WILSON v. STATE
(2022)LCN/16618(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/B/421C/2018
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
AGHEDO CHUKWUEMEKA WILSON APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
The ingredients of the offence of armed robbery consist of the following.
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery or robberies.
3. That the accused took part in the robberies.
See Olayinka V. State (2007) 9 NWLR (Pt. 1040) 561 at 382–583. PER BOLA, J.C.A.
THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF CONSPIRACY
It is well settled that the essential ingredients of the offence of conspiracy lies on the bare agreement and association to do an unlawful thing, which is contrary to or forbidden by law. Whether that thing be criminal or not and whether or not the accused person had knowledge of its unlawfulness. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial Court may infer conspiracy from the facts of doing things towards a common purpose per Kekere-Ekun JSC in Okoh V. State (2014) 8 NWLR (Pt. 1410) 502 at 503.
Rhodes Vivour JSC in Afolabi V. State (2013) 13 NWLR (Pt. 1371) 292 at 317 held that conspiracy is established once it becomes clear to the Court that the conspirators knew of the existence and the intention a purpose of the conspiracy. Put in another way, conspiracy is complete upon an agreement by the conspirators and in most cases conspiracy is inferred or presumed. PER BOLA, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED OF THE OFFENCE OF CONSPIRACY EVEN THOUGH HE HAS BEEN DISCHARGED OF THE SUBSTANTIVE OFFENCE
It is settled law that a conviction for conspiracy can be entered even though the accused is discharged of the substantive offence. See Arinze V. State (1990) 2 NWLR (Pt. 134) 539. PER BOLA, J.C.A.
SAMUEL ADEMOLA BOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Benin City, delivered on the 10th May, 2018. Coram Hon. Justice J.U. Oyomire wherein the Appellant was convicted on a four Count charge in respect of the offences of conspiracy to commit armed robbery and the offence of armed robbery. Dissatisfied with the conviction and sentence to death, the Appellant appealed.
The original Notice of Appeal was filed at the Registry of the lower Court on 4/6/2018. The Amended Notice of Appeal was filed in this Court on 8/10/2019 and was deemed filed and served on 30/4/2020. The Record of Appeal was transmitted to this Court on 15/8/2018. The Appellant’s Brief of Argument settled by Sir. J.O. Ojobu was filed on 8/10/2019 but was deemed filed on 30/4/2020. The Respondent’s Brief of Argument settled by S.E. Okojie, Deputy Director, Department of Public Prosecution Ministry of Justice, Edo State was filed on 25/6/2020. The Appellant’s Reply Brief was filed on 30/11/2020.
BACKGROUND FACTS
This is a case in which the Appellant alongside with one another were charged with two counts bordering on the offences of conspiracy and the substantive offence of armed robbery. This was sequel to an occurrence of armed robbery which took place 10th April, 2012 at No.1 Agbonghar Street, Benin City where one John Aigbekaen was robbed of his Toyota Car and the Sum of N10,000 while the robbers were armed with offensive weapons. One Patrick Ogazi who was in the same Car was also robbed of the sum of N5,000. Upon investigation by the police, the Appellant and one other person were arrested and subsequently arraigned before the lower Court. Trial commenced. The prosecution called 2 witnesses. The Appellant testified on behalf of himself. He called no witness. At the conclusion of trial, the Appellant and his co-accused were found guilty and sentenced accordingly. Aggrieved with the decision of the trial Court, the Appellant appealed to this Court.
APPELLANT’S ISSUES FOR DETERMINATION
The Appellant submitted four issues for determination in his brief. The issues are:
1. Whether having regard to the facts and surrounding circumstances of the case the Appellant was properly identified by the PW1 as one of the persons who robbed him of his Vehicle while armed.
2. Whether the alleged confessional statement of the Appellant complained of or and met with the prescriptive and requirements of the law upon which the trial Court could validly rely upon in convicting and sentencing the Appellant to death as charged.
3. Whether the prosecution has proved the case beyond reasonable doubt as required by the law.
4. Whether the trial Court properly considered the case story and or otherwise of the defenses put forth in the trial by the Appellant.
ARGUMENT ON ISSUES
On issue no.1, the question is whether having regard to the facts and surrounding circumstances of the case the Appellant was properly identified by the PW1 as one of the persons who robbed him of his Vehicle while armed. It was the submission of the Appellants Counsel that there was no proper identification parade conducted by the police at the time he was arrested. It was submitted that the failure or omission to conduct the identification in parade was a fundamental error. He referred to the evidence of the PW1 (victim of the offence) at page 38 of the record. He referred to the case of Attah & Anor V. State (2010) 183 LRCN 1 at page 10.
That the mere fact that the Appellant was alleged to be found with a Samsung phone traceable to the PW1 was not enough evidence to hold him culpable. That at best it could only amount to being in possession of stolen goods.
It was argued that the decision of the lower Court was perverse and occasioned miscarriage of Justice. He referred to the case of Shehu V. State (2010) 182 LRCN 1 at 24 where it was held that suspicion no matter how strong will not lead to a conviction. That it cannot take the place of legal proof. It was Counsel’s submission that a Court of law does not base its decision on mere speculative evidence. That where doubt arises it should be resolved in favour of the accused.
In respect of issue no. 2 bordering on the confessional statement which the trial Court relied on in convicting and sentencing the Appellant, it was submitted that the alleged confessional statement Exhibit B falls short of the acid test of the legal requirements of a confessional statement of an accused person. Counsel referred to the decision of the apex Court in Ogudo V. State (2011) 202 LRCN 1 at 20. It was argued that the admission of Exhibit B in evidence by the Court ran against the laid down requirements of the law as well as the Judicial demands for the admissibility of a confessional statement as in this case. That the Appellant gave evidence in Court that he was tortured to make the statement. He urged the Court to expunge the statement.
It was submitted that it was wrongful to find the Appellant liable on the statement of a co-accused which he did not adopt. Referred to the case Mbang V. State (2010) 179 LRCN 62.
Arguing issues 3 and 4 together, the Appellants Counsel submitted that in a criminal proceeding as in the present case the onus of proof was always on the prosecution to prove the charge(s) against the accused beyond reasonable doubt, that the legal duty was not shift to the accused person.
It was submitted that the prosecution could only succeed in discharging the burden by credible, cogent and unequivocal evidence at the trial if he failed to lead convincing and satisfactory evidence at the trial, the case against the accused person will crumble like a pack of cards.
He submitted that the prosecution must prove the essential ingredients of the offence of armed robbery which the prosecution failed to prove in this case. He referred to the case of Okiemute V. State (2016) 260 LRCN 1 AT 37. It was argued that the prosecution had failed to link or connect the Appellant with the crimes, more particularly as there was a hanging doubt and question regarding the identity of the Appellant. It was submitted that the prosecution had not proved all the essential elements of the offence.
It was also the contention of the Appellants Counsel that the Court failed to properly evaluate the evidence and testimonies of the Appellant side by side with the evidence of the prosecution. He cited the case Kabirikim V. Emefor (2010) 179 LRCN 119 at 136; Attah & Anor V. State (2010) 183 LRCN 1 at 31.
It was submitted that the offences for which the Appellant was arrested and detained had no iota of bearing and connection with the offences he was tried, convicted and sentenced to death. That it is constituted a breach of the fundamental rights of the Appellant to fair hearing.
Finally, Counsel urged this Court to set aside the conviction and sentences handed over to the Appellant by the trial Court and set aside the judgment of the lower Court, discharge and acquit the Appellant.
In his Reply Brief, the Appellant argued that the PW1 did not testify that the Appellant was armed at the time of the robbery.
RESPONDENT’S BRIEF: ISSUE FOR DETERMINATION
The Respondent formulated an issue for determination in its brief. It is:
Whether having regard to the totality of the evidence led at the trial and the circumstance of this case, the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.
It was submitted that the Appellant and one other were prosecuted, convicted and sentenced for the offences of conspiracy to commit armed robbery and armed robbery at the lower Court. It was submitted that the prosecution proved the offences charged which are conspiracy and armed robbery. Counsel referred to the case Ogunneyi V. State (supra) in respect of the ways in which the guilt of an accused can be proved which include:
(1) The confessional statement of the accused person or
(2) Circumstantial evidence,
(3) Evidence of an eye witness of the crime.
ON CONSPIRACY
It was submitted by Counsel that all that was required of the prosecution in a criminal trial in discharging the burden of proof is to establish the ingredients of the offence.
On the count of conspiracy, it was submitted that the prosecution proved the count of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt. He defined conspiracy as when two or more persons agree to carry out an act or omission which led to a criminal offence or a civil wrong. He referred to the case Oduneye V. State (2001)2 NWLR (Pt. 697)311. It was submitted that actual agreement alone constitute the offence and it is not necessary to prove that the act has in fact be committed. He cited the case of Obiakor V. State (2002) 10 NWLR (Pt. 776) at 612.
It was submitted that the prosecution led evidence to show that the Appellant and the other person he was prosecuted with and others now at large, robbed the PW1 and share the proceeds of the armed robbery amongst themselves. The implication is that they planned and agreed on how to rob PW1 of his car and other valuables. Referred to pages 36, 40 and 44 of the record of appeal. The Court was urged to hold that the prosecution proved the offence of conspiracy against the Appellant.
On the offence of armed robbery, Counsel mentioned the ingredients of the offence as follows:
1. That there was armed robbery
2. That the robbery was armed robbery
3. That the accused while armed with arm participated in the robbery.
He cited the case Oseni V. State (supra).
It was submitted that the prosecution led cogent, unequivocal and unchallenged evidence to prove that there was robbery. He relied on the evidence of the PW1 at pages 36-38 of the records and the confessional statement of the Appellant. It was submitted that the prosecution proved this ingredient beyond reasonable doubt.
Counsel further submit that the prosecution also proved the second ingredient, that is that the robbery was an armed robbery. He referred to the evidence of the PW1 who testified that the robbers were armed and this fact was corroborated by the Appellant in his confessional statement.
It was also submitted that the prosecution proved the ingredient that the Appellant while armed with arms, participated in the robbery.
Counsel said further that Exhibit B (confessional statement) sufficiently proved the elements of the offence of armed robbery.
It was submitted that the prosecution had proved the charge of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt and urged the Court to so hold.
On the identification of the Appellant by the PW1 as the person who robbed him, it was submitted that it was not a compulsory ingredient of proof in a charge of armed robbery that identification of a defendant. He urged the Court to discountenance the submission of the Appellants Counsel.
On the submission of the Appellants Counsel that the Appellant’s confessional statement did not meet with the prescription of the law and could not validly be relied upon to convict, Counsel urged the Court to discountenance this submission. Respondents Counsel submitted that the confessional statement of the Appellant was not only properly considered but was also properly admitted by the trial Judge. That retraction of a confessional statement by the Appellant does not render the statement inadmissible. He referred to the case Nguma V. A.G. Imo State (2011) LPELR – 4593 (CA), Akibu Hassan V. State (2001) LPELR – 1358 (SC). Counsel also referred to page 104 lines 10-20 of the record of appeal to the effect that the Appellant made the confessional statement voluntarily devoid of intimidation, threat or inducement. The trial Judge was therefore right to have admitted the statement (Exhibit B) in evidence. It was also argued that the confessional statement was properly evaluated by the lower Court. That the lower Court subjected the confessional statement to the tests laid down in decided cases. He referred to pages 119 lines 19-22 and lines 1-13 on page 120 of the record of appeal as to the evaluation of the confessional statement by the trial Judge. Counsel urged this Court not to disturb the finding of Court. Referred to the case Edoho V. State (2012) Vol 10 LRCN 81 at 96.
Finally, Counsel urged the Court to hold that the prosecution (Respondent) proved its case beyond reasonable doubt at the lower Court, as required by law. He urge the Court to resolve the issues before the Court in favour of the Respondent.
Having considered the issues raised and canvassed by the Appellant and the Respondent in their respective Briefs of Argument, this Court is inclined towards adopting the sole issue formulated by the Respondent in its brief subject to modification as follows:
Whether having regard to the totality of the evidence led at the trial, it could be determined that the prosecution established its case beyond reasonable doubt to warrant the conviction and sentencing of the Appellant.
In resolving the above issue this Court will consider some other issues raised by the Appellant in its Brief. The issues consist of:
(1) Whether the Appellant was properly identified by the PW1 as one of the persons who robbed him of his Vehicle while armed.
(2) Whether the alleged confessional statement of the Appellant satisfied the provisions and requirements of the law upon which it could be relied upon to convict and sentenced the Appellant.
(3) Whether the prosecution proved its case beyond reasonable doubt as required by law in respect of the offence of conspiracy to commit armed robbery under Section 6 (b) of the Act.
(4) Whether the trial Court properly considered the defenses put forward at the trial by the Appellant.
Was the Appellant properly identified by the PW1 as one of the persons who robbed him of his vehicle and other items? It was the contention of the Appellant that there was no proper identification regarding the crime upon which he was convicted in view of the fact that no identification parade was conducted by the police at the time the Appellant was arrested. That the PW1 was at loss of the identity of the Appellant and those who robbed him. That the conduct of identification parade was clearly necessary to determine who were the actual persons that committed the crime. He submitted that the failure to conduct an identification parade by the police was a fundamental error that was fatal to the prosecution’s case, the PW1 having admitted that the robbery incident happened at night.
Is identification parade necessary in the instance of this case? To answer this question, it is necessary considering the evidence of the PW1 the victim of the alleged robbery incident? The evidence of the PW1 John Aigbekaen is on pages 36 – 37 of the Record and the cross-examination on page 38. The evidence of the PW1 is reproduced hereunder verbatim:
“I know the Applicants. On 10/4/12 at about 9.pm, I drove into my compound in my Toyota Corolla car, before I could switch off the car’s engine, about 3 or 4 robbers surrounded my car, was with one Patrick Ogazi in the car at the time. We were both ordered to come down and lay on the ground we complied. We were dispossessed of our valuables, I was robbed of 3 handset and cash sum of N10,000 my driving license inside a wallet. Other vital documents were robbed from me.
They took money from Patrick Ogazi before speeding away with my car.
We were helped to the police station that night by our neigbours. At the N.B. police station we reported the case…
That he called my line and I refuse to pick. Patrick sister called Patrick no and somebody who picked it asked that an amount of money be dropped at a particular place before the brother can be released. We urged her to play with the person, during the discussion that ensured to our hearing. They agreed on payment of the sum of N150,000 for the release of Patrick. The person at the other end sent her an Account No. through SMS. We took this Account No to the police the same morning.
The matter was referred to SCID for purpose of investigating the ownership of the bank a/c domiciled at Union Bank, Akpakpava Road, B/C at the bank, the name and address of the a/c holders was traced. When we went to the address, no one was found in the address.
However, the police was able to arrest the 2nd Applicant in the course of police investigations. The 1st Applicant was apprehended through the 2nd Applicant, when the bag he was with was searched several handsets were found in it. I identified my Samsung handset robbed from me by the Applicants form the list.
This handset was later released to me on bond.
Toyota car to somebody at Onisha. All attempts made to trace the car and the person he sold to proved abortive. However, 3 months later, Fed SARs, Imo State command recovered the car at Owerri. The matter was later transferred by FSARs from Owerri to Awka from where it went to their Lagos Headquarters. I was invited to Lagos and I presented all the vehicle particulars. The snatched Toyota car was later released to me on bond together with my Samsung handset. The reg No of my then was AZ 145 USL. It was registered in Anambra as JJT 259 AA. I had to renumber it.
CROSS-EXAMINED: L.D.C
The robbery incident happened at night. I have never met the Applicants prior to this armed robbery incident. I was not able to identify them that night. It was upon their arrest by the police that I know that they were the person that robbed me of my car and valuable at gunpoint. I do not know how the police concluded their investigations.”
It is clear from the testimony of the PW1 that no evidence of identification of the hoodlums who attacked him and disposed him of his vehicle and other items was given by the PW1. It is pertinent to observe that under cross-examination, the PW1 testified that the incident happened at night. He had never met the accused person including the Appellant prior to the armed robbery incident. He was not able to identify them that night. It was upon their arrest by the police that he knew that, the PW1 robbed him of his car and valuables at gunpoint. It is undoubtful, the evidence of the PW1 did not identify the person who attacked him and robbed him of his car and other valuables. It is equally pertinent to assert that no identification parade was conducted by the police towards identifying the culprit of the robbery incident. Identification parade being very essential against the background that the victim was confronted by the offender for a very short time. Also that the PW1 (victim) due to time and circumstance did not have the free opportunity of observing the features of the accused. The PW1 testified that the incident happened in the night. He could not identify them that night.
With the above situation, there was no evidence of identification of the Appellant by the police, and also by the PW1. It is therefore conclusive that no evidence of identification emanated from the PW1 – the victim of the robbery offence as regards the person who robbed him during the Robbery incident in which he was disposed of his car and other valuables. This settles the first issue distilled for consideration and resolution by this Court.
The second issue is whether the alleged confessional statement of the Appellant satisfied the provisions and requirements of the law to warrant the conviction and sentence of the Appellant. It was the submission of the Appellants Counsel that Exhibit ‘B’ the alleged confessional statement fell short of the requirements of a confessional statement of an accused person.
Counsel relied on and quoted copiously the decision of Rhodes-Vivor JSC in the case Ogudo V. State (2011) 202 LRCN 1 at pages 20-21. He argued that the admission of Exhibit ‘B’ in evidence by the trial Court ran against the laid down requirements of the law as well the Judicial demands for the admissibility of a confessional statement of a suspect in this case. That the Appellant testified under cross-examination that he was forced to make the statement.
It need be noted that the Appellant’s Counsel submitted voluminously and argued extensively on the non-voluntariness of Exhibit ‘B’ the confessional statement said to have been made by the Appellant. The record of appeal reveal that at the hearing of this case at the trial Court, the issue of voluntariness or involuntariness of the statement-Exhibit ‘B’ came into consideration. The accused (Appellant) contented at the lower Court that the statement was involuntarily obtained. This culminated to the proceeding embarking on trial within trial to determine the voluntariness or otherwise of the statement. The lower Court ruled that the statement of the Appellant was voluntarily made and it was admitted in evidence as Exhibit ‘B’. The issue whether the confessional statement was voluntarily made or not that is whether Section 29 of the Evidence Act 2011 was adhered to by the Investigating Police Officer when the statement was made was settled in the circumstance.
Once it was ruled by the trial Court that the statement was voluntarily made, it is subject to being admitted in evidence. Having been admitted, it becomes relevant and may be given in evidence against the accused. Section 29(1) of the Evidence Act 2011 provides that:
“In any proceedings, a confessional made by a Defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and it is not excluded by the Court in pursuance of this section!
Section 28 of the Evidence Act states that: a “confession is an admission made or any time by a person charged with a crime stating or suggesting the inference that he committed the crime.”
The Appellant was charged with the offence of conspiracy to commit the offence of armed robbery and the substantive offence of armed robbery. The question is whether the Appellant admitted in Exhibit ‘B’ that he committed the offence of armed robbery. An answer to this requires a consideration for the statement of the Appellant to the police. The relevant portion are as follows:
“I met him the first day at urban area Sapele after we introduce ourselves. I took happy that I want to meet one of my brother in Onitsha named Obi in Surnamed unknown to help me with some money, then obi told me unless I bring (Car) someone who will bring a car for him, Happy now said he us going to look for a car, but he need someone to join him their I called obi and told him what me and Happy discussed, obi now said he will sent one boy number to me to give to Happy so. That the boy can joint Happy to bring the car. After, obi, sent the number, I now text Happy number to the boy, I told him to call Happy and know where he is. Then on the 10th day of April 2012, in the night I can’t remember the day obi called him that they have gotten the car few minutes after Happy called me that late and the other boy are coming with the car that he is going back to Warri, then I waited for them at Umunede, as they got to Umunede they called me, I now came to met them at Umunede Junction when I saw the car I called obi and told him that I have seeing the car by that time it was already late, so we lodge at Orikoze guest house Umunede the next day morning before we leave Umunede I called obi and him that we will be on our way to Onitsha obi said if we get to Zik Junction Onitsha as we got to the junction, I called him that we are there at exactly 6.00am he came to met us at the junction, we negotiate and agreed at two hundred thousand naira N200,000, he took over the car and asked us to wait for him to bring the money, not quite long, obi called me that I met him at Mr. Biggs and collect the money, then I and later went to collect the money, after we have collected the money late called Happy and told him that we sold the car at the rate of N200,000, that he is going to give me the sum of N90,000 then I was given the sum of N20,000, obi also give me another N10,000, I picked one Samsung phone inside the car, when the phone rang, I ok the called, it was a woman voice she said she wants to speak to her husband, I threatened the woman that her husband is with us inside the boot, I told the woman that if she wants us to release her husband, she should pay the sum of N200,000, the woman now said she is a student that she will rally round and sent the money that I should sent my account number. So, I left Onitsha to Sapele that very day as I got to Sapele I called Happy and gave him his own share N90,000, after I have given him his share, I deceived him that my mother wants to sent money for me, and I don’t have account, he should help me with his account number, so that she can pay in the money, Happy now gave me his union bank account number, and I forward same account number to the woman, I used the husband phone to sent the account number, since after I sent the account number I have not heard from the woman again, until on the 9/05/12, when Happy called me on phone, he asked of my whereabout I told him that am at Onitsha, he told me that there is a Jeep which he used to see at his father street that I should tell that my brother who bought the Toyota corolla, Happy did not tell me the types of the Jeep, he said I should come so that we can collect the Jeep, I told Happy that I had wanted to go to Lagos before but I will suspend the journey then the next day which was today Happy called me that he left Warri to Benin I should start coming, I now left Onitsha for Benin, I dropped at Ramat Part, I called Happy, Happy told me to take a bike to 3rd Junction if I reached there I should wait for him at mobile filling station, as I got to 3rd junction I called Happy that I am there before I know the police rounded me up at where I stand. I don’t know that Happy is with the police. I am not the one that give them the gun which they used that very day. Happy did not tell me to bring any gun. I don’t have any gun in my possession this is my first time to have involve in this type of crime.”
Flowing from the content of Exhibit B herein reproduced, it is significant to say that the Appellant never admitted committing the offence of armed robbery. However the Appellant’s statement reveals conspiracy and receiving stolen property a car snatched at gunpoint. Exhibit B never established that the Appellant was at the scene of robbery or was armed at the scene of armed robbery where the car of the PW1 was snatched. This is in addition to the fact that the PW1 never identified the Appellant as one of the hoodlums who robbed him while armed with a weapon. Would the Appellant have been convicted for the offence of armed robbery in the circumstance?
The ingredients of the offence of armed robbery consist of the following.
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery or robberies.
3. That the accused took part in the robberies.
See Olayinka V. State (2007) 9 NWLR (Pt. 1040) 561 at 382–583.
The evidence placed before this Court by the prosecution reveal that there was a robbery in which the car of the PW1 was snatched from him. It was established that the robbery was an armed robbery. However the evidence on ground particularly the evidence of the PW1 and the statement of the Appellant to the police are bereft of fact that the Appellant took part in the robbery. It need be asserted that the statement of the 2nd accused/convict Sulaiman Hammed, made to the police clearly stated that the Appellant was not at the scene of the robbery. In other words, he did not participate in the armed robbery which took place at No.1, Agbonghar Street, Benin City on 10th of April, 2012. By reason of the aforesaid, the third element of the offence of armed robbery was not established against the Appellant. All the ingredients of the offence of armed robbery must be proved against the Appellant beyond reasonable doubt. Failure to prove any of the ingredients will culminate to the discharge of the accused in respect of the offence of armed robbery. In the present appeal, this Court holds that no evidence was elicited at the trial to warrant his conviction of the offence of armed robbery.
However the statement of the Appellant in clear terms reveals that the Appellant had fore knowledge of the armed robbery. He orchestrated it for the purpose of procuring a car to be sold. He recruited the participants to execute his plan-snatching a car to be sold. This transport us to count one in the charge.
Under count one of the information, the Appellant was charged as follows:
Aghedo Chukwuemeka Wilson and Sulaiman Hammed with others at large on or before the 10th day of April, 2012 at No. 1, Agbonghar Street, Benin City in the Benin Judicial Division conspired to commit a felony to wit: armed robbery and thereby committed an offence contrary to Section 6 (b) and punishable under Section 1 (2)(a) of the Robbery and Firearm (Special Provision) Act Cap. Rule 11 Laws of the Federation of Nigeria 2004.
It is well settled that the essential ingredients of the offence of conspiracy lies on the bare agreement and association to do an unlawful thing, which is contrary to or forbidden by law. Whether that thing be criminal or not and whether or not the accused person had knowledge of its unlawfulness. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial Court may infer conspiracy from the facts of doing things towards a common purpose per Kekere-Ekun JSC in Okoh V. State (2014) 8 NWLR (Pt. 1410) 502 at 503.
Rhodes Vivour JSC in Afolabi V. State (2013) 13 NWLR (Pt. 1371) 292 at 317 held that conspiracy is established once it becomes clear to the Court that the conspirators knew of the existence and the intention a purpose of the conspiracy. Put in another way, conspiracy is complete upon an agreement by the conspirators and in most cases conspiracy is inferred or presumed.
Without any scintilla of doubt, the evidence placed before this Court reveals agreement between the Appellant and others to do an unlawful thing to commit the offence of armed robbery with the intention to dispose their victim of his car. The Appellant and others had the meeting of mind to rob and get a car – an unlawful act. The Appellant was the hub nob of the agreement, the centre of the circle and the circumference which others revolved around in the plan and its execution. He initiated the plan and got others involved in it to commit armed robbery. He was the arrowhead of the sordid plan to rob and steal a car for him to sell. He was deeply involved in the robbery although he was not present at the scene of crime. His conspiratorial involvement is undoubtful and the evidence adduced clearly establish this. By reason of the foregoing, I have no hesitation in coming to the conclusion that the trial Court was right when he found the Appellant guilty of the offence of conspiracy to commit armed robbery which offence is contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearm (special Provision) Act.
Section 6(b) of the Act provides any person who:
(a) Aids, counsels, abets or procures any person to commit an offence under Sections 1, 2, 3 or 4 of this Act; or
(b) Conspire 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 while the offence is committed or attempt 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 the Act.
The principal or substantive offence is armed robbery under Section 1(2)(a) of the Act. The offence attracts a capital sentence of death under Section 1(2)(b) of the Act. This is the punishment that shall be imposed on a person found guilty under Section 6(b) of the Act.
Consequent thereof, the Appellant is liable to be sentenced to death under Section 1(2)(a) and (b) of the Act having been convicted of the offence of conspiracy to commit armed robbery under Section 6(b) of the Act.
Against this backdrop, the conviction and sentence of death by the lower Court in respect of the First Court against the Appellant is affirmed in the circumstance. However the Appellant is found not guilty in respect of counts 2-4 of the charge involving armed robbery. His sentence and conviction are accordingly set aside in respect of these counts. He is discharged and acquitted in respect of counts 2, 3, and 4 of the Information. He is found guilty, convicted and sentenced to death in respect of count 1.
In the final analysis, this appeal succeed in part to the extent of setting aside the conviction and sentence in respect of counts 2, 3 and 4 of the charge involving the offence of armed robbery. However this appeal fails in respect of the offence of the conspiracy to commit armed robbery.
It is settled law that a conviction for conspiracy can be entered even though the accused is discharged of the substantive offence. See Arinze V. State (1990) 2 NWLR (Pt. 134) 539.
The Appellant remains convicted and sentenced to death under count 1 of the charge. The appeal is dismissed. The judgment of the lower Court is affirmed in respect of Count ONE only.
UCHECHUKWU ONYEMENAM, J.C.A.: My learned brother, SAMUEL ADEMOLA BOLA, JCA obliged me a copy of the judgment just delivered. I am in agreement with the conclusion reached therein.
I too set aside the conviction and sentence of the Appellant in respect of counts 2, 3 and 4 of the charge involving the offence of armed robbery. Accordingly, the appeal succeeds in part only to the extent of my pronouncement above. I also affirm the conviction and sentence of the Appellant on count 1 of the charge as contained in the judgment of the High Court of Edo State delivered on 10th May, 2018 by J. U. Oyomire J. in Suit No: B/CD/304C/2013.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. I agree that the appellant was rightly convicted and sentenced to death for the offence of conspiracy to commit armed robbery under Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Fire Arms (special provisions) Act. However, the conviction and sentence for armed robbery cannot be sustained and is therefore set aside, while the conviction and sentence for conspiracy to commit armed robbery is hereby affirmed.
Appearances:
Sir J.O. Ojobu For Appellant(s)
S.E. Okojie, Esq. For Respondent(s)
