Yakubu Ibrahim V. The State (1994)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

This appeal arose from the judgment of the Lagos High Court presided over by Hotonu J. in which the applicant and another were convicted and sentenced to terms of imprisonment. The appellant Yakubu Ibrahim had been charged along with one Shola Akin alias Akin Shola of (a) attempted robbery contrary to section 2(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970 in that being armed with an offensive weapon – a knife with intent to steal assaulted one Opera Odjei and at the same time threatened to use actual violence on him, and (b) of conspiracy contrary to section 3(a)(b) of the Robbery and Firearms Act aforesaid in that on the same date the two people conspired to commit robbery.

The facts of the case are that the complainant Opera Odjei, P.W.1 was on the 21st of the month of February, 1979 stopped and more or less blocked by the accused persons with their motor-cycle at Ilupeju, after the said riders have been dutifully following him for quite some time. When the complainant was forced to stop Sola Akin came to his side and demanded the key of his vehicle which he naturally refused to give him and he forcefully entered his vehicle and when he still refused to give him his car key, he brought out a knife which he brandished and threatened him with bodily harm. All this time Yakubu was on the motor-cycle. Prior to that a signal had been sent to some policeman in mufti on that area that there were two people on motor-cycle who were stopping vehicles on the road with intent to rob them. One of the policemen beholding the incident taking place now ran to the scene intending to effect the arrest of the culprits whoever they were. The two culprits surrendered themselves after a while but later the 2nd Accused, Akin Shola bolted away and tried to make for safety. He was pursued and caught after he had been shot by the policeman, Muriama Alao one of the policemen in mufti and they were all taken to the Police Station. It was found that the motor-cycle had no registration number. The story of the appellant and his cohort was however different. They stated that the complainant was driving rather recklessly and with that dangerous manner of driving stopped suddenly and the motor-cyclist driven by one of the accused persons – Yakubu almost hit it from behind and this made him sustain an injury on the right hand. He then approached the complainant (P.W.1 in the court below) and demanded to know why he nearly killed him. At first, according to his narration the complainant used offensive language on him but later he apologised and at this time he too relented and was about continuing with his journey when two plain clothed men arrived and asked Yakubu to surrender to them the key of his motor-cycle. He denied that his co-accused was his friend. Ishola Akin added that when he was stopped by one of the policemen and he asked him (as he was in mufti) whether he was a policeman that he shot him on the leg at a point blank range and he emphatically denied running away when he saw the policeman. After the trial, the accused persons i.e., the appellant and Ishola Akin (deceased) were found guilty, convicted and sentenced to 25 years terms of imprisonment. In his judgment the court held inter alia as follows:

“After a careful consideration, I have found that the stories of the two accused persons in defence of the charge against them are mere fabrications. The stories of the two accused persons in defence of the charge against them are mere fabrications. The stories are cleverly woven up thus showing how crafty the accused are. But being not true the stories have got loop holes some of which I have already pointed out. I am unable to accept as true the evidence of the two accused persons… On the other hand, I have found, all the four witnesses for the prosecution reliable. They have impressed me as witnesses of truth and I believe their evidence. I am unable to see any material contradiction in their evidence.”

Continuing near the end of that judgment he said:

“Count 1 charging the substantive offence has been satisfactorily proved against the two accused. There is no separate evidence by the prosecution to prove count 2 which is conspiracy to commit the offence… I am entitled to and have drawn the inference of conspiracy from the acts of the two accused. Considering the circumstances of the case, I am firmly of the view that the two accused had conspired before they actually committed the substantive offence of attempted robbery.”

Now being dissatisfied with the judgment of the learned trial Judge the appellant filed 4 grounds of appeal and pursuant thereto formulated 4 issue for determination to wit:

“1. Whether the appellant is not entitled to the benefit of doubt in view of section 137 of the Evidence Act having regards to the findings by the trial Judge that the appellant did not commit the offence and at the same time that he committed the offence?

2. Having regards to the principles of fair hearing and the adversary system of criminal justice was the learned trial Judge right in taking over the cross-examination of the appellant from State Counsel?
3. Whether the learned trial Judge was right in relying on the knife Exh. C. that was re-covered in the absence of the appellant and which the driver complainant P.W.1 did not see until the trial in court, to convict and sentence the appellant to an enhanced 25 years of imprisonment?
4. What is the effect of charging a substantive offence before a charge of conspiracy in a criminal case.

The Respondent framed these issues as emanating from the grounds of appeal:

“!. Whether the decision of the learned trial Judge was reasonable having regard to the evidence adduced by the prosecution and the finding that the appellant did not actually commit the offence.

2. Whether the learned trial Judge by asking the appellant questions descended into the arena.
3. Was the arrangement of the count of robbery before conspiracy vital to the case of the prosecution.

The core of this case is whether the appellant and the person charged (accused) along with him were insensed with the alleged dangerous driving of the complainant by which he was said to have caused the appellant’-s motor-cycle to hit his vehicle or whether the story was a ruse to cover a case of attempted robbery.

To prove attempted robbery there is the essential need to prove the use of or intended use of violence in the perpetration of the act complained about.

I shall first of all deal with the issue raised by both parties as to the propriety of charging the count of conspiracy first before that of the main offence. The learned counsel for the appellant lampooned the awkward procedure whereby the substantive charge was first set out before the conspiracy to commit such an offence. In his brief, he argued as follows:

“The defence it is submitted has been misled by the way the charges are framed and prosecuted against the appellant. Where the substantive offence had been found by the trial Judge not to have been proved against the appellant and the prosecution relies on the same facts to sustain the charge of conspiracy against the appellant, it is our submission that the trial Judge erred in law in convicting the appellant on that circumstances and that the appellant is entitled to a discharge and acquittal.”

Prosecution rebuffed it and stated that this line of argument goes to no issue as the most important thing is to prove that there was an attempted robbery. Now it is a trite law that conspiracy is an offence consisting in the agreement of 2 or more persons to do an unlawful act or to do a lawful act by an unlawful means. It is sometimes not necessary that there is an express agreement but the facts and circumstances of the offence may make the court to conclude that the conspiracy to commit an offence can be deduced inferentially or circumstantially.

The authors of 39th Edition of Archbold Para. 4070 states as follows:

“The indictment (of conspiracy) must in the first place charge the conspiracy. In stating the object of the conspiracy the same certainly is not required as in an indictment for the offence, conspired to be committed.”

The question really is this, whether it is at all times essential that the count of conspiracy be included in a charge where a substantive count has been laid. In Verrier v. D.P.P. (1967) 2 A.C. 195, (1966) 50 Cr. App R. 315 it was held that as a general rule where there is an effective and sufficient charge of a substantive offence, the addition of a charge of conspiracy is undesirable. And in R. v. James and others. (1974) 59 Cr. App. R. 102 C.A. it was held that it is not desirable to include a charge of conspiracy which adds nothing to an effective charge of a substantive offence. This case may however be contrasted with that of R. v. Cooper and Compton (1948); (1948) 32 Cr. App. R. 120, where is was held that where there is clear evidence of conspiracy but little evidence that any of the conspirators committed any of the overt acts, a count for conspiracy is both justifiable and necessary. However whether a charge of conspiracy mayor may not be included in a particular information where a substantive charge is set out, depends on the facts and the prevailing circumstances of each case. In R. v. Dawson (1960) 1 WLR 163 at 170 (1960); 44 Cr. App. R. 87 Finnemore J. sitting in the court of criminal Appeal said: “First of all if there are substantive charges which can be proved, it is in general undesirable to complicate and to lengthen trials by adding a charge of conspiracy. Secondly, that course can work injustice, because it means that evidence which otherwise would be inadmissible on the substantive charges against certain people becomes admissible. Thirdly, it adds to the length and complexity of the case, so that the trial may easily be wellnigh unworkable and impose a quite intolerable strain both on the court and the jury…” The necessary inference from this case is that the prosecution must be circumspect in preferring a charge of conspiracy along with substantive charge unless the circumstances of the case so determine in that the proof of the committal of the main offence may not be easy. It therefore diminishes to some extent the worth-whileness of charging a count of conspiracy, since it is not always essential or infact desirable to put it if its inclusion may sometimes amount to unnecessary distraction. Indeed Cockburn C. J. in summing up in the case of R v. Boulton and others (1971) 12 Cox. C.C. 87 said at 93 “I am clearly of opinion that where the proof intended to be submitted to a jury is proof of the actual commission of crime it is not the proper course to charge the parties with conspiracy to commit it, for that course operates, it is manifest, unfairly and unjustly against the parties accused ….”

I do not in my view think that the count of conspiracy ought in fact to have been framed in this indictment. But since it was in any case added, the order in which it is put is not really relevant to the issue but for aesthetics and beauty in the literature of the law and the age long practice of making it the first count, it is considered elegant to put it first so that the sequence of events will speak out eloquently of the thought frame work of the draftsman. My overall view is that it ought not to have been put up at all in the instant case.

I now come to the main issue and in this vein, I intend to discuss all the other issues together. The charge is one of attempted robbery. Now section 2(i) of the Robbery and Firearms (Special Provisions) Decree No.47 of 1970 under which the appellant was charged states as follows: “Any person who, with intent to steal anything, assaults any others person and at or immediately after the time of assault, uses or threatens to use actual violence to any other persons or any property in order to obtain the thing intended to be stolen shall be upon conviction under this Decree be liable to imprisonment for not less than 14 years but no more than 20 years.

(2)(a) if any offender mentioned in subsection (i) above is armed with any firearms or any offensive weapon or is in company’ with any other person so armed… the offender shall be liable upon conviction under this Decree to imprisonment for life with whipping in such manner and to such extent not exceeding 24 strokes as the tribunal may decide.”

Now the appellant said that the whole episode started with the complainant’s manner of driving. According to him the vehicle driven by P.W.1 stopped so suddenly that he nearly rammed into him but the complainant said that the motorcyclist stopped in front of him. When the appellant went to P.W.1, did he go to him to attempt to steal his car by violence which is attempted robbery or did he go to argue with him as to the manner of his driving? What is attempt? Section 4 of the Criminal Code defines Attempt as follows: “When a person intending to commit an offence begins to put his intention into execution by means adopted to its fulfillment and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.” At para. 4104 page 1362 of the 37th Edition of Archbold, the learned authors write as follows: “The Actus Reus necessary to constitute an attempt is compete if the prisoner does an act which is a step towards the commission of the specific crime which is immediately and not merely remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of a specific crime. See Davey v. Lee (1968) 1 QB. 366 D.C. Where the act concerned, is equivocal, the intention of the defendant is relevant to see to what end the act was directed. When that is decided it still remains for the prosecution to know that the act itself was sufficiently proximate to the crime which the defendant intended to commit to amount to an attempt.” Thus in R v. Bloxham (1944) 29 Cr. App. R. 37 a conviction for attempted larceny was quashed on the ground that there was no evidence that the prisoners had taken any step either immediately or remotely connected with the taking and carrying away of the property.

Were the appellant and his friend by their overt and manifest act which was found by the lower court to be a struggle by the appellant and another to dispossess of his car, intending to engage in some argument as it result of the manner of driving of the complainant. The overt act mentioned was the use of a knife to threaten the complainant to release the key of his vehicle. It is significant to point out that even though the policemen who arrested the appellant and his accomplice were right there at the time, they did not see or immediately recover any knife. Was it possible that at the time the culprits surrendered, the complainant P.W.1 did not tell them there that he was threatened with a knife. If he did why did the police not look for it on that same spot. If he did, not say so but stated so in his statement which prompted them to visit the scene of the incident the following day, having found a knife that was supposed to have been used, and which was denied by the appellant, why was it not considered necessary to have a finger print expert to examine the knife for finger prints. Since the knife was the offensive weapon used which renders’ the act one of aggravated nature, characteristically speaking, I would say with greatest respect that proper justice, would have been done if the knife was subjected to finger print analysis. In this connection I would state that attempt to commit any robbery can be defined as doing of those acts towards the commission of robbery and with such intent, but falling short of actual perpetration of completed offence. In other therefore to constitute an attempt or assault with intent to rob, it must appear that the circumstances were such that the crime could have been fully completed, to wit robbery had the attempt been successful. To prove attempt, the Respondent should show that the intention to rob the prosecution witness P.W.1 was amply manifested by clear cut acts of the accused persons.

The learned trial Judge in his judgment had stated as follows:

“when the 2nd Accused was arrested the knife Exh. C. was not found on him but in a gutter near the scene of the crime and this was in the following morning. There is evidence that no fingerprint of the knife was taken. Relying on these facts, counsel for the accused contended that no knife was used by the accused to threaten P.W.1 as suggested by the prosecution. I take this part of the evidence here led, for the purpose of proving that the knife Exh. C was the one used by 2nd accused as circumstantial. But there is a direct evidence from P.W.1 which I have accepted as true that in attempting to rob him of his vehicle 2nd Accused drew out a knife and threatened to stab him. I do not therefore consider it necessary to discuss the effectiveness of the circumstantial evidence in this case. I am quite satisfied that when attempting to rob P.W.1 of his vehicle 2nd Accused was around with Exh. C. an offensive weapon.”

The conclusion arrived by the learned trial Judge based on his analysis is highly flawed. Throughout the evidence of the complainant P.W.1 he never said how and where the knife was disposed of. But most curiously is this portion of his testimony,

“When 2nd Accused entered my car he again demanded the key but I refused to give him. He held my private part-penis and struggle to take the streering from me. At a stage he held fast to the steering with his left hand and brought out a knife which he held in his right hand and threatened to stab me… I do not know from where the 2nd accused brought out the knife.”

How would the 2nd accused do all these at once. And all this time his co-accused sat complacently in the motor-cycle looking at them struggling and not helping his friend to overpower the man they hoped to rob of his vehicle. The whole story is difficult to comprehend in the light of the circumstances. The story of the complainant does not sound very convincing. I say this because it is in his story that the court below hinges on its decision. It appears to leave some gaps. Where a party who has the burden of proof relied on certain evidence and inference, such inference in order to prevail must not only be reasonable from that evidence but must show conclusively and exclude any other inference and deductions inconsistent therewith. The inference drawn by the police witnesses is that whatever was happening there was an attempt to steal by violence and would necessarily exclude any other equally consistent phypothesis, to wit of quarrelling about the manner of driving of the complainant. In criminal cases it is always the prosecution that must prove its case beyond reasonable doubt. In his summation on delivering his judgment, the learned trial Judge stated thus: “2nd Accused said in his evidence that at the time the offences were said to be committed he was on his way to work at Anthony Village. He gave the address of working place as 7, Thomas Olaniyan Street. But surprisingly he did not ask for subpoena to be issued to bring somebody from that house to testify accordingly in his favour.”

I must confess that this is a new one. The law vests the responsibility to prove the accused guilt on the prosecution beyond all reasonable doubt. It is not part of the system of our law that the appellant and his co-accused should’ prove their innocence. Proof of every reasonable hypothesis except that which it tends to support and it is proof wholly consistent with the guilty of the accused and inconsistent with any other rational conclusion. Thus for evidence to warrant conviction, it must exclude beyond all reasonable doubt every other hypothesis than that of the accused’s guilt and an accused is entitled to acquittal if his guilt of the crime charged is not the only reasonable interpretation on which the facts adduced against him are susceptible and if the stated facts are compatible with either innocence or guilt, the court must acquit since evidence which tends to prove either ‘of the two propositions had succeeded in proving neither.

The evidence of the prosecution must not be vague uncertain or improbable or even an affront to intelligence. It must have the distinctive characters of clarity and precision. Indeed the term reasonable doubt conveys its own meaning. It cannot be accorded quantitative value other than a general rational definition. The primary and singular consequence of this term is a doubt founded on reason rather than a vain fanciful, whimsical, capricious imaginary, speculative doubt. It must not be one that presents hesitancy in the decision of the court. Perhaps the amplification of this degree of proof made by Lord Denning in Miller v. Minister of Pensions (1947) 2 AER. 372-373 is very instructive. “The degree is well settled. It need, not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to defeat the cause of justice if the evidence is so strong against a man 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 must be proved beyond all reasonable doubts but nothing short of that will suffice.” See also Bakare v. State (1987) 1 NWLR (Pt.52)Â Â p.597; Ozo v. State (1971) All NLR 111 at 115 and Grace Akinfe v. State (1988) 3 NWLR (Pt.85) 729 at 733.

Consider for example the finding of the court that the appellant did not actually take part and yet took part appearing to reverse himself in the same judgment. It is out of ordinary for the 1st accused to sit on his motor-cycle watching while the other co-accused engaged with the appellant in a macabre dance of life and death.

Matters are not helped by an allegation that the appellant was vigorously cross-examined by the learned trial Judge. The standard of ethical behavior expected of a Judge sitting on the Bench is that of being free from prejudice. In Sunday Okoduwa & 6 Ors. v. The State (1988) 2 NWLR 333 (Pt 76) at 354. The Supreme Court stated as follows: In respect of the mien of a Judge sitting on the Bench…

“Basically it is the role of the Judge to hold the balance between the contending parties and to decide the case on the evidence brought by both parties and in accordance with the rules of the particular court and the practice and procedure chosen by parties in accordance with the rules. Under no circumstances must a judge under the system do anything which can give the impression that he has descended into the arena as obviously his sense of justice will be obscured.”

The tendency towards cross-examining the appellant extensively leave one with the impression that the intent was to look for obvious loop holes and gaps in the appellant’s testimony with a view to finding facts which will clinch a conviction. And, in this case he was convicted. A situation where the court literally took over the examination in chief or cross-examination of a witness may compel a party’s counsel to sit down. And, when the trial Judge has finished asking series of questions and the counsel continues to sit down and when the court asks him to continue could draw a remark of “Oh yes my Lord, but I am waiting for your Lordship to call your next witness.” In the case of Jones v. National Coal Board (1957) 2 Q.B. 55 where the trial Judge Hon. Justice H. Hallet was berated for his loquacity and because of this well known malaise a new trial was ordered. In ordering a new trial Lord Denning did allude to the Judge “assuming the mantle of an advocate.” Such garrulity or needless excitement which makes a Judge descend into the arena of trial as though he is a party offends an ethical behaviour expected of a Judge and must be avoided as it may upset the delicate balance of the case.

In a case of this nature the corpus delicti consists of proof that there has been use of violence or threatened use of violence which literally is meant to put the fear of God in the victim. Was there a proof of corpus delicti in the light of the nature of the case as made out. There is some doubt. In the circumstances, the appeal succeeds and I hereby set aside the judgment and consequent conviction of the appellant of the court below and acquit and discharge the appellant who has been in prison for a long time now.

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Other Citations: (1994)LCN/0169(CA)