Judgment
ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Owerri Judicial Division which affirmed the judgment of the High Court of Imo State wherein the Appellant was convicted for the offences conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII Laws of the Federation of Nigeria, 1990.
BRIEF STATEMENT OF FACTS The Appellant was tried alongside one Andrew Duru on a two counts charge which reads as follows: “STATEMENT OF OFFENCE – COUNT I Conspiracy to commit robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII Laws of the Federation of Nigeria, 1990. PARTICULARS OF OFFENCE Cletus Akalazu and Andrew Duru on 11th day of July, 1998 at Ihiteaforukwu in the Ahiazu Mbaise, in the Mbaise Judicial Division, conspired with other people at large to commit offence to wit: robbery.
STATEMENT OF OFFENCE – COUNT II Armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE Cletus Akalazu and Andrew Duru on 11th day of July, 1998 at Ihitte Aforukvvru in the Ahiazu Mbaise, in the Mbaise Judicial Division armed with firearms and robbed one Victor Nwoko of his property which included Mercedes Benz car with registration No. AA 328 AFR, some cartons of drugs, cosmetics and provisions, typewriter and cartons of drinks, all property are worth N946,000.00.”
At the trial of the case, the Respondent as prosecution called four witnesses and tendered seven exhibits, including Exhibits A and C, the Appellant’s confessional statements. The Appellant testified in his defence, while his mother testified as DW2. The second accused person also testified alongside his wife.
It was the case of the Respondent that the Appellant and seven others while armed with guns robbed PW2, Victor Nwoko on 11th July, 1998 and carted away properties worth N946,000.00. Four of them were said to be masked while the other four were not. PW2 reported the matter to Ahiazu Mbaise Police Station, but when he noticed that the matter was not being satisfactorily investigated, he made another report at the State CID Headquarters on 21st July, 1998. That in the first week of July, 1998 there was another robbery incident in the house of one Dr Wilson Emele “Wellinco”.
The security men at the house of the said Wellinco engaged the robbers and that one of the said robbers escaped with gunshot wounds. That the matter was reported to the police and it was discovered that one Osita was lying critically ill in the hospital after sustaining bullet wounds. In order to apprehend the robbers, the Police set up surveillance at the hospital and when the Appellant went to visit the said Osita at the hospital, he was arrested by the police at Isiala Mbano.
It was the further case of the Respondent that the Appellant’s case was transferred to the Crack Squad, State Headquarters on 21st July, 1998 the same day, PW2 went to the Crack Squad, State Headquarters. That as PW2 was leaving after writing his statement, he saw the Appellant and he immediately identified him as one of the armed robbers who robbed him. Respondent stated further that the Appellant was re-arrested and interrogated by the police pertaining to the robbery of PW2 and he confessed to committing the crime.
That an identification parade was subsequently conducted wherein PW2 for the second time identified the Appellant as part of the robbers who robbed him on 11th July, 1998.
The case of the Appellant on the other hand was that he was at his barbing salon on the day of the said incident and after the close of work, he went to sleep at his parent’s house.
At the conclusion of the trial and after the adoption of final addresses, the trial Court found the Appellant guilty as charged and sentenced him to 20 years imprisonment for the offence of conspiracy to commit robbery and death by hanging or firing squad in respect of the offence of armed robbery. The 2nd accused person was discharged and acquitted.
The Appellant was dissatisfied by the judgment of the trial Court and he appealed to the lower Court, which appeal was dismissed. He has now appealed to this Court via a Notice of Appeal which was subsequently amended. The Amended Notice of Appeal contains six grounds of appeal.
APPELLANT’S SUBMISSIONS AND ARGUMENTS Counsel distilled four issues for the determination of the appeal as follows: “1. Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt (Ground One). 2. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant based on the evidence of the PW2 Victor Nwoko purportedly identifying the Appellant as the person who robbed him (Ground 2). 3.
Whether the learned Justices of the Court of Appeal were right in law when they affirmed the conviction and sentence of the Appellant based on distilled confessional statements which even did not corroborate each other and when no other pieces of evidence or facts were found corroborating the purported confessional statements (Ground 3 and 4). 4. Whether the Supreme Court ought not to interfere in the concurrent findings of the lower Courts in the circumstance of this appeal. (Grounds Five and Six)”
Counsel argued issues one and two together and by so doing, he submitted that the case against the Appellant was concocted because the evidence of the prosecution witnesses were contradictory. That the fact that there was an identification parade shows that PW2 did not correctly identify the Appellant when he first spotted him at the police station. The cases of OSUAGWU v. STATE (2013) ALL FWLR (PT. 672) 105; ADESINA v. STATE (2012) ALL FWLR (PT. 644) 1 were referred to. Relying on the cases of EBIRI v. STATE (2004) ALL FWLR (PT. 216) 42; IKEMSON v.
STATE (1989) 3 NWLR (PT. 110) 455; ARCHIBONG v. STATE (2006) 14 NWLR (PT. 1000) 242, it was submitted that whenever a case against an accused person depends wholly or substantially on the correctness of the identification of the accused person, the Judge ought to warn the jury of the special regard for caution before convicting the accused in reliance on the correctness of the identification. That there was nothing on record to show that an identification parade was properly conducted.
He submitted that the identification of the Appellant by PW2 who claimed to recognize the Appellant, but also claimed that he was asked to lie down immediately the robbers got to his office cannot be relied on. He submitted that it must be established that there was adequate opportunity under satisfactory conditions for victim to identify the accused person before a spontaneous recognition can be acceptable. Reference was made to the cases of ORIMOLOYE v. STATE (1984) NSCC 654; EYISI v. STATE (2000) 15 NWLR (PT. 691) 555; OTTI v. STATE (1993) 4 NWLR (PT. 290) 675.
Arguing issue 3, counsel submitted that the Appellant’s confessional statements, Exhibits A and C were not voluntarily made and that the lower Court was wrong to have admitted same in evidence despite the Appellant showing during the trial within trial that the statements were made under duress. He also pointed out that the statements were not taken before a Superior Police Officer for endorsement despite PW1 acknowledging that he knew that was the usual practice within the Police.
It was submitted that the Appellant’s confessional statement went missing at the registry of the Court below, hence this Court cannot pronounce on the voluntariness or otherwise of same. He therefore urged this Court to acquit and discharge the Appellant.
The sum total of counsel’s submissions on issue no.4 was that the lower Court did not properly evaluate the evidence before it, hence its findings were perverse and the decision of the lower Court affirming same was also perverse. He relied on the following cases: OSHOBOJA v. AMIDA & ORS (2009) LPELR-2803 (SC); ATOLAGBE v. AWUNI (1997) 9 NWLR (PT. 22) 536; DALHATU v. TURAKI (2003) 7 SC 1; AFOLABI v. STATE (2016) 11 NWLR (PT. 1524) 497; ABUDU v. THE STATE (1985) 1 NWLR (PT. 1) 55; NWOSU v. THE STATE (1986) 4 NWLR (PT. 35) 348.
In his final analysis, he urged the Court to allow the appeal, set aside the conviction and sentence of the Appellant and in its place acquit and discharge the Appellant.
RESPONDENT’S ARGUMENTS AND SUBMISSIONS Counsel on behalf of the Respondent formulated the following issues for determination: “1. Whether the learned Justices of the Court of Appeal were right in holding that the prosecution by credible evidence adduced at the trial, established the case of conspiracy and armed robbery, against the Appellant beyond reasonable doubt, warranting his conviction? (Distilled from Ground One of the Grounds of Appeal). 2.
Whether the learned Justices of the Court of Appeal were justified in holding that the Appellant was properly identified as one of the robbers by PW2 – Victor Nwoko? (Distilled from Ground Two of the Grounds of Appeal). 3. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant, relying on the corroborated confessional statements properly admitted in evidence, amongst other pieces of incriminating evidence? (Distilled from Ground Three and Four of the Grounds of Appeal). 4.
Whether the Supreme Court ought to interfere in the concurrent findings of the two lower Courts having regards to the facts and circumstance of this appeal? (Distilled from Grounds Five and Six of the Grounds of Appeal).
On issues one and two, it was the submission of counsel that the charge against the Appellant was proved beyond reasonable doubt. He submitted that PW2 properly identified the Appellant. That although the incident occurred at night, there was electricity at the time of the incident and that while PW2 was asked to lie down, he testified that he did not hand over the key of his car to the armed robbers while lying down. Reference was made to OSUAGWU v. THE STATE (2009) 1 NWLR (PT. 1123) 538.
It was also submitted that PW2 was consistent in his testimony of how he spontaneously identified the Appellant and how he identified him during the identification parade. It was submitted that the failure of the Respondent to call other persons present during the armed robbery incident is not fatal as the case was nevertheless proved beyond reasonable doubt. Reliance was placed on the cases of UDO v. STATE (2006) ALL FWLR (PT. 337) 456; ODUREYE v. STATE (2001) FWLR (PT. 38) 1203; NWAEZE v. STATE (1996) 2 NWLR (PT. 425) 4.
Learned counsel also submitted that Section 167 (d) of the Evidence Act, 2011 applies where the prosecution withholds evidence, not where it fails to call a witness. The cases of AKINYEMI v. THE STATE (1999) 6 NWLR (PT. 607) 449; ATTAH v. STATE (2009) 15 NWLR (PT. 1164) 284; UDO v. STATE (supra) were cited in support.
On issue three, it was submitted that while a Court can convict on an uncorroborated confessional statement, there was sufficient evidence on record to corroborate the Appellant’s confessional statement. He placed reliance on the cases of NWACHUKWU v. THE STATE (2007) 17 NWLR (PT. 1062) 31; NSOFOR v. THE STATE (2005) ALL FWLR (PT. 242) 397; ALARAPE v. THE STATE (2001) 5 NWLR (PT. 705) 86.
That the Appellant in his confessional statement referred to the robbery at the house of Wellinco; how he went to visit Osita at the hospital and he also referred to one Nicholas Akaluzu in Port Harcourt whom he claimed to have sold the stolen Mercedes Benz to. It was submitted that the contention that the confessional statements got lost at the registry is unfounded as those statements are at pages 12 – 14 of the record of appeal.
Learned counsel also submitted that although taking the Appellant before a Superior Police Officer to endorse his confessional statement reinforces the voluntariness of such a confessional statement, failure to do so does not vitiate the confession. He relied on the cases of EGBOGHONOME v. STATE (2001) 2 ACLR 262; DIBIE v. STATE (2007) ALL FWLR PT. 363 83.
On issue four, it was submitted that the decisions of the Courts below were based on the evidence on record, hence they were not perverse and this Court ought not to interfere with same. Reliance was placed on the cases of WOWEM v. STATE (2021) 9 NWLR (PT. 1781) 295; ALI v. STATE (2021) 12 NWLR (PT. 1781) 159; GALADIMA v. STATE (2017) 12 NWLR (PT. 1580) 339. Counsel finally urged this Court to dismiss the appeal and affirm the conviction and sentence of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery.
RESOLUTION Having considered the grounds of appeal as contained in the Amended Notice of Appeal and the issues distilled by parties for the determination of the instant appeal. I find that the issues distilled by both counsels are identical. However, for the determination of the appeal, I shall adopt the Appellant’s issue one, which I find commodious enough to capture the issues In contention. For ease of reference, the said issue is as follows: Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt?
It is well settled in our criminal justice system that an accused person is presumed innocent until he is proved guilty. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof is beyond reasonable doubt. UKPONG v. STATE (2019) LPELR-46427(SC); AMOS v. STATE (2018) LPELR-44694(SC); EWUGBA v. STATE (2017) LPELR-43833(SC) as well as Section 135 of the Evidence Act, 2011.
However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. The doubts that are recognized by the law are doubts that are reasonable, not doubt that can easily be jettisoned as not affecting the judicial mind of the Court. If the evidence against an accused person is so strong as to only leave 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, but nothing less would suffice. See MILLER v. MINISTER OF PENSIONS (1947) 2 ALL ER 372; UCHE v.
STATE (2015) LPELR-24693; AJAYI v. STATE (2013) LPELR-19941 (SC).
It is trite that there are three methods through which the prosecution can establish the guilt of an accused person to wit: (i) Through the testimony of an eyewitness; or (ii) By a confessional statement voluntarily made by the accused person; or (iii) By circumstantial evidence which is positive, compelling and points irresistibly to the conclusion that the accused person committed the offence. See OJO v. STATE (2018) LPELR-44699 (SC); KOLADE v. STATE (2017) LPELR-42362 (SC); AKWUOBI v. STATE (2016) LPELR-41389 (SC).
The Appellant herein was charged with two counts of conspiracy to commit armed robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act and armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.
It is trite law that the prosecution is duty bound to prove the following ingredients beyond reasonable doubt in order to secure a conviction for the offence of armed robbery: 1. That there was a robbery incident or series of robberies. 2. That the robbery or each of the robberies was an armed robbery. 3. That the accused was the armed robber or one of the armed robbers. See DAWAI v. STATE (2017) LPELR-43835(SC); OGOGOVIE v. STATE (2016) LPELR-40501(SC); STATE v. AJAYI (2016) LPELR-40663(SC).
The victim of the crime, Nwoko Victor testified as PW2. He testified in chief at pages 96 – 97 of the record thus: “I was robbed on 11th July, 1998. On 11th July, 1998, I was in my store at Umueze Ihitte Aforukwu. At about 8.30 p.m., I saw eight armed men who entered my office. Four of them were masked while the other four had their faces uncovered. They ordered me to lie down. I quickly lied down and they told me that they were hired by my business colleagues to kill me.
I told them that I had had series of experiences like that and whether they were the people who came in similar occasions in the past. They answered no. They told me that the reason given by the people who hired them to assassinate me were not enough that they rather would take my Mercedes Benz with registration number AA 328 AFR, IM 1428 YZ was the former plate number. They demanded the key to my store which I gave to them. They opened my store and carted away many cartons of hot drinks, wine, provisions and drugs and a typewriter. All valued at N940,000.00.
They left my store and fired two gun shuts (sic). My office is attached to my store.”
Under cross-examination, he said at page 100 of the record: “On that day, I saw 8 men entered my store, 4 of them were masked. They pointed gun at my face and asked me to lie down.”
His evidence in this regard during both examination in chief and cross-examination was in consonance to his statement to the police, Exhibit F wherein he stated as follows: “That on 11/7/98, by 8 pm, eight men with guns jumped into my office pointing at my face ordering me to lay down which I did. They asked me that my business members told them to come and kill me. That the reason they gave is not enough, that if they kill me, my blood will be on their heads.
They then asked me the key to my M/230 salon car and the key to my store which I handed over to them, after which they parked all the drugs, drinks, provisions, cosmetics, typewriter and the M/ 230 (No. AA 328 AFR) old No. IM 1428 YZ, L/yellow in colour. They locked me in with my two workers and my friend and they gave out two gunshots and left.”
Flowing from the foregoing, and in the absence of any contrary evidence on the record, I have no hesitation in holding that the first two ingredients of the offence of armed robbery, that is, (1) that there was a robbery or a series of robberies and (ii) that the robbery or each of the robberies was an armed robbery were proved beyond reasonable doubt by the Respondent at the trial Court.
In a bid to prove the third ingredient of the offence of armed robbery, the Respondent tendered among other exhibits, the confessional statements of the Appellant, Exhibits A and C which were admitted in evidence after going through trial-within-trial and found to have been voluntarily made. The Appellant’s counsel contended that Exhibit A was not voluntarily made and was made by the Appellant when he had an “unsettled mind” because the Appellant therein was referring to another event.
The contention of the Appellant’s counsel in this regard is not supported by the evidence on the record before the Court. In Exhibit A made on 21st July, 1998, the Appellant stated as follows: “Today 21/7/98 by the time the police of Isiala brought us before the Crack Squad Police in a handing over issue, suddenly one slim black man identified me as one of the persons that robbed him of his properties including his Mercedes Benz car on 11/7/98. We are (sic) four that robbed the man on 11/7/98.
The name of the other people that robbed the man are… The Mercedes Benz sold to one Andrew Duru of Amaraka at the cost of N360,000.00.” I struggle to see how the events narrated in Exhibit A did not relate to the events of the armed robbery committed against PW2. This contention of counsel is therefore baseless and misleading. I am also of the view that having an unsettled mind, as submitted by the Appellant’s counsel is not a vitiating factor affecting the voluntariness of a confessional statement.
Another grouse of the learned counsel in respect of the confessional statements, Exhibits A and C is that the Appellant was not taken with the statements before a superior police officer for endorsement. Now, it is settled that the practice of taking a suspect with his confessional statement before a superior police officer for endorsement is not a prerequisite for admission of such confessional statement in evidence. This practice otherwise known as the Judge’s Rules is only an administrative practice to further ensure the voluntariness of confessional statements.
While it is desirable, failure to observe the procedure cannot vitiate a confessional statement. See STATE v. SA’IDU (2019) LPELR-47397 (SC); TOPE v. STATE (2019) LPELR-47837 (SC); KASA v. STATE (1994) LPELR-1671 (SC).
As long as a Court is satisfied that a confessional statement was made voluntarily, it can convict an accused person solely on that confession if same is direct and positive on the offence charged. If this is the case, the fact that the confessional statement is retracted at trial will not detract from its voluntariness or its admissibility. See STATE v. SA’IDU (supra); AWOSIKA v. STATE (2018) LPELR-4435 (SC); LASE v. STATE (2017) LPELR-42468 (SC).
In the instant case, the learned trial Judge admitted Exhibits A and C upon being satisfied of their voluntariness after conducting trial within trial to ensure their voluntariness. Nevertheless, it is desirable that there are some corroborating evidence, no matter how slight that supports the Appellant’s confessional statement. See AWOSIKA v. STATE (2018) LPELR-44351 (SC); SUNDAY v. STATE (2017) LPELR-42259 (SC); OLANIPEKUN v. STATE (2016) LPELR-40440 (SC).
The trial Court examined the evidence on record and found corroborative evidence establishing the truth of the contents of the Appellant’s confessional statements. The learned trial Judge held at pages 154 – 155 of the record of appeal: “The 1st accused person retracted his confession in his evidence during trial. It is then desirable to have some evidence outside the confession which would made (sic) it probable that the confession was true. In order words, is it corroborated? Is the confession consistent with other facts which have been ascertained as true, even if slight. See John Ebegue v.
The Attorney General Bendel State (1994) 2 NWLR part 326, 273 at 286 Para. B-C. Also Grace v. The State (1988) 3 NWLR Part 85 729. Salewu v. The State (1971) N.M.L.R. 249. Apart from the contents of Exhibits A and C, the P.W.1 in his evidence stated that the 1st accused person was transferred to the State, Police Headquarters, Owerri from Mbano Div. Police Headquarters in connection with another case of armed robbery in the house of one Wellinco.
That at Owerri Police Headquarters, the P.W.2 saw the 1st accused person and identified him as one of those who robbed him of his property at gunpoint.
The D.W.1 (1st accused person admitted in his oral evidence there was robbery in the house of Wellinco and he went to visit one Osita at Extra Care hospital Amaraku where the Police arrested him… Also in his oral testimony, the 1st accused person confirmed that the said Osita was fired during the robbery at Wellinco’s house… In both Exhibits A and C, the 1st accused narrated the robbery incident in the house of Wellinco and how one Osita was shot during the robbery operation and how he visited him at the hospital at Amaraku where the Police arrested him and took him to Owerri.
Furthermore, it is in evidence of PW1 that he visited the Palace Hotel, Amaraku mentioned in Exh A and the owner of the hotel and the workers stated that they know the 1st accused person who was coming to the hotel but know nothing about his mission to the hotel…”
I cannot but agree with the above meticulous and unassailable findings of the trial Court. There are ample evidence on record corroborating Exhibits A and C. Learned counsel for the appellant also contended that this Court is precluded from pronouncing on the voluntariness or otherwise of Exhibits A and C because they were lost at the registry of the Court below. The simple answer to this is that counsel’s assertion is not supported by the evidence on record.
An appeal is a rehearing of the case determined by the lower Court and the rehearing is done on the basis of the record of appeal compiled and duly transmitted to the appellate Court. See OLORUNYOLEMI & ANOR v. AKHAGBE (2010) LPELR-2957 (SC). Upon perusing the record, the confessional statements made by the Appellant are at pages 12 – 14.
Counsel for the Appellant in this appeal is not challenging the record of appeal on the basis of incompleteness or inaccuracy. In the absence of such a complaint, both the parties and the Court are bound by the contents of the record of appeal. See the cases of AUDU v. FRN (2013) LPELR-19897 (SC); AUDU v. AG FEDERATION & ANOR (2012) LPELR-15527 (SC); TEXACO PANAMA INC. v. S.P.D.C. (NIG) LTD (2002) LPELR-3146 (SC). Against this background, the complaint of the Appellant’s counsel as regards the record of appeal discountenanced.
Counsel for the Appellant also challenged the identification of the Appellant by PW2, the victim of the crime. It has been held that identification of an accused person can take different forms, including: a. Visual identification. b. Voice identification. c. Identification parade. See ISAH v. STATE (2017) LPELR-43472 (SC); NDUKWE v. STATE (2009) LPELR-1979 (SC); EYISI & ORS v. STATE (2000) LPELR-1186 (SC).
In the case at hand, the Appellant was first identified spontaneously by PW2 (a form of visual identification) before an identification parade was conducted wherein he was identified again by PW2. The evidence of PW2 is as follows: “I made another complaint at the police State C.I.D, Owerri. After finishing my statement to the police at Owerri as I was coming out, I saw one person i.e. the 1st accused person at the police. I quickly told the police and showed him the 1st accused person – Cletus Akalazu as one of the people who robbed me. The police arrested and interrogated him.
He confessed that he was one of those who robbed me. He mentioned the names of six other people who participated in the robbery… The accused persons were not masked. I first came to know the accused person during the robbery in my store. At the State Police headquarters, the police carried out identification parade. I was able to identify the 1st accused person and some other person who are not here.” These facts established in the evidence in chief of PW2 were not refuted during cross-examination.
Counsel for the Appellant contended that PW2 lacked the opportunity to properly observe the features of the armed robbers so as to be able to spontaneously identify the Appellant as one of them.
It is pertinent to state that there is unchallenged evidence on record that during the armed robbery operation at about 8:30 pm, there was electric power supply at the time. PW2 also gave unchallenged evidence that of the eight people who robbed him, four were masked, but the other four were not. He also testified that he was not laying down at the time he handed over the key to the armed robbers. All these, in my humble view, point to the fact that PW2 had enough opportunity to observe the features of the Appellant such that he was able to identify him spontaneously.
The spontaneous visual identification renders the subsequent identification parade unnecessary. See LAWALI v. STATE (2019) LPELR-46405 (SC). The identity of the Appellant by PW2 in a subsequent identification parade which was conducted out of abundance of caution makes the identification of the Appellant infallible. I therefore entertain no doubt that the identity of the Appellant by the prosecution was proved beyond reasonable doubt.
From all that I have said, I am persuaded to agree with the lower Courts that the Respondent proved beyond reasonable doubt that the Appellant was one of the armed robbers who robbed PW2 of his possessions on 11th July, 1998.
The Appellant was also convicted for the offence of conspiracy to commit robbery. The offence of conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. The offence of conspiracy is a unique one in the sense that it is usually started and completed behind closed doors. For this reason, the offence is hardly ever capable of being proved by direct evidence.
Proof of conspiracy is often obtained from one of the conspirators or from inferences from certain act or acts of the party or parties concerned in pursuance of an apparent criminal purpose between them. The essential element of the offence of conspiracy lie in the meeting of the minds of the conspirators to do an unlawful act or to do a lawful act by unlawful means. See IBOJI v. STATE (2016) LPELR-40009 (SC); OKASHETU v. STATE (2016) LPELR-40611 (SC); ABACHA v. STATE (2002) LPELR-16 (SC).
The Appellant herein narrated in his confessional statements of how the offence of armed robbery committed against PW2 was hatched and he also stated that the armed robbery was carried out by four persons, including himself. PW2 also narrated how he was robbed by eight persons, including the Appellant, on the day of the incident. The key takeaway from this is that the armed robbery was orchestrated and carried out by the Appellant and other persons among whom there was undoubted meeting of the minds to commit the offence.
Against this backdrop of the above, I hold that the offence of conspiracy to commit robbery was proved beyond reasonable doubt by the Respondent and the lower Courts were right to so hold.
The attitude of this Court to the concurrent findings of facts by the two Courts below is no longer in doubt. This Court will only interfere or disturb such concurrent findings if the Appellant can show that the concurrent findings of facts are either perverse or they occasioned a miscarriage of justice to the Appellant. See AHMED & ORS v. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR-46414 (SC); NOMAYO v. STATE (2018) LPELR-44729 (SC); CAMEROON AIRLINES v. OTUTUIZU (2011) LPELR-827 (SC).
The Appellant herein has been unable to show that the concurrent findings of the two Courts below are perverse or not based on evidence before the Courts. This Court is therefore precluded from interfering with the concurrent findings of the two lower Courts.
In the final analysis, this appeal is hereby dismissed for lacking in merit. The judgment of the lower Court affirming the conviction and sentence of the Appellant by the trial Court is hereby affirmed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Adamu Jauro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is unmeritorious and deserves to be dismissed. It is dismissed by me. Appeal dismissed.
EJEMBI EKO, J.S.C.: The Appellant was the 1st Accused at the trial Court. He was tried on two count charges, with one other, of conspiracy to commit robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act, and armed robbery contrary to Section 1(2)(a) of the same Robbery and Firearms (Special Provisions) Act, Cap 398 of 1990 LFN. The trial Court, on 25th June, 2004, convicted the Appellant on the 2 offences, and imposed a sentence of 21 years for the conspiracy and death sentence for armed robbery on him.
His appeal to the Court of Appeal (the lower Court) against the conviction and sentences was dismissed; hence the instant further appeal brought initially on 5 grounds, filed as of right. The amended Notice of Appeal filed on 26th January, 2021, but deemed on 20th January, 2022, has 6 grounds of appeal.
All the six (6) grounds of appeal raise issues of fact and/or evaluation of the facts on which his conviction by the trial Court was sustained by the lower Court. The original 5 grounds of appeal, all raising issues of fact alone and improper evaluation of evidence were filed as of right.
The seeming incompetence of the original grounds of appeal are condoned by Section 233(2)(d) of the Constitution, 1999, the lower Court having “affirmed (the) death sentence imposed” on the Appellant by the trial Court. The Appellant’s Counsel distilled 4 issues for the determination of the appeal from the 6 grounds of appeal per the Amended Notice of Appeal. The 4 issues read thus 1. Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt (Ground one). 2.
Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant based on the evidence of PW.2, Victor Nwoke, purportedly identifying the Appellant as the person who robbed him? (Ground 2). 3. Whether the learned Justices of the Court of Appeal were right in law when they affirmed the conviction and sentence of the Appellant based on distilled confessional statements which even did not corroborate each other and when no other pieces of evidence or facts were found corroborating the purported confessional statements? (Ground 3 & 4). 4.
Whether the Supreme Court ought not to interfere in the concurrent findings of the lowers in the circumstance of this appeal? (Grounds 5 & 6).
Ground 5, from whence the issue 4 was inter alia purportedly distilled, complained that the lower Court “erred in law in affirming the conviction of the Appellant on the ground that his counsel at the trial Court did not challenge or confront the prosecution with certain facts testified to at the trial”. It did not raise any issue of the inherent powers of this Court to interfere with concurrent findings of fact that are perverse. The lower Court’s decision did not, in any way, prospectively touch on that inherent powers of this Court.
Issue 4, certainly, was not formulated from Ground 5 of the Amended Notice of Appeal. Like Ground 5, Ground 6 did not raise any issue that the lower Court erred in touching on the prospective discretion of this Court upon finding that the decision appealed was perverse. The complaint in the said Ground 6 is simply that “the lower Court failed to properly evaluate the evidence placed before it by the prosecution and the Appellant to enable the Courts to make findings in favour of the Appellant”.
No issue, admittedly, of either the lower Court or this Court denying the inherent powers of this Court “to interfere in the concurrent findings of the lower Courts in the circumstance of this appeal”, is decipherable from this Ground 6. Issue 4, not distilled from any ground of appeal before this Court, is incompetent just as Grounds 5 & 6 have been abandoned as no issue therefrom had been distilled for the determination of the appeal by this Court. I will, therefore, not hesitate to strike out the incompetent issue 4 and the abandoned Grounds 5 & 6. They are accordingly struck out.
Cumulatively Grounds 1 – 4, and issues 1, 2, & 3 respectively, complain that the lower Court, in its concurrent judgment, erred in affirming the decision of the trial Court on facts. The Appellant’s Brief of Argument was devoted substantially to attacking the decision of the trial Court that is not appealable to this Court.
Except the terse statement made in paragraphs 3.21 and 3.22 of the Appellant’s Brief of Argument, under issue 3, that the concurrent findings of fact were perverse and that the lower Court had wrongly affirmed the propriety of the identification of the Appellant; no other tangible effort was made to attack the decision of the lower Court appealed. At pages 276 – 280 the lower Court made elaborate findings of fact that the Appellant was on 21st July, 1998, at the Police Station, spontaneously identified by the PW.2, a victim of the robbery, upon sighting him for the first time after the robbery; thus affirming the earlier finding of fact by the trial Court on this point.
The unchallenged and undiscredited evidence of the PW.2 at page 97 of the printed Record support these findings of fact. The Appellant’s extra judicial statement, Exhibit B, supports these findings of fact.
Exhibits A & C are Appellant’s confessional statements, admitted in evidence after rigours of trial-within-trial. No ground of appeal attacks the finding of fact by the trial Court, upon the trial-within-trial, that Exhibit A & C are confessional statements made voluntarily by the Appellant. The confessional statements corroborate the evidence of PW.2 fixing the Appellant to the scene of crime and to the fact that the Appellant was one of the robbers.
The attitude of this Court to specific findings of fact, supported by available evidence on the record, is that; it is not the duty of the Court of Appeal to recapitulate such findings once the Court of Appeal was satisfied that the findings were based on the evidence: IRIRI & ORS v. ERHURHOBARA & ANOR (1991) 3 SC 1; (1991) 1 NWLR (pt. 173) 252 citing CHIEF EBBA v. CHIEF OGODO & ANOR (1984) 1 SCNLR 372. This Court, in the circumstance, will not substitute its discretion for that of the intermediate Court.
The issues put forward in this appeal, for the determination of the appeal situate this appeal squarely on the concurrent findings of fact by the two Courts below. The findings are not perverse. And that is the only veritable ground for this Court, in the second tier appeal, to interfere with and disturb such concurrent findings of fact. Accordingly, I hereby join my learned brother ADAMU JAURO, JSC, adopting his judgment just delivered that there is no substance in this appeal, and dismissing same. Appeal dismissed.
UWANI MUSA ABBA AJI, J.S.C.: The Respondent alleged that the Appellant and 7 others, while armed with guns robbed PW2, Victor Nwoko on 11/7/ 1998 and carted away properties worth N946,000.00. four of them were masked while the other 4 were not. PW2 reported the matter to the Ahiazu Mbaise Police Station and later to the State CID headquarters on 21/7/1998. In the 1st week of July, 1998, there was another robbery in the house of Dr. Wilson Emele known as “Wellinco”, wherein one of the robbers, Osita, sustained gunshot wounds and was being treated in the hospital.
In order to apprehend the robbers, the Police set up a surveillance at the hospital and when the Appellant came to visit Osita, he was apprehended by the Police at Isiala Mbano. When the Appellant’s case was again transferred to the Crack Squad on 21/7/1998, PW2 went there to write a statement and when he was leaving, he stumbled at the Appellant, whom he immediately identified as one of the armed robbers that robbed him. That the Appellant was then re-arrested and after interrogation concerning the robbery of PW2 by the Police, he confessed to committing the crime.
An identification parade was subsequently carried out and for the second time, PW2 identified the Appellant as part of the armed robbers that robbed him on 11/7/1998. The Appellant however pleaded alibi that he was at his barbing salon on the day of the incident and when he closed from work, he went to sleep at his parent’s house. After the trial, he was sentenced to death by hanging. On appeal to the lower Court, his case was dismissed, hence this appeal. The Appellant distilled these issues for determination: 1.
Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt. 2. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant based on the evidence of the PW2, Victor Nwoko purportedly identifying the Appellant as the person who robbed him. 3.
Whether the learned Justices of the Court of Appeal were right in law when they affirmed the conviction and sentence of the Appellant based on distilled confessional statements which even did not corroborate each other and when no other pieces of evidence or facts were found corroborating the purported confessional statements. 4. Whether the Supreme Court ought not to interfere in the concurrent findings of the lower Courts in the circumstance of this appeal.
I have read in draft the lead judgment just delivered by learned brother, Adamu Jauro, JSC, wherein he dismissed the appeal of the Appellant.
The Appellant in his issue four (4) asked this Court to interfere in the concurrent findings of the lower Courts and give judgment in his favour.
Aside the fact that I have not discovered any legal or factual reason to interfere with the concurrent findings of the lower Courts, I have seen much soundness and foolproofness in the lead judgment that I cannot tamper with but endorse. The appeal is hereby dismissed.
MOHAMMED LAWAL GARBA, J.S.C.: I have read the leading judgment delivered by my learned brother, Adamu Jauro, JSC, in draft and find the views expressed on the four (4) issues raised by the Appellant and the conclusion that the appeal deserves to be dismissed for being bereft of merit.
The leading judgment has comprehensively dealt with the issues in line with the extant positions of the law as stated and restated by this Court in the judicial authorities referred to and many more. I join in dismissing the appeal for lack of merit and affirming the concurrent decisions of the two (2) lower Courts on the conviction of and sentences on the Appellant for the offences of conspiracy to commit armed robbery and armed robbery.