Ndubuisi Nwadibia & Ors. V. The State (2009)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an appeal by the appellants against the judgment of Onyeabo J. of the Lagos High Court delivered on the 21st day of October, 2004 whereby appellants were convicted and sentenced to a term of 11 years imprisonment each for committing the offence of Conspiracy to commit armed robbery. The accused persons (hereinafter referred to as) appellants were arraigned on a two count charge of conspiracy to commit Armed robbery contrary to section 4(b) of the Robbery and Firearms (special provisions) Decree (now Act) 1984 and armed robbery contrary to section 12(b) of the Robbery and Firearms (special provisions) Decree (now Act) 1984. For case of reference and emphasis the two counts read as follows:-
“STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to commit Armed Robbery contrary to section 4(b) of the Robbery and Firearms (special provisions) Decree 1984.
PARTICULARS OF OFFENCE
Ndubuisi Nwabibia (m), Uchechukwu Ekpe (m) and Benjamin Inyang (m) on or about the 22nd day of April, 1995 between Costain Lagos State conspired together to commit a Felony of wit: Armed Robbery.
STATEMENT OF OFFENCE – 2ND COUNT
Armed Robbery contrary to section 1(2)(b) of the Robbery and Firearms (special provisions) Decree 1984.
PARTICULARS OF OFFENCE
Ndubuisi Nwadibia (m) Uchechukwu Ekpe and Benjamin Inyang (m) on or about the 22nd day of April, 1995, along the Shagamu-Benin Expressway, near Ijebu-Ode whilst armed with poisoned drinks, stocks and iron rods robbed Waidi Akano (m) of lorry load by cement property of Costa in Nigeria Plc. ”
When the case came up for hearing on 31/01/2002 the charges were read over to the accused persons now appellants and they all pleaded not guilty on both counts. At the trial, three witnesses testified for the prosecution while the three accused persons/appellants testified for themselves. The third accused/appellant called one other witness for himself. At the conclusion of prosecutions case appellants counsel entered a no case submission which was refused by court who called on the appellants to open their defence. Counsels addressed the court and after due consideration of the evidence adduced, Onyeabo J. found the appellants guilty of conspiracy and convicted them as charged. The learned trial Judge at page 181 of the record had this to say:-
“In the final analysis therefore, the only offence proved is that of conspiracy as contained in the Count 1. The evidence of conspiracy is quite separate and distinct and does not merge in the substantive offence. Consequently the failure of the 2nd Count will not and does not automatically lead to the failure of this count. The 1st, 2nd and 3rd accused persons are therefore found guilty of the offence of conspiracy as charged. They are however not found guilty of either armed robbery as charged in count 2 nor of the lesser offence of robbery under the same Act. They are acquitted on the said count. That is the Judgment of the court.”
Dissatisfied with the decision of the lower court each appellant filed notice of appeal on 13/1/05 which were amended by order of court on 15/11/06. Each notice contained three grounds of appeal. In accordance with the practice of this court Appellant’s counsel filed amended appellants’ brief of argument on 25/6/07 and a reply brief on 18/02/09 which was deemed properly filed on 11/3/09. Respondent’s brief of argument was filed on 27/3/08 but same deemed properly filed and served on 6/11/08. When the appeal came up for hearing on 20/5/09 both counsel adopted their respective briefs of argument. Respondent filed a notice of contention on 27/03/08 and same deemed properly filed on 6/11/08. Appellants counsel on 18/2/09 filed a notice of intention to rely upon preliminary objection to the respondent’s notice of contention. Before the adoption of briefs appellants counsel argued the preliminary objection. Respondent’s counsel also presented her reply.
From the nine grounds of appeal appellants distilled one Issue for determination as follows:-
“Whether the prosecution proved the charge of conspiracy to commit armed robbery against the 1st, 2nd and 3rd appellants beyond all reasonable doubt.”
Respondent on the other hand formulated four Issues for determination as follows:-
- Whether having regard to the evidence adduced by the prosecution a prima facie case of conspiracy was made (established) against the appellants.
- Whether the trial court is empowered by the law to convict for a lesser offence.
- Whether the trial Judge erred in law for not convicting the Appellants for the offence of conspiracy and stealing despite the overwhelming evidence she alleged to have been disclosed in the evidence before the court.
- Whether the appellant court can correct the error committed by the trial court.
I will adopt the sole issue formulated by the appellants in the determination of this appeal.
Let me first of all resolve the preliminary objection raised by appellants counsel as to the competency of the respondent’s notice of contention. Learned counsel for the appellants contended that the notice of contention is incompetent and should be struck out. Learned counsel contended that respondent’s notice is in substance challenging the decision of the court below in which the court convicted the Appellants for the offence of conspiracy to commit Armed Robbery. Respondent is challenging errors of law committed by the trial Judge in arriving at the decision. The notice also challenged the correctness of a specific finding made by the lower court that the court is not entitled to convict the appellants for a lesser offence. In absence of cross-appeal it is improper for respondents to seek for reversal of the decision of the lower court. He cited in support of his contention the cases of: Oguma Vs IBWA (1988) 1 NWLR (Pt 73) 658 at 681; Eze vs Obiefuna (1995) 6 NWLR (Pt 404) 638 at 652; Williams vs Daily Times (1990) 1 NWLR (Pt.124) 1 at 49; NBC Plc Vs Ogundele (1997) 9 NWLR (Pt 521) 446 at 461 and Owonikoko vs Arowosaike (1997) 10 NWLR (Pt.528) 61 at 79 and urged the court to strike out the respondents notice as same is incompetent.
Respondent’s counsel in response contended that the objection is misconceived. Respondent is not contending the conviction of the appellants, rather respondent is urging the court to confine finding to evidence before the court. Learned counsel contended that it was found that robbery was not established but offence of conspiracy to steal was established. It was argued there was slip committed in the judgment and this court pursuant to section 20(2) of the Court of Appeal Act has power to vary judgment. The use of the word as “charged” by the trial Judge showed that appellants were convicted for the offence of conspiracy to commit armed robbery. Learned counsel urged the court to dismiss the objection.
A respondent’s notice is given by a respondent who has not appealed from the lower court’s decision but who is desirous to contend on the appeal that the decision of that court should be varied either in any event or in the event of the appeal being allowed in whole or in part. The notice is also to contend on appeal that the decision of the court below should be affirmed on grounds other than those relied upon by the lower court. Where a respondent is seeking to set aside a decision or finding, which is crucial and fundamental to a case then a notice of contention would be in appropriate. The proper procedure to employ is to file a substantive cross-appeal. See Williams Vs Daily Times (supra).
In the instant case, the respondent’s notice of contention is seeking for variation of the decision of the lower court as follows:-
“That the appellants be convicted for the lesser offence of conspiracy and stealing contrary to section 576 and 383 (2) (a) of the Criminal Code Law Cap 17 Vol. II Lagos State Law respectively by virtue of section 179 Criminal Procedure Law Cap 18 Vol. II Law of Lagos State.”
The grounds on which the respondent intends to rely are as follows:-
(1) The trial Judge erred in law when she refused to consider the provisions of Tribunals (certain Consequential Amendments ETC) Decree No 62 of 1999, sections 2(3) and section 4 which confers on her jurisdiction and application of the High Court Criminal Code Law, Cap 17 Vol. II and section 179 Criminal Procedure Law Cap 18 Vol. II Laws of Lagos State.
(2) The trial Judge erred when she convicted the appellants for the lesser offence of conspiracy to commit Armed Robbery an offence which was neither provided for under the Robbery and Fire Arms Act of 1984 nor committed by the applicants.
I have carefully examined the Respondent’s notice of contention and the grounds relied upon. The grounds stated in the notice are based on the errors of law allegedly committed by the learned trial Judge. Respondents wants to vary the finding of conspiracy to commit armed robbery to conspiracy to commit stealing. Respondents notice is inappropriate since the finding is crucial. In Eze vs Obiefuna (supra) Onu JSC at page 652 had this to say:-
“The principle has invariably been laid down that a respondent seeking to set aside or vary a finding which is crucial or fundamental to a case, can only do so through a substantive cross-appeal and not through a Respondent’s Notice to affirm or vary the judgment on other grounds.
In other words where a respondent wants a complete reversal of the decision of the lower court, he ought to file a cross-appeal instead of a Respondent’s Notice.”
See Ogunbadejo vs Owoyemi (1993) I NWLR (Pt 271) 517 and Anyaduba Vs N.R.T.e. Ltd (1990) 1NWLR (Pt 127) 397.
I agree with the submission of appellants’ counsel that the Respondent’s notice as couched is incompetent. Respondent ought to have filed a cross-appeal. Accordingly the Respondent’s notice of contention is hereby struck out.
I wish to note that respondent’s issues 2, 3 and 4 have no relevance or relationship to the grounds of appeal filed by the appellants. In other words, the issues were not formulated from the grounds of appeal filed by the appellant. It is trite that a respondent who did not cross-appeal or given a respondents notice does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance or relationship to the grounds of appeal filed by the appellant. Although respondent attempted to give respondent’s notice same was struck out for being incompetent. I will accordingly discountenance issues 2, 3 and 4 and strike them out as well as the arguments canvassed in respect of same. See AG Akwa Ibom State vs Essien (2004) 7 NWLR (Pt 872) 288 at 376; Udene Vs Ugwu (1997) 3 NWLR (Pt 491) 53; Udom Vs Meheletti & Sons Ltd (1997) 8 NWLR (Pt.516) 187 and Oguma Vs IBWA (1988) 1 NWLR (Pt 73) 658. Respondent is left with issue I which will be taken together with appellants sole issue. In his brief of argument appellants counsel argued that the offence of conspiracy must be proved as laid out in the charge. See Daboh Vs State (1977) 5 SC 197 and Clark Vs State (1986) 4 NWLR (Pt 35) 381. The only finding made by the trial court was that the appellants conspired to steal cement which did not belong to them. The trial court went ahead to convict them as charged i.e. conspiracy to commit armed robbery and discharged and acquitted them of the offence of armed robbery. It was argued that the trial court made no finding that the offence of conspiracy to commit armed robbery has not been proved. Learned counsel examined the essential ingredients required to establish offence of conspiracy and referred to relevant authorities on the issue. The basic principle in criminal trial is that prosecution must prove all the ingredients of the offence charged beyond reasonable doubt. See Madu Vs State (2001) 3 NWLR (Pt.700) 230.
Learned counsel also contended that the conviction is not supportable in law and ought to be annulled. See Clark Vs State (1986) 4 NWLR (Pt 35) 381. Appellants counsel further contended that the statements made to the police do not amount to an admission or confession of conspiracy to commit armed robbery. It was also argued that there was no cogent and compelling circumstantial evidence to ground conviction. See Shazali vs State (1988) 5 NWLR (Pt 93) 164. It was further argued that prosecution must prove the offence charged beyond reasonable doubt. See Ahmed Vs State (2001) 18 NWLR (Pt 746) 622 at 650. Learned counsel urged the court to allow this appeal based on the arguments canvassed in the brief and discharge and acquit the appellants of the charge of conspiracy to commit armed robbery. Respondent’s counsel on the other hand submitted under issue 1 that the three appellants and the buyer of the cement now at large met, planned and agreed to carry out an unlawful act. That the circumstantial evidence is cogent and points irresistibly to the fact that appellants conspired to steal and sell the cement consignment belonging to Costain West Africa. It was contended that appellants confessed in their extra judicial statements that they plan to sell the cement consignment belonging to Costain West Africa.
It was argued that confessional statement is binding on its maker and is sufficient to secure a conviction. See Ikemson Vs State (1989) 3 NWLR (Pt.110) 402 and Idowu Vs State (1998) 13 NWLR (Pt 582) 392. Respondent’s counsel contended that though conspiracy to commit armed robbery was not proved, the trial Judge could have convicted appellants for lesser offence of conspiracy and stealing. See Obiakor Vs State (2002) 10 NWLR (Pt.76) 616.
The question to be resolved is whether prosecution has proved the charge of conspiracy to commit armed robbery against the appellants beyond reasonable doubt.
By virtue of the charge sheet filed by the prosecution, the three appellants were each charged with committing two offences, namely:
(a) Conspiracy to commit armed robbery contrary to section 4(b) of the Robbery and Firearms (Special Provisions) Decree (now Act) 1984, and
(b) Armed robbery contrary to section 1(2)(b) of the Robbery and Firearms (Special Provisions) Decree (now Act) 1984.
It is worthy of note that appellants were discharged and acquitted on charge of armed robbery. The complaint of appellants in this appeal is in respect of the conviction for the offence of conspiracy to commit armed robbery, contrary to section 1(2)(b) of the Robbery and Firearms (Special Provisions) Decree (now Act) 1984.
The essential ingredient of the offence of conspiracy lies in the base engagement and association to do an unlawful thing which is contrary to or forbidden by law whether that thing be criminal or not and whether or not the accused persons had knowledge of its unlawfulness. Generally, where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved and the person charged be also proved to have been engaged in it. See Clark Vs State (1986) 4 NWLR (Pt.35) 381.
What was the evidence led in support of the charge of conspiracy. The brief facts of the case are as follows: PWI testified that on the 21st April 1995, one Waidi Akano (now said to be deceased) a driver with Costain West Africa Plc was informed that he would drive a consignment of cement to Eket and the belonging to Costain was duly loaded. On 22nd April, 1995, he, along with Ndubuisi who was his motor boy took off to Eket. He has never been found alive since then. Rather, after about 5 days, the company was informed that the consignment had both not arrived at Eket. A search was promptly organized and the police got involved. Certain persons were arrested among whom was the 2nd accused/appellant who led the police to the home or village of the 1st accused where he was arrested. The lorry was also later found in Ilorin though its registration number and colour had been altered. The consignment of cement which was bags were never found again. PW2 ASP Akapo who was the investigating police officer at Panti tendered the statements of all three appellants as Exhibits A, B, and C after a trial within trial pursuant to the allegation of involuntariness. He also testified that appellants led him to a stop at Odogbolu junction, along Shagamu – Benin Expressway, which the 1st appellant told him was the place he left Waidi Akano sleeping on 22nd April, 1995. PW3 was a medical doctor attached to the pathology Department of the Olabisi Onabanjo Teaching Hospital. He identified a Post Mortem report as that issued in respect of one Waidi Akano from an autopsy performed on 16/7/95. The Post Mortem report was not tendered. He gave cause of death to be a head injury caused by a very heavy impact like a motor accident.
For the defence all three appellants testified on their own behalf. The 1st appellant motor boy attached to the deceased driver testified that, having been informed that they would take a consignment of cement to Eket on 21st April, 1995, the driver, Waidi Akano, told him to look for an interested buyer who was to meet them at the Shagamu junction on the Benin- Lagos expressway. That this “business” was usual on such trips and that upon the return journey, the driver will “settle” both the transport manager (PW1) and the store people. Pursuant to the driver’s directive, he contacted the 2nd appellant. The 2nd appellant then contacted the 3rd appellant who in turn brought two other men (including one Alhaji Yinusa the proposed buyer) to the agreed meeting place at Shagamu the following day. That the driver and Alhaji Yinusa discussed in Yoruba which he did not understand but the driver later told him that Alhaji had agreed to buy all the cement. They ten drove to Ijebu-Ode junction. Alhaji Yinusa arrived later and had further discussions with the driver. The driver then instructed him to follow Alhaji to collect his share of the sale proceeds as he (the driver) had already collected his. He boarded the trailer which was now being driven by Alhaji’s driver while they left the driver, Waidi Akano under a shed where he was sleeping. They initially went to Ibadan, and eventually discharged the cement at Ilorin, Alhaji gave him his share and he returned to Lagos. 2nd appellant in his testimony confirmed that the 1st appellant informed him that they have same cement for sale. That through him the 3rd appellant was contacted and 3rd appellant brought a proposed buyer, Alhaji Yinusa. He confirmed the 1st meeting at Shagamu, then later at the Ijebu-Ode junction where Alhaji Yinusa met with Waidi Akano under a shed. He stated that he went along with them to collect his commission. When Alhaji returned from the shed, he had the keys of the trailer with him which he handed over to his driver, one Tony, that Tony then drove the trailer, turning it towards Ibadan and later on to Ilorin. At Ilorin, the cement was off loaded and Alhaji paid them off and they returned to Lagos. He stated that it was a business deal and no violence was exerted on Waidi Akano. 3rd appellant testified that 2nd appellant informed him that the cement was an excess load. He contracted an in-law who brought Alhaji Yinusa. When they arrived at Sagamu, Alhaji was the one who discussed with the driver. He followed them to Ilorin where Alhaji sold off the cement and paid them off. He stated that no force was used throughout as it was a friendly transaction. He denied that the driver was dispossessed. 3rd appellant called one witness by name Samson Ubi a marketer with Zenon Petroleum and Gas Ltd, whose office is located at Odogbolu in Ogun State. He testified that he passes through Sagamu several times on his way to work, that Odogbolu and Sagamu are well known to him and that Odogbolu cannot be described as a nearby village in relation to Sagamu, as the two towns are far apart.
After careful evaluation of the evidence adduced before the court, the trial Judge at page 181 made this finding:
“I am therefore of the clear view that the offence of robbery has not been proved by the prosecution in this case. Thus, although there is overwhelming evidence of stealing against all the accused persons, the element of force or use of violence is unproved by the prosecution who have a burden to prove the guilt of the accused beyond reasonable doubt. And in the absence of any other piece of evidence in that direction this court must hold that Robbery, a lesser offence to that charged has not been proved ”
The trial Judge further stated that:-
“The only element clearly proved in the offence charged in the 2nd count of armed robbery is stealing – an offence which does not stand alone under the Robbery and Firearms (Special Provisions) Act 1984. As already indicated, it is not open to this court to convict for the offence of stealing an information brought pursuant to the Robbery Act of 1984. In the final analysis therefore, the only offence proved is that of conspiracy as contained in the count 1. The evidence of conspiracy is quite separate and distinct and does not merge in the substantive offence. Consequently the failure of the 2nd count will not, and does not automatically lead to the failure of this count.”
The totality of the evidence adduced before the lower court point to the fact that the three appellants hatched a plan to steal cement belonging to Costain West Africa Plc. The statements of the three appellants admitted Exhibit A, B, and C respectively confirmed their testimonies in court. The role played by each of them clearly showed there was meeting of the minds with common intention and purpose to commit the offence of stealing. They acted in concert to carry out an unlawful act. Part of the law of conspiracy is that a conspiracy is complete if there are acts on the part of the Appellant which leads the trial court to the inference and the court draws it, that the appellant and others were engaged in accomplishing the same common object. When a trial court arrives at this conclusion, then the acts of one become the acts of the other and vice versa. See Iyaro Vs State (1988) 1 NWLR (Pt 69) 256. In the instant case the trial Judge did arrived at this conclusion. However, it has to be borne in mind that appellants were not charged for conspiracy to commit the offence of stealing but conspiracy to commit armed robbery. As rightly found by the trial Judge prosecution failed to present any cogent and compelling evidence before the court to prove beyond reasonable doubt that the appellants formed a scheme to commit robbery by use of any offensive weapon or by wounding or by use of threat of or actual violence to the person or another. In Madu vs 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.”
None of the three witnesses called by the prosecution gave evidence from which any inference could be drawn that the three appellants were engaged in any conspiracy to commit armed robbery. Similarly, there is no where in the statements of the three appellants where any reasonable inference could be drawn that appellants conspired to commit robbery. The learned trial Judge was therefore in error to have convicted the appellants for the offence of conspiracy to commit armed robbery. On a conspiracy charge prosecution has the burden to prove the meeting of minds of the accused persons with a common intention and purpose to commit a particular offence. See Aminu Vs State (2005) 2 NWLR (Pt 909) 180 at 195. I agree with the submission of appellant’s counsel that the conviction of the Appellants by the learned trial Judge in view of the circumstances of the case amount to holding that proof of any form of conspiracy or proof of conspiracy to sell cement which did not belong to the sellers will suffice as proof of conspiracy to commit armed robbery. I agree the conviction is not supportable in law. See Clark Vs State (1986) 4 NWLR (Pt 35) 381. In Kalu Vs State (1988) 4 NWLR (Pt 90) 503 the Supreme Court held that where the findings of a trial Judge are not borne out by the evidence before the court a Court of Appeal can properly interfere with such findings.
The finding of the learned trial Judge was that of conspiracy to steal cement but the appellants were convicted for the offence of conspiracy as charged to wit: armed robbery because the Robbery and Firearms (special provisions) Decree 1984 (now Act) did not provide for lesser offence. This court has power under section 20(2) of the Court of Appeal Act in special cases to convict for lesser offence. However, appellants were convicted for the offence of conspiracy to commit armed robbery. Respondent did not show us a lesser offence to conspiracy. I cannot find any. See Anthony Okobi Vs The State (1984) 7 SC 47. As earlier stated prosecution had failed to prove all the ingredients of the offence of conspiracy to commit armed robbery beyond reasonable doubt. Accordingly, the sole issue formulated by appellants is resolved in their favour.
For the foregoing reasons, I hold that this appeal is meritorious and succeeds. Appeal allowed. I hereby set aside the conviction and sentence passed by the lower court on the 21st day of October, 2004. Appellants are discharged and acquitted on the count of conspiracy to commit armed robbery contrary to section 4(b) of the Robbery and Firearms (special provisions) Decree 1984 now Act.
Other Citations: (2009)LCN/3397(CA)
