Lekan Sodiya V. The State (2009)

LawGlobal-Hub Lead Judgment Report

SIDI DAUDA BAGE, J.C.A.

The Appellant, Lekan Sodiya (1st Accused), was arraigned and tried along with two others before an Abeokuta High Court, sitting at Isabo, Abeokuta, Coram S. A. Oduntan, for conspiracy to commit armed robbery to one Mr. Olusesan Sowunmi’s residence at Kemta Housing Estate, Idi-Aba, Abeokuta, contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) of the Federation of Nigeria, 1990, as amended by the Tribunals (Certain Consequential Amendments) ETC Act 1999. The two other accused persons and others at large were charged with the actual offence of armed robbery.

The accused pleaded not guilty to the charge. Evidence was led by the prosecution in proof of the offence, called a total of Ten (10) Witnesses and tendered Four (4) Exhibits. The Appellant testified in his defence and called One (1) Witness, his mother, who testified on his behalf. He was however convicted by the High Court on the conspiracy charge on 1/8/2000.

Aggrieved by the decision, the Appellant appealed against the whole decision to this Court on the Amended Notice of Appeal containing Three (3) Grounds filed on the 9/10/2007. The Parties have in compliance with the Rules of this Court, filed and exchanged their Briefs of Argument. Three Issues for determination were formulated by the Appellant in his Brief of Argument filed in this matter and they are as follows:-

(1) Whether the prosecution has proved or established the offence of conspiracy against the Appellant (Ground 1, Notice of Appeal).

(2) Whether the entire judgment of the High Court and conviction of the Appellant for conspiracy can be supported having regard to the evidence before the High Court (Ground 2, Notice of Appeal).

(3) Whether the High Court was right in admitting Exhibit “C2” in evidence and attaching any weight to it (Ground 3, Notice of Appeal).

The Respondent in its Brief raised one issue for determination viz:

“Whether the prosecution had proved beyond reasonable doubt the offence of conspiracy against the Appellant having regard to the evidence before the Court”,

The Appellant argued Issues 1 and 2 together. Adverting to Sections 516 and 517 of the Criminal Code Cap 77 Laws of the Federation of Nigeria defining conspiracy, the Appellant debunked the said charge as not availing the Respondent in this matter as it takes two or more persons to conspire together to effect an unlawful purpose, or to effect a lawful purpose by an unlawful means. See:- Amachree Vs. Nigerian Army (2003) 3 NWLR (Pt. 807) 256 at 281. And it was more so here particularly when there was nothing in the prosecution’s case to suggest conspiracy between the Appellant and the other accused persons towards committing the offence of armed robbery.

The Appellant further submitted that from the record, it does appear that the learned trial judge was able to locate the evidence in support of the said conspiracy mainly from the statement made to the Police by the 1st and 3rd Accused persons which he admitted as confessional statements, marked as Exhibits “C” and “C2”. The Appellant further submitted the Exhibits “C” and “C2” did not and could not have provided “sufficient direct evidence” beyond reasonable doubt as required in criminal trials to justify the conviction of the Appellant on Count 1. The Appellant submitted further that in Exhibit “C”, the statement of the 3rd Accused, he never mentioned any conspiracy with the Appellant. He never mentioned the Appellant’s name throughout his statement and in his oral evidence.

The Appellant further submitted that to say why the learned trial judge did not consider the statement of the 2nd Accused (Exhibit “C3”). The 2nd Accuser’s statement reveal that he knew Sesan and his house, he had an “axe to grind” with him and planned to rob him with his gang. He never mentioned the name of the Appellant. The Appellant furthered his submission that it is clear that the statements of the 2ndand 3rd Accused persons and their evidence before the Court cannot under any stretch of imagination be said to have confirmed that the contents of the confessional statements of the Appellant that he conspired with them are true. They are in fact contradictory to Exhibit “C2” they neither corroborated nor give much comfort to any assertion that the content of Exhibit “C2” is true. The Appellant further submitted that there is nothing in the evidence of PW1, PW2, PW3, PW4, PW5, PW6 and PW7 which corroborates, confirm the truth of the statement of the Appellant (Exhibit “C2”). There is a plethora of evidence and circumstances before the trial Court which makes the Appellant’s statement inconsistent with facts ascertained and proved and renders the so called confession suspicious and doubtful.

The Appellant submitted the undenied fact that he did not sleep in the house on the night of the robbery incidence, this can only arouse suspicion and not a conclusion that he conspired to commit the armed robbery in the absence of evidence to support same from the prosecution. It is trite law that suspicion no matter how strong, will never be enough to convict a person for a crime when the crime alleged is not proved against such a person. The appellant submitted further that the learned trial Judge dismissed Count 3 of the Charge which alleged that John Adole (PW2) was robbed of N2, 000.00. Thus, the charge of conspiracy to rob at Sesan Sowunmi’s house under Count 1, could not have applied to John Adole’s (PW2) robbery in Count 3. It could only have applied to Count 2 which relate to robbing of PW1 (Mrs. Sowunmi) of jewelleries and N6, 000.00. Yet the evidence of witness and the judgment of the learned trial Judge relied heavily on the supposed fact that Appellant sent John Adole (PW2) to Oja Odan and he was robbed in the aftermath. The Appellant submits that with respect, the learned trial Judge with all the serious doubt as to the culpability of the Appellant in the conspiracy to commit armed robbery for which he was charged found him guilty at the lower Court. This does not conform to the principles laid down in R. vs. Obiosa (1962) SCNLR 402, and the judgment of this Court in Appeal No. CA/I/2/2006: Samodi Mustapha Vs. The State delivered on 19th March, 2007. The Appellant further submitted that Exhibit “C2” is not consistent with other facts before the lower Court, its truth is doubtful and it is not corroborated, and thus unsafe to convict the Appellant on Count 1. The proper consideration of all the issues raised above show that the charge of conspiracy to commit armed robbery was not proved against the Appellant even in the face of Exhibit “C2”. This Court is urged to resolve Issues 1 and 2 in favour of the Appellant.

On Issue 3, the Appellant submits that the learned trial Judge ruled upon a conclusion of trial within trial that Exhibit “C2” was made voluntary. The Appellant nevertheless still maintained in his evidence before the lower Court that Exhibit “C2” was induced by violence. The Court should have discountenanced Exhibit “C2” or should not have placed any probative value on the said Exhibit. See: – Section 28 of the Evidence Act. Also, R. vs. Haske (1961) SCNLR 90; Amachree vs. Nigerian Army (Supra) Page 279 Paragraphs B-C. The Appellant further submits that he gave copious and lucid evidence of how he was beaten, hung on a ceiling fan and seriously tortured before he was made to sign Exhibit “C2” against his wish. The Appellant also maintained constantly that the Police wrote the statement, but that, he had no choice but to sign and confirm the second time they took him before Superior Police Officers when the torture was becoming unbearable he agreed to sign the statement which reads: – “Now, I want to say what happen”.

The Appellant further submits that the prosecution had the opportunity to cross-examine him on his evidence during the trial within trial that he was tortured, instead, irrelevant questions to the voluntariness of Exhibit “C2” were asked. The effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. See: – Gaji Vs. Paye (2003) 8 NWLR (Pt. 823) 583 at 605 Paragraphs A-C; Agbonifo Vs. Aiwereoba (1988) 1 NWLR (Pt. 70). The Appellant further submits that by the fact that the Appellant did not sign Exhibit “C2” at the end of the concluding paragraph containing the endorsement made on that paragraph by the Superior Police Officer who had altered the statement. The investigating Police officer (PW9) also did not sign the said concluding paragraph. What is more, there was an unexplained failure to observe the procedure to be followed when using an interpreter to obtain an accused person’s statement as laid down in Olalekan Vs. The State (2001) 8 NSCLR 201 at 220-221. This Court is urged to resolve Issue 3 in favour of the Appellant.

The Respondent in arguing the single issue proposed for the determination of the appeal in his Brief of Argument submitted that the prosecution established the guilt of the Appellant in respect of the offence charged by discharging the onus imposed on it. In doing so, the prosecution called Ten (10) Witnesses and tendered Four (4) Exhibits. The Respondent further submits that all the ingredients of conspiracy were established through evidence of the prosecution witnesses and further strengthened by Exhibit “C2” the confessional statement of the Appellant. The Respondent submits that the learned trial Judge was right in his finding of fact when he held that “there is evidence that the 1st Accused (Appellant) conspired and had common intention with 2nd and 3rd Accused (and others now at large) to commit the armed robbery in the 1st Count of charge”.

The Respondent submitted further that it is trite law that an Accused may be convicted on his confessional statement alone, if it is free, voluntary direct positive and properly proved, In this case, it is pertinent that the Appellant’s confessional statement was direct and positive and properly proved having been subject to proper scrutinizing viz a viz the trial within trial conducted by the trial Court. See:- Gira Vs The State (1996) 4 NWLR (Pt. 448) 375 SC; Edhigere Vs The state (1.996) 8 NWLR (Pt. 464) 1 SC; Nwaeze Vs The State (1996) 2 NWLR (Pt. 428)1 SC; Ekare Vs The State (1999)13 NWLR (Pt. 635) 546 CA.

The Respondent further submits that the learned trial Judge was right when he held at Lines 10.21 at Page 115 of the Record that common intention may be inferred from the circumstances disclosed in the evidence. See: – Aje Vs. The State (2006) 8 NWLR (Pt. 982) 345 at 363 ParagraphsA-C and C-F. The Respondent further submits that the lower Court rightly directed itself and properly considered the various tests that must be borne in mind before convicting an accused person based on his confessional statement. It is settled law that in a trial for conspiracy, the evidence of what one accused says in the absence of the other conspirators is admissible against such others. See: – Nwosu Vs The State (2004) 15 NWLR (Pt. 894) 466. The Respondent further submitted that the Court properly considered all the necessary tests before arriving at the conclusion that the charge of conspiracy to commit armed robbery was proved against the Appellant and we urge this Court to resolve the only issue formulated herein against the Appellant and in favour of the Respondent. The Respondent finally urge the Court to uphold the judgment of the learned trial Judge which convicted the Appellant for conspiracy to commit armed robbery and to dismiss the Appellant’s appeal as lacking in merit on grounds stated in our Brief.

The Appellant filed a Reply Brief in response to the Respondent’s argument on his sole issue for determination filed on the 19/6/2008. The Appellant submits that authorities have shown that when a confessional statement is made before trial, particularly at a Police Station, it is the duty of the trial Court to subject such confession to the six tests in R. Vs. Sykes (13) 18 CR APP 233 confirmed by the Supreme Court in R. Vs. Obiosa (1962) SCNLR 405. The Appellant further submits that by Paragraph 4.07 of the Respondent’s Brief are utilized out of con. All the cases cited qualified the generalization of the Respondent by reference to the tests laid down in R. Vs Obiosa (Supra) particularly when the confession is extra judicial, as in the present case. In all the cases, it was held that “the Court must be satisfied of the truth of the confession”.

See:- Ekure Vs. The State (1994) 13 NWLR (Pt. 635) cited by the Respondent’s Counsel qualified the generalization of the use of extra judicial confession by restating the six tests on R. vs. Sykes (Supra).

The Appellant further submitted that we have amply demonstrated in Paragraphs 3.05 to 3.41 that the purported confession of the Appellant when considered with other available evidence woefully failed the six tests as aforementioned. It is therefore unsafe to convict the Appellant in the circumstances of this case as reasonable doubt of his guilt has been raised. The Appellant finally submits that the case of Nwosu Vs. The State (2004) 15 NWLR (Pt. 897) 466 cited in Paragraphs 4.11 of the Respondent’s Brief is inapplicable to this case. The case deals with confessional statement freely and voluntarily made while testifying in Court. The case, with respect to the Respondent’s Counsel, did not deal with extra judicial confession as in this case. This Court is urged to hold that the learned trial Judge failed to properly consider the necessary test and evaluate the evidence before him before returning a verdict of guilt on Count 1 and accordingly allow this appeal.

Firstly, looking at the Issues formulated for determination by the Parties in this matter, they are substantially identical, although the Respondent on its part had considered the issues for determination to one as against the three by the Appellant. It should be noticed that the sole Issue of the Respondent’s Brief of Argument has encompassed all the Three Issues formulated by the Appellant in his Brief of Argument which become conterminous in all respect they raised the same question of fair hearing. The two sets of issues emanated from the ground and the judgment in this matter. That being the case, I have opted to be guided by the issues as raised by the Appellant.

It is trite law that the onus of proof in this matter of the sole charge of conspiracy proffered against the Appellant beyond reasonable doubt rested squarely on the prosecution and it never shifts. For the instant matter to succeed, the prosecution was required to produce conclusive evidence of the ingredient of conspiracy charge. It now remains for me to see if there is any miscarriage of justice. I intend to take the 1st and 2nd issues as argued by the Appellant in his Brief of Argument before going into the 3rd Issue.

Issues 1 and 2 hinge on whether the prosecution has proved or established the offence of conspiracy against the Appellant, and whether the entire judgment of the lower Court and the conviction of the Appellant for conspiracy can be supported having regard to the evidence before the lower Court. I intend to take what offence of conspiracy entails first and the proof established by the prosecution, before considering the judgment of the Court in respect thereof I do so advisedly because of the peculiar circumstances of this case. The charge of conspiracy which the Appellant stands convicted of, simply put; it is constituted by the agreement formed by two or more minds with the intention to do what is agreed. And where what is agreed to do is an unlawful act the parties are guilty of conspiracy. See:- R. Vs. Thompson (1966) 50 CR APP REP. No doubt, one conspiracy may involve several overt acts as alleged in the instant matter. Equally valid is the proposition that several acts of an accused person can be said to be in furtherance of a common purpose also as alleged in the instant case as submitted by the prosecution. Also, See:- Amachree Vs. Nigerian Army (20031.3 NWLR (Pt. 807) 256 at 281 Paragraphs D-E.

Firstly, however the ingredients of the offence of conspiracy before an accused can be convicted of are as follows:-

(i) There must be two or more persons,

(Ii) They must form a common intention,

(iii) The common intention must be toward prosecuting an unlawful purpose,

(iv) An offence must be committed in the process; and

(v) The offence must be of such a nature that its commission was a probable consequence. See: – Akinwunmi Vs. The State (1987) 1 NWLR (Pt. 52) 608.

To appreciate the ingredients of the offence of conspiracy set out above, it is pertinent to consider those facts which led to the involvement of the Appellant in the crime alleged, and his subsequent conviction by the trial Court. At page 93 of the Record, it is stated in Paragraph Two thereof:-

“According to PW3, the 1st accused was living with him until he disappeared on the 4th of November, 1999 without telling anybody. PW3 said that he left his house at about 8.00pm on the 4th of November, 1999 for his family house at another area of Abeokuta where he passed the night. He said that the 1st accused had not returned at the time he was leaving home on the 4th of November, 1999”.

Also, the PW2 who was also living with PW3 at the time of the incidence told the Court that:-

“It was the 1st accused who sent him to Oja Odan on the 3rd of November, 1999 to go and collect the bags of cocoa waiting there for collection after having been bought by PW3, who was a produce buyer and who was training him (PW2) and the 1st accused to become produce buyers. When I returned to Abeokuta that night of 4th November, 1999, the 1st accused was not around and that nobody knew his where about. When the robbers, who invaded our house on the night of 4th of November, 1999 were asking me to identify myself and about the money I brought from Oja Odan, I became very surprise and suspicious of the 1st accused knowing the robbers, because, it was he who sent me to Oja Odari”.

From the evidence before the Court, based on the suspicion of PW3, PW2 on the 1st accused, led to the report made to the Police against him. The 1st accused was subsequently arrested by the Police and he was said to have made Exhibit “C2″ his confessional statement to the Police, wherein he mentioned the names of the 2nd and 3rd accused and others who are at large as the robbers who carried out the operation. With the assistance of the Appellant (the 1st accused), the 2nd and 3rd accused were arrested by the Police. Based on the content of Exhibit ”C2″, the said confessional statement of the Appellant (1st accused), he was arraigned and tried along with two (2) others before the Court for conspiracy to commit armed robbery to one Mr. Olusesan Sowunmis residence at Kemta Housing Estate, Idi-Aba, Abeokuta, contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments) ETC Act, 1999. There can be no gain saying that based on the facts of this matter conspiracy perse cannot be considered and determined without determining the admission of Exhibit “C2” in evidence by the trial Court and the weight attached to it. I therefore put the consideration of Issues 1 and 2 of the Appellant’s Brief of Argument in abeyance to consider Issue 3, the controversial confessional statement of the Appellant (1st accused), Exhibit “C2”. It is now settled that Exhibit “C2” is the fulcrum of the prosecution’s case. The Appellant has challenged its voluntariness in the light of the case of torture meted against him in obtaining the confession. The next important question to consider is whether the Appellant was tortured to make Exhibit “C2” and could the make Exhibit “C2”; and could the Appellant still contest the admissibility of Exhibit “C2” as a voluntary statement even after it was received in evidence at the trial-within-trial before the trial Court. There can be no doubt he could on appeal.

The Appellant to highlight the inducement by violence and intimidation set forth some examples at Pages 49 and 50 of the Record.

At page 49:-

“(1) On the 8/11/99, I was at home when my former boss (Sesan Sowunmi) and one Sgt. Kure came to arrest me. Without any resistance, I followed them to the Police Station at Eleweran, Abeokuta in handcuffs. Shortly after arriving at Eleweran, I was taken to the house of my said master by the same Sgt. Kure while there the Sgt. Started beating me and accusing me that I and my gang came to rob them in that house. I denied knowing anything about the robbery.

At Page 50:-

(2) I was later returned to Eleweran. Later on that day, the said Sgt. Kure brought me out from the cell again. He took me to a room where I was hung on the ceiling. One Sgt. Ekong was also present. They asked me to start telling them how I and my gang had committed the robbery. I told them I know nothing about it. They started beating me again with a cutlass. I told them to release me from the ceiling before I would tell them my story.

(3) I was then taken down from the ceiling. They asked me to sign what they had written on a paper, with the help of Sgt. Ekong who held my hand. I was able to sign that paper. Therefore, I was taken before the O/C Legal with the statement. But the O/C Legal refused to endorse the statement when I told him that I did not tell them what he (O/C Legal) had read out to me in Yoruba. So, they took me before the O/C Robbery where Sgt. Kure read out the statement in English which I did not understand, but was interpreted to me in Yoruba by him. The O/C robbery then asked me if that was my statement. I told him that I was not the one who told them what was contained in the statement. The O/c Robbery then ordered Sgt. Kure and Ekongto take me back for obtaining another statement from me.

(4) They took me back to the ground floor, they hang me on the ceiling again and started beating me with electric cable. At a point whence punishment became unbearable, I have to confess to the crime and never committed. They took me again to the O/C Robbery, also took me with the statement to another higher Officer. I told them that it was my statement and the O/c Robbery then endorsed it and signed it, and I also signed it. I was later charged to Court”.

The foregoing fact situation is a matter for weighty consideration in the con of the said inducement to violence. The Appellant submitted that the picture that emerged from the above scenario was one showing that Exhibit “C2” was not voluntary. It is settled law that for admitting a confessional statement as Exhibit “C2” in evidence, it must be shown to be free and voluntary. See:- Section 28 of the Evidence Act, 1990 that is, to say that it is not induced by threat or promise. For the import of the words “promise” or “threat” within the con of Section 28 of Evidence Act, 1990. I refer and rely on: Madu Fatumani Vs. R. (1950) 13 WACA 39; R. Vs. Baba Haske (1961) SCNLR 90; and (1961) ANLR 330. A confessional statement obtained against the background of inducement or threat or promise, is inadmissible. It is settled law that the inducement must be made by a person in authority and Police has been so held. See:- Ebdomen & Others Vs. R. (19631)1 All NLR 365. The burden of proving the voluntariness of the confession lies on the prosecution, and can only be discharged if the Court is satisfied beyond reasonable doubt that the confession was voluntary. See:- D.P.P. Vs. Pin Lin (1975) 3 All ER 175.

In the instant case after a complete review of Exhibits “C”, “C1” and “C2” by trial Judge, he stated at Page 111 of the Records that:-

“Obviously, Exhibits “C”, “C1” and “C2″ above are confessional statements as has been noted earlier above, they have been proved to have been made voluntary by each of the accused persons. Clearly, they are positive, direct and unequivocal, and each of them amounts to an admission of guilty in my view. In Egboghorome Vs. The State (1993) 7 NWLR (Pt. 306) 383. It was held that, once an extra judicial statement was found to have the qualities enumerated above, it would suffice to ground a finding of guilty regardless of the fact that the maker resiled there from, or retracted it altogether at trial. According to the case, such a retraction does not necessarily make the confession inadmissible”.

The learned trial Judge continued at Page 112:

“In the instant case, the learned defence Counsel has advanced many reasons why the accused’s statements (Exhibits “C”, “C1” and “C2”) should not be upheld against them, but most of those reasons are an attempt to re-open the issues already dealt within the trial-within-trial. However, the Court is enjoined to test a confession on its truth before upholding it by examining it along other evidence in the case so s to determine the following:-

(1) Whether there is anything outside it to show that it is true;

(2) Whether it is corroborated;

(3) Whether the facts stated in them are true in so far as can be tested;

(4) Whether the accused’s confession is Possible; and

(5) Whether the confession is consistent with other facts which have been ascertained and proved. See:- R. Vs. Obiosa (1962) 2 S.C.N.L.R. 402.

The learned trial Judge continued in the same Page 112 of the Records as follows:-

“In applying these tests to the facts of the instant case, one only needs to consider the evidence of PW1, PW2, PW5, PW6 and PW7 and relate them to the statement of the accused (Exhibit6s “C”, “C1” and “C2″).

After a deep and sober reflection on the evidence or those witnesses in relation to the statements of the accused persons; I am of the firm view that the confessional statements made by the 1st – 3rd accused are substantially and materially corroborated”.

The learned trial Judge at page 113 of the Records stated as follows:-

“Regarding the charge of conspiracy in count 4, there is no evidence linking the 1st accused to the charge that he neither conspired with the 2nd and 3rd accused or had any common intention with them to execute the armed robbery that took place at NO.1, Odunbaku Avenue, Ijeun-Titun, Abeokuta, on the night of 4th of November,

1999. But there is evidence that the 1st accused conspired and had common intention with the 2nd and 3rd accused (and others now at large) to commit the armed robbery in the 1st count of the charge”.

At Page 114 of the Records, the trial Judge stated again as follows:-

“Common intention may be inferred from the circumstance disclosed in evidence and need not be express agreement. I am of the view that statements of the 1st and 3rd accused provide sufficient direct evidence of conspiracies before the Court”.

At Page 115 of the Records, the learned trial Judge stated as follows:-

“Assuming however for argument sake that Exhibits “C” and “C2″ do not provide sufficient direct evidence of conspiracy, the Supreme Court has said that direct evidence of conspiracy is not indispensable and that it is open to the trial Court to infer a conspiracy from the fact of doing things toward a common end. See:- Paul Orochie Vs. The Republic (1966) NMLR 307 at 308”.

After convicting all the Three (3) accused persons as charged, the learned trial Judge at Page 117 of the Records stated as follows:-

“It is clear from the above that I have no discretion in the matter of sentence to be imposed. It is mandatory. Consequently, I pass the following sentence:

1ST COUNT:

1st Accused- Sentenced to death by firing squad;

2nd Accused- Sentenced to death by firing squad;

3rd Accused- Sentenced to death by firing squad.

It is to be noted that the Appellant, 1st accused was not sentenced along with the 2nd and 3rd accused for counts 2, 3, 4, 5 and 6. I have reviewed in great detail the finding of the trial Judge that the confession of the Appellant in this Appeal, was voluntary; so was the confession of the 2nd and 3rd accused. What then is the procedure to be adopted by the Appellate Court when confronted with such finding of the trial Judge, Phipson on Evidence Twelfth Edition at Page 798, the 3rd Paragraph stated:-

“The question whether a statement is voluntary is for the Judge. This does not make it any the less a question of fact. An Appellate Court should not disturb a Judge’s finding that a confession was voluntary simply because he has treated the facts before him differently from the way in which similar facts were treated in a reported case. Only if the trial Judge has erred in principle or has made a completely wrong assessment of the facts can his decision be disturbed.

After a very careful examination of the finding of the trial Judge in relation to the confessional statement of the Appellant (1st Accused), Exhibit “C2” as detail provided to earlier in this Judgment, I have not found where the trial Judge has erred in principle or has made a completely wrong assessment of the facts to disturb his finding in this case. This Court therefore, will not disturb the finding of guilt made against the Appellant on Count 1 by the trial Judge. The finding of the trial Court on Count 1 of the charges against the Appellant as (1st Accused) and Two (2) Others is as follows:-

“The three accused persons are found guilty of conspiracy to commit armed robbery under Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria, 1990, as amended by the Tribunals (Certain Consequential Amendments) ETC Act, 1999”.

The learned trial Judge at Page 117 of the Records said:-

“It is clear from the above that I have no discretion in the matter of sentence to be imposed. It is mandatory consequently, I pass the following sentence:

1ST COUNT:

1ST Accused – Sentenced to death by firing squad.

It is pertinent to note from the Record before the Court that the Appellant (1st Accused) was only charged for the offence of conspiracy with the others to commit the offence of armed robbery. He was convicted and sentenced under Section 5 (b) of the Robbery and Firearms (Special Provision Act) Cap 398, Laws of the Federation of Nigeria 1990, which provides:-

“Section 5. Any person who…

(b) conspires with any person to commit such offence whether or not he is present when the offence is committed or attempted to be committed shall be deemed to be guilty of the offence as a principal and shall be liable to be proceeded against and punished accordingly under this Act.”

Section 1 (2) (a) provides:-

“Any offender mentioned in sub-section (1) of this Section is armed with any firearms or any offensive weapon, or is in company with any person so armed; or… the offender shall be liable upon conviction under this Act to be sentenced to death”.

On the whole therefore admitting Exhibit “C2”, the confessional statement of the Appellant by the trial Judge was right and proper, and the weight attached to it. Issue NO.3 therefore resolved against the Appellant.

With Issue NO.3 now resolved, I now return to consider Issues 1 and 2 earlier on kept in abeyance in this judgment to deal with Issue NO.3. Issue 1 is whether the prosecution has proved or established the offence of conspiracy against the Appellant and Issue 2 is whether the entire judgment of the High Court and conviction of Appellant for conspiracy can be supported having regard to the evidence before the High Court. It is important to note here that, after the resolution of Issue No. 3 by this Court making the admission of Exhibit “C2” by the trial Court, the confessional statement of the Appellant as proper and right, it will be unnecessary again to go back to determine what constitute the elements of conspiracy, or the evidence given in support of those elements. To my mind, we have passed that stage in this judgment. I think the proper stage at which has to be determined now is whether by the content of Exhibit “C2”, the prosecution has been able to prove that the act of assistance given by the Appellant to the other accused must have been done for the purpose of (i.e. with the intention of) enabling or aiding the commission of that offence. I have examined Exhibit “C2” wherein the Appellant mentioned the names of the accused who committed the heinous crime, also with the assistance of the Appellant who provided the address of the other accused (the 2nd and 3rd accused) were arrested. I have also examined the confessional statement of the 2nd accused, Exhibit “C3” at Page 109 of the Records where the learned trial Judge reproduced part of as follows:-

“In 1996, I started to look for job to aid me up to the point. I join to load cocoa for the complainant in this case, Mr. Sesanat Kemta Housing Estate. At the time when we work for Sesan, he always short pay us, so I, Sampson Idowu Kazeem,(3) Kehinde, (4) Mosuru, (5) Saliu (Rewirer) planned and robbed his house on the 4th November, 1999 at about 11.00 p.m.”

It is very significant to note here that the 2nd accused in his statement, Exhibit “C3”, did not mention the name of the Appellant amongst those who had conspired to rob Mr. Sesan at Kemta Housing Estate. However from the content of Exhibit “C2”, the confessional statement of the Appellant, he knew some crime was intended.

In the English Case of R.V. Bainbridge (1959) 43 Cr App R. 194; (1960) 1 QB 129, it was held that, it is not enough to prove that a man knew that some crime was intended, but held that, it must be proved that there was knowledge of the type of crime intended and committed. Also, in R. V. Enweonye (1955) 15 WACA 1 at Page 3, the West African Court of Appeal referred to the prosecution as “failure to prove the necessary intention to give assistance”.

What is certain now before this Court and which the prosecution has proved by Exhibit “C2” is that, the Appellant knew or had knowledge that the accused person had intended to commit this crime that in itself is an offence. However, what is not proved by the prosecution against the Appellant is, whether he had intended the offence of robbery was to be committed with the use of fire arms. The Appellant is charged under Section 5 (b) of the Robbery and Firearms (Special Provisions) Act which provides for anybody who conspires to commit such offence, is deemed to be guilty of the offence as a principal offender; and by Section 1 (2) (a) of the Robbery and Firearms (Special Provisions Act) Cap 398 of Laws of Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments) ETC Act, 1999, the offender shall be liable upon conviction under this Act to be sentenced to death. The trial Judge had stated that there was no measure of discretion provided for under the Act for the Court to act upon. With due respect to the learned trial Judge, this position can only be totally correct where the prosecution has proved that the said act of conspiracy or assistance given by the Appellant was with the full intention by him that firearms was to be used in carrying out the offence. No doubt an offence was committed by the Appellant but the prosecution has not proved the offence one to be punished under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (certain Consequential Amendments) ETC Act, 1999. No doubt the offence for which the Appellant was tried and convicted at the lower Court was the offence of robbery. The offence which the prosecution has established against the Appellant is also robbery related. What may differ is the punishment section in view of the lack of proof on how his intention was in the mode of the execution of the crime as stated above. The Appellant, as it is established against him, had knowledge of crime to be committed. I am of the opinion that the appropriate sentencing section under the Act for the offence of the Appellant is Section 1 (1) of the Act, and not Section 1 (2) (b) of the Act Section 1 (1) of the Act provides:-

“Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years”.

In the final analysis, the conviction done by Oduntan J., of the High Court of Justice, Ogun State, delivered on the 1st August, 2003, in Charge No. AB/23R/00, is hereby affirmed, but the sentence of the Appellant (1st Accused) under Section 1 (2) (a) of the Act to death by firing squad is hereby substituted by this Court to sentence under Section 1 (1) of the Act to a term of imprisonment for life.

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Other Citations: (2009)LCN/3322(CA)