Ikechukwu Okoh V. The State (2014)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division (the lower court) delivered on 11/7/2008 affirming the judgment of the High Court of Niger State, sitting at Minna (the trial court) delivered on 19/7/2005 convicting and sentencing the appellant to death for Conspiracy to commit Armed Robbery and Armed Robbery.

The appellant was initially charged before the trial court along with seven others with the offence of armed robbery, punishable under Section 1 (2) of the Robbery and Firearms (Special Provisions) Decree 1984. The charge was later amended and the accused persons were charged with criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 (1) and 221 (b) of the Penal Code respectively. Subsequently the prosecution withdrew the charges against the then 5th accused, having died in prison while awaiting trial. It also obtained leave to stay the proceedings against the 3rd and 4th accused persons pending the time they could be brought to court. The charge was amended yet again and the remaining five accused persons, including the appellant herein, were charged with Conspiracy and Armed robbery contrary to Sections 5 (b) and 2 (a) of the Robbery and Firearms (Special Provisions) Act 1984. At the conclusion of the prosecution’s case, a no case submission was made on behalf of the accused persons. It was upheld in respect of the 2nd and 5th accused who were thereupon discharged and acquitted. The submission in respect of the 3rd and 4th accused was rejected. The 1st, 3rd and 4th accused were put upon their defence. The appellant herein was the 4th accused. They were all found guilty on both counts of the charge, convicted and sentenced to death.

The appellant was dissatisfied with the decision and appealed to the lower court. His appeal was dismissed on 11/7/2008 hence the instant appeal. The notice of appeal dated 26/8/2008 contains five grounds of appeal.

The parties duly filed and exchanged their respective briefs of argument in accordance with the rules of this court. At the hearing of the appeal on 16/1/2014, OLUSOLA LANIYAN ESQ, learned counsel for the appellant adopted and relied on the appellant’s brief, which was filed on 30/5/2013 but deemed filed on 16/1/2014. He informed the court that he had abandoned grounds 1 – 4 of the notice of appeal and the issues formulated thereon. He formulated a sole issue for determination from ground 5. He urged the court to allow the appeal and set aside the appellant’s conviction and sentence. OLUMUYIWA AKINBORO ESQ. adopted and relied on the respondents brief filed on 2/7/13 but deemed properly filed and served on 16/1/2014. He urged the court to dismiss the appeal and affirm the judgment of the lower court.

The appellant formulated a sole issue for determination, which was adopted by the respondent, as follows:

“Whether the learned Justices of the Court of Appeal were right in upholding the judgment of the trial court that the prosecution proved its case beyond reasonable doubt.”

Before delving into the merits of the appeal, it is appropriate at this stage to summarize the facts that gave rise thereto. The prosecution’s case was that on the 6th day of April, 1996, at Suleja in Niger State, the appellant along with the other accused persons conspired amongst themselves to rob and did rob one Alhaji Zakari Mohammed (the deceased) of his video machine, while armed with a knife, which resulted in his death.

The wife and son of the deceased testified as PW1 and PW2 respectively. They stated that on the fateful day, some people came to their house at Suleja at about 3.30 am and started beating the deceased and asking him for money. They took away their video machine. PW2 stated that one of the robbers ran to his father’s room and removed something contained in a black leather bag from a box in the room. He identified the 1st accused person who is his cousin as the person who removed the item. PW1 and PW2 testified that the deceased was injured and covered with blood with cuts on his abdomen, hand and back. He later died from the injuries sustained in the incident.

During the course of their investigation the Police arrested the appellant and the other accused persons. The appellant made an extra-judicial statement to the Police, which was tendered at the trial and marked Exhibit D. Neither the appellant nor his counsel objected to its admissibility. In his defence, the appellant testified on his own behalf and did not call any witness. His denied any involvement in the robbery incident. He also denied making any statement to the police. At the conclusion of the trial, and after listening to the addresses of counsel, the trial court, in a considered judgment found the appellant guilty of the offences charged and convicted and sentenced him accordingly.

In arguing the appeal, MR. LANIYAN, learned counsel for the appellant submitted that in criminal cases, the burden of proving the guilt of any person is always on the prosecution and never shifts. Referring to S.138 of the Evidence Act, he submitted that the standard of proof in criminal cases is proof beyond reasonable doubt. He submitted further that the burden of proof on the prosecution never shifts. He referred to S.36 (5) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). He submitted that proof beyond reasonable doubt means that every ingredient of the offence must be proved beyond reasonable doubt. He relied on: Ede V. Federal Republic of Nigeria (2001) 1 NWLR (Pt.695) 502 @ 511 D.

He submitted that in order to secure a conviction for the offence of Conspiracy to commit armed robbery contrary to S. 5 (b) of the Robbery and Firearms (Special Provisions) Act 1984, the prosecution must prove beyond reasonable doubt that:

(a) There was an agreement between two or more or all the accused persons to do or cause to be done some illegal act or a legal act by illegal means.

(b) That besides the agreement, some act was done by one or more of the accused persons in furtherance of the agreement.