Joseph Okosun & Ors. V. Attorney-general, Bendel State (1985)

LawGlobal-Hub Lead Judgment Report

S. KAWU, J.S.C. 

On the 11th day of January, 1982, the appellants and one Theophilus Nwachukwu (alias Cotonue), were arraigned before the High Court of Bendel State, sitting at Benin, on a three count charge. All the four accused persons were charged on count one with conspiracy to commit the offence of armed robbery, punishable under section 34(b) of the Robbery and Firearms (Special Provisions) Act 1970. On the second count, the appellants were charged with armed robbery, punishable under section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act 1970. The third count charged the 4th accused only with aiding and abetting armed robbery, punishable under section 34(a) of the Act.

All the accused persons pleaded not guilty to the charge, and at the end of the case, the learned trial judge came to the conclusion, on the totality of the evidence adduced, that the case against the 4th accused person, Theophilus Nwachukwu, had not been proved and he was accordingly acquitted and discharged. The appellants were, however, convicted of the offence of armed robbery and sentenced to death. They all appealed to the Court of Appeal and their appeal was dismissed on 27th April, 1983. They have further appealed to this Court against the decision of the Court of Appeal.”

When this appeal came up for hearing on 14th October, 1985, after hearing counsel’s submissions, we dismissed the appeal, confirmed the conviction of the appellants and the sentence of death imposed on them, and indicated that we would, today, give our reasons for doing so. I now give my reasons.

With regard to the appeal of the 1st and 2nd appellants, both counsel in this case on 14th October, 1985, informed us that after going through the record of proceedings, they could find nothing useful that could be possibly urged in favour of the appellants. I am in entire agreement with them.

Briefly, the evidence adduced by the prosecution, which was believed by the learned trial judge, was that in the afternoon of 20th March, 1981, 1 P.W. – Michael Eze, was driving a Bedford lorry, loaded with electrical cables, along the Benin-Ore Expressway when a Peugeot saloon car overtook him and pulled up in front of him. With Eze in the lorry was his motor boy, Everest. The appellants were the passengers in the saloon car with the 1st appellant wearing the uniform of a Custom Officer. 1 P.W. was asked to come out of the lorry. He was asked by the 1st appellant what he was carrying in his vehicle, and after he had informed him that he was carrying electrical cables, the 1st appellant demanded his driving licence, the way bills of the goods he was carrying and the particulars of his lorry. He then, at gun point, collected the ignition key of 1 P.W.’s lorry from him and gave the key to the third appellant who drove away the vehicle from the scene. 1 P.W. and his motor-boy were then driven in the Peugeot saloon car to a nearby bush where they were ordered to lie down on the ground, facing downwards. It was the testimony of 1 P.W. that after they had complied with the order, the 1st appellant fired gun shots at them after which the 1st and the 2nd appellants drove away in their car, believing they were dead. 1 P.W., however, miraculously survived the ordeal but his motor-boy Everest, was not so lucky. He died on the spot. Subsequently 1 P.W. had no difficulty in identifying the appellants at police identification parades as the perpetrators of the crime on 20th March, 1981.

In addition to the testimony of 1 P.W. with regard to the robbery along the Benin-Ore Expressway on 20/3/81, there was, also, before the learned trial judge, the 1st appellant’s confessional statement which is Exhibit ‘N’, and which statement the learned trial judge accepted was voluntarily made. In that statement, the 1st appellant graphically narrated in some detail, the part played by each appellant in the robbery on the day of the incident. In my view the confessional statement of the 1st appellant, which was corroborated substantially by the testimony of 1 P.W. with regard to the robbery, was more than enough to justify his conviction. On the totality of the evidence adduced in this case, any other finding against the appellants would have been perverse.

With regard to the 3rd appellant, however, it was the submission of his counsel, Mr. Okeaya-Inneh, S.A.N. that on the evidence before the learned trial judge, he should not have been convicted of the offence of armed robbery and sentenced to death. It was his view that the offence committed by his client was robbery simpliciter, and not armed robbery, and in his brief of argument, he set out the question to be determined as follows:-

“Whether in as far as the 3rd accused/appellant was concerned the Court of Appeal had sufficient and legal evidence to affirm the judgment of the lower Court instead of convicting him for the offence of robbery and stealing i.e. 21 years I.H.L.”

He then made three submissions in support of his contention which were set out in his brief of argument as follows:-

“(1) He was a professional driver and had a duty to be worthy of his hirer’s order i.e. 1st and 2nd Accused/Appellants.

(2) There was no positive evidence of common intentions as between 1st, 2nd and 3rd accused persons. See Ofor and 1 Other v. The Queen 15 WACA 4, Rex vs. Bada and 1 Or. 10 WACA 249 and Idika and 10 Ors. v. The Queen, (1959)4 Sc. 106

(3) There was no positive or clear evidence from 1st P.W. that 3rd accused had any gun or possessed one or played any part at Benin-Ore Road bringing 3rd accused’s conduct within the ambit of the provisions of section 3A (b) of the Robbery and Firearms (Special Provisions) Act. 1970.”

There is no doubt that the third appellant was at the scene of the robbery along the Benin-Ore Express way on the day of the incident. He himself said so in his defence. The issue to be resolved therefore, is whether he was there for a legitimate and lawful purpose, as his counsel contends, or whether he was there for the purpose of taking part in the robbery. In his judgment, the learned trial judge, having given careful consideration to the totality of the evidence adduced, including the defence of the third appellant, concluded as follows:-

“The 3rd accused admitted going on the road with 1st and 2nd accused and that 2nd accused had been well-known to him previously. He said that as a professional driver he was lured to drive a lorry from Ore-Benin road to Benin. He then proceeded with complete detachment and alacrity to explain how he drove the Bedford lorry to Benin on the directives of 1st and 2nd accused, having been told to wait for them at Oba Market road by the corner of M.D.S. premises. That story was well thought of, but when it is compared to what the prosecution witnesses said, its hollowness becomes evident. The impression he tried to convey to the Court was that Customs Officers had impounded or seized a lorry and that he was required to drive it to Benin with the contraband or prohibited goods. First, Michael Eze (PW.1) said that when he was stopped on Ore-Benin express way and was forced to come down from his lorry, it was 3rd accused who pleaded with him to settle with the Custom Officer (i.e. 1st accused) so that they could let him go away. He brought out N20 which they said (was) too small, thereupon 1st accused instructed 3rd accused to drive the lorry to Benin. That could not be the act of an innocent hired driver.

Secondly, when negotiations were on for the sale of the electrical cables, 3rd accused was with them in the house of 4th accused. Again, on the following Monday when PW3 was to make payment for the stolen goods sold to him, 3rd accused was also present. As if that were not enough, it was 3rd accused who drove the empty Bedford lorry to Sapele and abandoned it there, leaving the ignition key in its hole. Surely this conduct is not consistent with that of an innocent driver, hired to conveyor transport goods from one place to another. He was present when 1st accused threatened PW1 with his gun and also saw the other persons arranging to sell the electrical cables in the lorry. It could not be that 3rd accused was foolish or ignorant; he was party to the entire bargain to go on the road to rob, and most unfortunately they found Michael Eze and his motor boy as the unfortunate victims of their adventure with fatal consequences exhibiting the sort of horrendous things human beings could do to one another. Again I am satisfied from the evidence before me that 3rd accused took part in the robbery; he was not merely an innocent agent. He was a participant in the robbery, having agreed with 1st and 2nd accused persons to go on Ore-Benin road to commit armed robbery.”

The above findings of facts by the learned trial judge were confirmed by the Court of Appeal. Thus there are two concurrent findings of facts of the lower courts on the issue of the complicity of the 3rd appellant in the crime. It is the practice of this Court in stitch circumstances, to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law of procedure. See (Mora & Ors. v. Nwalusi & Ors. (1962) 1 All NLR (Part 4) 681. In this case I am satisfied the conviction of the 3rd appellant was amply supported by the evidence adduced and there is no justification whatsoever in our interfering with the decisions of the lower courts.

Finally, it has been argued that since the 3rd appellant was not armed at the time of the robbery, he should not have been sentenced to death. I see no merit in his argument. While it is true that there was no evidence 3rd appellant was armed, there was ample evidence, which the learned trial judge believed, that at the time of the robbery, in which the 3rd appellant actively participated, the leader of the gang (1st appellant) was armed with a gun. Since the 3rd appellant committed the offence in the company of an armed confederate, the learned trial judge had no option but to impose capital punishment which is prescribed under S.1(2)(b) of the Robbery and Firearms (Special Provisions) Act 1970. It was for the reasons given above that I dismissed this appeal on the 14th day of October, 1985.

M. BELLO, J.S.C.: I have had a preview of the reasons for judgment just delivered by my learned brother, Kawu, J.S.C., I adopt them.

A. NNAMANI, J.S.C.: When this appeal came before this Court on 14th October, 1985, I dismissed it and affirmed the conviction and sentence passed on the appellants. I indicated that I would give my reasons for this judgment today. I now give the reasons.

During argument in this appeal, learned Senior Advocate appearing for the appellants, Mr. Okeaya-Inneh submitted that he had nothing to urge in favour of the 1st and 2nd appellants. This was, on the evidence accepted by the trial Court and the Court of Appeal, quite justified. Indeed for the reasons I shall show hereunder such a submission would have been equally apt in the case of the 3rd appellant.

The facts of this gruesome case have been set down in the lead reasons for judgment just delivered by my learned brother Kawu, J.S.C. and cannot bear repetition. It was the 1st appellant, who dressed in the uniform of a Custom Officer and armed with a pistol, ordered the P.W.1, Eze and his motor boy, Everest, out of their Bedford Lorry on that fateful day on the Benin-Ore road. 2nd and 3rd Appellants were in his company. While the 3rd Appellant drove P. W.1’s lorry loaded with electrical cables to Benin, 1st and 2nd appellant took P.W.1 and his motor boy in their Peugeot 504 to a nearby bush. There 1st appellant shot P.W.1 and Everest. Everest died instantly. The lengthy confessional statement of the 1st appellant Exhibit N.8 gave the details of the whole operation as well as the role played by the 2nd and 3rd appellants. Outside the confessional statement, however, there was abundant evidence linking 2nd and 3rd appellants with the crime. 2nd appellant’s sister P.W.15 for instance was apprehended with N3,500 the balance out of the N5,000 share of the 2nd appellant from the loot and which 2nd appellant directed should be sent to her. He was also identified by P.W.1 at the’ parade. It was in respect of the 3rd appellant that the learned Senior Advocate initially made some submissions. His main contention was either that the 3rd appellant was an innocent driver worthy of his hire or at worst that he was guilty of robbery punishable with imprisonment for 21 years. The learned Senior Advocate put the issue in his brief thus:

“whether in as far as the 3rd Accused! Appellant was concerned the Court of Appeal had sufficient and legal evidence to affirm the judgment of the lower court instead of convicting him for the offence of robbery and stealing i.e. 21 years I.H.L.”

I do not see that the trial court and the Court of Appeal could have arrived at a different conclusion having regard to the evidence before them. There was evidence that the 3rd appellant accompanied the 1st and 2nd appellants on the journey to Benin -Ore road where the robbery took place. The 1st appellant was dressed as a Custom Officer and carried an S.M.G. There is the evidence of P.W.1 that when he was ordered out of his Bedford Lorry it was the 3rd appellant who “pleaded with him to settle the Custom Officer”.

It was the 3rd appellant who drove the Bedford Lorry loaded with P.W.1’s electrical cables to Benin, 3rd appellant was present during the negotiations for the sale of the cables. He was also present when the agreed price for them was paid. More damnifying, it was the 3rd appellant who drove the Bedford Lorry to Sapele where he abandoned it with its key in the ignition! Little wonder that the learned trial judge concluded that

“I am satisfied from the evidence before me that 3rd accused took part in the robbery, he was not merely an innocent agent”

Omo Eboh, J.C.A. agreeing with him said:

“I have most carefully considered the submissions made for and on behalf of the 3rd appellant and upon reading through the available evidence and the judgment in the case……………I am unable to say that the conclusion reached by the trial judge in respect of the complicity of the 3rd appellant in the crime was unreasonable or not based upon the available evidence or was contrary to the evidence adduced in the case I am in agreement with the above conclusion as it also appears to me that the 3rd appellant tried to be too clever by half in the type of defence he put up for he certainly appeared to have done much more than an innocent man would have done in the circumstances of this case.”

In the face of these findings, can it be seriously contended that the 3rd appellant was not guilty of conspiracy to commit armed robbery Or can it be said that he had no common intention to kill the P.W.1 and the motor boy I think not. As to conspiracy, it has to be appreciated that the gist of the defence of conspiracy lies, not in the doing of the act or effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties. See Majekodunmi v. The Queen 14 W.A.C.A. 64, 65. As for common intention, the passage quoted by the learned Senior Advocate from Ofor & Anor. v. The Queen 15 W.A.C.A. 4 is certainly against the appellant. At p.5 the Court said –

“Common intention may be inferred from the circumstances disclosed in the evidence and need not be by express agreement, but a presumption of a common intention should not be too readily applied”.

This to my mind is not a case in which the presumption of common intention has been too readily applied. It stands out clearly from the evidence. Section 34(b) of the Robbery and Fire Arms (Special provisions) Act No. 47 of 1970as amended by Decree No. 48 of 1971 is to the effect that

“Any person who conspires with any person to commit such an offence, whether or not he is present when the offence is 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 Decree”

Sections 1(1) and 1(2)(b) of the same Act provide as follows:-

“1.(1) Any person who commits the offence of robbery shall upon trial and conviction under this Decree. be sentenced to imprisonment for not less than 21 years.

(2) If – ……………………………….

(a) any offender mentioned in subsection (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed or (b) at or immediately before or immediately after the time of the robbery the said offender wounds any person the offender shall upon conviction under this Decree be sentenced to death”

On the evidence before the learned trial judge and which he accepted the 3rd appellant was in my view rightly convicted and sentenced under these provisions.

It was for these reasons and for the more detailed reasons given by Kawu, J.S.C. that I dismissed this appeal.

M. L. UWAIS, J.S.C.: I have had the advantage of seeing in draft the reasons for judgment read by my learned brother Kawu, J.S.C. I entirely agree with the reasons and as they adequately represent my reasons for dismissing this appeal on the 14th October, 1985, I adopt them as mine. I do not desire to add anything more.

A. G. KARIBI-WHYTE, J.S.C.: The appeal of the appellants was argued before us on the 14th October, 1985. We dismissed all the appeals and affirmed the convictions and sentences imposed on the appellants. We indicated that we shall give the reasons today. I hereunder give my reasons.

I have read the reasons given by my learned brother Kawu, J.S.C. in this judgment. I entirely agree with them. Counsel to the 1st and 2nd appellants submitted before us that they had nothing useful to urge in favour of both appellants. I agree with the submissions and accordingly dismiss their appeal.

The reasons for this judgment are essentially in respect of the appeal of the 3rd appellant on whose behalf Counsel Mr. Okeaya-Inneh, S.A.N., had submitted, was wrongly convicted under Section 1(1)(b) of the Robbery and Firearms (Special Provisions) Decree 1970,having been charged under S.3A of the Decree. His contention was that a conviction under Section 3A of the Decree under which 3rd appellant was charged did not carry the death penalty. It is useful to set out at this juncture the pertinent question which Mr. Okeaya-Inneh, S.A.N., has invited us to answer in respect of the appeal of the 3rd appellant. At p.2 of his brief of argument appellant posed the following question –

“2. whether in as far as the 3rd accused/appellant was concerned, the Court of Appeal had sufficient and legal evidence to affirm the judgment of the lower court instead of convicting him for the offence of robbery and stealing i.e. 21 years I.H.L.

It is necessary to consider the history of the prosecution of the case and the position of the 3rd Appellant in respect of the offence with which the appellants were charged before any attempt of answering the above question can he made.

All the appellants were on the 4th day of March, 1982, charged as follows:

“At the session holden at Benin City on the 11th day of January, 1982, the court was informed by the Attorney-General of Bendel State on behalf of the State that (1) Joseph Okosun alias Joe, (2) Samson Osarekhoe (m), (3) Bernard Asemota and (4) Theophilus Nwachukwu, alias Cotonue (m), are charged with the following offences: .

Statement of Offence Count 1 Conspiracy to commit Armed Robbery, punishable under Section 3A(b) of the Robbery and Firearms (Special Provisions) Act 1970.

Particulars of Offence

Joseph Okosun alias Joe, Samson Osarekhoe, Bernard Asemota and Theophilus Nwachukwu on or about the 20th day of March, 1981, at Benin in the Benin Judicial Division conspired to commit a felony to wit: Armed Robbery.”

This is the only count in the three count charge in which the 3rd appellant was included. The 1st and 2nd appellants were charged with the offence of armed robbery in count 2, punishable under S:1(2)(b) of the Robbery and Firearms (Special Provisions) Decree 1970. Although in Count 3, the 4th accused, Theopilus Nwachukwu was charged with aiding and abetting 1st, 2nd and 3rd appellants to commit robbery, there was no count in which 3rd appellant was charged either alone or with others with the offence of Aimed Robbery.

All the accused persons pleaded riot guilty to the offence with which they were charged. At the end of the case for the prosecution and of the defence, the learned trial judge in his judgment, finding the 4th accused not guilty discharged and acquitted him, He convicted the 1st, 2nd and 3rd accused as charged. The three accused persons, who hereinafter are referred to as the appellants appealed to the Court of Appeal. Each of the appellants filed two original grounds of appeal. At the trial, Counsel sought and was granted leave to file three additional grounds of appeal on behalf of the 2nd and 3rd appellants respectively. Joseph Okosun, the 1st appellant made his own representation – see pages 201-206 of the record of proceedings.

Mr. Legbedion submitted in the Court of Appeal, as counsel submitted before us, that on the record of proceedings, considering his confessional statements he had nothing useful to urge in favour of the 1st appellant. The Court of Appeal agreed with this submission and dismissed the appeal of 1st appellant. I also agree that there is nothing on the record of proceedings before us in favour of 1st appellant to warrant consideration of his appeal. The appeal of the 1st appellant is accordingly dismissed.

The 2nd appellant relied essentially on his alibi which counsel in the Court of Appeal contended was not investigated. It was argued that the learned trial judge erred in law in rejecting the alibi. The Court of Appeal rejected this contention and rightly in my view, because there was stronger and credible evidence before the court which falsified (sic) the alibi …. See Yanor & anor. v. The State (1968) N.M.L.R. 337 at p.342. Apart from rejecting the plea of alibi the Court of Appeal accepted the finding of the learned trial judge of the complicity of 2nd appellant in the commission of the offence.

For instance, there was in evidence the sum of N3,500.00 found with Mrs. Amaya (P.W.15 and sister to 2nd appellant) as the balance of his ‘share of N5,000.00 delivered to Mrs. Amaya on the instruction of 2nd Appellant. This was part of the share of the proceeds realised on the sale of the goods subject matter of the robbery. There was other overwhelming evidence of the participation of the 2nd appellant in the robbery with which he was charged. His appeal was accordingly dismissed. Before us, counsel submitted that he had nothing useful on the records to urge in favour of the 2nd appellant. I agree entirely. The appeal of the 2nd appellant is accordingly dismissed.

It was in respect of the 3rd Appellant, as I have indicated earlier in this judgment, that Mr. Okeaya-Inneh, S.A.N., endeavoured to fault the judgment of the Court of Appeal.

The facts of this case in so far as it affects the 3rd appellant are that the fateful day he was the driver of the 1st and 2nd appellants in a Peugeot Saloon Car. 1st appellant, though not a customs officer was wearing a full Customs Officer’s uniform. The Peugeot saloon car driven by 3rd appellant conveying 1st and 2nd appellants overtook the lorry driven by P.W.1 loaded with electrical cables and was travelling to Onitsha on the Benin-Ore Express way and pulled up in front of it. P.W.1, Micheal Eze was driving the lorry. P.W.1, had his motor boy also in the lorry. 1st appellant having overtaken PW1, pulled up in front of the lorry and alighted from his car and asked PW1, what he was carrying in the lorry. On being told that he was carrying electrical cables, 1st appellant demanded the driving licence of PW1, the way bills of the goods and particulars of the lorry which PW1 promptly produced to him. 1st appellant then threatened PW1 with his gun; asked PW1 and his motor boy out of their lorry, collected the ignition key of PW1’s lorry from him, handed it over to 3rd Appellant who drove away the vehicle and the goods therein from the scene. PW1 and his motor boy were then driven in the Peugeot Saloon Car to a nearby bush where they were ordered to lie face downwards. 1st Appellant then fired shots at them hitting both of them. The motor boy died instantly. PWI miraculously survived the gun shots. Believing they were both dead 1st and 2nd appellants drove away in their car. The 3rd Appellant drove PW1’s lorry and arranged to sell the goods in it. He subsequently drove the lorry to Sapele and abandoned it with its ignition key in its hole. At a subsequent identification parade after P.W.1 had been discharged from the Hospital, he identified 1st appellant with ease. These were facts on which 3rd appellant was prosecuted and convicted.

It appears from the submission of Mr. Okeaya-Inneh for the 3rd appellant that he conceded that on’ the evidence 3rd appellant could be convicted of the offence of robbery simpliciter but denied that a conviction for armed robbery could lie. This is the issue he has raised in the question in his brief.

In support of his contention ,Counsel made three submissions which he set out in his brief of argument at page 4 as follows:-

“(1) He was a professional driver and had a duty to be worthy of his hirer’s order, i.e. 1st and 2nd Appellants.

(2) There was no positive evidence of common intention as between 1st, 2nd and 3rd accused persons. See Ofor & Or. v. The Queen 15 WACA. 4, Rex v. Bada & lor 10 WACA.249; Idika & 10 Ors. v. The Queen (1959) 4 F.S.C. 106.

(3) There was no positive or clear evidence from 1st P.W. that 3rd accused had any gun or possessed one or played any part at Benin/Ore Road bringing 3rd accused’s conduct within the ambit of the provisions ‘of Section 34(b) of the Robbery and Firearms (Special Provisions) Act 1970”.

I am satisfied that the answer to the question posed by Counsel depends on the evaluation of the participation of the 3rd appellant in the offence and the law applicable to the facts. There was sufficient evidence before the Court of trial to link the 3rd appellant with the commission of the offence by the 1st and 2nd appellants. First, 3rd appellant was not denying that he was on the 20th March, 1981 with the 1st and 2nd appellants on the Benin-Ore road, and in respect of the incident in which P.W.1 was robbed at gun point of his lorry loaded with electrical cables. He claims to be working under hire by the 1st and 2nd appellants.

The penal policy of th 1970., still current, which was heralded by the promulgation of the Robbery and Firearms (Special Provisions) Decree 1970, was designed to stem the increasing wave of offence of armed robbery which was the logical aftermath of the social disorganization brought about by the civil war in this country of 1967-1970. Hence the increased penalties for armed robbery to replace the robbery provisions in the Criminal and Penal codes, provided as follows:-

“1(1) Any person who commits the offence of robbery shall upon trial and conviction under this Decree, be liable to imprisonment for not less than twenty-one years –

(2) if-

(a) any offender mentioned in sub-section (I) above is armed with any firearms or any offensive weapon or is in company with any person so armed, or

(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person the offender shall be liable upon conviction under this Decree to a sentence of death.”

Thus under this Decree whereas robbery simpliciter is punishable by 21 years imprisonment, Robbery accompanied by firearms or any offensive weapons or persons accompanying persons committing robbery with firearms or offensive weapons, or wounding or using violence in robbery is punishable by death. In 1971, the Robbery and Firearms (Special Provisions) (Amendment) Decree 1971 which came into force on the 14th October of that year, extended this punishment under S.1(2) of the 1970 Decree to parties to offences under Sections 1,2,3 of the principal decree by a new section 3A, as follows-

“3A. Any person who –

(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2 or 3 of this Decree or

(b) conspires with any person to commit such an offence, 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 Decree …

Consequently armed robbers, persons who accompany them in the commission of the offence, or those who aid, counsel, procure the commission of the offence, and those who conspire with others to commit the offence are, on conviction, punishable with death. This is the position when appellants committed the offences with which they were charged, tried arid convicted.

Neither the 3rd Appellant nor his Counsel is denying that he was with the 1st and 2nd appellants at the time the robbery took place. Counsel for the 3rd appellant has contended that 3rd appellant was an innocent participant, a mere servant who was doing his hirer’s bidding. It does not appear that this contention forms a good synthesis with the evidence of the 1st appellant; and the findings of the learned trial judge which have been accepted by the Court of Appeal.

The learned trial Judge found as follows –

“The 3rd accused admitted going on the road with 1st and 2nd accused and that 2nd accused had been well-known to him previously. He said that as a professional driver he was lured to drive a lorry from Ore-Benin road to Benin. He then proceeded with complete detachment and alacrity to explain how he drove the Bedford lorry to Benin on the directives of 1st and 2nd accused, having been told to wait for them at Oba Market road by the corner of M.D.S. premises. That story was well thought of, but when it is compared to what the prosecution witnesses said, its hollowness becomes evident. The impression he tried to convey to the Court was that Custom Officers had impounded or seized a lorry and that he was required to drive it to Benin with the contraband or prohibited goods. First, Michael Eze (PW1) said that when he was stopped on Ore-Benin Express Way and was forced to come down from his lorry, it was 3rd accused who pleaded him to settle the Customs Officer (i.e. 1st accused) so that they could let him go away. He brought out N20.00 which they said was too small, thereupon 1st accused instructed 3rd accused to drive the lorry to Benin. That could not be the act of an innocent hired driver.

Secondly, when negotiations were on for the sale of the electrical cables, 3rd accused was with them in the house of 4th accused. Again, on the following Monday when PW3 was to make payment for the stolen goods sold to him, 3rd accused was also present. As if that were not enough, it was 3rd accused who drove the empty Bedford lorry to Sapele and abandoned it there, leaving the ignition key in its hole.

Surely this conduct is not consistent with that of an innocent driver, hired to conveyor transport goods from one place to another. He was present when 1st accused threatened PW1 with his gun and also saw the other persons arranging to sell the electrical cables in the lorry. It could not be that 3rd accused was foolish or ignorant; he was party to the entire bargain to go on the road to rob, and most unfortunately they found Michael Eze and his motor boy as the unfortunate victims of their adventure with fatal consequences exhibiting the sort of horrendous things human beings could do to one another. Again I am satisfied from the evidence before me that 3rd accused took part in the robbery; he was not merely an innocent agent. He was a participant in the robbery, having agreed with 1st and 2nd accused persons to go on Ore-Benin road to commit armed robbery.”

The finding of the learned trial Judge demonstrates beyond any doubt that the 3rd appellant was either a party to the commission of the offence from its inception to its execution, or at any rate there was an agreement between him and 1st and 2nd appellants that they were to commit the offence of armed robbery. The 3rd appellant was charged and convicted for conspiring with the 1st and 2nd accused persons to commit the offence on the 20th March, 1981. 1n a charge of conspiracy, evidence of the mere agreement of the parties, express or implied is sufficient for a conviction – see R. v. Adebanjo (1935) WACA. 315. The offence lies not in the doing of the thing but in the agreement to do the unlawful thing – see R. v. David (1960) W.N.L.R. 170. The difficulty in determining the nature of the agreement in conspiracies has necessitated drawing reasonable inferences of such agreement from the acts of the parties. There is clearly no doubt on the evidence before the court that there was an agreement in the case before us to rob PW1 of his lorry loaded with electrical cables and 3rd Appellant was party to it. This, no doubt is an unlawful agreement and if carried out, as was done in this case, amounts to the offence of robbery with firearms. It is established law that it is not necessary in a conviction for conspiracy, that the conspirators should come together for the purpose or that there should have been previous consultation. In R v. Murphy (1837) 8 C. & P. at 310, 173 E. R. at 508, Coleridge J. directing the jury stated,

Although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed to have this common design, and to pursue it by common means, and so to carry it into execution……..If you find that these two persons pursued by their acts, the same object often by the same means, one performing one part of an act and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they are pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, ‘Had they this common design, and did they pursue it by these common means – the design being unlawful’”

Although there is no definition of the offence has been accepted and applied (sic). See R. v. Majekodunmi (1952) 14 WACA. 64. It is important to point out that a conspiracy in the sense here used is not merely a concurrence of wills brought about accidentally, but a concurrence of wills resulting from agreement. There is overwhelming evidence of agreement between the appellants to do an unlawful purpose, i.e. to rob with arms.

Mr. Okeaya-Inneh consistently stressed in his submission that even if 3rd appellant was guilty of the offence of conspiracy to rob, he could not be found guilty of the offence of robbery with firearms which involves the death penalty. I have endeavoured to state as concisely as it is possible in this judgment the principles governing responsibility for the offence of Robbery with Firearms and liability in respect of other participants in the offence, as provided in the Robbery and Firearms (Special Provisions) Decree 1971.

The law now is, concisely stated, that liability for robbery with firearms, is on conviction punishable with death. It is immaterial whether the offender is found guilty as a principal offender, or as a participant as an aider or abettor, or a person who has counselled or procured the commission of the offence or a conspirator with a person who has committed the offence. In his final submission Counsel argued that since 3rd appellant was not armed at the time of the robbery and was in fact not present when the P.W.1 and his motor boy, who was killed were shot, appellant ought not have been sentenced to death. I have already outlined the present legal position of punishment for liability for the offence of armed robbery.

There was sufficient evidence that 3rd appellant was in the conspiracy with 1st and 2nd appellants to rob P. W.1. It is well settled that evidence given which relates to things said or done by one conspirator or the other in the execution or furtherance of the common purpose of all such conspirators is admissible against all of them – see Samson Aigbe & Ors v. The State (1976) 9 -10 S.C. 77. Accordingly, since the evidence of the 1st and 2nd appellants in respect of the robbery are admissible and accepted, such evidence is relevant to explain the participation of the 3rd appellant in the conspiracy – see S.11 (1) Evidence Act, Cap. 62, and Enahoro v. R. (1965) N.M.L.R. 265. For the purpose of liability it is unnecessary to establish that 3rd appellant and the 1st and 2nd appellants, were together, either in respect of the agreement, or carrying out the purposes of the agreement which must be unlawful. It is sufficient to show that there was an agreement, and to carry out an unlawful purpose, and that each conspirator was carrying out his assigned task – see R. v. Meyrick & Ribuff (1929) 21 Cr. App. R. 94, R. v. Griffiths (1965) 49 Cr. App. R. 279 at p.290.

There is evidence in this case that the assigned task of 3rd appellant was to drive the lorry with the goods away, dispose of the goods, and abandon the lorry. This is a task which 3rd appellant, being a professional driver is peculiarly suitable. 3rd appellant has admitted discharging this assignment, although he says innocently and on hire.

There are concurrent findings of facts of the courts below which in my opinion are conclusive of the existence of the agreement between 3rd appellant and the 1st and 2nd appellants that 3rd appellant was not an innocent agent and was therefore criminally responsible for the driving away and disposal of both the goods and the lorry taken from P.W.1 and known to him to be (sic) by means of robbery with arms.

These facts are sufficient for the offence of conspiracy under Section 3A of the Robbery and Firearms (Special Provisions) Decree 1970 under which the 3rd appellant was charged and convicted. There is no doubt in my mind that the Court of Appeal was right in affirming the conviction of 3rd appellant, and also in dismissing his appeal against conviction and sentence. The above are my reasons for dismissing the appeals of all the appellants.

Appeal dismissed.

Decisions of the Court of Appeal.

and High Court confirmed.

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Other Citation: (1985) LCN/2246(SC)