Umoru Usufu V. The State (2006)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
The appellant herein and two others were arraigned before the Criminal Division of the High Court of Lagos State charged with conspiracy to commit robbery and armed robbery contrary to sections 403(A) and 402(2)(a) of the Criminal Code Law, Cap. 32, Laws of Lagos State of Nigeria, 1994 respectively. The two others are Sumaila Sokoto and Danladi Abdullahi.
The particulars of the offence for which the appellant and the two others were charged are that on or about the 12th day of September, 1981, the appellant and the two others conspired with others still at large to rob one Mrs. Rhoda Atiati and in furtherance of that conspiracy did rob the said Rhoda Atiati of the sum of two hundred naira (N200.00) while armed with offensive weapons to wit; cutlass and knives.
In order to prove its case, the prosecution called two witnesses and tendered in evidence, the extra judicial statements of the three accused persons which were admitted as exhibits A, B and C. The appellant and the two other convicts gave evidence in their respective defence and called no additional evidence.
After the close of the case for both parties, addresses were taken and in a considered judgment, the learned trial Judge, Justice A. Desalu convicted each of the accused persons as charged and sentenced each to 21 years imprisonment for the 1st count and to death by hanging on the 2nd count.
It is against the judgment and conviction aforesaid that this appellant, Umoru Usufu has brought this appeal. The notice of appeal which is dated 4th April, 2003 contains six grounds of appeal which read as follows:
“1. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in convicting Umoru Usufu (the 2nd accused/appellant) for the offence of conspiracy without any credible evidence showing the intention and the agreement to conspire between the 2nd accused/appellant and the 1st and 3rd accused/appellants.
2. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in convicting the 2nd accused/appellant of the offence of conspiracy and armed robbery solely on the evidence of PW1, which was manifestly unreliable, contradictory and uncorroborated.
3. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in failing to resolve every doubt created in the mind of the court in favour of the accused/appellants thereby convicting the 2nd accused/appellant of the offence of conspiracy and armed robbery.
4. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in failing to consider and uphold the defence of alibi of the 2nd accused/appellant without the prosecution showing evidence of investigation of same and without any evidence of the prosecution discrediting same.
5. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in convicting the 2nd accused/appellant without a proper identification of the 2nd accused/appellant.
6. The learned trial Judge erred in law in convicting the 2nd accused/appellant when the prosecution failed to prove the offences as charged beyond every reasonable doubt as required by law.”
In line with the relevant rules of this court, briefs of argument were filed and exchanged and the appeal came up for hearing on the 5th of October, 2006. Mr. Ogwemoh, learned counsel for the appellant identified the appellant’s brief of argument which is dated 11th April, 2006. He adopted and relied on the argument contained therein and urged this court to allow the appeal. Mrs. Oluwole, learned Assistant Director of Public Prosecution, Lagos State Ministry of Justice who appeared for the state also adopted the respondent’s brief of argument of 3rd August, 2004 and urged this court to dismiss the appeal and affirm the decision of the lower court.
From the six grounds of appeal, Mr. Ogwemoh, learned counsel for the appellant distilled three issues for the determination of this appeal. These issues which are set out at page 3 of the appellant’s brief of argument read as follows:
“1. Whether the prosecution proved its case beyond reasonable doubt.
2. Whether the learned trial Judge improperly appraised and evaluated the evidence before him, thereby occasioning a miscarriage of justice.
3. Whether the finding of conspiracy against the appellant was not latently speculative and based on conjecture and suspicion.”
The respondent’s brief of argument, which was prepared by Mrs. Bola Okikiolu-Ighile, learned Director of Public Prosecutions, Lagos State Ministry of Justice, also identified three issues for the determination of this appeal. The three issues which are identical to the issues raised by the appellant are set out at page 3 of the respondent’s brief of argument as follows:-
“1. Whether or not any evidence exists on the records capable of sustaining a finding of guilty in respect of the offence of conspiracy to commit robbery.
2. Whether the prosecution discharged the burden of proof imposed upon it to prove beyond reasonable doubt that the accused persons committed the offence of armed robbery.
3. Whether the trial Judge adequately evaluated the evidence before it before arriving at the judgment.”
In arguing the appellant’s issue one which is similar to the respondent’s 2nd issue, Mr. Ogwemoh, Esq. of counsel for the appellant submitted that the prosecution did not prove its case against the appellant beyond reasonable doubt because the extra judicial statements of PW1, the alleged robbery victim, at Festac Police Station and the State C.I.D., Panti and her oral evidence in court during the trial are contradictory and therefore unreliable. In a further argument, learned counsel submitted that the prosecution did not establish the essential ingredients of the offence of robbery as such, the lower court was therefore in error to have returned a verdict of guilt on the appellant. In aid, learned counsel cited several authorities, which I will consider later in this judgment. In a further argument, Mr. Ogwemoh submitted that the withholding of the evidence of five witnesses out of the seven witnesses whose names were included in the list of witnesses that was attached to the information at the lower court is an admission that their testimonies would have been unfavourable to the prosecution. In aid, counsel cited S. 149(d) of the Evidence Act and the authorities in Okoroji v. The State (2002) 5 NWLR (Pt. 759) 21 paragraph G; State v. Emine (1992) 7 NWLR (Pt. 256) 658; Amusa v. The State (1986) 3 NWLR (Pt.30) 536; Nnolim v. The State (1993) 3 NWLR (Pt. 283) 569 and Edoho v. The State (2004) 5 NWLR (Pt. 865) 17 at 51.
Finally on this issue, Mr. Ogwemoh submitted that the identity of those who allegedly committed the crime had not been established and so the appellant was wrongly arraigned before the court as the offender.
In reply to the submissions of the learned counsel for the appellant, Mrs. Okikiolu-Ighile, learned Director of Public Prosecutions, Ministry of Justice, Lagos State, admitted that the burden of proof in a criminal case is always on the prosecution who must prove beyond reasonable doubt, the guilt of the accused person. This she submitted, is based on sections 236, 138 and 139 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 and the authority in Mufutau Bakare v. The State (1987) 3 SC 1 at 32; (1987) 1 NWLR (Pt. 52) 579. The learned DPP set out the definition of proof beyond reasonable doubt as was held in Okere v. The State (2001) 2 NWLR (Pt. 697) 397 at 41 and thereafter referred to the oral evidence of PW 1 and PW2 and contends that the ingredients of the offence of conspiracy to commit robbery and armed robbery as highlighted in Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 and Michael v. The State (2001) 32 WRN 121 at 127 lines 5-15 have been proved.
On the issue of not calling all the witnesses listed by the prosecution, learned Director Public Prosecutions submitted that it is not necessary for the prosecution to call every available witnesses in order to prove its case. According to her, it is enough if the evidence led is sufficient to discharge the onus which the law lays down upon the prosecution. In support thereof, learned DPP cited Oduneye v. The State (2001) 2 NWLR (Pt.697) 311 at 328 paragraphs F-G; Imo v. The State (2001) 1 NWLR (Pt. 694) 314 at 321 paragraphs A-B.
Finally, Okikiolu-Ighile, Esq. urged this court to hold that the prosecution has proved its case against the appellant beyond reasonable doubt as required by law.
The law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See section 138(1) and (2) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990; Adamu v. A.-G., Bendel State (1986) 2 NWLR (Pt. 22) 284; Akpan v. The State (1990) 7 NWLR (Pt. 160) 101 and Ojukwu v. Mil. Gov. of Lagos State (1985) 2 NWLR (Pt. 10) 806.
Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Flowing from the above therefore, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 531 paragraphs A-C., Solola v. The State (2005) 5 SC C (Pt.1) 135; (2005) 11 NWLR (Pt. 937) 460.
Oputa, JSC in the case of Mufutau Bakare v. The State (supra) at page 32 defined ‘proof beyond reasonable doubt’ in the following words: –
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice.”
In the case of Okere v. The State (2001) 2 NWLR (Pt.697) 397 a, 415-416, paragraphs H-A, this court had this to say on the meaning to proof beyond reasonable doubt.
“Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.”
See also Bolanle v. The State (2005) 1 NCC 342 at 359; (2005) 7 NWLR (Pt. 925) 431.
It is therefore settled that an accused person can be convicted on the evidence of a single witness, if the offence for which he is being charged is not one that requires corroboration and the evidence of such a single witness is material enough to be capable of being believed.
Now turning to the instant appeal, has the prosecution proved its case beyond reasonable doubt as to warrant a verdict of guilt against the appellant? The appellant was charged with an offence of conspiracy to rob and armed robbery under section 403(A) and 402(2)(a) both of the Criminal Code Law, Cap. 32, Laws of Lagos State of Nigeria, 1994.
Section 403(A) of the said law provides as follows:
“Any person who conspires with any person to commit an offence under section 402 of this law whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly.”
Section 402 provides as follows:-
(1) Any person who commits the offence of robbery shall upon conviction be sentenced to imprisonment for not less than twenty-one years
(2) If:
(a) any offender mentioned in subsection (1) above is armed with any firearms or any offensive weapon or any obnoxious or chemical materials or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of robbery, the said offender shall upon conviction be sentenced to death.”
For the prosecution to succeed, it must prove beyond reasonable doubt the following ingredients of conspiracy to commit robbery and armed robbery as follows:-
1. That there was an agreement or confederacy between the convict and others to commit the offence of robbery.
2. That in furtherance of the agreement or confederacy the accused took part in the commission of the offence of robbery or series of robberies.
3. That the robbery or each robbery was an armed robbery.
The prosecution in its quest to establish the guilt of the appellant beyond reasonable doubt called two witnesses and tendered the statement of the appellant in evidence and this was admitted as exhibit B. After this, the prosecution closed its case. At this stage, the trial court had a duty to consider the totality of the evidence before it in determining whether the burden on the prosecution had been discharged. See Ogidi v. The State (2005) 1 SC (Pt. 1) 98; (2005) 5 NWLR (Pt. 918) 286.
This, the learned trial Judge did in his judgment which is at pages 10 – 18 of the record of appeal.
On the issue of conspiracy to commit robbery, the trial court said:-
“I believe the evidence of PW1 that the accused persons acted in concert in robbing her of the N200.00. From this evidence in this case, I infer conspiracy on the part of the three accused persons to rob Mrs. Rhoda Atiati. I therefore find the 1st, 2nd and 3rd accused persons guilty on count 1 of conspiracy to rob PW1.”
In proving the offence of conspiracy, sometimes there is direct and distinct evidence on the hatching of the plot, in which case, an accomplice or informer is called upon by the prosecution to give evidence in prove of such agreement. However, in the instant case, the learned trial Judge clearly stated in his judgment that he inferred conspiracy on the part of the convicts from the evidence in the case. This being so, it is proper for me to find out whether the prosecution led sufficient evidence in proof of the substantive offence of armed robbery beyond reasonable doubt before considering whether there was established, an offence of conspiracy to rob Mrs. Rhoda Atiati: In doing so, I will have to consider the evidence led at the lower court by the parties.
PW 1 is Rhoda Atiati the alleged victim of the robbery. In her oral evidence, which is fairly short, she said:-
“I remember 12.9.1981 on that day I left Mile 2 Bus Stop where I work. I was going to the bus stop to go home. It was about 7.30 p.m. I saw the men sorround me and my three Togolise workers. I was shouting. My place of work is not far from the place of residence. As I was shouting two Hausa men Ibrahim and Danyaro emerged. As they drew near me to rescue (sic) they were matched (sic). The men stripped me and took the money in the parts I was wearing. The money was N200.00 tied in an handkerchief in my pants. The men held my hands at my back. The too (sic) macheted men ran back to their people. After they removed my money they left me and I ran home. The next morning the head of the Hausa, Alhaji Bala came to meet me and told me certain things. He asked me to come to Festac Police Station. I went there. There I made statement to police. I knew one of the men who robbed me. I did not want to call name as the men were armed with knives and could harm me. I saw three of the men at the Festac Police Station. The three are the accused in the dock. At the police station I told the police I recognized the men. I identified the three accused to police. I know 2nd accused whom we called “Hilla”. The other two also worked with us where we work, bagging cement. The men had previously been sacked for stealing. The case was transferred to Panti. I went to Panti too. I made statement at Panti. Police took my statement. 2nd accused had a knife with him he was holding.”
Under cross-examination, this witness admitted that it was the following day that Alhaji Bala came to call her and that she knew the three accused persons because they were among the ten persons that attacked her.
I have taken time to reproduce the oral evidence of PW1, because she is the star witness for the prosecution and the judgment of the lower court is based largely on her testimony. PW2, Kazeem Mohammed is the Investigating Police Officer who recorded the statement of the appellant at the state C.I.D. Panti. Before recording the statement of the appellant, he had recorded the statement of PW 1, the complainant. The statement of the appellant was admitted in evidence as exhibit B. PW2 conducted a search in an uncompleted building where he was taken to by the appellant as his place of abode and nothing was found.
The Statement of PW 1, the complainant, at the Festac Police Station and at the C.I.D. Panti, differ sharply with her oral evidence in court. At the Festac Police Station, PW 1 said she was attacked by 10 men at about 7.30 p.m. and when she shouted for help, two Hausa men, Ibrahim and Danyaro came to her aid, but they too were matcheted by her assailants and they ran away. In her further statement, she said because of the attack, the security men who came around arrested three out of the ten men while the rest ran away. She further said that the sum of two hundred naira (N200.00) and some cloth in her handbag were taken away and she ended the statement with this sentence, “That is why I came to report to the police”. At the state C.I.D Station, Yaba, this is part of what PW 1 said:-
“This incident attracted some security men around, who came to my aid as I was running away and was shouting. The men had then seized my two hundred naira kept in a handkerchief under my under wear. The security men with the other two who were wounded were able to arrest three out of the gang … Later that I was called to identify the three suspects arrested. I was able to identify the three men as among the people who attacked me. From there I reported the matter to the Festac Police with the suspect being guarded by the security men.”
In her oral evidence in court, PW1 admitted that she ran home after the attack on her and it was next morning that the head of the Hausa Alhaji Bala invited her to the Festac Police Station where she saw three of the men that attacked her. Clearly, there is violent contradiction between the extra judicial statements she made at Festac Police Station, the Panti C.I.D. Station, Yaba and her oral evidence in court. What then is the position of the law concerning such contradictory evidence? In R v. Ukpong (1961) 1 SCNLR 53, the inconsistency rule which says that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence in which the court can act was developed in the interest of justice and formulated for the resolution of conflict between the latter evidence and previous statement of a witness. The inconsistency rule therefore governs the evidence of a witness who has made previous statement, sworn or unsworn, which is contradictory with his evidence at trial. The effect of the conflict is that the previous statement does not constitute evidence on which the court can act since it was not a piece of evidence taken before the court and the evidence given at the trial should be regarded as unreliable.
See Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383.
Where in a criminal trial, there are inconsistencies, contradictions or conflicts in the prosecution’s case, it is not the function of the trial court to offer explanation. It is for the prosecution to explain the circumstances of the contradiction and prove its case beyond reasonable doubt. It is also settled that for any conflict, contradiction or mix-up in the evidence of the prosecution witnesses to be fatal to the prosecution’s case, such conflict, contradictions or mix-up must be substantial and fundamental to the issues in question before the Court. See Namsoh v. The State (1993) 5 NWLR (Pt.292) 129.
In the instant appeal, the discrepancies in the prosecutions evidence are very substantial. They go to the root of identification of the persons who committed the alleged offence of robbery. In the first place, those persons who were arrested at the scene of crime by some security men as admitted by PW1 in her statement at the Festac Police Station and the C.I.D. Station, Yaba, certainly cannot be the same persons who she identified the following day since after arrest, she went with the security men and reported the robbery at the Festac Police Station. For in her oral evidence in court she said: –
“After they removed my money they left me and I ran home. The next morning the Head of the Hausa Alhaji Bala came to meet me and told me certain things. He asked me to come to Festac Police Station. I went there… saw three of the men at the Festac Police Station.”
In her evidence in court, PW1 also testified that she knew one of the men who robbed her and she did not want to call his name as the men were armed with knives and could harm her. That indeed was a fear well founded in the circumstances in which she allegedly found herself. The question however is, was the fear of bodily harm still present when she lodged her report at the Festac Police Station and volunteered a statement? This was the earliest opportunity where she could have named her assailants since she knew them by their names. Since she did not do so, the subsequent naming of her assailants during her oral evidence in court is an after thought. The trial Judge was therefore in error when he believed the prosecution’s story on this score.
In her oral evidence in court, PW1 mentioned the names of two Hausa men who came to her rescue when the attack on her was in progress. She gave their names as Ibrahim and Danyaro. She further testified that after the attack she ran home and it was the following day, the leader of the Hausa whom she called Alhaji Bala came and told her something and then invited her to Festac Police Station where she saw three of the people that attacked her and made a statement. Clearly, from her extra judicial statement and her oral evidence, three persons namely Ibrahim, Danyaro and Alhaji Bala played prominent role during the commission of the offence and subsequent arrest of the appellant. They are therefore vital witnesses whose evidence would have conclusively shown whether or not the appellant was among those who attacked PW 1 or whether there was indeed a robbery attack. Ibrahim and Danyaro were said to have been matcheted by the robbers. Where is the medical report of their injuries since there is no evidence that they were killed? PW1 also admitted in her oral evidence in court that at the time the assailants surrounded her, she was in company of her Togolise workers and yet these workers were not called as witnesses.
There is no evidence in the record of appeal that attempt to secure the attendance of these vital witnesses by the prosecution was frustrated by certain circumstances. This is a criminal trial. The prosecution is bound to call all the material witnesses in order that the whole of the facts may be put before the court. Although the prosecution needs not call a host of witnesses on the same point, where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other, that witness ought to be called. Alhaji Bala, Ibrahim and Danyaro having played prominent role during and after the commission of the offence ought to have been called as witnesses. Failure to call them is fatal to the prosecution’s case. See Rex v. Dora Harris (1927) 2 K.B.D. 587 at 590; Omogodo v. The State (1981) 5 SC 5 and Eruku v. Queen (1959) WRNLR 77. On the reasons I have set out herein, I resolve the first issue in favour of the appellant.
The appellant’s 2nd issue is similar to the respondent’s 3rd issue. Even at the risk of repetition, I will like to set out the 2nd issue which the appellant distilled from the grounds of appeal as follows:-
Whether the learned trial Judge improperly appraised and evaluated the evidence before him thereby occasioning a miscarriage of justice.”
This issue is distilled from grounds 4 and 5 of the grounds of appeal.
Mr. Ogwemoh, learned counsel for the appellant submitted on this issue that the learned trial Judge did not properly appraise and evaluate the evidence before him. According to the learned counsel, the defence of alibi, which was raised by the appellant, was not considered and since the appellant was not arrested at the scene of crime, an identification parade should have been conducted in order to identify the perpetrators of the crime. Finally, learned counsel submitted that the failure of the trial court to properly appraise and evaluate the evidence before it and the failure of the prosecution to correctly identify the appellant constitute material deficiency in the prosecution’s case that must lead to a verdict of acquittal. In support of the submissions herein, learned counsel cited several authorities. The appellant here testified as DW2 at the trial court. Since his oral evidence is so short, I will reproduce same here. This is what he said:-
“I am a tea seller. I know 1st accused we lived together. We were living together in the north. I know I am here on a robbery charged (sic). I did not rob PW1 armed or otherwise. I was not robbing in company of 1st and 3rd accused. I know nothing about this case only I was arrested with 1st accused on 12-9-81. I was walking along with 1st accused when I was arrested. Some Hausa men came after us and arrested us. They asked us to (sic) back to mile 2. I asked what for. At Mile 2 they started beating us. We were taken to Police Station. It was there I was accused of robbery. Police took my statement. Not true I robbed PW1 with others. I did not know 3rd accused before.”
Under cross-examination, the appellant denied ever knowing PW1 and he also denied ever loading cement at Mile 2. Under further cross-examination, appellant said he was not a customer to PW1 and never robbed PW1 of two hundred naira (N200.00).
In this judgment, I cannot comment on the statement of the appellant as same was not transmitted to this court. I asked Mr. Ogwemoh, learned counsel to the appellant to procure the statement from the lower court. However, up to the time of writing this judgment, the statement has not been produced. For fear that the judgment will expire, I have decided to go on as I think, with the facts available, the appellant’s statement will make no difference in the outcome of the appeal.
With the contradictory nature of the evidence of PW1, the appellant’s oral evidence has remained unchallenged. However, the trial Judge at page 10 of the record of appeal said: –
“I disbelieve the evidence and statements of 1st, 2nd and 3rd accused, exhibits A, B, and C that they were not present at the scene of the robbery and took no part. The said statements I hold, are unreliable, unconvincing and fabricated.”
The word believe and disbelief are not synonymous with the magic word “abracadabra” or a magic wand which is used to create something out of nothing. Believe and disbelieve in the con of judicial pronouncement must be based on a proper and sound evaluation of evidence before a Judge that employs these words. See Adamu v. The State (1991) 4 NWLR (Pt. 187) 530 at 538, paragraphs H-B and Awopejo v. The State (2001) 18 NWLR (Pt.745) 430.
Evaluation of evidence and ascription of probative value to such evidence is the primary duty of the court of trial.
An appellate court has no jurisdiction to interfere with that function unless the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support. See Balogun v. Labiran (1988) 19 NSCC (Pt.1) 1056; (1988) 3 NWLR (Pt. 80) 66; Eki v. Giwa (1977) 11 NSCC 96, (1977) 2 SC 131 and Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35.
At page 7 of the record of this appeal, the learned trial Judge said: –
“There was no evidence that any offensive weapon was recovered and so none was tendered. How be it there was the evidence of PW1 which I believed that offensive weapons, like knives and cutlasses were in possession of the accused persons and others still at large, at the time of the robbery. I believe the evidence of PW1 that the accused persons acted in concert in robbing her of N200,00. From this evidence in this case, I infer conspiracy on the part of the three accused persons to rob Mrs. Rhoda Atiati.”
On the 2nd count which is armed robbery, the learned trial Judge held:
“As to count 2 of the charge, I am satisfied on the evidence before me that on or about the 12th day of September, 1981, at Mile 2 Bus stop in the Ikeja Judicial Division, the 1st, 2nd and 3rd accused persons robbed Mrs. Rhoda Atiati of the sum of N200.00 and that at the time of such robbery they were armed with cutlass and knives which are offensive weapons.”
It is on the basis of the references made to the portion of the oral evidence of PWI that the learned trial Judge concluded his judgment in the following words:-
“I am satisfied and hold that the prosecution has proved its case on this information beyond reasonable doubt, against each of the 1st, 2nd and 3rd accused. I therefore find each of the 1st, 2nd and 3rd accused guilty on count 2 of armed robbery as charged.”
The learned D.P.P. submitted that the trial Judge gave critical examination to the evidence adduced by both prosecution and the defence and exercised his prerogative as a trial Judge to believe the prosecution’s witnesses and disbelieve the appellant. According to the learned D.P.P., the findings of the trial court in the instant case is a result of a proper judicial discretion and evaluation of evidence adduced before the court, and that the decision of the court is not perverse.
With respect to the learned D.P.P., I am convinced that the above conclusion by the learned trial Judge was arrived at without proper appraisal of the totality of the evidence placed before him. I have stated elsewhere in this judgment that the contradiction between the extra-judicial statement of PW 1 and her oral evidence in court have rendered her oral evidence in court unreliable.
It will appear, the learned trial Judge failed to take into account the defence of the appellant that he was with Sumaila Sokoto, the 1st convict at a distance away from the scene of crime and that he neither robbed PW 1 nor was in possession of dangerous weapons. It is settled that a court that is seized of any matter must consider all the defences raised by both parties in the evidence before that court, however slight or minor before a final pronouncement on the matter. Failure to do so will lead to a miscarriage of justice. See Namsoh v. The State (supra) and Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641.
In the statement of PW1 which is at page 25 of the record she alleged that the appellant and two others were arrested at the scene of crime during the commission of the crime. If this were so, the weapons with which they were accused of using to commit the offence would have been recovered. The non-recovery of the weapons is an indication that the appellant was arrested elsewhere in line with his oral evidence and the oral evidence of PW1. Since the appellant was not arrested at the scene of crime and PW1 did not name her attackers at the earliest opportunity, proper identification of those arrested would have been conducted. On the issue of alibi, the question is whether the ipse dixit of the appellant that he was not at the scene is sufficient discharge of the burden of establishing a successful alibi. I do not think so. The appellant who relied on the defence of alibi must call evidence to prove that he was elsewhere, since the evidence in support of such alibi was particularly within his knowledge. In Odili v. The State (1977) 11 NSCC 154 at 157, (1977) 4 SC 1 at 6 the Supreme Court held:-
“The evidence in support of such alibi was peculiarly within the knowledge of the appellant and he did call his wife as a witness. There was nothing more for the police to investigate. Apart from the fact that her testimony did not positively support his own, the tribunal disbelieved him. While the onus is on the prosecution to prove the charge against an accused person, the latter has the duty of bringing the evidence on which he relies for his defence of alibi. See Yanor & Anor. v. The State (1965) NMLR 337 and Nwosisi v. The State (1976) 6 SC 109.”
In the instant appeal, the oral evidence of PW1 in court coupled with the non-recovery of the weapons that were used by the appellant reinforces my believe that the appellant was not arrested at the scene of crime. To that extent therefore, the appellant was not required to call evidence in order to establish the defence of alibi as there was sufficient evidence before the court that he was elsewhere when the alleged offence took place. There was nothing more for the Police to investigate either. Since the appellant was not arrested and identified at the scene of crime by PWI or immediately thereafter, till the following day when Alhaji Bala told her something, which she did not disclose, and invited her to the police station, an identification parade would have been arranged for PW1 to identify her assailants. This would have been done by mingling the suspects with other persons of similar statures and dressings and the witness asked to point to the suspects. There is no evidence that this was done. Of course, where only three persons were shown to PW1, she had no choice but to agree that they were the persons that attacked her. The quality of evidence of identification of the appellant is poor. I agree with Mr. Ogwemoh that there is no other evidence that was put before the court to support the correctness of the identification or to show definitely that the appellant was present at the scene of the crime. This definitely is a material deficiency on the case of the prosecution that must lead to a verdict of acquittal. See R. v. Turnbull (1976) 2 All E.L.R. 549 at 553, (1973) 3 WLR 445; Asakitikpi v. The State (1993) 5 NWLR (Pt.-296) 641 at 655, which were cited in the appellant’s brief of argument.
For all I have said here therefore, the learned trial Judge failed to evaluate the totality of the evidence before him, as such his conclusion on this issue is baseless. This issue is also resolved in favour of the appellant, and the grounds upon which it is distilled are hereby allowed.
The appellant’s 3rd issue, is similar to the respondent’s first issue. This issue is whether the finding of conspiracy against the appellant was not latently speculative and based on conjecture and suspicion.
Mr. Ogwemoh submitted on this issue that there was no evidence on record, to show that the accused persons (convicts) acted in concert in the commission of any offence. In a further argument, learned counsel submitted that the inference, which the learned trial Judge, made, to wit, “I believe the evidence of PW1 that the accused persons acted in concert in robbing her of the sum of N200.00. From the evidence in this case, I infer conspiracy on the part of the three accused persons to rob Mrs. Rhoda Atiati” were drawn from evidence that was not conclusive proof of the commission of the alleged crime by the accused persons (convicts).
Learned counsel went on to define what conspiracy is in the appellant’s brief of argument and cited the authorities in Oduneye v. The State (2001) 2 NWLR (Pt. 697) 311 and Ikwunne v. The State (2000) 5 NWLR (Pt. 658) 55.
Referring to the instant appeal, Mr. Ogwemoh submitted that the appellant herein and the 1st convict at the lower court denied knowing the third convict and that there is nowhere in the lower court where it was shown that the accused persons had set out on a mission to commit armed robbery.
Finally, learned counsel urged this court to allow the appeal on this issue since the charge for conspiracy was not proved. In reply to the submission of the learned counsel for the appellant, the learned D.P.P. made reference to the oral evidence of PW1 where she claimed to have identified the 1st convict together with the appellant and one other person and concluded that the meeting of the minds of the convicts at the court below and other persons can be inferred from the testimony of PW1, the alleged victim.
In a further argument, the learned D.P.P. submitted that the finding of the trial Judge on this point is not perverse because the finding is supported by the evidence adduced at the lower court. In support thereof, the authority in Archibong v. The State (2004) 1 NWLR (Pt. 855) 488 at 510-511 paragraphs H-E was cited. Black’s Law Dictionary, 6th Edition defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful.
Combination is defined by the same dictionary as the union or association of two or more persons for the attainment of some common end. Union or association can only be formed through agreement of members.
In Com. v. Dyer 243 Massachusetts Reports 472, it was held that a crime of conspiracy is distinct from the crime contemplated by the conspiracy. The gist of the offence of conspiracy therefore lies not in the doing of the act or the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties. The external or overt act of the crime of conspiracy is the concert by which mutual consent to a common purpose is exchanged. See Majekodunmi v. The Queen (1952) 14 WACA 64; Nwanko v. FRN (2003) 4 NWLR (Pt. 809) 1 at 32 paragraphs C-E.
However, where the prosecution relies on the commission of the substantive offence by an accused person and others to infer conspiracy, and the accused person is convicted therefore on the basis of his conviction for the substantive offence, the conviction for the conspiracy charge will fail if the conviction for the substantive offence is set aside on appeal. See: Njovens v. The State (1973) 5 SC 17; Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) 256 at 281 paragraphs F-H.
In the instant appeal, I had before now reached a conclusion that the prosecution has failed to prove the case of armed robbery beyond reasonable doubt and consequently, the conviction and sentence of death had been set aside. It follows therefore that the conviction for conspiracy to commit robbery cannot stand since such conspiracy was inferred from the evidence on the substantive offence of robbery.
On the reasons I have set out here, this issue is also resolved in favour of the appellant.
In Chief Emmanuel Ebri v. The State (2004) 11 NWLR (Pt.885) 589 at 604, the Supreme Court, per Niki Tobi. JSC said:”
The position of the law is that where two or more persons are charged with the commission of an offence, and the evidence against all the accused persons is the same or similar, to the extent that the evidence is inextricably woven around all the accused persons, the discharge of one must as a matter of law, affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convicting evidence, that must automatically affect all the others in the light of the fact that the evidence against all the accused persons is tied together like Siamese twins at the umbilical cord with their mother.”
At the lower court, three persons namely, the appellant and two others, whose names are Sumaila Sokoto and Danladi Abdullahi were charged together for the offence of conspiracy to commit robbery and armed robbery contrary to sections 403A and 402(2)(a) of the Criminal Code Law, Cap. 31 of the Laws of Lagos State, 1993. At the end of the trial, all of them were convicted on both charges and were each sentenced to 21 years imprisonment for the 1st count and death by hanging for the 2nd count.
It is not in dispute however that the 3rd convict’s appeal was determined by this court in appeal No.CA/L/274/02 on the 5th of July, 2004 where the judgment and sentence passed by the lower court was set aside and quashed and in its place a verdict of acquittal was entered.
On the strength of the acquittal of the 3rd convict who was convicted on the basis of the same evidence against the appellant and for the reasons I have set out in the judgment I find merit in this appeal which I allow on all the grounds canvassed. The decision of the lower court is accordingly set aside and quashed. In its place, I enter a verdict of acquittal.
The appellant is therefore discharged and acquitted.
Other Citations: (2006)LCN/2098(CA)
