Yusuf Osho V. The State (2009)
LawGlobal-Hub Lead Judgment Report
HARUNA SIMON TSAMMANI, J.C.A.
This appeal is against the judgment of the Ogun State High Court of Justice, Sagamu Judicial Division, delivered by Hon. Justice A. Rotimi ? Balogun in Suit No: HCS/33C/2013.
Before the said High Court, the Appellant was charged with the following offences:
Count 1:
STATEMENT OF OFFENCE
Conspiracy to commit Armed Robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
YUSUF OSHO (M) and others now at large on or about the 23rd day of July, 2011 besides Owokoniran Hospital, Sagamu in the Sagamu Judicial Division, did conspire to commit Armed Robbery.
COUNT II:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
?YUSUF OSHO (M) and others now at large on or about the 23rd day of July, 2011, besides Owokoniran Hospital, Sagamu, in the Sagamu Judicial Division, while armed
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with a gun robbed Ariwoola Dauda of his motorcycle with Registration Number QF 313 EKY.
The case of the prosecution as narrated by Ariwoola Dauda (victim of the offence) who testified as the PW1 is as contained in pages 39 ? 41 of the record of appeal as follows:
?My name is Ariwoola Dauda. I am a student of Ladoke Akintola University of Technology, Ogbomosho. I know the reason why I am in Court. I know the Accused person. He is the one in the dock.
On 23rd July, 2011, I carried the Accused at GRA Sagamu on my Motorcycle to Owokoniran Hospital Street. Immediately I dropped him, he gave me N500.00. I wanted to give him his change when another motorcycle with another passenger came. I did not realize that I was being followed. As he gave me the N500.00 and I was still looking for change, those other persons, 2 in number on the other motorcycle gave the other motorcyclist N50 and he turned immediately. The three of them attacked me I was about giving the Accused person his change. The Accused pointed a gun at me. The other hit me on the head. I went to report at the Police Station immediately after they left with my motorcycle.
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I indicated in my statement that anytime I see the Accused person, I can recognize him. I reported at Sagamu Police Station and made statement. The Police followed me to the scene of crime and asked me go and treat myself.
On the 29th July, 2012, I saw the Accused on a motorcycle. He was going in front. He was a passenger and another motorcycle was following him. I then followed them. He entered a certain corner street at Isale-Ijagba. I entered with them and I held him and called attention of people to him that he is a thief. As I was shouting, the motorcyclist and the 2nd motorcyclist ran away. The Accused started fighting with me and injured me. People came to my rescue and caught him. They then called the Police to come and catch him. The Police came and arrested him
The Accused/Appellant gave testimony in Court as his defence to the charge against him. His oral testimony at page 50 of the Record of Appeal is as follows:
?My name is Yusuf Osho. Before my incarceration I used to live at Jones Street, Ebute Metta, Lagos. I used to be a ticket seller at the Local Government, Oyingbo. On 29th July, 2012, I went to see my
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friend. I was on Okada. I then heard someone shouting on top of an Okada behind own, thief!. I told my Okada driver to park so that they can pass us. When they got to where we are the Okada rider got down and held me and I started punching him. The Police Patrol passing then stopped and took us to the station. At the Station they asked me if I knew the Okada rider who is alleging that I snatched his motorcycle from him at gun point. I denied snatching any motorcycle in 2011, it was around that time I was recuperating from the accident I had in 2010. I told them I was at the General Hospital in Lagos and the matter was getting worse. So I sent for my mother who came to take me home in February, 2011. I told them that I was at home for 6 months after I discharged myself from hospital
At the trial, aside the victim of the robbery who testified as PW1, the prosecution called two other witnesses, who are Investigating Police Officers, who testified as the PW2 and PW3. The Appellant also called his mother who testified as DW1. The Extra-Judicial Statements of the Appellant were also tendered and admitted in evidence. Counsel filed and
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exchanged Written Addresses; and in a considered judgment delivered on the 2nd day of March, 2017, the trial Court convicted the Appellant on the two counts charge and sentenced him to death by hanging. It is against that conviction that the Appellant has appealed to this Court.
The Notice of Appeal which was dated and filed on the 16/3/2017 consists of four (4) Grounds of Appeal. In compliance with the Rules of this Court, the parties filed and exchanged Briefs of arguments. The Appellant?s Brief of Arguments was dated the 09/5/2017 and filed on the 22/5/2017 but deemed filed on the 29/11/2018. Therein, three issues were formulated for determination as follows:
(1). Whether the trial Court was right to have held that the failure of the prosecution to investigate the defence of alibi raised by the Appellant was not fatal to the prosecution?s case.
[Distilled from Ground 1].
(2). Whether the decision of the trial Court was reasonable having regard to the weight of evidence added (sic: adduced) before it to have decided that the offence of armed robbery was proved beyond reasonable doubt by the Respondent.
[Distilled from Grounds 2 & 4].
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(3). Whether the Respondent proved the offence of conspiracy to commit armed robbery beyond reasonable doubt against the Appellant. [Distilled from Ground 3].
The Respondent?s Brief of Arguments was dated the 10/10/2017 and filed on the 11/10/2017 but deemed filed on the 29/11/2018. The Respondent distilled two issues for determination as follows:
1. Whether the prosecution proved the offences of armed robbery and conspiracy to commit armed robbery against the Appellant.
2. Whether the failure of the prosecution to investigate the defence of Alibi raised by the Appellant was fatal to the prosecution?s case.
Upon being served the Respondent?s Brief of Arguments, the Appellant filed an Appellant?s Reply Brief of Arguments. It is dated and filed on the 21/11/2018.
I have soberly reflected on the issues formulated by the parties. Having thus considered, I am of the view that the issues formulated by Appellant will be sufficient for the determination of this appeal. I shall however consider issues 1 and 2 together while issue 3 will be considered alone.
?Now on issue one, learned counsel for the
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Appellant contended that the evidence adduced by the prosecution at the trial is not convincing enough to convict as the essential ingredients of robbery were not established beyond reasonable doubt. The case of Sani v. State (2015) All FWLR (pt. 811) 1303 at 1315 ? 1316 was cited to list the essential elements to be proved in a charge of armed robbery, and to further contend that, before an accused person can be convicted of armed robbery, those stated ingredients must be proved beyond reasonable doubt. That, one of the essential ingredients of armed robbery is that, a dangerous weapon must have been used but in the instant case, no weapon was tendered during the trial nor was one recovered from the Appellant. The case of Nwomukoro v. The State 1 NWLR (pt.372) 432 at 449 was cited in support.
Learned Counsel for the Appellant also submitted that the respondent did not link the Appellant to the charge of armed robbery. That, the Appellant was not arrested at the scene of crime. Furthermore, that the evidence of identification is highly questionable as the PW1 claimed to have seen the robber under circumstances of fear and he did not see the
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robber again until a year after. That, there was no evidence that PW1 knew or had met the Appellant before the robbery incidence. The cases of Ishola v. State (2015) All FWLR (pt.779) 1117 at 1136; Onafowokan v. State (1987) 3 NWLR (pt. 61) 874 at 911 ? 912 were cited in support.
Learned Counsel for the Appellant went on to submit that, the robbery incident took place within four minutes and the PW1 was confronted with a gun. That, the PW1 stated that he was terrified and that what was paramount to him at that time was his safety such that he could not say exactly the colour of dress the Appellant was wearing at the time of the alleged robbery. That in such circumstance, there is no way PW1 could have positively identified any of the Robbers that attacked him. The cases of ROTEC Engineering Ltd v. NAOC & Anor (2015) All FWLR (pt.778) 836 at 862; Attah v. State (2010) All FWLR (pt.540) 1224 at 1229 and Akosile v. State (1972) 5 .C. 332. The case of Ogboru v. Ibori (2006) 17 NWLR (pt.1009) 609 was then cited to submit that the learned trial Judge erred in convicting the Appellant solely on the evidence of PW1.
?On the plea of alibi, learned counsel
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for the Appellant contended that, the Appellant had stated that he was elsewhere at the time of the alleged robbery. That he was confined at home at the time of the robbery incident due to the injury he had sustained in an accident. The case of Idemudia v. State (2015) All FWLR (pt.800) 1302 at 1318 was then cited to submit that, it is the law that a defence of alibi must be investigated by the police especially when it is timeously raised but that in the instant case, the police did not investigate the defence of alibi despite it being raised timeously by the Appellant.
It is further submitted that, it is the law that, alibi must be precisely raised as to time, place and persons who were with the accused person at the time and place the offence was said to have been committed. That in the instant case, the Appellant stated where he was at the time of the alleged crime and that due to his injury he was using a stick to support himself. That PW1 did not say that the person who attacked him was using a walking stick. It was further contended that, the alibi raised by the Appellant was corroborated by DW1 who stated that the Appellant was at home receiving
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treatment at the time of the alleged robbery. It is accordingly submitted that, the Appellant had furnished the particulars of alibi at the earliest opportunity as required by law. The cases of Idemudia v. State (supra) at 1319 and Sani v. State (2015) All FWLR (pt.811) 1303 at 1323 were then cited in support, and to further submit that, the lower Court was therefore wrong when it decided that the Appellant?s defence of alibi can be dispensed with based on the testimony of PW1 who was the victim and only witness to the robbery incidence.
?Learned Counsel for the Appellant went on to submit that, the testimony of PW1 who was the only eye witness was not corroborated by any means particularly when the Appellant was not arrested at the crime scene but a year after the alleged robbery. That, it would be a different thing if the Appellant was caught at the scene, in which case, it would have been impossible to plead alibi. That, there is nothing on record to show that there was an investigation by the police as to the whereabouts of the Appellant at the time of the alleged offence, yet the trial Court discountenanced the defence of alibi raised by the
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Appellant. The case of Olagesin v. State (2013) NWLR (pt.670) 1357 at 1384 was then cited to urge us to hold that the trial Court erred when he relied solely on the testimony of PW1 to convict the Appellant.
Learned Counsel for the Respondent cited the case of Ajayi v. State (2013) 3 S.C.M.1 at 25 paragraphs F ? G to list the ingredients of armed robbery. He then submitted that, the trial Court rightly held that the prosecution gave evidence that satisfied all the ingredients of armed robbery charged. That the testimony of PW1 established beyond reasonable doubt that there was a robbery incident on the 23/7/2011 near Owokoniran Hospital, Sagamu. That the evidence of PW1, Exhibits A1 ? A2 and D1 satisfied the burden placed on the prosecution and established that there was an armed robbery, beyond reasonable doubt. That the testimony of PW1 also established beyond reasonable doubt that the robbers were armed during the robbery operation with a gun while one of the robbers hit PW1 with an object in the head.
?Learned Counsel for the Respondent also urged us not to disturb the findings of the trial Court on the identification of the Appellant
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as one of the robbers. That it is in evidence that at the time of the armed robbery, the Appellant was at close proximity to the PW1 as they had negotiated the motorcycle fare. That it was while trying to give change to the Appellant, that the Appellant pointed a gun at PW1. Furthermore, that immediately after the incident, the PW1 gave a vivid description of the Appellant in the statement he gave to the police. It was then submitted that, the evidence given by the PW1 was corroborated by the Appellant who testified to the effect that he broke his leg and sustained injuries on his face as a result of an accident involving him in December, 2010. The case of Sunday Udor v. The State (2014) S.C.M. 199 at 203 was then cited to submit that, in any case, an accused person can be convicted on the testimony of an eye witness without the need for any corroboration. That in the instant case, the PW1 reported the incident at the police station the very day of the robbery and made a statement to the police detailing what transpired.
?On the plea of alibi raised by the Appellant, learned counsel for the Respondent contended that, the evidence of the Appellant was that
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as at the 23/7/2011 when the robbery took place, he was recuperating from an accident he had in December, 2010 and was admitted at the General Hospital, Ikeja before his mother (DW1) took him home for traditional treatment in February, 2011. That the mother of the Appellant testified on oath that Appellant indeed had an accident in 2010 and discharged in 2011 when she brought him home for native treatment which lasted about six (6) months. It was also contended that, the Appellant raised his defence of alibi in the first statement he made to the police. Citing the cases of Ochemaje v. The State (2008) 10 S.C.M. 103 at 106 and Patrick Njoven & Ors v. The State (supra) at 47, learned Counsel contended that the police failed to investigate the alibi of the Appellant; and that failure of the police to so investigate is fatal to the case of the prosecution.
The case of Shehu v. The State (2010) 4 S.C.M. 180 at 194 paragraph E was cited to further submit that, the inability and failure of the police to investigate the defence of alibi raised by the Appellant is not fatal to the prosecution?s case, especially when the evidence led fixed the
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Appellant to the scene of crime. That, though the Appellant raised the defence of alibi timeously, it was not enough as to enable the police to investigate. That the Appellant had contended that at the time of the incident, he was recovering from an injury he sustained on his left leg and was walking with a stick but no receipt was tendered to buttress the fact the Appellant was indeed on admission nor was the police provided with a Card Number or receipt of the hospital so as to enable the police investigate whether the Appellant was indeed at the hospital. That, there was however, evidence to show that at the time of the incident, the Appellant was moving around by commercial vehicles or motorcycles. In other words, that no sufficient material was given to the police by the Appellant to enable them investigate the alibi raised.
?Learned Counsel for the Respondent went on to submit that, though there is no evidence that the police investigated the alibi of the Appellant, the trial Court was right in rejecting the defence of alibi raised by the Appellant in view of the eye-witness account given by the PW1. That it is so because the evidence of
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identification given by the PW1 is overwhelming such that the defence of alibi raised by Appellant cannot be sustained. Citing the case of Attah v. The State (2010) 5 S.C.M. 57 at 63, Learned Counsel submitted that, PW1 had recognized the Appellant a year after the incident. We were thus urged to note that, on the day of the incidence, the Appellant stopped the PW1 for a ride, they negotiated the fare and on reaching his destination, they took some time for PW1 to look for change; and that it was in that process that the Appellant suddenly brought out a gun which he pointed at PW1. It was then submitted that the sequence of events stated above, indicate that the PW1 had ample opportunity to notice and identify the face of the Appellant. We were therefore urged to hold that, in the circumstances, the prosecution has adduced sufficient and credible evidence to demolish the plea of alibi raised by the Appellant. The case of Afolalu v. The State (2010) S.C.M. 1 at 17 paragraph E was cited in support; and to urge us to resolve this issue against the Appellant.
On points of aw, Learned Counsel for the Appellant cited the case of Agugu v. The State (2017) LPELR
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? 42021 (SC) to submit that all the ingredients of armed robbery must be proved beyond reasonable doubt before the conviction can be sustained. The case of Sani v. The State (2015) LPELR ? 24818 (SC) was also cited to submit that, the argument of the Respondent that the evidence of an eye witness requires no corroboration and that failure of the police to investigate the defence of alibi is not fatal to the prosecution?s case, does not represent the law. Furthermore, that the submission of the Respondent that the tendering of the weapon used in the commission of the offence is not fatal is not a correct position of the law in view of the decisions in Fatai Olayinka v. The State (2007) 8 S.C.M. 193 and The People of Lagos State v. Mohammed Umaru (2014) LPELR- 22466. We were again urged to resolve this issue in favour of the Appellant and allow the appeal.
?Now, in law, there is a presumption of innocence in favour of any person accused of having committed a criminal offence. This presumption of innocence is constitutionally enshrined in Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
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This presumption therefore places a heavy burden on the prosecution to rebut that presumption before they can secure a conviction. That presumption can only be rebutted by the prosecution adducing sufficient and credible evidence to establish every ingredient of the offence charged. That burden reposed on the prosecution can be said to have been discharged where the evidence led at the trial establishes all and every essential element of the offence charged. See Sections 131(1) & (2) and 132 of the Evidence Act, 2011. See also the cases of Almu v. State (2009) 10 NWLR (pt.1148) 31; Shehu v. State (2010) 8 NWLR (pt.1195)112 and Nwaturuocha v. State (2011) 6 NWLR (pt.1242) 170. Thus in C.O.P v. Amuta (2017) LPELR ? 41386 (SC); Ogunbiyi, JSC held as follows:
?The Constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from beginning of the trial right through to the end. It is for the prosecution to make out a prima facie case against the accused through
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credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused. Without any case made out against the accused, he cannot be called upon to enter his defence because in doing otherwise would undermine the constitutional presumption of innocence.?
To discharge the burden, as earlier stated, would require that all the essential elements of the offence be established by credible evidence. Therefore, where any one of the essential elements of the offence is not made out by the totality of evidence adduced by the prosecution, it would mean that the burden has not be discharged and the accused would be entitled to an acquittal. The burden cast on the prosecution is required to be discharged beyond reasonable doubt. See Section 135 (1) of the Evidence Act, 2011. Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt or proof to the hilt. It only means that the evidence adduced point to only one conclusion; that the accused and no one else, committed the offence. In other words, in the determination of whether the offence charged has been proved beyond
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reasonable doubt, minor doubts may creep in here and there in the course of evaluation of the totality of evidence adduced, which the Court may validly discountenance as irrelevant, then in such a circumstance it would be said that no reasonable doubt has arisen as to the guilt of the accused. This is because it is only in mathematics that exactitude may be attained. See Dibie v. State (2004) 14 NWLR (pt.893) 284; Ewugba v. State (2017) LPELR 43833 (SC), Ukpong v. State (2019) LPELR 46427(SC) and Umar v. State (2014) 13 NWLR (pt.1425) 497.
The Appellant herein, was arraigned, tried and convicted for the offences of conspiracy to commit armed robbery; and armed robbery. The crime of armed robbery is recognized by Section 1 (2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. It stipulates as follows:
1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
(2) If-
(a) any offender mentioned in Subsection(1) of this section is armed with any firearms or any offensive weapon
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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 Act to be sentenced to death.
?Robbery? is defined by Section 11 (1) of the Robbery and Firearms Act (supra) to mean:
stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained
Robbery therefore means stealing by the use of or threat of use of violence to any person or property. Armed robbery on the other hand, is robbery while armed with an offensive weapon. See Arowojolu v. State (2016) LPELR – 40156 (CA); Orisa v. State (2018) LPELR – 43896(SC) and Suleiman v. State (2015) LPELR ? 25726 (CA).
?The essential ingredients required to prove the offence of armed robbery have been laid down in a plethora of cases
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such as Dawai v. State (2017) LPELR ? 43835 (SC); Tanko v. State (2008) 18 NWLR (pt.1114) 591; Sani v. State (2018) LPELR ? 44715 (CA); Adeyemo v. State (2015) LPELR ? 24688 (SC); Pius v. State (2016) LPELR ? 40657 (SC); etc. Those essential ingredients are as follows:
(a) that there was a robbery or series of robberies;
(b) that the robbery or each of the robberies was an armed robbery;
(c) that the accused person was either the robber or one of the persons that committed the robbery.
?It should be noted that each of the stated ingredients must be established by credible evidence beyond reasonable doubt. Thus, where any of those ingredients is not proved, then the prosecution have failed to prove the offence beyond reasonable doubt. The prosecution will adduce credible evidence by any one or a combination of the below stated methods:-
(i) by the Confessional Statement of the accused person which must be unequivocal and duly proved; or
(ii) by circumstantial evidence which leads to the irresistible conclusion that the accused person, and no one else committed the offence; or
(iii) by the direct testimony of eye witnesses who were
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present and who saw when the offence was committed.
In the instant case, it appears to me that the prosecution hinged their case on the testimony of the PW1 who happened to be the victim of the armed robbery charged. The Appellant did not confess to the commission of the offence and there were no other circumstances, apart from the testimony of the PW1, that the guilt of the Appellant could be inferred. Thus, in proof of the fact of robbery, the PW1, testified at pages 39 ? 40 line 14 of the Record of Appeal as follows:
?On 23rd July, 2011 I carried the Accused at GRA Sagamu on my motorcycle to Owokoniran Hospital Street. Immediately I dropped him, he gave me N500. I wanted to give him his change when another motorcycle with other passenger came. I did not realize that I was being followed. As he gave me the N500 and I was still looking for change those other two persons, 2 in number on the other motor cycle gave the other motor-cyclist N50 and he turned immediately. The three of them attacked me as I was about giving the Accused person his change. The Accused pointed a gun at me. The other one hit me on the head. I went to report at the
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Police Station immediately after they left with my motorcycle.?
That is the testimony the PW1 gave in Court, and this aspect of his testimony was never contradicted nor was it challenged in Cross-Examination. This testimony is similar to the statement he (PW1) gave to the police at the Sagamu Police Station at about 9.00p.m on the 23/7/2011, which is about three (3) hours after the incident. The said statement is in evidence as Exhibit ?A1?. The PW1 stated therein as follows:
?I Ariwoola Dauda? hereby reporting that today 23/07/2011, I carried one passenger at the opposite MTD, GRA Sagamu to Owokoniran Hospital Street, another Okada carried two passengers going to the same place as I dropped the one I carried the other two dropped immediately and that okada turned back, the one I carried gave me five hundred Naira (N500) as I was giving him change, he attacked me with gun with the other two. They beat me, they injured me at mouth, face and body and he snatched (collected) away my bike with gun and ran away, but I can recognize him anytime I see him
It is clear therefore that, the fact of robbery
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committed on the PW1 was established beyond reasonable doubt. The evidence is clear, unambiguous and uncontradicted in cross-examination. The testimony of the PW1 both in Court and to the police reveal that the robbers threatened him with a gun. The Appellant has however, contended that, since no gun was recovered and tendered in evidence, the fact of the robbery being an armed robbery has not been proved.
The law is that, a charge of armed robbery may be proved beyond reasonable doubt even where the offensive weapon or weapon of the robbery was not recovered and tendered. In other words, it is not the law that the offensive weapon must be tendered before a charge of armed robbery can be sustained. Thus, even where the robbery weapon was not recovered and tendered, a charge of armed robbery can be proved on the standard required by law. See Gbadamosi v. The State (1991) NWLR (pt.196) 182; Sani v. State (2012) LPELR ? 22368 (CA) Abiodun v. State (2013) All FWLR (pt.700) 1257 and State v. Fadezi (2018) LPELR ? 44731 (SC). In Olayinka v. State (2007) 9 NWLR (pt.1040) 561, the Supreme Court held that:
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?There is no principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person. Whether or not the prosecution needs to tender the weapons with which the Appellant allegedly committed the robbery depends by and large on the character and circumstances. Once the prosecution proves the ingredients of the offence of Armed Robbery beyond reasonable doubt, failure to tender the offensive weapon cannot result in acquittal of the accused person. This is because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility, nothing stops an accused person from throwing away or holding the offensive weapon completely outside the investigative eyes of the police. If there is compelling evidence that the accused person committed the Armed Robbery failure to tender the offensive weapon in the circumstance, cannot therefore be the basis of an acquittal.?
?In the instance case, the Appellant was arrested a little over a year the offence is said to have been committed. Therefore, there was ample time and opportunity for
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Appellant to have disposed of or done away with the alleged offensive weapon. On the authorities cited above therefore, I hold that the failure of the prosecution to tender the alleged offensive weapon is not fatal to the case of the prosecution, in the circumstances of this case. On that note, I hereby find and hold that the prosecution proved the first and second ingredients of the offence of armed robbery. See also State v. Ajayi (2016) LPELR ? 40663 (SC).
?The third and last ingredient to be proved in a charge of armed robbery, is whether the prisoner was or amongst the persons that committed the armed robbery charged. This therefore calls to issue the identity of an accused person as a culprit in the offence charged. Thus, even where there is evidence that armed robbery was committed, the prosecution still need to call sufficient credible evidence which links the accused person to the offence charged. The settled law is that, the question whether an accused person has been properly linked or identified as the person who committed the offence charged is a question of fact to be determined by the trial Court from the admissible evidence adduced by the
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prosecution. The Supreme Court has always admonished that, where the identity of an accused person as a party or participant in the crime charged is in dispute, the trial Court should warn itself and be cautious in the evaluation of the evidence led for that purpose. The Court should therefore meticulously examine the evidence so as to see whether there are weaknesses in the evidence adduced, which is capable of engendering any allegation that the accused was sufficiently identified by the witness(es) at the time of the commission of the offence charged. This is particularly so when the punishment or penalty for armed robbery, is the highest known to our law, which is death. See Ndukwu v. The State (2009) NWLR (pt.1139) 43; Nwaturuocha v. State (supra); Adamu v. State (2017) LPELR ? 41436 (SC); Kekong v. State (2017) LPELR 42343 (SC) and Alebiosu v. State (2016) LPELR 41359 (CA).
Where the identity of an accused person has been put in issue, it is necessary that the evidence adduced is concrete, cogent and credible, pointing beyond reasonable doubt that the accused person has been properly linked with the commission of the offence charged. It is
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however settled law that, the identity of an accused person will not be in doubt if there is evidence before the Court showing that, a witness who was an eye witness had the opportunity to identify the accused person at the time the offence was committed. An eye witness who claims to have identified the accused person at the time of the commission of the offence, must be able to report to the police of his observation of the accused, detailing his physical features, the clothes he wore, his mannerism or voice, etc. Those facts must be divulged to the police immediately after the commission of the offence. Thus, for the purpose of identity, the prosecution must be able to lead evidence about the following:
(a) The description of the accused given to the police by the witness after the commission of the offence;
(b) The opportunity the witness or victim had for observing the accused;
(c) The features of the accused the witness gave to the police which marks him out from other persons; and
(d) The visibility or lightning condition at the scene of crime.
?Those are factors the Court would take into consideration in determining whether the
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witness properly identified the accused person as the person who committed the crime charged. See Sulaimon v. State (2018) LPELR ? 44280 (CA); Archibong v. State (2006) 14 NWLR (pt.1000) 849 and The People of Lagos State v. Umaru (2014) LPELR ? 22466 (SC).
?In the instant case, the evidence of identity is that of a single eye witness (PW1), who is the victim of the armed robbery offence charged. The Appellant however gave evidence of facts which tend to raise the plea of alibi. ?Alibi? is a Latin word which simply means; ?elsewhere?. When raised in a criminal trial, it is a defence which means that the accused person was somewhere other than where the prosecution alleges he was at the time the crime charged was allegedly committed. It simply captures the physical impossibility of the accused person being in two places at the same time. When an accused person raises the plea of alibi, he is simply saying that he could not have committed the offence he was charged with, because he was at a different place completely separated from the scene of crime, and at the material time the crime was committed. The law however
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requires that, an accused person who relies on the defence of alibi, to raise same at the earliest opportunity he had of doing so. He must also supply full particulars as to his location, the persons he was with at the particular time in terms of their names and addresses; and what he was doing at the location mentioned. See Eke v. The State (2011) 3 NWLR (pt. 1235) 589; Shehu v. State (2010) 8 NWLR (pt.1195) 112; Ikumonihan v. State (2018) LPELR ? 44362 (SC) and Esene v. State (2017) LPELR ? 41912 (SC). Thus in the case of Omotola & Ors v. State (2009) LPELR ? 2663 (SC), Oguntade, JSC said:
?The 10th accused denied participating in the murder of Chief Olajide Esan. He said that he slept in his house on the night of 17/6/99 to the morning of 18/6/99. The 10th accused did not raise his defence of alibi timeously. He put up that defence for the first time in the witness box. For the 10th accused to successfully put up the defence of alibi, he must raise the plea timeously giving the particulars of his whereabouts, those with whom he was, the time and place he was at the time of the crime was committed? since the 10th
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accused did not raise the alibi timeously, he had denied the prosecution its right and duty to investigate that defence. The 10th accused?s defence of alibi for the first time in the witness box will not avail him
It is obvious therefore that the purpose of requiring an accused person who relies on alibi as a defence, to raise same timeously and with full particulars is to enable the police to investigate. Without full particulars, there will be nothing for the police to act upon. Thus where full particulars of the alibi are supplied timeously, the police duty to investigate will be activated. Where the police discover the alibi to be true, the need to put the accused person through the rigours of prosecution might not arise. That is why the law demands that alibi must be raised timeously and with full particulars. In the case of Ogogovie v. State (2016) LPELR ? 40501 (SC), Peter-Odili, JSC explained the issue lucidly as follows:
?On the defence of alibi raised by the Appellant, it has to be reiterated that for the defence to be taken seriously, the accused had to raise it at the earliest opportunity with the
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accompanying materials with sufficient particulars of where he was and with whom, to enable the police investigate to support the alibi or debunk it as the case may be. The reason for this guide is that the police should not embark or be involved in a wild goose chase or looking for a needle in a hay stack as to unraveling the whereabout of an accused person at the time the crime was committed. It behoves the accused to provide specific particulars of where he was at the material time to enable the police move straight to the place to carry out the inquiry expected by law
In the instant case, there is no doubt that the alleged alibi was raised by the Appellant timeously. The Appellant was arrested on the 29/7/2012, though the offence was committed on the 23/7/2011. The first statement the Appellant gave to the police was at the Sagamu Police Station. It was made on the 30/7/2012, just a day after his arrest. In the statement, the Appellant stated as follows:
?In the month of December, 2010 I involved in motor accident along Apapa Road, Oyigbo, Lagos State. I was on the bike riding by one man where the Danfo vehicle hit our bike
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from the front and my left leg got broken and the windscreen in front the vehicle inflated (sic: inflicted) injury all over my face, the same glass cut my right hand and the man who ride the bike gave up at a spot but nothing happened to the driver of the motor that hit us at all. The Policemen around took me to the general hospital C.M.S., Lagos for proper treatment and I was there for two months, I was discharged sometimes in the month of February, 2011. I was brought back to Sagamu the same February while my mother employ (sic) the service of Malam at Sabo who came to treat my leg with native medicine and he did it for six months. I walk with stick till the month of August 2011 before I drop the walking stick in same month of August 2011 and since then I have been walking fine.?
(underlined for emphasis).
?The sum total of the alibi of the Appellant is that he was seriously injured in an accident sometimes in December, 2010. That due to the accident, he had a fracture on his left leg which incapacitated him. That he only regained his mobility with the aid of a walking stick sometimes in August, 2011. It should be remembered that the robbery
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for which he was charged allegedly took place on the 23/7/2011, a day very close to the month of August. The Appellant did not however disclose his whereabouts at about 6.00p.m on the 23/7/2011 when the robbery took place. Indeed, his statement to the police in (Exhibit ?B1? & ?B2?) show clearly that as at the date of the armed robbery incident, he was moving around but with the aid of a stick and only dropped the stick in August, 2011. Thus, that is clear evidence that the Appellant was not immobilized as at the 23/7/2011. It is thus my view that the alibi the Appellant tried to raise did not meet the standard required by law. The issued involved is not whether the Appellant had an accident before the 23/7/2011, rather, it is whether the Appellant was still incapacitated as at the 23/7/2011 such that he could not have been at the scene of the armed robbery for which he was tried and convicted. The learned trial Judge was therefore right when he found and held at page 71 lines 7 ? 19 of the Record of Appeal as follows:
?In the instant case, the Accused as DW2 made a statement at the Sagamu Police Station to the
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effect that he had an accident sometime in December, 2010 in Lagos on a motorcycle and had a fractured leg. He was on admission for 2 months at the General Hospital, Lagos and was discharged in February, 2011. He forcefully discharged himself against doctor?s advice upon request of his mother (DW1). He was moved to Sagamu for traditional treatment of the fracture. He was at home for six months. The crime happened on 23rd July, 2011. In effect, he was within vicinity of the scene of crime or short distance to the scene of crime. His defence however was that he was still recuperating at that time. The question to ask is, whether his fractured leg can physically prevent him from being at the scene of crime?. The answer is in the negative considering the fact that the Accused did not place before this Court any evidence whatsoever to confirm the authenticity of his inability to move around as he admitted during Cross-Examination that during that time he was recuperating he used to move around on motorcycle and motor vehicles.?
?It is therefore my finding that the alibi raised was not sufficient to avail the Appellant?s defence in this case.
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In any case, the PW1 who happened to be the victim of the offence, gave vivid and uncontradicted evidence on the identity of the Appellant as the culprit in the armed robbery against him. The PW1, gave a written statement to the police at about 9.00p.m on the day of the incident, which is barely three (3) hours after the incident. The said statement is in evidence as Exhibit ?A1?. The Extra-Judicial Statement of the PW1 (Exhibit ?A1?), on the identity of the Appellant runs thus:
.., but I can recognize anytime I see him, he is dark in completion, he is a little bit tall and fat, he has some marks at his body and face
?That is the description PW1 gave to the police at Sagamu, some three hours after the incident. It is by that description that the PW1 was able to recognize the Appellant a year after the incident. There is no evidence to debunk and controvert those descriptions given by the PW1. Indeed, the Appellant himself told the police in Exhibit ?B1? and ?B2?, that as a result of the accident he had in 2010, he sustained some injuries on his face and hands. I am
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convinced that it was those injuries that easily stood him out from others and made his identification easy by the PW1. That is why the learned trial Judge could easily find as follows:
?From the description of the Accused as given by PW1 immediately the robbery happened, to the effect that the Accused had marks on his face and the Accused himself stating in his statement that during the accident he had in Lagos in December, 2010, he sustained injuries on his face, I have no doubt that the Accused person was one of the people who attacked PW1 on 23rd July, 2011 and robbed him of his motorcycle at gun point?.. From the testimony of PW1, it is my candid view that the length of time that the Accused spent negotiating his fare with PW1 and the time he pointed a gun at him before he was robbed of his motorcycle was enough time to enable PW1 who was the victim of the robbery to observe and take note of the Accused person as one of the people who robbed him of his motorcycle.?
From the evidence on the record, I am of the view that the above findings of the trial Court are unassailable. The result is that there is sufficient credible
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evidence which fixed the Appellant at the scene and also identified him as a participant in the crime charged. The law is that, if the prosecution adduced sufficient and credible evidence which fixed the accused person at the scene of crime at the material time, the alibi raised would have been logically and effectively demolished. See Kolade v. The State (2017) LPELR ? 42382 (SC); Ebenehi v. The State (2009) 6 NWLR (pt.1138) 431 at 448; Victor v. State (2013) 12 NWLR (pt.1369) 465 and Idiok v. State (2008) 13 NWLR (pt.1104) 225. Thus, State v. Ekanem (2016) LPELR ? 41304 (SC); My Lord Aka?ahs, JSC said:
?Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. In other words, where there is strong and credible evidence which fixed a person at the scene of crime, his defence of alibi must fail
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In the instant case, the evidence adduced at the trial fixed the Appellant at the scene of crime. The learned trial Judge, in my view, rightly relied on such evidence to discountenance the defence of alibi raised by the Appellant. On that note, I find, in agreement with the learned trial Judge that the Appellant was sufficiently identified as a participant in the crime charged. These issues, issue one and two are therefore resolved against the Appellant.
On issue three, which deal with the conviction of the Appellant on the charge of conspiracy to commit armed robbery; learned counsel for the Appellant contended that, the charge of conspiracy to commit armed robbery was not proved beyond reasonable doubt. The cases of Mohammed v. State (2015) All FWLR (pt.804) 1975 at 1995 and State v. James Gwangwan (2015) LPELR ? 24837 (SC) were then cited to submit that, in law, before an accused person can be convicted of conspiracy, the ingredients of the offence must be proved by the prosecution beyond reasonable doubt. That, in the instant case, the prosecution failed to establish conspiracy, as there was no other person arrested with the Appellant nor was the
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Appellant seen having any agreement with anybody to rob. Furthermore, that though the PW1 was allegedly robbed by three men, that is not enough to convict the Appellant on the charge of conspiracy since the PW1 could not identify the robbers.
It is further contended by learned counsel for the Appellant that, there is no evidence on record, other than the very unreliable evidence of PW1 that the Appellant acted in conspiracy with any person whatsoever to commit the offence of armed robbery. The case of Idowu v. State (2011) LPELR ? 3597 (CA) was cited to also submit that since the substantive charge of armed robbery was not proved, the charge of robbery must also fail. On the whole, we were urged to hold that, the prosecution did not prove the charge of conspiracy against the Appellant.
?In response, learned counsel for the Respondent referred to the definition of conspiracy in the Black?s Law Dictionary (7th Ed.) 305, to submit that the evidence before the trial Court as given by PW1 was that, the Appellant and two others attacked him at about 6.00p.m on the 23/7/2011. Referring to the findings of the trial Court at page 40 of the Record
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of Appeal and the case of Njovens & Ors v. The State (1973) All N.L.R. 76 at 96, learned counsel urged us not to disturb the findings of the trial Court. That conspiracy against the Appellant can be inferred in view of the evidence of PW1. We were accordingly urged to hold that the prosecution proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt.
Now, the offence of conspiracy to commit armed robbery is created by Section 6(b) of the Armed Robbery and Firearms (Special Provisions) Act (supra). The offence of conspiracy is however not defined in that provision. However, in law, conspiracy is defined as an agreement between two or more persons to commit an unlawful act; or to do a lawful act by unlawful means. Let me refer to the Black?s Law Dictionary (9th Ed.) which defines conspiracy as:
?An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement?s objective; and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.?<br< p=””
</br<
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It goes further to state that:
?Conspiracy is a separate offence from the crime that is the subject of the conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end if the conspiracy?s object is defeated.?
Save for Section 96 of the Penal Code Law, which is applicable in most states in the Northern parts of Nigeria, I am unable to lay my hands on any other statutory definition of criminal conspiracy. The said Section 96 of the Penal Code Law, defines criminal conspiracy as follows:
?96.(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, such agreement is called a criminal conspiracy.?
?It would appear that the above definition of conspiracy has been adopted and applied by the Superior Courts in Nigeria. Case law have therefore defined criminal conspiracy as an agreement between two or more persons to do or cause to be done, an illegal act or a legal act by illegal means. The offence of conspiracy can therefore be committed, only if
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there is a meeting of minds between two or more persons. The offence cannot therefore be committed by one person alone, as no person can agree with or conspire with himself. It is the actual agreement alone that constitute the offence, and therefore, whether or not the actual offence is committed is irrelevant, since it is the agreement that the law punishes. See Kaza v. State (2008) 7 NWLR (pt.1085) 125 at 176; Yakubu v. State (2014) 8 NWLR (pt.1408) 111 at 123 ? 124; Ogugu v. State (1990) 2 NWLR (pt.134) 539 at 549 and Aje v. State (2006) 8 NWLR (pt.982) 345 at 359.
It should however be noted that the crime of conspiracy is one that is always hatched in absolute secrecy. It is therefore not always easy to determine at a glance what conspiracy is. Thus, the Courts always make reference to the facts adduced in order to see whether or not there is conspiracy. In other words, conspiracy has become a matter of inference to be drawn from the proved and admitted facts before the Court. Generally, the agreement to do the unlawful act is inferred from the acts done by the conspirators in furtherance of the act for which the conspiracy was hatched.
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Thus, where there is no direct evidence of the conspiracy, the Court will resort to drawing inferences from the proved and admitted facts, so as to see whether or not the conspiracy charged has been established. See Akogun v. State (2018) 3 NWLR (pt.1605) 137, Omotola v. State (2009) 7 NWLR (pt.1139) 148 and Agugua v. State (2017) LPELR 4202 (SC). Thus in Daboh v. State (1977) All N.L.R. 146, the Lord Justice Udo Udoma, JSC said:
?It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the person charged be also proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, Courts usually consider it sufficient if it be established by evidence the circumstances from which the Court would consider it safe and reasonable to infer or presume the conspiracy. The authorities have agreed that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The peculiarity of the offence of conspiracy is that it is the actual agreement alone which
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constitutes the offence and it is not necessary to prove that the illegal act has in fact been committed
Recently, in the case of Olakunle v. State (2018) 6 NWLR (pt.1614) 91 at 109 paragraphs B ? C, My Lord, Eko, JSC said:
that in law, conspiracy can be inferred from acts of the accused where there is no direct evidence of an agreement between the accused. The law, from a long line of cases, is settled that from the acts of the accused where there is no direct evidence of an agreement between the accused and another, criminal conspiracy can be inferred. It is the law, from a number of cases, that from the acts or manner the accused persons were doing things towards actualizing a common end, it can be inferred or deduced that they did so in furtherance of their conspirational agreement to commit the alleged offence
The Appellant in this case, was charged with conspiracy to commit armed robbery. It is the law that, in order for the prosecution to successfully prove the charge of armed robbery, the evidence adduced must establish that:
(a) There was an agreement between the Appellant
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with other person or persons to do or cause to be done, an unlawful act or a lawful act by unlawful means;
(b) That the unlawful act agreed to be committed is armed robbery;
(c) That the conspirators did some act or made an omission geared towards the commission of the offence of armed robbery; and
(d) That each of the conspirators individually participated in the act that constitute the conspiracy.
Once the evidence adduced by the prosecution establish those facts beyond reasonable doubt, it would be safe to conclude that the conspiracy has been proved beyond reasonable doubt. See State v. Salawu (2011) LPELR- 8252 (SC); Yakubu v. State (2014) LPELR ? 22401 (SC); Balogun v. State (2018) LPELR ? 44215 (SC) and Adepoju v. State (2018) LPELR ? 44355 (SC). In the instant case, the learned trial Judge made findings and concluded at page 73 lines 6 ? 14 of the Record of Appeal as follows:
?In the instance case, PW1 testified that he was attacked by three people, one of them being the Accused person. He further testified that one of them hit him on the head with an object while the Accused pointed a gun at him.
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They dispossessed him of his motorcycle after injuring him. With this evidence which he made in his statement at the police station immediately after the attack and also in the witness box, there is no doubt that the Accused and others at large entered into an agreement to attack PW1 and rob him of his motorcycle at gun point on 23rd July, 2011 beside Owokoniran Hospital, Sagamu. The prosecution has therefore proved the charged of conspiracy to commit Armed Robbery beyond reasonable doubt.?
After carefully reviewing the totality of the evidence adduced at the trial, I am of the firm view, that the findings and conclusions of the trial Court are strongly supported by the evidence on record. The PW1 particularly, narrated the sequence of events that led to his being robbed of his motorcycle on the 23/7/2011. Such evidence was in no way challenged nor controverted. I therefore hold that, the learned trial judge was right when he found that the charge of conspiracy to commit armed robbery against the Appellant was proved beyond reasonable doubt. This issue is also resolved against the Appellant.
On the whole therefore, I hold that this appeal is
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lacking in merit. It is accordingly dismissed. The judgment of Ogun State High Court, sitting in Sagamu, delivered on the 2nd day of March, 2017 in Suit No: HCS/33C/2013, is hereby affirmed.
Other Citations: (2009)LCN/3234(CA)
