arrested the appellant and was part of the investigating team and the fact that the Appellant and his co-accused took the police to the Guest House/Hotel where they lodged the night before the incident, all these were consistent with the contents of Exhibit P13 made by the Appellant which shows that the Appellant and his gang mates acted in agreement to commit an illegal act and intended to achieve their objective. These pieces of evidence and those of PW5 and PW6 remained uncontoverted by the appellant.
No doubt, the appellant and his gang mates acted as one, with a common purpose and in agreement to commit armed robbery. The trial Court was right to have held that the prosecution established the offence of criminal conspiracy against the appellant. The second issue is resolved against the Appellant.
Under issue three, the learned counsel to the appellant challenged the appellant’s conviction and sentence on the basis that there was no identification parade. The question at this juncture is: When does the issue of identification arise? Identification parade is only necessary in the following circumstances:
1. Where the victim/witness did not know the accused before and the first acquaintance with him is during the commission of the offence.
2. Where the victim (witness) was confronted by the defendant for a very short time; and
3. Where the victim (witness) due to time and circumstance might not have had the opportunity of observing the features of the accused. See, IKEMSON VS. THE STATE (1989) 3 NWLR (PT. 110) 455. The issue of identification therefore would only arise where the identity of the person that committed an offence is unknown. In OCHIBA VS. STATE (2010) LPELR 9002 (CA) P. 13, PARAS. A ? B, his lordship Rhodes-Vivour, JCA (as he then was) simply put the position of the law thus:
‘… It is only when the identity of the accused person (appellant) is really in issue that an identification parade becomes necessary. ALABI VS. STATE 1993 7 NWLR PT. 307, P. 511, ORIMOLOYE VS. STATE 1984 10 SC P. 138, ANYANWU VS. STATE 1986 5 NWLR PT. 43 P. 612.’ See, also FATAI VS. STATE (2013) LPELR ? 20182 (SC).
An identification parade is necessary where the arrest of the accused person is based on suspicion as opposed to where the accused person is apprehended on the spot, as happened in the present case. I am at one with the submission of the learned Chief State Counsel that the appellant was one of the robbers that attempted to rob the victim on the fateful day, considering the evidence of the PW2, PW4, PW5 and PW6. The PW4 gave evidence that the appellant and his co-accused (at the trial Court) were arrested in front of Skye Bank on identification by the PW2, an eye witness who had monitored the team from the incident of attempted robbery, the gun shot at the victim and the attempt by the Appellant to escape from the scene with his co-accused from whom a barreta pistol was recovered with live ammunitions. Further, the appellant had taken the police to where the gang had lodged at Dimension Guest House a night before the incident. Similarly, the appellant led the police to the scene of the crime where the victim was shot and the pool of blood was still visible. The learned counsel to the Appellant neither controverted these pieces of evidence nor did he give a different version of the events of the day that would be considered alongside that given by the prosecution at the trial Court. The Appellant voluntarily confessed to the crime and can be convicted based on his confession alone. Further, an identification parade was unnecessary in this case, the appellant having been caught in the process of committing the offence. The Appellant was fixed at the scene of crime. In OLAOYE VS. STATE (2018) LPELR 43601 (SC), in respect of the appellant?s confessional statement shelving the need for an identification parade the Apex Court held that:
‘… the appellant had identified himself when in his confessional statement Exhibit ‘H’, he had fixed himself at the scene of the crime on the day of the incidence. The requirement of formal identification parade is therefore superfluous as rightly held by the two lower Courts.’
See, also IBRAHIM VS. STATE (1991) LPELR 1404 (SC) PP. 11 ? 12, PARAS. F & C. I hold that the learned trial chief judge was right to have convicted the appellant for the offences of criminal conspiracy and attempt to commit Armed Robbery without an identification parade. The third issue is resolved against the Appellant.
In sum, having resolved all the issues against the appellant, I hold that the appeal is unmeritorious and dismiss same. I affirm the conviction and sentence of the appellant by the learned trial Chief Judge.
HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read before now the judgment just delivered by my learned brother Chidi Nwaoma Uwa, J.C.A.
I am in entire agreement with the reasoning and conclusion reached therein. I also dismiss the appeal and affirm the decision of the trial Court
BALKISU BELLO ALIYU, J.C.A.: My learned Brother Chidi Nwaoma Uwa JCA has availed me with the draft judgment just delivered before today. I agree with the analysis, reasoning and conclusion reached in the lead judgment and I adopt same as mine. I find no merit in this appeal and I dismiss it. The judgment of the Kwara State High Court delivered on 26th May, 2014 by S. D. Kawu, C.J. is hereby affirmed.
Appearances:
Tomileye Omole, Esq. with him, I.A. Ajayi, Esq.For Appellant(s)
M.O. Yusuf, Esq. (Chief State Counsel, Kwara State Ministry of Justice) with him, K.U. Abimbola, Esq. (Principal State Counsel) and B.L. Abdulsalam, Esq. (Senior State Counsel)For Respondent(s)
