Olusina Ajayi Vs The State (2013)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, JSC

I have had a preview of the judgment just delivered by my learned brother – Aka’ahs, JSC. I agree with all the reasons ably advanced therein to arrive at the conclusion that the appeal is devoid of merit and should be dismissed. I seek leave to chip in a few words of my own in support. The facts of the matter leading to this appeal are not far fetched. The appellant herein was at the trial High Court, Ibadan, Oyo State of Nigeria arraigned along with three others on charges of conspiracy to commit armed robbery; as well as armed robbery contrary to sections 5(b) and 1(2) of the Robbery and Firearms (Special Provisions) Act, PAGE| 21 Cap 398 Vol. xxii Laws of the Federation of Nigeria, 1990. They all pleaded not guilty to both counts. The learned trial judge garnered evidence from both sides of the divide and was thereafter properly addressed by learned counsel on vital points of law in contention. In his considered judgment which was delivered on 28th June, 2002, he sentenced the appellant herein and his cohorts to death by hanging after finding them culpable on the above stated offences. They appealed to the Court of Appeal, Ibadan Division which dismissed same on 30th March, 2011. The appellant has decided to further appeal to this court; . ex debito justitiae. The two issues decoded on behalf of the appellant from the five (5) grounds of appeal in the Notice of Appeal filed on 29th April, 2011 read as follows:- “1. Whether the prosecution proved its case beyond reasonable doubt. 2. Whether the court below was not in error when it affirmed the judgment of the trial court that the defence of alibi did not avail the appellant.” The two issues formulated on behalf of the respondent are similar in every material respect and texture. I need not set them out so as to conserve some measure of energy and space. I wish to start with the point touching on conspiracy. Was it established or proved? There is no doubt about it that conspiracy is often hatched in utmost secrecy. The circumstance of the matter must be properly and adequately considered. In Patrick Njovens & Ors. v. The State (1973) 1 NMLR 331; (1973) 5 SC. 12, this court per GBA Coker, JSC (of blessed memory) pronounced with utmost force as follows:- “When it is proposed to give evidence of happenings inside hell, it is only a matter of common sense to call on one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed, it would be preposterous to look for such evidence in other directions.” Conspiracy has been defined in the 8th Edition of Black’s Law Dictionary at page 329 as ‘an agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective.’ The learned trial judge found that the lst-4th PWs, the victims of the armed robbery incident, saw the appellant along with his cohorts around 2.00am or thereabout on 19/5/1999 in their respective houses armed with offensive weapons like gun, cutlass and hammer. The PAGE| 22 learned trial judge inferred, rightly in my view, that it cannot be reasonably argued that the four accused persons were in that area on the same day and time by coincidence. That the meeting must certainly have been pre-arranged and that direct evidence is not indispensable to establish conspiracy and that same can be proved circumstantially. He felt that relevant pieces of evidence exist for the necessary inference to be drawn. The Court of Appeal rightly reviewed the evidence adduced and was at one with the stance posed by the trial court. The court below found ‘that there is no doubt that there was a meeting of the minds of the 1st and 2nd appellants to commit armed robbery with the use of gun, cutlass and hammer which are firearms and offensive weapon within the meaning of the Robbery and Firearms (Special Provisions) Act.’ The findings of the trial court which rest squarely on circumstantial evidence as duly affirmed by the court below remain unimpeachable. Same cannot be impugned. I pitch my tent with both lower courts on the crucial point touching on conspiracy. They got their bearings right. Let me move to the point relating to alibi which was strenuously argued on behalf of the appellant herein. Alibi means elsewhere. Again, in Patrick Njovens & Ors. v. The State (supra) this court, per GBA Coker, JSC (of blessed memory) further pronounced that- “There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there……………………………………If the prosecution adduces sufficient evidence to fix the person at the scene of the crime at the material time, surely his alibi is thereby logically and physically demolished.” The trial court believed the evidence of PWs 1-4 who testified that the appellant led his cohorts to forcefully enter PWl’s house on the fateful day. The appellant’s cap was found at the scene of crime. He admitted that the cap was his own. The cap did not fly to the house of PW1 on its own. The court below had the same frame of mind. It hardly needs any gainsaying that the evidence of the prosecution witnesses fixed the appellant at the locus criminis (scene of crime). From all intents and purposes, the appellant, on this point, merely attempted to hide behind one finger. He behaved like the proverbial ostrich which buried its head in the sand leaving its tail outside. I confirm the stance taken by the two lower courts in this respect. This is further reinforced by the views of this court in the case of Archibong v. The State (2006) 12 NWLR (Pt. 1000) 349. Further, it was contended on behalf of the appellant that the case against him was not proved beyond reasonable doubt. What then is proof beyond reasonable doubt? It simply means the establishment of all the ingredients of the offence charged in tandem with the dictates of section 138 of the Evidence Act and section 36 (5) of the 1999 Constitution (as amended). See: Alabi v. The State (1993) 7 NWLR (Pt. 307) 511. Proof beyond reasonable doubt is not proof beyond all iota of doubt or proof to the hilt. See: Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87 at 98; Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at page 13. Proof beyond reasonable doubt, as propounded by Lord Sankey, L.C. in Woolmington v. D.P.P (1935) AC 462 must be kept within its proper compartment. Otherwise, it may cleave. The ingredients for the offence of armed robbery have been stated a lot of times by this court. They are :- 1.That there was a robbery incident. 2.That the robbery was an armed robbery; and 3.That the accused was the robber or one of the robbers. The cases of Alabi v. The State (supra) and Archibong v. The State (supra) are in point. See: also Goldie Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30. The trial judge found that there was robbery incident on the fateful day and that the robbery was an armed robbery in which dangerous weapons like gun, cutlass and hammer were employed. The appellant was found to be one of the robbers. His cap was seen in the house of PW1 and he admitted same to be his own. The court below confirmed same. As well, through the due employment of circumstantial evidence, the charge touching on conspiracy was clearly established. I strongly feel that the two counts against the appellant and his cohorts were clearly established and proved beyond reasonable doubt. For the above reasons and the fuller ones ably adumbrated in the lead judgment, I too, feel that the appeal lacks merit and should be dismissed. I order accordingly. I abide by the consequential orders contained in the lead judgment.

SC. 256/2011