Saheed Arowolo V. The State (2009)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an appeal against the judgment of Nwaka J. of the Lagos High Court delivered on the 22nd day of December, 2006 convicting the appellant for conspiracy to commit robbery and sentence the appellant to 21 years imprisonment.
The brief facts of the case are that on or about the 18th May, 2002, the appellant who is a clearing agent was contracted by PW 1 to clear two trucks containing Sivoclear belonging to one Alhaja Falilat Bello at the Seme border and deliver them to designated ware houses in Lagos. After clearing the two trucks through customs at Seme border along with two other trucks belonging to another customer (kehinde) the appellant and his staff preceded to Lagos. On the way, one of the trucks belonging to Alhaja Falilat Bello had a flat tyre. Since it was getting late, the appellant decided to proceed with the three other trucks and requested his staff to repair the tyre and proceed to deliver the truck to its destination. After the truck was repaired, it proceeded on its journey, when it got to mile 2, it was stopped by armed policemen who demanded for its waybill, invoice and duty paper.
The appellant’s staff told them that the documents were with their boss. The policemen then told them to enter their police van and accompany them to the police station. The policemen later diverted the truck and its contents.
The matter was reported to the police and the policemen who stole the truck were eventually arrested.
On the 30th of April, 2004, the appellant and 7 others were arraigned before the High Court of Lagos State on information containing three Counts of conspiracy, robbery and receiving stolen goods.
The three counts read as follows:-
“STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to commit robbery contrary to section 403 (A) of the Criminal Code Law Cap 17, Vol. 2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
SAHEED AROWOLO (M) ARIYO BANKOLE (M) RASAKI ADELEKE (M) ADEDAYO OBANIYAN (M) AUGUSTINE AMADI (M) ISAH MOHAMMED (M) ADESHOLA ADEKOYA (M) on or about the 18th day of May, 2002 along mile 2 under bridge area in the Lagos judicial Division conspired with yourselves to commit an offence to wit: robbery.
STATEMENT OF OFFENCE – 2ND COUNT
Robbery contrary to section 402(1) of the Criminal Code Law Cap C 17 Vol. 2 Laws of Lagos State.
PARTICULARS OF OFFENCE
SAHEED AROWOLO (M) RASAKI ADELEKE (M), ADEDAYO OBANIYAN (M) AUGUSTINE AMADI (M) on or about the 18th day of May, 2002 along Mile 2 under bridge in the Lagos judicial Division robbed Rigan Benmus of Lait Eclaircissant Cosmetic Products and lorry truck all valued at N18.5 m.
STATEMENT OF ROBBERY – 3RD COUNT
Receiving of stolen property contrary to section 427 of the Criminal Code Law Cap C17, Vol.2 Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
AFOLABI AYILERU (M) on or about the 18th day of May, 2002 at Ikorodu in the Lagos Judicial Division did receive Eclaircissant Cosmetic products, the property of Alhaja Faliatu Bello knowing the same to have been stolen.”
When the case came up for hearing on 15/11/04 the state applied to proceed with the trial of the 1st accused/ appellant as he was the only person the state could lay hands on. The remaining accused persons have jumped bail. On 7/4/05 the plea of the appellant was taken. Appellant pleaded not guilty to count 1 and 2. The prosecution called two witnesses to prove its case. After the conclusion of the prosecution’s case, the appellant made a no case submission. On the 28th of February, 2006, the learned trial Judge overruled the appellant’s no case submission and said she would give her reasons in her judgment. The appellant gave evidence but did not call any witness. At the end of trial the learned trial Judge in his judgment at page 34 of the record found the appellant guilty of conspiracy to commit robbery contrary to section 403(A) Criminal Code Law Cap C.17 Vol. 2 Law of Lagos State 2003 and sentenced him to 21 years imprisonment. The appellant being dissatisfied with the judgment of the High Court Lagos State filed a Notice of Appeal dated the 13th day of May, 2008 which contained twelve grounds of appeal.
In accordance with the practice of this court, appellant’s brief was filed on 2/9/08. While respondent’s brief was filed on 7/10/08. When the appeal came up for hearing on 3/6/09 the learned senior counsel (Mrs.) Williams adopted appellant’s brief and made brief comment on salient points raised in the appellant’s brief. She urged the court to allow the appeal and discharge and acquit the appellant. Respondent’s counsel Mr. Sofola adopted respondent’s brief of argument and as minister in the temple of justice urged the court to allow the appeal as they did not support the conviction.
For the appellant three issues were distilled from the twelve grounds of appeal for determination in this appeal. The issues are:
- Whether the learned trial Judge who overruled the Appellant’s no case submission without giving any reasons had any basis at all for coming to a conclusion that a case had been made out against the Appellant sufficiently to require him to enter his defence.
- Whether on the totality of the evidence the learned trial Judge rightly convicted the Appellant for conspiracy to commit robbery.
- Whether on the totality of the evidence and the doubts which played in the mind of the learned trial Judge she rightly convicted the Appellant and sentenced him to 21 years imprisonment.
Respondent did not formulate any issue for determination in this appeal.
I will adopt the issues formulated by appellant in the determination of this appeal. Issue one would be treated alone while issues 2 and 3 would be resolved together.
As regards issue 1 the main complaint of the appellant relates to the failure of the learned trial Judge to give reasons in her ruling for overruling the no case submission. It was contended that by not giving any reasons for overruling the no case submission, the learned trial Judge had no basis at all for coming to a conclusion that a case had been made out against the appellant sufficient enough for him to enter his defence. The following cases: FRN v. Ekwenugo (2007) 3 NWLR (Pt 1021) 209 at 218; Mohammed v. State (2007) 3 NWLR 132; Emedo v. State (2002) 15 NWLR (Pt 789) 196, Aituma v. State (2007) 5 NWLR (Pt 1028) 466 at 484 and Iloabachie v. Iloabachi (2005) 9 NWLR (Pt 930) 362 were relied upon and cited in appellants brief of argument. Learned counsel urged the court to hold that since the learned trial Judge failed to give reasons for her decision the appellant should have been discharged pursuant to section 286 of the Criminal Procedure law of Lagos State.
The Ruling of the learned trial Judge complained of appearing at page 18 of the record reads thus:-
“I overrule the no case submission and shall give my reasons in my judgment. The accused person is hereby called upon to enter into his defence.”
When a submission of no case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail. See Daboh v. State (1977) 5 SC 197; Adeyemi v. State (1991) 6 NWLR (Pt 195) 1 and Aituma v. State (2007) 7 NWLR (Pt 1028) 466. In the instant case the appellant’s counsel in his no case submission called upon the trial Judge to note and rule that there is no legally admissible evidence adduced before the court to warrant the calling upon the appellant to make a defence. Learned counsel pointed out the glaring gaps, omissions and inconsistencies in the case as presented by the prosecution. The learned trial Judge however, overruled the objection and called upon the appellant to enter into his defence without giving reasons for his decision. When a no case submission is overruled it is the duty of the trial Judge to give reasons for coming to the conclusion that a prima facie case has been established against an accused person warranting the court to call upon him to enter his defence, although at that stage the trial Judge was not expected to say much.
In Iloabachie v. Iloabachie supra Ogebe JCA (as he then was) at page 368 had this to say:-
“Decisions of a court should not be arbitrary but must be based on sound reasoning and conclusion. I have already answered this question that the trial court is duty bound to give reasons for its decision.”
Furthermore, by virtue of section 245 of the Criminal Procedure Code Law of Lagos State a Judge or Magistrate is duty bound to record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. See also Unakalamba v. C.O.P. (1958) 3 F.S.C. 7. The practice adopted by the trial Judge in the case at hand in my humble view is irregular and contrary to the express provisions of section 245 of the Criminal Procedure Code Law of Lagos State.
Issues 2 and 3 were distilled from grounds 5, 1, 2, 3, and 4 contained in the Notice of Appeal filed by the appellant. Appellant’s counsel submitted that conspiracy because of its nature is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved facts. See Obiakor v. State (2002) 10 NWLR (Pt 776) 612. It was also argued that the statement by the said co-accused (Adebayo Obaniyan) to the police which PW2 referred to in his evidence has no evidential value and the trial court should not have acted on it. See: Adisa v. The State (1991) 1 NWLR (Pt 168) 49.
It was further contended that the trial Judge was wrong to have found the appellant guilty based on the statement of another co-accused to the police. See Ozaki Vs State (1990) 1 NWLR (Pt 124) 92 at 113. Appellant’s counsel complained of contradictions in the statement of the co-accused.
The doubt expressed by the trial Judge was also pointed out by appellant’s counsel and urged that it be resolved in favour of the appellant. It was further argued that the conviction of the appellant for conspiracy by the trial court based on his testimony that he had his staff in both trucks and they were representing his interest was perverse because of his assignment which was to clear the trucks through customs to Seme border and deliver them to the designated warehouses in Lagos.
Appellant’s counsel further submitted that it is the duty of the prosecution to prove all the essential ingredients of the offence charged. It was also argued that the defence of Alibi raised by appellant was never investigated by the police. The learned trial Judge also expressed doubt in her mind and such doubt ought to have been resolved in favour of the appellant. See State v. Sadu (2001) 15 NWLR (Pt 735) 102. Appellants counsel urged the court to hold that prosecution on the totality of evidence adduced failed to prove its case beyond reasonable doubt.
In reply respondent’s counsel Mr. Sofola contended that after perusing the record conceded that there was no sufficient, cogent and credible evidence adduced to support the conviction of the appellant for conspiracy to commit robbery and robbery as charged. As minister in the temple of justice he urged the court to allow the appeal. However, learned counsel referred to the case of Ubwa v. Bashi (2008) NWLR (Pt 1077) 316 and urged the court to consider the appeal on merit. I wish to commend Mr. Olusina Sofola for conceding from the onset that prosecution was not in support of the conviction. That is good advocacy. I would have discharged and acquitted the appellant without much ado but having regard to the nature of the allegation I felt it was necessary to examine the issues raised by the appellant and determine same on merit.
Appellant was convicted for conspiracy to commit robbery by the learned trial Judge based on the evidence of PW2. The learned trial Judge held at pages 31 – 32 of the record as follows:-
“In our present case the PW2 testifies on oath that one of the co-accused person Adebayo Obaniyan said upon interrogation that the goods were brought to him by the boys of the accused person. “In order to get to the boys we then told him to produce the agent who was the master of the boys. The accused then went to Ibadan to bring the two boys Taiye and Kehinde Karimu. This was however denied by the boys. On further interrogation Adebayo told us that it was the accused person who brought the goods to him”. This was also denied by the accused. The import of this is that the accused person is a recurring decimal and his name is being mentioned too often and makes me wonder if he is not one of the conspirators. In cross-examination the accused said “I had my staff in both trucks —–. They were representing my interest. This testimony of the accused person has no doubt convinced me that the accused person somewhere along the line must have conspired with other conspirators. It would be difficult for him to feign ignorance of the offence.”
To sustain a charge of conspiracy the prosecution must prove the elements of the offence, viz:
(a) an agreement by two or more persons to execute an agreed act;
(b) that the agreed act is unlawful. In other words, there must be a consensus ad idem.
Prosecution must establish that the persons charged had formed a common intention of committing an unlawful act. See Aituma Vs State (2006) 10 NWLR (Pt 989) 452. Conspiracy because of its nature is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved facts. See Obiakor Vs State (2002) 10 NWLR (Pt 776) 612 at 628 – 629 paras G-A. In the instant case, the only evidence relied upon by the learned trial Judge in convicting the appellant for conspiracy was the allegation by PW2 the investigating police officer (IPO) that a co-accused (Adebayo Obaniyan) alleged in his statement to the police that the truck boys gave him the goods. Under further interrogation the co-accused alleged that it was the appellant who brought the goods to him (see page 13 of the record of appeal). As rightly pointed out by appellant’s counsel the statement was not tendered and the co-accused never gave evidence at the trial. The appellant denied the allegation. The proprietor of the restaurant who Adebayo Obaniyan alleged he met with the appellant to hatch the conspiracy said he had never seen any of them in his life and made a statement to that effect. The statement was not tendered in evidence. I agree with the submission of appellant’s counsel that the statement by the said co-accused (Adebayo Obaniyan) to the police which PW2 referred to in his evidence has no evidential value and the trial court should not have acted on it. In Adisa v. The State (1991) 1 NWLR (Pt 168) 49 the Court of Appeal held thus:-
“A statement made to the police by a witness in open court has its place in the police file and a court of law cannot take cognizance or judicial notice of such a statement.”
It is my firm view that the learned trial Judge was wrong to have found the appellant guilty based on the statement of another co-accused to the police.
See Ozaki v. State (1990) 1 NWLR (Pt 124) 92 at 113 wherein Obaseki JSC stated as follows:-
“It is an error of law to convict an accused on the statement of another accused to the police. It is a travesty of justice and a gross violation of all known rule of evidence. Section 27 of the Evidence Act forbids the use of such statement even when it is confessional”.
See also Titilayo Vs State (1998) 2 NWLR (Pt 573) 235.
As earlier stated the statement of the co-accused to the police had no evidential value. The testimony of the appellant that he had his staff in both trucks and they were representing his interest could not have sufficiently convinced the learned trial Judge that the appellant some where along the line conspired with the co-conspirators. There was no further evidence showing specific acts by the appellant portraying a conspiracy. The missing truck was diverted to unknown destination by the policemen on duty. There is no evidence to show that appellant and the policemen had a common purpose that is to commit an unlawful act.
The finding of the learned trial Judge appearing at pages 31 – 32 of the record reproduced supra in my humble view was based on suspicion and speculation. The relevant portion of the finding read thus:-
“The import of this is that the accused person is a recurring decimal and his name is being mentioned too often and makes me wonder if he is not one of the conspirators. In cross-examination the accused said “I had my staff in both trucks ——. They were representing my interest”. This Testimony of the accused person has no doubt convinced me that the accused person somewhere along the line must have conspired with other conspirators. It would be difficult for him to feign ignorance of the offence.”
It is well settled that suspicion however strong cannot constitute a crime or ground a conviction. See Babalola v. State (1989) 4 NWLR (Pt 115) 264; Bozin v. State (1985) 2 NWLR (Pt 8) 465 and Obiakor v. State (2002) 10 NWLR (Pt 776) 612.
In Criminal prosecutions, it is the duty of the prosecution to prove its case beyond reasonable doubt. Though it is not essential to prove the case with absolute certainty, the ingredients of the offence must however, be proved as required by law and the satisfaction of the court. See Agbacham v. State (1970) 1 All NLR 69 and Okpulor v. State (1990) 7 NWLR (Pt.164) 581.
The appellant raised defence of alibi. At the time of the appellant’s arrest, he made a statement to the police that he was not at the scene of the crime. He gave detailed account that he went to Ebute-Ero to deliver 2 trailers to named person. That alibi was never investigated by the police. In his evidence at the trial, he repeated the alibi on oath. DWI in his testimony in chief stated as follows:-
“When I got back from Ebute Ero I followed the PW1 to where the truck broke down. We got to the broken down truck at 10.30 p.m. we did not find the broken down truck.
I asked the mallam around about the where about of the truck. They told me that the truck had left. Then I called the PW 1 to know whether she had seen the truck. She told me she had left the warehouse. The following day at 12.00 noon I called the PW1 to enquire if she had seen the truck, she said she hadn’t seen it.
At 1.00 p.m. I was called from Ibadan that my father is unwell and in the hospital. So I left for Ibadan”.
Although the court reviewed the alibi extensively, no finding was made on it. The learned trial Judge in her judgment at page 33 of the record state thus:-
“The whereabouts and timing of the movement of the accused person still remain unclear. The puzzle remains unresolved by the accused person.”
Under cross-examination, the prosecution’s star witness PW2 the I.P.O. said “I cannot lay hands on anything as regards the allegation of the accused person”. This material piece of evidence went unnoticed by the learned trial Judge. It is not the duty of the appellant to resolve any unresolved puzzle as to his whereabouts and timing of his movement. The only duty imposed on the appellant is to raise the defence of alibi. Once the defence of alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi in order to find out if it is true that the accused was not at the scene of the crime when it was committed, or to rebut the alibi if it was false. See Onafowokan v. State (1987) 3 NWLR (Pt 61) 538; Adio v. State (1986) 3 NWLR (Pt 31) 714 and Ikemson v. State (1989) 3 NWLR (Pt 118) 453.
In the instant case appellant supplied sufficient particulars as to his whereabouts for the prosecution to investigate since it is a matter within his knowledge. In Ozaki & Anor Vs State (1990) 11 NLR 94 at page 105
Obaseki JSC stated as follows:-
“The accused person only has what is referred to as evidential burden of adducing evidence or raising the defence of alibi. Ortese Yanor & ors v. The State (1965) NMLR 337; Patrick Njovens & ors v. The State (1973) 5 SC 17 at 88 Once an accused person discharges the evidential burden of adducing evidence of alibi, it is the duty of the prosecution to disprove it. The duty of the learned trial Judge is to test the evidence of alibi against the evidence on the issue adduced by the prosecution and if there is doubt in the mind of the learned trial Judge to resolve it in favour of the accused. The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi. Bozim v. The State supra.”
In a further related case of Ibrahim v. State (1991) 4 NWLR (Pt 186) 399 at 415 Belgore JSC (as he then was) on the burden of disproving alibi stated thus:-
“When an accused person raises the defence of alibi in his statement to the police, it must be investigated. The burden of disproving alibi is immediately on the prosecution, once the accused person has indicated that at the material period of the crime, he was not the one that committed the crime because he was somewhere other than the “locus delicit” . Then it is incumbent on the prosecution to rebut it by investigating the alibi and failure to investigate may be fatal to the prosecution.”
See also Umani v. State (1988) 1 NWLR (Pt 20) 274 at 284. It is evident that the police and the prosecution did not investigate the appellant’s alibi and the whereabouts and timing of his movement were unclear and the puzzle remained unresolved. It is trite that where there is an iota of doubt, it must be resolved in favour of the accused. See Clark Vs State (1986) 4 NWLR (Pt 35) 381 at 384 – 385.
In proof of robbery, prosecution must establish the ingredients beyond reasonable doubt. There must be proof among other things that the items were stolen by the use of or threat to use violence; and that appellant took part in the robbery. See Bozin v. State (1985) 2 NWLR (Pt 8) 465; Okosun v. A.G. Bendel State (1985) 3 NWLR (Pt 12) 283; Nwachukwu v. State (1985) 3 NWLR (Pt 11) 218 at 269. It is also trite that the degree of the burden of Proof placed on the prosecution is to prove the accused guilty beyond reasonable doubt. Section 138 of the Evidence Act places such burden beyond reasonable doubt.
The witnesses called by the prosecution were the complainant PW1 and the investigating police officer PW2. The testimony of PW 1 did not suggest that appellant took part in the alleged robbery. There was no direct evidence led by the prosecution to prove that the appellant committed the alleged offence. In his testimony in chief PW2 testified to the effect that he investigated a case of stealing which was reported and referred to him. His testimony disclosed that the truck and its contents were diverted by the policemen on duty who arrested the driver and the two person’s appellant requested to accompany the driver. Under cross-examination he said:-
“In the cause (sic) of investigation we discovered robbery had taken place. I can’t lay hands on anything as regards the allegation of the accused person.”
Neither PW1 (complainant) nor PW2 was an eyewitness to the alleged robbery. PW2 gave evidence that the eyewitness was the driver of the truck, which was diverted by some policemen. The vital witness was not called by the prosecution. It is not in dispute that the truck containing the consignment belonging to PW 1 was diverted to unknown destination by some policemen. There is no cogent and compelling evidence linking the appellant with the alleged robbery. It is evident from the record that the co-accused persons who implicated the appellant in their various statements to the police jumped bail and only appellant stood trial to the end. The learned trial Judge while evaluating the evidence adduced before the court did not point to the evidence linking the appellant with the alleged offence of robbery. I hold that there is no credible evidence to support the conviction for the offence of robbery. On the totality of the evidence adduced the prosecution failed to prove the essential ingredients of the offence charged beyond reasonable doubt. In Madu v. State (2001) 3 NWLR (Pt 700) 230 this court per Mohammed JCA (as he then was) re-iterated the established principle in criminal justice at page 236 thus:-
“The basic principle in criminal trial is always that the prosecution must prove all the ingredients of the offence charged, and the burden of such proof which is on the prosecution never shifts. The standard of proof required its proof beyond reasonable doubt.”
I wish to note that the quality of evidence adduced by the prosecution clearly showed that the learned trial Judge wrongly overruled the no case submission as rightly contended by appellant’s counsel. If a submission was wrongly overruled an appeal against subsequent conviction would succeed.
In the final analysis, I will resolve all the three issues in favour of the appellant and allow the appeal. Consequently, the conviction and sentence are hereby set aside. Appellant discharged and acquitted on both counts of conspiracy to commit robbery contrary to section 403 (A) Criminal Code Law Cap C 17 Vol. 2 Laws of Lagos State 2003 and Robbery contrary to section 402(1) Criminal Code Law Cap 17 Vol. 2 Laws of Lagos State 2003.
Other Citations: (2009)LCN/3387(CA)
