Sunday Iyaro V. The State (1988)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

Sunday Iyaro (the appellant) and Godwin Nnawalue were jointly charged with Robbery and conspiracy to commit Robbery contrary to Sections 402 (2) and 403 respectively of Cap 32, Laws of Lagos State, They pleaded not guilty to both charges.

Witnesses were called by the prosecution to prove the charges as stipulated in Section 137(1) of the Evidence Act. Both accused elected to give evidence on oath and also called witnesses – two for the 1st accused and one for the 2nd accused.

At the end of the trial, the learned trial judge, Kotun, J. Considered the evidence adduced and made the following findings:

“Having regard to S.7 of the Criminal Code and the evidence placed before me, the 1st Accused and 2nd Accused are criminally liable for the act of armed robbery committed by the five men who were armed with daggers when they attacked the 1st P.W. and 2nd P.W. in taxi No.LA 3483 AL at Mile 2 on the 7th November, 1982.I found that the prosecution has proved the case against the 1st Accused and 2nd Accused beyond reasonable doubt on Counts one, two and three of the charges.”

He then passed the following sentence on each of the accused:

“1st Accused: 1st COUNT: Twenty-one years IHL”

“2nd Accused: 1st COUNT: Twenty-one years IHL.”

“The sentence of this court upon each and every one of you the 1st Accused and 2nd Accused persons on each of the second and third counts of the charge that you have been found guilty is that each and every one of you be hanged by the neck or executed by firing squad until you be dead and may the Lord have mercy on your souls.”

The two convicts appealed to the Court of Appeal, Lagos, against conviction. And in a majority judgment of 2 to 1, the appeal of the 2nd accused was allowed while that of the 1st accused was dismissed unanimously. It is against the dismissal of his appeal that the appellant has now appealed to this Court; and henceforth he will be referred to as the appellant.

Only one ground of appeal was filed and argued for and on behalf of the appellant which reads:

“The learned Justices of the Court of Appeal erred in law and misdirected themselves in affirming the conviction of the appellant for armed robbery when there is no evidence in law to support the verdict for armed robbery.

PARTICULARS OF ERROR AND MISDIRECTION

1. The appellant was only a driver of the taxi with the victims, that is, P.W.1 and P.W. 2 as passengers.
2. The appellant was neither armed nor did he take part in the robbery of the victims.
3. There is no conspiracy between the appellant and the armed robbers, nor with anyone at all.
4. That the appellant drove the taxi and stopped to pick up another passenger and that he was present when the victims were robbed would not prima facie render him participis criminis.”

In support of this ground brief of arguments was filed by learned senior Counsel for the appellant. In reply thereto the respondent also filed brief. The briefs were further elaborated upon orally by the learned Counsel respectively.

Before I proceed to consider the issues raised in this appeal, it is pertinent to state, albeit briefly, the facts of the case as presented by the prosecution and which are as follow:

P.W.1 and P.W. 2, the victims of the armed robbery were at the material time living in Festac Town along Badagry Road. On the fateful day, that is 7th November, 1982 they attended a Club Meeting at Kirikiri Road which ended around 6 p.m. The walked to Osondu Motor Park along Kirikiri Road to take a taxi back to Festac Town. While they were waiting, the appellant, driving taxi cab No. LA 3483 AL emerged and they hailed him to stop. He did so and at the time he was alone in the cab. PW1 and PW2, after bargaining with the appellant charted the cab for N4.00 to Festac Town.

They entered the cab, PW1 sitting on the right side of the back passenger seat while P.W.2 sat on the left side and wound up the glasses. Instead of the appellant making a U-turn to take the road leading to Festac Town, he drove straight along Kirikiri Road. PW1and PW2 had to challenge the appellant about three times before he reversed and took the road leading to people Bus stop.

He drove along that road, until he was challenged again by PW1 who insisted that he must turn and follow Idowu Martin Street, the road known to them and that would take them to Festac Town. He did so and tuned his car radio cassette very loud. They requested him to reduce the sound but he refused.

Apprehensive of the appellant’s conduct PW1 removed all the jewelries she was wearing into her purse which she put inside a paper bag in which she was carrying some clothes and covered the same with her wrapper.

The appellant drove to Mile 2 along Badagry Express Way and on reaching the first Over Head Bridge, he stopped and parked. As soon as he stopped, the 2nd accused, carrying a black portfolio in his armpit, walked to the car, opened the front door on the passenger side, put one leg inside and beckoned some people with his hand. About ten people emerged, some of whom were holding and brandishing daggers. They proceeded to the cab, opened the right side door of the back seat and robbed P. W.2 of her bangles, rings, neck chain and a purse containing N1, 150.00. When they started walking away, the appellant hooted the horn of his cab and one of them looked back and the appellant pointed with his finger, to the side where P.W.1 was sitting. He responded, walked back to P.W.1, opened the door on her side and robbed her of her belongings consisting of a neck -chain, a wrist watch, bangles, 3 pieces of guinea brocade prints; two pieces of wax materials and cash, all amounting to N2,250.

After the robbery was completed the appellant and the 2nd accused with P.W.1 and P.W.2 sitting still in the back seat of the cab resumed driving in the direction of Festac Town. On reaching the 2nd Over Head Bridge on Badagry Express Way, the appellant stopped for the 2nd accused to disembark, but P.W.1 and P.W.2 prevented him from doing so and as a result, altercation ensued between them which attracted to the scene, some people waiting at a nearby bus stop. Another two people driving in a car also stopped to find out what was going on.

When the appellant observed that people were gradually gathering at the scene, he tapped the 2nd accused on the shoulder and drove away at a high speed. On reaching the Ist gate of the Festac Town, he demanded that P. W.1 and P.W.2 should disembark but they refused and insisted that he must take them to the Festac Town Police Station to lodge a complaint of what had happened to them, Appellant drove on very fast and past the Police Station without stopping. P.W.1 and P.W.2 continued screaming inside the car which attracted the people nearby and followed the cab in pursuit.

On reaching the home of P.W.1 the appellant stopped and both himself and the 2nd accused tried to escape. The crowd that gathered pursued and overpowered them and apprehended them.The Police later arrived at the scene, arrested the appellant and the 2nd accused while they invited P.W.1 and P.W.2 to the Festac Town Police Station where they lodged a complaint. The appellant and the 2nd accused were detained. Both the P.W.1 and P.W.2 were asked to go home and to report the next day. The case was subsequently investigated and the appellant and the 2nd accused were charged and prosecuted.

In his brief of arguments learned Counsel for the appellant set down the issues for determination as follows:

“(a) Whether the Counts in the charge are supported by evidence;

(b) Whether the prosecution had discharged the onus of proof as required by law; and

(c) Whether on the evidence the appellant can be convicted under section 7 of the Criminal Code,”

The issues formulated by the learned Counsel for the respondent are more or less the same in substance as those of the appellant; and for whatever they are worth I reproduce them below:

“1 The learned Justices of the Court of Appeal erred in law when they held that by virtue of Section 7 of the Criminal Code, Cap 31 Laws of Lagos State, the appellant was a principal offender to the offence of armed robbery;

2. There was no evidence that the appellant was at any time armed with any weapon or that he took part in the actual robbery of the victims, and
3. That the prosecution did not prove its case beyond reasonable doubt as required by S.137 (1) and (2) Evidence Act.”

It was the submission of the learned Counsel for the appellant under issue (c) (which is the same in substance as issue (1) of the respondent) that the mere fact that the appellant was present and passive at the scene of the crime is not, by itself, such sufficient evidence to connect him with the crime. In support of this submission learned Counsel relied on the cases of R. v. Azumah & Anor (1950) 13 W.A.C.A. 87; R. v. Akpunonu (1942) 8 W.A.C.A. 107 and R. v. Enwenye (1955) 15 W.A.C.A.1

In reply to the submission, learned Counsel, for the respondent submitted that section 7 of the Criminal Code is designed to cover the offence of aiding and abetting and said the conduct of the appellant from the time he took P.W.1 and P.W.2 in his car to the time he dropped them at Festac Town after taking them to where they were robbed of their belongings, leads to no conclusion other than that he is a participis criminis in the robbery. He cited and relied on Kupferberg v. R. (1912) 13 Cr. App. R. 162 Section 7 of the Criminal Code Law of Lagos State provides that:

“7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counseling or procuring its commission.

A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offense.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.”

For a person to be convicted as a principal offender under this section, the offence must be proved to have been committed, but it is not a condition precedent to such conviction that the person or persons who actually did the act are convicted. The offence is the doing or omitting to do something for the purpose of making it easier or possible to commit the substantive offence by another person. The section envisages the complicity of a person not actually committing the substantive offence himself, but his action, by commission or omission facilitated its commission – See State v. Ededey (1972) 1 SC. 140. The prosecution has to lead clear evidence that either prior to or at the time of the commission of the substantive offence, the person charged did something to facilitate its commission – R. v. Enweonye & ors. 15 W.A.C.A.1

Both P.W.1 and P.W.2 gave evidence of what happened between them and the appellant, from the time they chartered his taxi to the time he drove them to where they were robbed before finally dropping them at the Festac Town and attempting to escape, The learned trial judge, after meticulous and painstaking consideration of the evidence adduced by the prosecution and the defence respectively, rejected the evidence of the defence in preference to that of prosecution, particularly that of P.W.1 and P.W.2, who were the victims of the planned armed robbery. He said:

“I believed and preferred the evidence of 1st P.W. and 2nd P,W. as a true representation of all that happened to them from the time they boarded the taxi to the time of the attack by the robbers who were called to carry out the operation at Mile 2 on 7th November, 1982 by the hoot of the horn of the taxi cab No. LA 3483 AL. ,

1st accused from the evidence placed before me acted in concert with other robbers to rob and in fact did rob 1st P.W.1and 2nd P.W. of their valuable properties. stated in counts two and three of the information……..”

“The preparatory operation which form the evidence before me and which 1st Accused was to perform is to get a victim or victims as passengers in the taxi cab LA 3483 AL to the arranged spot.

It is also the assignment of 1st Accused in the operation to hoot the horn of the taxi cab at the spot to attract the 2nd Accused and their companions to the spot. These assignments having regard to the evidence of 1st P.W.1 and 2nd P.W. the 1st accused successfully carried out.” …

“Having regard to section 7 of the Criminal Code the 1st Accused and 2nd Accused could equally be held Criminally responsible for the acts of the other robbers now at large.”

In the lead judgment of the Court of Appeal by Kutigi, J.C.A., with which both Ademola and Kolawole, JJ.C.A., unanimously agreed, as regards the conviction of the appellant, the learned Justice quoted excerpts of findings on the prosecution’s evidence accepted by the learned trial judge which proved the guilt of the appellant. In his supporting judgment, Kolawole, J.C.A., summarised these findings as follows:

“There is overwhelming evidence before the learned judge to establish that the first appellant was participis criminis with regard to the actual robbery. He obviously knew about the robbery because the manner of driving by him of the victims about until he got to where his confederates emerged clearly suggested that the robbery was planned and the first appellant was neck deep in it. The first appellant parked his vehicle to enable the armed robbers to scrape the victims clean of their possession, he folded his arms and did nothing during the robbery which was committed with him sitting in his car. When the bandits had finished with the first victim, the first appellant called their attention to the second who was similarly robbed. The first appellant was requested to stop for the victims at the Festac Police Station so that they might lodge a report but he did not stop. All those are strong evidence of the first appellant’s involvement in the robbery. By virtue of section 7 of the criminal code cap 31 Laws of Lagos State the first appellant is a principal offender to the crime of armed robbery. ”

The contention of learned Counsel for the appellant in his brief that “actual robbery with violence … has not been proved against the appellant by the prosecution” is untenable having regard to the evidence of 1st P.W. where she said

“While on the first overhead bridge at Mile two along Badagry Express Way the 1st Accused quietly parked … Quickly about more than ten people emerged holding and brandishing daggers.

Mrs. Mazeli sat at the right rear seat; while I sat at the left rear seat of the taxi cab. One of the men with dagger went behind the men who beckoned on them and pulled the bottom lock of the right rear door, the other men outside opened the right rear door of the taxi cab. Then they started to remove the gold bangles, rings and purse of Mrs. Mazeli. The gold neck-chain on Mrs. Mazeli could not be removed by these men. The men threatened to dagger Mrs. Mazeli if she did not remove the gold neck chain herself and surrender same. Mrs. Mazeli quickly removed the gold neck chain and handed it over to them in panic, While all these things were going on the 1st Accused folded his two hands and did not do anything.”

“When these gang of robbers were about to run away, the 1st Accused pressed the horn of his taxi cab “PAM”. Then one of the robbers looked back. The 1st Accused pointed to me still sitting at the rear seat of his taxi cab with his finger.

One of the Robbers quickly ran round and came to the rear left door of the taxi cab. He opened the rear left door after pulling the lock button through the taxi driver’s door, Then the man said “Show me your things or I dagger you to death,

Frightened, I said “See them. Then the man removed my two “Abada” clothes, three brocade clothes, my gold wrist watch, gold neck chain, bamboo bangle, my social club certificate, my purse and my nylon bag, The man then fled away.”

And the 2nd P. W. who also said

“Suddenly some men surrounded the taxi cab brandishing knives and daggers. The rear left and right doors were securely locked by us and the windscreen glasses wound up, the door could not be opened.

The men opened the right rear door through the right front door that 2nd Accused had already opened, The lock was pulled up, The men removed my bag, my bangle, my wrist watch, my ring, my neck chain was a little difficult for them to remove, Two of the men put their daggers on my throat and ordered me to remove my neck chain or else I would be killed, I was nervous at this stage; I could not remove the neck chain myself again. I told them to remove the neck chain themselves.

One of the two men pulled the neck chain by force and took all my properties away.

As these robbers were all going away the 1st Accused who was still at the wheel hooted the horn “PAM”. Some of the men came back again, Then 1st Accused gave them sign by pointing his finger to the left rear side that 1st P.W. sat.

Then the men moved to where 1st P. W. sat and threatened to dagger her to death if she failed to surrender all her gold properties and other goods with her.

1st P. W. raised her leg up and showed the robbers where she kept the bag containing all her gold trinkets which she had earlier removed and kept with all the clothes which she bought at the meeting.

They removed everything and ran away.”

The essential ingredients of the offence under section 7 is the procuration of another person to do or to omit to do any act of such a nature that if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part. He would be liable to the same punishment as a principal as if he had himself committed the act or omission, See The State v. Ededey (supra).

The other two issues canvassed can be taken together as in essence they mean the same thing and that is to say whether the evidence presented by the prosecution and accepted by the trial judge had proved the offences with which the appellant was charged, beyond reasonable doubt.

It was the submission of learned Counsel for the appellant that the evidence adduced by the prosecution did not prove the charge laid under section 402 and section 403 of the Criminal Code. He contended that there was no evidence of violence at the scene of robbery nor was the appellant armed with any weapon or that he even took part in the actual commission of the robbery. He finally submitted that the totality of the evidence against the appellant is mere suspicion upon which no conviction can be grounded. He cited Abieke v. The State (1977) 9-11 S.C.97 and James Ikane v. C.O.P. (1977) 6 S.C. 119 and also section 137 (1), Evidence Act as his authorities.

In reply, learned Counsel for respondent submitted that to prove the offence under section 402(2) (a) of the Criminal Code against the appellant it is not necessary that he was in possession of an offensive weapon or that he used actual violence. All that is necessary is that he was in concert with the person or persons that carried out the offence or that his presence enabled them to commit it. He cited the case of Betts & Ridley v. R (1931) 22 CR APP RP 148 at 155 to support his submissions.

1. The conduct of the appellant from the time he picked 1st P.W. and 2nd P.W. in his taxi to the time he parked the same at Mile Two on Badagry Express Way to facilitate the commission of the robbery on the aforementioned witnesses, leaves no room for doubt that the whole incident had been prearranged. As for the actual robbery with violence committed on 1st P.W. and 2nd P.W., they gave clear and cogent evidence which the learned trial judge painstakingly considered and accepted. Part of his finding on the evidence reads

“The evidence led before me showed that the six boys that attacked the 1st P,W. and 2nd P.W. in taxi No LA 3483 AL on that 7th November, 1982 were armed with daggers which established the particulars of the offences stated in Counts two and three of the Charge.”…

“The evidence placed before me showed that 1st and 2nd Accused were in company of five armed men that attacked and robbed 1st P.W. and 2nd P.W. in taxi No. LA 3483 AL at Mile Two on 7th November, 1982.”

2. It was not disputed, having regard to the evidence adduced and the findings of the learned trial judge thereon that robbery was committed on 1st P.W. and 2nd P.W.; but what was vehemently disputed was whether there was evidence linking the appellant with it and with that certainty which is required as a prerequisite to any conviction in a criminal case. The learned trial judge rightly inferred in my view, from the evidence before him that “the preparatory operation of the 1st Accused and which he was to perform is to get a victim or victims as passengers in the taxi cab LA 3483 AL to the arranged spot”.

The circumstantial evidence is so strong against the appellant that no inference can be made from it other than that of guilt. See Onochie v. The Republic (1966) N.M.L.R. 307. As Unsworth EJ. said in The Queen v. Donald Ororosokode (1960) F.S.C.208 at 210 that

“It is true that there are cases in which circumstantial evidence may be the best evidence because (as has been said) it is capable of proving a proposition with the precision of mathematics.”

See also Edet Obasi v. The State (1965) N.M.L.R. 129 and R. v. Tapper (1952) A.CA80 at 489.

In the result, the conviction of the appellant by the trial court for the offence of armed robbery which was subsequently affirmed on appeal by the Court of Appeal Lagos is hereby confirmed. The appeal is dismissed.

A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, WALI, J.S.C and I entirely agree with his reasoning and conclusions.

The only ground of appeal filed and argued before this Court, without all the particulars, read:

“The learned Justices of the Court of Appeal erred in law and misdirected themselves in affirming the conviction of the Appellant for armed robbery when there is no evidence in law to support the verdict of armed robbery” One of the particulars of error read,

“There is no conspiracy between the appellant and the armed robbers nor with anyone at all” With all respect to the learned Senior Advocate who appeared for the Appellant, there was abundant evidence which the learned trial judge accepted, and which the Court of Appeal confirmed, that the appellant was participi criminis. He properly came within Section 7 (b) and (c) of the Criminal Code law of Lagos State.

It is only necessary to refer to such evidence as:

(1) The fact that the appellant, after the P.W.1 and P.W.2. had chartered his vehicle, started on a wrong route and only reluctantly turned when P.W.1 and P.W.2 protested.

(2) The fact that the appellant raised the volume of his radio cassette when P.W.1 and P.W.2 protested further as to the manner he was driving.

(3) The fact that when he stopped to pick the 2nd accused (who was lucky to have been let off by the Court of Appeal) he hooted on his horn and over ten men holding daggers etc. approached the vehicle and robbed PW.1 and PW.2.

(4) Not only did he do nothing during the violent robbery of P.W.2’s property, but when the robbers finished with PW2 and were running away, he hooted on the horn of his taxi cab and drew their attention to P.W.1 who was then robbed.

(5) The fact that he refused to stop P.W.1 and P.W.2 at the Festac Police Station so that a report could be lodged with the Police.

It is my view too that the appeal lacked substance. I too dismiss it. I abide by the order made by my learned brother, WALI, J.S.C.

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SC.233/1985