Fasilat Adepoju V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant was tried at, and convicted by, the Lagos State High Court (coram: O. A. Williams, J) on a two count charge alleging conspiracy to commit robbery and robbery contrary respectively to Sections 403(a) and 402(1) of the Criminal Code Law, Cap C.17 vol. 2 Laws of Lagos State, 2003. She was jointly tried for the two offences with one Kazeem Raimi, her boyfriend. They were convicted for the said two offences. The Appellant’s appeal was dismissed by the Court of Appeal (the lower Court); hence, this further appeal.

Etiosa Osigbo-Esere, the alleged victim of the robbery, testified as Pw.1. She had known the Appellant intimately for a while. The Appellant lived with one Linda Ofili who lived as Pw.1’s tenant in the Boys Quarters of the same apartment. The Appellant was Linda Ofili’s house help or nanny. Most times the Pw.1 invited the Appellant to her living room in the main building where they watched television together. The Pw.1 claimed that she occasionally gave the Appellant some of her dresses she no longer needed.

Pw.1 testified that on 4th January, 2006

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between 8.30 and 9.00pm, a man intruded and barged on her through the back doors that were open as she was cooking. The man wore a red baseball cap. He was followed by a lady who “had tied a veil around her face”. They pushed her to the living room. Pw.1 was ordered to kneel down by the man and the lady. Pw.1 obliged. They ordered her to surrender her jewelleries, valuables and money. The man collected Pw.1’s Nokia 6310 handset from her. As she tried to move the lady commanded: “Don’t move or I will scar your face”. Pw.1 was frightened. She however not only recognized Appellant’s voice, she also recognized the pair of shoes she had earlier given to the Appellant, as handout. The man, identified as the 1st accused, did not cover his face. The Pw.1 noticed the tribal marks on his face.

Pw.1 further narrated that the duo had warned her that they were armed and that if she did not co-operate they would harm her. She, accordingly, did not resist. They led her into the rooms and collected 3 wrist watches, a pair of white gold earrings, a set of gold earrings and a pendant with blue beads. They brought her back to the living room. The Appellant commanded her

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to kneel down there and she did. The Appellant, while the Pw.1 knelt down, allegedly disconnected the LG Silver 32 Inch Television set and took it out. She came back and removed PW.1’s DVD player, Video set and a Starcom phone. While Appellant was allegedly doing all these, Pw.1 noticed “something bulging underneath (the 1st Accused’s) shorts at the right hand side” when he was watching over her as she knelt down. She took the “bulging something” as the weapon they said they had on them.

The Appellant, as the Dw.2, testified that the 1st Accused was her boyfriend. That while she was engaged as a nanny, one Mr. Robert, the husband of her boss had raped and impregnated her. On confirming that she was pregnant, the Appellant averred that she informed the husband of her boss about it and warned that if he did not find solution she would tell his wife. Mr. Robert and the Appellant settled at some money to be given to her to “buy hair dryers” – the tools of her trade. Mr. Robert further promised to give her N100,000.00 in addition.

The Appellant testified further that on the fateful day she had gone to the Boys Quarter where Linda, her boss,

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resided to remove Linda’s property. The reason for this, in her words –

What I did is, because Linda’s husband failed on his promise and I live with Linda, I took her belongings knowing that if she tell her husband, he will give me the money he promised me.

The things taken from Pw.1, according to the Appellant, were Linda’s belongings –

because when Linda was (packing) the vehicle she came with could not contain all her property so she left some of her things with the Pw.1.

Appellant insisted that she packed Linda’s belongings from the Pw.1’s house, and that Pw.1 was not at home that day. She maintained that she was not armed that day. She admitted in her testimony, under cross-examination –

The items I stole from Pw.1’s house are: an LG Television, a CD player and two mobile phones; a pair of earrings and a pendant as well as two wrist watches,

and that these items were taken to the 1st Accused’s defendant’s house.

The 1st Accused, as Dw.1, did not deny going with the Appellant to the residence of the Pw.1. His account, not in any way dissimilar to the account of the Appellant, is that the husband of the

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Appellant’s boss had impregnated the Appellant; because he did not want the wife to know, he promised the Appellant that all the money the Appellant spent as medical bills would be refunded. He however reneged on the promise. The Dw.1 continued –

We were bitter about the failed promise so we went to the house of her boss to take her belongings.

They packed the belongings, unarmed, in the absence of the Appellant’s boss, Dw.1 testified.

The trial Court, on the totality of the evidence before it, found that the two offences of conspiracy and robbery had been proved beyond reasonable doubt against the duo of the appellant and the 1st Accused. They were convicted as charged. The lower Court affirmed the conviction and sentence.

The three issues submitted by the Appellant for the determination of this further appeal are all on facts. They are-

2.01 Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for offence of conspiracy and robbery under Sections 402(1) and 403(a) of the Criminal Code Law Cap 17, Vol. 2 Laws of Lagos State 2003. (Ground 1 and 4)

2.02 Whether on a preponderance of

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evidence, the Court of Appeal was right in affirming the trial Court’s reliance on the testimony of the two prosecution witnesses as proving the offence of conspiracy and robbery (Ground 2)

2.03 Whether the Court of Appeal was right to (have) come to the conclusion that actus reus can draw out mens rea and whether both elements were present and satisfactory to justify the conviction of the Appellant for conspiracy. (Ground 3)

This appeal was brought, purportedly, as of right pursuant to the provisions of Section 233(1) and (2) of the 1999 Constitution, as amended. But in actuality it was brought only on facts or at best mixed law and facts, and for it to be competent, it requires leave first sought and obtained, as a pre-condition (which was not). It is thus clear that this appeal was brought in clear defiance of the provisions of Section 233(1) and (2) of the Constitution.

Mr. Ihekweazu of counsel for the Appellant submits that the Respondent, as the prosecutor, “did not sufficiently establish the elements essential for the proof of the offences of conspiracy and robbery”. Consequently the lower Court was in error, when it affirmed the

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decision of the trial Court, counsel further submits. What then are the “elements essential for the proof of the offences of conspiracy and robbery”.

For the offence of conspiracy to commit robbery contrary to Section 403(a) of the Criminal Code Law of Lagos State, the Appellant’s counsel concedes that the overt act of the accused persons “situates the offence of conspiracy”. He is, however quick to add that the overt act must relate to the actual offence of robbery the Appellant stood trial on.

The conspiracy charged was a distinct offence from the offence of robbery charged: BALOGUN v. A-G, OGUN STATE (2002) FWLR (Pt. 100) 1287. I agree, as submitted by the Appellant’s counsel, that being a distinct offence the prosecution has, by dint of Section 135(2) and (3) of the Evidence Act, 2011, the burden of proving the offence of conspiracy beyond reasonable doubt independently and sufficiently too.

The offence of conspiracy is constituted of the following elements, namely:

I. the Agreement between two or more persons;

II. to do an illegal act, or to do a legal act by an illegal means.

I hereby adopt this definition restated in

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WAMBAI v. KANO N.A. (1965) NMLR 15. All that is necessary for the proof of the offence of conspiracy is for the prosecution to establish, what Tobi, JCA (as he then was) would call: “some community effort on the part of the accused persons aimed at committing a crime”: GBADAMOSI v. THE STATE (1991) 6 NWLR (Pt. 196) 204 at 205 C-D. It is sufficient if it is established that the parties in the alleged conspiracy had agreed to do an illegal act, or to do a legal act by illegal means: IKEMSON v. THE STATE (1989) 3 NWLR (Pt. 110) 455 at 477 (SC). A bare agreement to commit an offence is sufficient.

The evidence on the record shows that the Dw.1 and the Appellant had agreed to resort to blackmail in order to get Mr. Robert, Linda’s husband, to pay the Appellant on his promise to refund to the Appellant the expenses she had incurred treating herself for the alleged pregnancy and the additional sum of N100,000.00 to enable her set up her hair dressing business. It is clear from the evidence of the Dw.1 and the Appellant, as Dw.2, that they were both “bitter about (Mr. Robert’s) failed promise” and that they had embarked on the option of proceeding to Linda

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(said to be Mr. Robert’s mistress) to cart away her belongings in order to force Mr. Robert, who did not want Linda to know about the alleged pregnancy of the Appellant (Linda’s house help), to pay up or be damned by the scandal. The agreement between the Dw.1 and the Appellant to steal Linda’s property or belongings and hold them as a pawn or blackmail consideration for the enforcement of Mr. Robert’s promise is no doubt on agreement to enforce a promise by an illegal means.

Proof of existence of a conspiracy, at common law, is generally a matter of inference deducible from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them: Archbold – Criminal Pleading, Evidence and Practice; 40th ed., Paragraph 4076 at page 1875. The evidence of the Pw.1, assessed and described by the learned trial Judge, at page 99 of the record, as succinct and without prevarication fixed the Dw.1 and the Appellant to her house and the alleged robbery. Both were in concert and had exhibited some community effort aimed at stealing or dispossessing her of some chattels including an LG Television Set, DVD player, her

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mobile telephone handsets, earrings, pendant etc. The Dw.1 was guarding the Pw.1, who was ordered to kneel down and she knelt down in obedience, as the Appellant went about removing some of the chattels. The frightened Pw.1 was threatened that if she moved her face would be “scarred” as she was forced to kneel down. The duo of the Appellant and Dw.1 marched the Pw.1 from room to room and in the process they carted away her belongings.

The evidence of the Pw.1 clearly established the offence of criminal conspiracy. It is clearly deducible from the concerted criminal acts of the Dw.1 and the Appellant at the material time. The Pw.1’s evidence described by the Pw.1 as succinct and without prevarication was believed, upon proper evaluation, by the trial Court. On appeal, the trial Court’s finding was affirmed by the lower Court. I have no cause to disturb this finding of facts that the totality of the facts established the existence of criminal conspiracy between the Dw.1 and the Appellant.

On the offence of robbery, the submission of the Appellant’s counsel is that the Respondent, as the prosecutor, failed to prove the offence against the

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Appellant. Robbery, an offence of aggravated theft, is defined by Section 401 of the Criminal Code Law of Lagos State thus –

Any person who steals anything, and at or immediately before or immediately after the time of stealing it uses or threatens 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, is said to be guilty of robbery.

The Appellant, as Dw.2, had admitted under cross-examination that an LG Television, a CD player, two mobile phones, a pair of earrings, a pendant as well as two wrist watches were stolen by her from the Pw.1. This piece of evidence has thus confirmed the evidence of the Pw.1 that on 4th January, 2006 valuable items, including the items listed by the Dw.2 were stolen from her. The narrow question now is: whether the theft admitted by the appellant (Dw.2) amounted to robbery

For theft to amount to robbery the prosecution is enjoined to establish that “at or immediate before or after the time of stealing” the defendant “uses or threatens to use actual violence to any person or property in order to

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obtain or retain the thing stolen or prevent or overcome resistance to its being stolen”.

The undiscredited evidence of the Pw.1 that when the Dw.1 and the Appellant intruded and trespassed into her residence they pushed her into the living room from the kitchen where she was cooking and commanded her to kneel. That terrified her. The Dw.1 had something bulging underneath his shorts at the right hand side which made her believe the Dw.1 that they were armed as he had earlier stated. When the duo of Dw.1 and the Appellant menacingly demanded to be given money, gold jewelleries and other valuables, the Appellant directed her (Pw.1) not to move or “I will scar your face”. These are clearly words of threat. The Pw.1 had been exposed to violence or threats of actual violence to her person at the time of the theft. The terrified Pw.1 was, in the circumstance, made to submit to the criminal authority of the appellant and the Dw.1.

The trial Court and the lower Court found as a fact that the overt acts of the Appellant and Dw.1 amounted to robbery. The theft alleged by the Pw.1 was admitted by the Appellant. The Pw.1s evidence that the

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Appellant threatened that if she (Pw.1) moved her face would be “scarred” was not challenged nor discredited. The finding that the Appellant and Dw.1 committed robbery by their overt acts is one of facts. The concurrent findings of fact by the trial Court and the lower Court ordinarily entitle the respondent to a judgment dismissing the appeal, unless the Appellant shows exceptional circumstances, including the perversity or unreasonableness of the judgments which occasion miscarriage of justice, that would warrant this Court interfering and disturbing the concurrent judgments: OMETA v. NUMA (1934) 11 NLR 18; AJIBULU v. AJAYI (2004) 11 NWLR (Pt. 885) 458; OGIDI v. THE STATE (2003) 9 NWLR (Pt. 824) 1. The apex Court, this Court is, like the Privy Council in those days, will not (unless under special circumstance) hear arguments seeking to disturb concurrent judgments of the trial and intermediate Courts on pure question of fact: SERBEH v. KARKARI (1939) 5 W.A.C.A 49. The reason for this judicial policy by which the Apex Court declines to review the evidence for a third time, unless there are some special circumstances which justify departure from the practice,

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is that the concurrent judgments of the two Courts below are presumed to be correct.

The fanciful defence put up by the Appellant for the offences charged was not believed by the trial Court. It was disbelieved. The trial Court found that the defence evidence strengthened the case of the prosecution. This finding was affirmed by the lower Court. In the lead judgment of Nimpar, JCA, unanimously concurred by the other Justices on the panel, the point was made that “the trial Court was on good ground to rely on the evidence of the two prosecution witnesses” that proved all the ingredients of the offences charged to the ground the conviction of the Appellant. On these concurrent judgments it behoves the Appellant to show that the judgments are perverse or unreasonable, and that they had occasioned a miscarriage of justice. The learned Appellant’s counsel, in order to discharge the Appellant’s burden of establishing from the printed evidence, special circumstances to warrant this Court’s intervention on the findings of facts highlighted the evidence of Pw.2, at page 30 of the Record, purporting to be the reportage of the complaint the Pw.1 made of the

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incident on 4th January, 2006 and then submitted that the Pw.2’s evidence not only it did not corroborate the evidence of the Pw.1; that it was inconsistent with the Pw.1’s evidence on the account of the intrusion of the two accused persons and the actual threat they issued to the Pw.1. The Pw.2, testifying, had stated –

The complainant, one Mrs. Etiosa Esere, reported on 4th January 2006 at about 9.00pm she was cooking in her kitchen when suddenly two men with masked faces came to her and ordered her to lie down on the ground. They threatened to fire at her.

The evidence of Pw.1, said not to have been corroborated by the Pw.2 and in fact inconsistent with Pw.1’s evidence, is as follows –

He pushed the net door in, so I moved back to allow him in. Two people came in. The man with the face cap and a lady who had tied a veil around her face. They pushed me into the living room and asked me to kneel down. – The man was in front of me and the lady was standing at the adjourning (sic) door between the kitchen and the living – I made a movement and the lady said to me: “Dont move or I will scar your face”. The man was in the living

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room with me and warned me not to move because he was armed. I saw that there was something bulging underneath his shorts at the right hand side. So I took his word for it.

Throughout the proceedings, there was no dispute that it was the Appellant and the Dw.1 who intruded on the Pw.1 through the kitchen door while she was cooking at the material time. The Dw.1 did not deny that he was the man wearing a face cap. The Appellant also did not deny that she was the “lady who had tied a veil around her face”. Dw.1 and the Appellant never denied that they ordered the Pw.1 to kneel down with a threat that if she moved. “I will scar your face”. The Dw.1 only denied that he held a gun. The Appellant had, in her testimony, admitted stealing the very items the Pw.1 said were stolen from her. In the circumstance, the argument of the Appellant’s counsel that the Pw.2’s evidence did not corroborate the Pw.1s evidence will go to no issue. While one may concede to the Appellant that as to specific details, there are some variations between the Pw.2 and the source of the facts he was repeating (with allowance for innocuous embellishments); I find no material

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contradiction, in terms of substance, between the evidence of Pw.1 and Pw.2.

A piece of evidence is said to contradict another piece of evidence when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are minor discrepancies in details between them: OGOALA v. THE STATE (1991) 2 NWLR (Pt. 175) 509; SELE v. THE STATE (1993) 1 NWLR (Pt. 269) 276; IKEMSON v. THE STATE (supra). The minor discrepancies in details the Appellant’s counsel harps on have not been shown to occasion any miscarriage of justice to the Appellant. I agree with the learned counsel for the Respondent that having regards to the facts, the evidence of the prosecution and the unequivocal admission of the Appellant before the trial Court, the lower Court was right to have affirmed the judgment of the trial Court. Since there are no material contradictions in the evidence of the prosecution affecting the charges; no reasonable doubts exist in the case to warrant invoking the ratio decidendi in ONUBOGU v. THE STATE (1974) 9 SC 1; ALMU v. THE STATE (2009) 4-5 SC (Pt. 2) 33: that when a doubt exists in the prosecution’s case the benefit of the doubt

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must be resolved in favour of the accused person.

Learned Appellant’s counsel while advocating the innocence of the Appellant, in the Appellant’s Brief, submits that “it would seem that at the time (the Appellant) was removing the properties of the Pw.1, she reasonably believed that those properties actually belonged to Linda”. He accordingly stretches this argument further to support the submission that at the material time the Appellant had not the requisite guilty mind (mens rea) for the theft. This argument cannot stand in the face of the seemingly contrary submission founded on TONGO v. COMM. OF POLICE (2007) 2 NCC 529 at 544 (SC) that for an accused person to avail himself of the defence bona fide claim of right, he has to prove at the trial that the claim was made with all honesty and without intention to defraud. The Appellant, from the facts, cannot reasonably plead any bona fide claim of right to the property she admitted, under cross-examination, that she stole from the Pw.1. She lived with Linda in the Boys Quarter appurtenant to the main building occupied by the Pw.1. While she lived with Linda she had access to Pw.1’s room, particularly

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the living room, where she watched Television occasionally with the Pw.1. She was in a position, reasonably, to know that Linda’s property did not include those of the Landlady, Pw.1.

Assuming the said personal property the Appellant and Dw.1 forcefully stole from the Pw.1 belonged to the said Linda, the fact is that at the material time those chattels were in the actual possession or custody of the Pw.1. It is equally felonious if the Dw.1 and the Appellant had forcefully removed these personal property from Linda with the ulterior purpose of blackmailing Mr. Robert, the Husband of Linda, to pay the Appellant on his promise or undertakings. The mens rea for the overt act in this case lies in the fact of the admitted intention of robbing either Linda or Pw.1 of Linda’s personal property “knowing that if (Linda) tells the husband he will give the money he promised” to the Appellant. The Dw.1 and the Appellant are ad idem on this sinister ulterior purpose that is a bare faced blackmail. With this ulterior purpose the Appellant cannot plead the defence of bona fide claim of right.

The lower Court was right in my view when it stated at page 214-215

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of the record:

Thus, intention is inferred from the overt acts. Where there is confession from the accused and surrounding circumstances of a case, intention can be discovered therefrom. The actions of the accused provide the bases for concluding on the intention. The significance of intention in criminal trial is that intention is the purpose or design of the act performed coupled with the desire to do the act.

It is clear to me from the fact that the Appellant exhibited the necessary mens rea or guilty mind for both criminal conspiracy to commit robbery and the robbery charged. I have therefore no cause to interfere with, and disturb, the conviction and sentence of the Appellant for criminal conspiracy and robbery. Consequently, as I find no substance in the appeal, the same is hereby dismissed in its entirety.

The conviction and sentence of the Appellant by the trial Court affirmed by the lower Court in the appeal No. CA/L/936/2012 are hereby further affirmed. Appeal dismissed.

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SC.484/2014