Segun Balogun V. Attorney General Of Ogun State (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

The appellant was arraigned on a two-count charge at the Ogun State Robbery and Firearms Tribunal under the Robbery and Firearms (Special Provisions) Act (Cap.398) Laws of the Federation of Nigeria 1990 (the Act). The first count was conspiracy to commit armed robbery contrary to section 5(b) while the second count was armed robbery contrary to section 1(2)(a) of the Act. On 14 January, 2000, upon the evidence before the tribunal, Oduntan, J. who presided found the appellant guilty on both counts. He convicted him on each and accordingly sentenced him to death by firing squad. The Court of Appeal, Ibadan Division, allowed the appeal against those convictions and the sentence and substituted for the convictions, conspiracy to commit robbery and attempted robbery. I shall refer later to the matter of the sentences awarded.

The appellant has now appealed against those convictions to this court and has set down the following two issues for determination:

“1. Whether the learned Justices of Appeal were right in relying on contradictory evidence to convict the appellant of the offences of conspiracy to commit robbery and attempted robbery.

2. Whether the learned Justices of Appeal were right in holding that the defence of alibi raised by appellant was properly rejected.”

The facts relied on were that on 9 March, 1997, a gang of armed robbers invaded the premises of Toyin Agarawu, who testified as p.w.1 at No.1 Anoye Street, Oke-Agbo, Ijebu-Igbo at night. He was woken up by his wife who had heard the groaning of their night guard, and then peeped through his bedroom window overlooking the back of his house. The security light (otherwise referred to as halogen light) was on and this helped him to see a group of men among whom he recognised three of them. These were the appellant, one Tajudeen Oluwalambe and one Dokun Asegbe. He watched them for about three minutes before raising an alarm as to the presence of thieves. As a result of the alarm, the men fired at his direction and the shot ripped off the netting of his bedroom window, at the same time hitting the back of his head. He then ran away from that position and hid himself in another room. The men eventually broke the entrance door and forced their way into the house. They accosted the wife of p.w.1 and demanded for money. She claimed she had none in the house. They met PW1 where he was hiding and also demanded for money. He told them the only money he had in the house was on the table. They ransacked the house for about three hours before they left. As would be discovered by p.w.1 later, the men had killed his security guard by strangulation. Within a couple of hours, a report was lodged by p.w.1 at the Ijebu-Igbo police station. He made a statement to the police in which he named the appellant and two others. He led the police to appellant’s house but appellant was not found at home.

On 7 May, 1997, PW. I received information that the appellant and his colleagues were at a local beer parlour in town. He went there and saw the appellant and two others drinking. He ordered for a bottle of soft drink while he secretly sent for the police. On sensing what the p.w.1 was up to, the appellant got out of the beer parlour and attempted to escape. The p.w.1 promptly followed and grabbed him. In an ensuing struggle, both fell into a gutter but P.W.1 held fast onto him. The appellant’s two colleagues hurriedly left the place and drove off in a car they had parked nearby. The police later came and got the appellant apprehended and taken to the police station. In his statement to the police on 8 May, 1997, the appellant denied being one of those who had gone to PW.1’s house to rob there and kill his night guard. He alleged that on 3 May, 1997, he and p.w.1 fought at a locality called Itamerin in Ijebu-Igbo in a canteen when p.w.1 ordered a bottle of beer for him. He said he turned down the offer because of the bad blood that had existed between him and p.w.1 because he (appellant) had refused to participate in vigilante work with p.w.1 and others at Itamerin; and that for refusing the beer, the p.w.1 engaged him in a fight. He said he was a driver to one Baba-Ijebu now at Seme border and that on 9 March, 1997 he and his family were at seme border with the said Baba Ijebu. In his evidence in court he said he had known p.w.1 for over 25 years and that he had been involved in the vigilante operation for their neighbourhood for one and a half months in 1996 when he left Ijebu-Igbo that year for seme border to drive for one Baba ljebu there. He claimed that it was on 6 May, 1997 that he and the said Baba Ijebu with a charter party drove down to Ijebu-Igbo from seme border in his vehicle to attend a burial ceremony. It was after he discharged his passengers that he took the vehicle to a car wash. While the car was being washed, he took time off to go to a nearby beer parlour to have some drink. It was there the p.w.1 met him and they had an encounter which led to a fight between them.

In his appeal to the Court of Appeal against his convictions, the appellant raised two issues for determination, namely

(1) whether the prosecution proved the offence of conspiracy to commit armed robbery and the offence of armed robbery beyond reasonable doubt and

(2) whether the appellant had been positively identified with the offences charged having regard to the alibi raised by him and the contradictory evidence led by the prosecution on the identification of him.

The court below held that there were no material conflicts in the evidence led by the prosecution in support of the charge. In his leading judgment, Akintan J.C.A. observed inter alia: “The main argument raised in the appellant’s brief regarding conflicts in the evidence led by the prosecution in support of the charge was in respect of the description of how p.w.1 came to recognise the appellant and two others whose names he also gave the police. It is alleged that since the witness failed to mention that he was able to see the robbers through the aid of the hallogen light which was on in his compound that day in his statement to the police, such failure amounted to a material conflict between what he wrote in his statement to the police and his oral testimony before the court. I do not believe that what is said to be a conflict amounts to any conflict. Infact reading through the statements made by the witness (p.w.1) to the police and his evidence given at the trial as recorded by the learned trial Judge, I do not find any conflict that could warrant disturbing the findings of fact made by the learned Judge. The account of the incident given both to the court and in his statements to the police was that a gang of robbers came to his house on the night of the incident. He further told the court that he was able to see the robbers clearly because of his security light that was on at the material time. The alleged minor disparities between what was recorded in the witness (sic) statement to the police and his evidence in court are what are expected in an unconcocted evidence given from human memory. There is therefore no merit in the allegation that there were material conflicts in the evidence led by the prosecution in support of the charge.”

In his argument before this court by learned counsel for the appellant, the contradiction referred to is in regard to the statement made to the police as per exhibits A and A1 by p.w.1 and his evidence in court in regard to whether the armed robbers stole any property on the occasion in question. In the said exhibit A, he said the armed robbers demanded for money and when he told them that he had at home the sum of N1,000.00, they took it away along with his ring and necklace. He repeated in exhibit A that they collected N1,000.00 from him and some jewelry from his wife worth about N2,000.00. But in his evidence, he merely said as follows: “They asked me to bring out my money. I told them I had no money inside the house, and that the only money I had was on the table in the house. They started ransacking everywhere in the house. They were in my house for about three hours. I lay there shivering. I did not get up until I heard the early muslim call to prayer by which time the robbers had gone.” No mention was made of money or jewelry allegedly taken away by the armed robbers in this oral testimony. The question before the court below was whether it could be said that it had been established by the prosecution that the armed robbers stole anything on that occasion. Learned counsel for the appellant drew attention to the fact that the court below accepted that there was contradiction between the statements to the police and the oral testimony of PW 1 on the point whether anything was stolen. He referred to a passage from the judgment of Akintan JCA inter alia as follows: “As already set out above, the witness failed to tell the court in his evidence in court that the robbers stole anything from him. But he categorically confirmed that the robbers stole N1,000, his ring and neck chain in his two aforementioned statements. Although the position of the law is that before any contradiction can be established between the evidence of a witness and the statement made previously by the witness, the statement must be brought to the attention of the witness for explanation, if possible in accordance with the provisions of sections 199 and 209 of the Evidence Act (Cap. 112), Laws of the Federation, 1990 (see Kwaghshir v. The State (1995) 3 NWLR (pt.386) 651, the onus of ensuring compliance with the requirement of the provisions of those sections of the Evidence Act was, in the instant case, on the prosecution. The prosecution failed to do so despite the fact that the contradiction in question was in respect of an important ingredient which the prosecution had to prove before it could succeed on the second count of robbery. As the contradiction in the instant case is very material to the second count of robbery, it is imperative that it must be resolved in favour of the accused/appellant. His conviction and the sentence of death imposed on him for robbery can therefore not stand. The conviction and sentence of death imposed on him are accordingly set aside”.

Learned counsel for the appellant, in this court, now submits

(1) that since it was the same evidence which was led in support of the armed robbery that was led on the offence of conspiracy to commit armed robbery and since the conviction for armed robbery had been set aside the conviction for the conspiracy to commit armed robbery cannot stand;

(2) that the conviction and sentence on conspiracy should be set aside since the substantive offence of armed robbery was not proved beyond reasonable doubt. Learned counsel cited R. v. Cooper & Compton (1947) 2 All ER 701; Adebayo v. State (1987) 2 NWLR (Pt.57) 468; Atano v. A.G. Bendel State (1988) 2 NWLR (Pt.75) 201; and Erim v. State (1994) 5 NWLR (Pt.346) 522. I have to say that these authorities cannot help the appellant in the present case. All the Nigerian authorities cited above decided contrary to what learned counsel in the present case has contended for. They are consistent with the principle laid down in Ogbozor v. Inspector-General of Police (1964) 1All NLR 9 and Lawson v. State (1975) 4 SC 115 that conviction for conspiracy does not become inappropriate simply because the substantive offence has not been successfully proved. It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted, or may have become impossible to commit.