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

LawGlobal-Hub Lead Judgment Report

S. KAWU, J.S.C. 

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

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

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

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

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

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

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

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

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

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

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

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

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