Saburi Adebayo V. The Attorney-general, Ogun State (2006)
LawGlobal-Hub Lead Judgment Report
G. I. UDOM-AZOGU, J.C.A.
This appeal is against the decision of S. A. Oduntan J. sitting at the Robbery and Firearms Tribunal Abeokuta Ogun State.
At the close of the case of the prosecution and defence he found the accused guilty on a three count charge of conspiracy and armed robbery under the Robbery and Firearms (Special Provisions) Act 1990 punishable under section 1(2)(a) of the Robbery and Firearms (Special Provision) Act 1999 and sentenced him to death by firing squad.
Dissatisfied and aggrieved by the judgment, the accused appealed to the Court of Appeal on three grounds.
The grounds of appeal are reproduced hereunder.
- The learned trial Judge erred in law in convicting the Appellant of the offence contained in counts 1 and 2 as laid in the charge.
Particulars
(i) The learned trial Judge in his judgment considered the offences in counts I and 2 together.
(ii) The two offences contained in the two counts being distinct and separate offences ought to be considered separately.
- The learned trial Judge erred in law in convicting the Appellant of conspiracy as laid in count 3 when it was not proved beyond reasonable doubt that the appellant conspired with any other person(s).
- The judgment is altogether unreasonable, unwarranted having regard to the evidence at the trial.
The prosecution called 6 witnesses and tendered 7 exhibits.
In summary the cases of the prosecution and defence are as follows:-
The prosecution’s case is that that on 11/3/1994 at Elekuro village the accused with others at large armed with cutlasses and Butcher’s knife, robbed one Salihu Afolabi of the sum of N100, and a Suzuki Motor cycle Reg. No.OG 7842 DA. On the same day the accused with others at large also robbed one Oladehinde Segun of WI 00 while armed with cutlass and knife. When the villagers raised alarm, they took to their heels abandoning the motor cycle. The accused was apprehended by PW3 Wasinmi a security guard in a nearby Bank, Universal Trust Bank. He was thereafter handed over to the police.
The accused denied the charge in its entirety. The defence case was that the accused appellant alleged that he was on his way to Lagos to procure medicine to cure a stomach ailment. He left Abeokuta at 4am and dropped at Itori to ease himself after which he came out to the road to look for transport to continue his journey. He alleged that it was on the road that PW3 apprehended him. From the three Grounds of Appeal the appellant formulated two issues for determination as follows:
“1. Whether the joint consideration of the two (2) offences as contained in counts I and 2 by the learned trial judge was justified in law.
- Whether the offences charged were proved by the prosecution against the appellant beyond reasonable doubts.”
The issues for the appellant were argued by Joseph Nwobike Esq.
ISSUE I.
Whether the joint consideration of the two (2) offences as contained in counts 1 and 2 by the learned trial judge was justified in law. He argued that the evidence that would support each of the three charges differ from each and every one of them have to be considered independent of the others. He submitted that the consideration of the two charges together resulted in “a monumental miscarriage of justice”. He referred to pages 41-43,and paragraph S.20-30 of page 40 of the records to buttress his contention.
The learned D.P.P. Ogun State A.A. Babawale (Mrs) replied on the 1st issue that evaluation of evidence was at the discretion of the Judge and was a matter of style. The important consideration is whether having seen the witnesses he evaluated all the evidence before him, before arriving at a decision, and cited IGAGO v. STATE (1999) 14 NWLR. (PT.637) 1 AT 19 B-C, which states in extension as follows:
“It is elementary principle that the function of the evaluation of evidence is essentially that of the trial judge. See ONUOHA vs. THE STATE 5 NWLR. (PT.548) 118. Where the trial judge has unquestionably evaluated evidence and justifiably appraises the facts it not the business of an appellate court to interfere and to substitute its own views for the view of the trial court. See WOLUCHEM vs. GUDI (1981) 11-12, SC 25. The order in which a trial judge considers the evidence before him having heard the witnesses at the trial is entirely within the discretion of the Judge who has heard the evidence. It is a matter of style. He may begin with the case of the defence or the prosecution. He may compare the evidence of any witness as against another. ”
The prosecution case opened on 22nd October 1999.
PW1 testified that on 11/3/94 at about 1.am when he was sleeping in his house at Elekuro village, some people forced their way into his room and demanded money. He gave them N100. When he could not give them more, they beat him up and removed his Suzuki motor-cycle with Res. No. OG 7842 DA and gave him matchet cuts to the face.
He went on to testify that the accused in the dock was the person who stood guard over him in the night in question when he was arrested and identified to the police. Further in his evidence he said, “only two of them entered my house that night, the accused and one other man”. Apart from holding a cutlass that night the accused was also the one who carried the lantern. There was positive identification of accused by P.W.1. There was no doubt in his mind that it was the accused that robbed him. 4am was an odd time for a grown man to travel to Lagos just to collect medicine from his mother for his stomach ailment, only to disembark from the vehicle to ease himself in the bush. Evidence shows that he emerged from the bush a whole hour later, at 5am. One might ask whether there were no chemists or herbal medicine dealers in Ago Ika Abeokuta the accused’s place of residence. The entire story, can only be a bundle of concocted story and an after thought. The issue of thumb print appears to depict the accused Appellant as not a witness of truth. Exb. A the Yoruba version of the statement of the accused contains the “cautionary words” signed by on Saburi Adebayo the accused and dated 14/3/94. Exb. A is also signed at the end by Saburi Adebayo on the same date. Immediately following are the words signed by DSP, O.K. Subair;
“The suspect Saburi Adebayo was brought before me and his statement was read to him. He admitted to have made it voluntarily O.K. Subair D.S.P 14/3/94”. The statement of accused Exb. Al shows that he attended primary school Ago Ika Abeokuta 1977 and 1984 and Unity Secondary School Ita Eko in Abeokuta between 1985 and 1989. So even though he opted to be a butcher he is knowledgeable enough to append his signature.
At this juncture it may be necessary to determine what a voluntary confessional statement means. The word “voluntary” is not defined by Section 28 of the Evidence Law. It merely states A “confession” made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court to give the accused person grounds which could appear to him reasonable for supposing that by making it he would gain any advantage or avoid any iota of a temporal nature.” There is therefore nothing in the statement or evidence of D.W.1, accused Appellant to suggest that the statement was not voluntary. The court below rightly admitted the Yoruba statement and the English translation in evidence as Exhibits A and A1 respectively. I resolve issue 1 in favour of the Respondent.
ISSUE 2
On Issue two, whether the offences charged were proved by the prosecution against the appellant beyond reasonable doubt, the accused appellant argued that the onus lies on the prosecution to prove the guilt of the accused beyond reasonable doubt and cited, Sections 36(5) of the 1999 constitution, 138(2) Evidence Act (Cap 62)LFN 1990 and W. O. MUMUNI & ORS. VS. THE STATE (PT.175) 1 ALL NLR PT.1 294.
In relation to the offence of conspiracy, the prosecution has the duty to prove that the appellant and any other person agreed to commit the offences for which the appellant was charged. He cited OBIAKO VS. THE STATE (2002) 6 SC (PT.11) 33 AT 39-40. THE STATE vs. HARUNA (1972) 8/9 SC 174.
He contended that the evidence before the court tended to show that only the appellant was seen by the PW3. Even though PW1 and PW2 testified that they saw the accused/appellant at different times during the operation with two others, no description of the other two was supplied. PW1 who said he was in his room with his wife and children did not call his wife to corroborate his evidence. On the issue of conspiracy, the learned trial Judge relied on Exh.A and ignored completely the evidence of the accused appellant. The Respondents on his part submitted that it is trite law that the offence of conspiracy can always be inferred from the circumstances of each case and cited ERIM vs. STATE (1994) 5 NWLR PT.346 522 AT 538 para. E.
NJOVENS vs. STATE (1973) 5 SC PAGE 17 AT 70.
Further, on the issue of conspiracy, Exh. A and Al clearly show that the accused Appellant set out with WAIDI A KANJI AND WASIU…… at Oke-Edo where they normally play Tennis. There the accused said “The three of us agreed to go and do the business” where upon they boarded a passenger vehicle which dropped them at Lafenwa at 11.30p.m. Conspiracy is nothing but a meeting of the mind. There is no doubt that the accused/Appellant conspired with the others to commit the offence charged.
On PW1’s failure to call his wife to testify, the Respondent argued that the prosecution is only bound to call material witnesses not all witnesses available. She cited OGUONZEE vs. STATE (1998) 5 NWLR. (PT.551) 521 AT 551 par.B. Where the Supreme Court said;
“Secondly, it is a well established principle of law that it is not necessary for a person on whom the onus of proof lies, even in criminal cases, to call every available piece of evidence in order to discharge that burden. It is enough if evidence is tendered sufficient to discharge the onus which the law lays upon the prosecution.”
On the trial Judge’s reliance on Exb. B, the Respondent submitted that the trial Judge did not find the evidence of accused appellant credible. He finally submitted that an accused person can be found guilty on retracted statement and cited IDOWU vs. STATE (2000) 12 NWLR (PT.680) 49 AT 81 C-D.
To prove an armed robbery charge under the robbery and firearms (special provisions) act punishable under Section 11(2) (a) of the act the prosecution must establish robbery, by the accused while armed with “Firearms’ or offensive weapons, namely knifes and cutlasses, with which they forcibly dispossess E.D.P.W.1 and P.W.2 of N100.00 each and motor cycle Suzuki which was later recovered. P.W.1 in his evidence testified inter alia, “The accused in the dock was the person who stood guard over me with a cutlass in his hand on the night in question.” P.W.2 in his own testimony said “When I came out i saw the accused in the midst of the villagers shouting thief, thief, thief on him. i quickly recognized him as one of the three men who had earlier broken into my room on the night in question”.
P.W.3, the security guard at Universal Trust Bank, Wasimi Railway Station, said “I was on duty at Universal Trust Bank Wasimi Railway Station, when at about lam, I was hearing the shouts of thief, thief in the direction of Elekuro village. I was then around the Bank premises. Not quite long after, i saw the accused running toward my direction so I came out to halt him and questioned him. i was still questioning him when the people shouting ‘thief ‘thief came they told me that the accused and others had just robbed some people at Elekuro Village… I stopped the accused to question him, i found on him two cutlasses which I handed over to the police also on that night”. There is no iota of doubt about the identity of the accused/Appellant and the weapons found on him and admitted in evidence as Exhibits C and C1.
It is my view that the evidence before the court below supports the conclusion of the trial Judge, that “On the totality of the evidence the accused’s confessional statement Exhs. A and A1 and the circumstances of his arrest; I am satisfied that the prosecution has proved a case of armed robbery against the accused person beyond reasonable doubt, in consequence he found him guilty of armed robbery on 2nd and 3rd counts of the charge respectively” The 2nd Issue is resolved in favour of the Respondent.
It is manifest from the evidence that the offences of conspiracy and armed robbery were proved and accused/Appellant was rightly convicted at the court bellow, the retraction of the “voluntary” statement not withstanding. In the final result the verdict of the trial court is affirmed.
I find the accused guilty on the 1st count of conspiracy to commit the offence of armed robbery punishable under Section 1(2) (a) of the robbery and firearms (special provisions) act, 1990.
On the 2nd and 3rd counts the accused is also found guilty as charged under Section 1(2) (a) of the robbery and firearms/special provisions/act 1990 respectively. I also confirm the sentence of death by firing squad in respect of the 1st, 2nd and 3rd counts.
Other Citations: (2006)LCN/2047(CA)
