Oluwole Akindipe Vs The State (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C

Appellant, then a Military Police Officer attached to the Special Investigation Unit of the Nigerian Army, Ibadan, and two others were tried on an information with three counts of demanding money with menaces with intention to steal contrary to and punishable under S.345 of the Criminal Code Cap. 28 Vol. 1 Laws of Western Nigeria 1959 and one count of stealing contrary to and punishable under S.331 (8) of the same Criminal Code by the High Court, Ibadan.

At the close of the prosecution’s case, the trial Court, based on a no-case submission, discharged and acquitted the 3rd accused person on all the four counts of the charge. The appellant and the 2nd accused person were also discharged and acquitted on each of the 2nd and 4th counts. The Court in its ruling on the no-case submission held that the appellant and the 2nd accused had a case to answer in respect of Counts 1 and 3 of the information. Appellant testified in his defence and called one other witness. 2nd accused testified in his defence but called no other witness.

At the end of the trial, the trial Court discharged and acquitted the 2nd accused on each of Counts 1 and 3 of the information. The trial Court convicted the appellant and sentenced him on each of Counts 1 and 3. Appellant appealed his conviction and sentence to the Court of Appeal, Ibadan. The lower Court dismissed the appeal and affirmed the judgment of the trial Court. Appellant has appealed to this Court on two grounds from which two issues were distilled for determination by this Court. The two issues in the appellant’s brief are:

(a)Whether considering the lack of proper evaluation of evidence adduced by both the prosecution and defence witnesses and in fact the glaring contradictions and inconsistencies in the extra judicial statements and testimonies of the prosecution witnesses they (the prosecution) were able to prove beyond reasonable doubt that the appellant is guilty of the offence of demanding money with menaces with intent to steal contrary to and punishable under Section 346 of the Criminal Code Cap 28 Vol. 1 Laws of Western Nigeria 1959 (now Section 406 of the Criminal Code Act Cap C38 LFN 2004).

(b) Whether the prosecution witnesses especially PW1 and PW3 were not agent’s provocateur and/or tainted witnesses whose evidence would require corroboration, if so whether the conviction and sentence of the appellant on the uncorroborated evidence of the prosecution witnesses did not occasion gross miscarriage of justice.”

The respondent also presented the following issues for determination:

“(a) Whether on the evidence led, the trial count (sic) and indeed the Court of Appeal were right in their conclusion that the appellant was guilty of the offence of demanding money with menaces with intent to steal as charged.

(b) Whether the prosecution witnesses were tainted witnesses whose evidence required corroboration.”

In his argument in issue one in his brief, learned Counsel for the appellant reproduced S.36 of the Criminal Code Cap 28 Vol. I Laws of Western Nigeria 1959 which he said is now codified in s.406 of the Criminal Code Act Cap C38 LFN 2004 and listed the ingredients the prosecution must prove to secure a conviction under the section as:

‘(a) the accused person made a demand from the complainant;

(b) with intent to steal;

(c) the demand is accompanied by a threat of any injury or detriment of any kind.”

He relied on Ogundowole v. Commissioner of Police (1971) 1 All NLR page 34 at 34 in his argument that the Court must adopt an objective approach in deciding whether or not the threat, if dry, operated in the mind of the victim.