Madubigwe Awelle V. The People of Lagos State (2016)

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TIJJANI ABUBAKAR, J.C.A.

 This appeal is against the Judgment of the High Court of Lagos State delivered by Ogunsanya J, on the 13th day of July 2015; wherein the Appellant was found guilty of the offence of conspiracy to commit armed robbery and armed robbery. Appellant was then convicted and sentenced to death. The facts are briefly that the Appellant was alleged to have conspired with others now at large and robbed one Gbenga Adeshina of his red coloured Murano Jeep on the 26th day of August 2012 at about 5.10 am at No; 15 Abayomi Odubena Street, Owutu, Ikorodu Lagos. Appellant was then arrested, arraigned, tried, convicted and sentenced to death. Both parties in this appeal gave their own version of what constitutes the facts of the case, at the trial the prosecution called three witnesses and tendered Exhibit P1, confessional statement of the Appellant. PW2 is one of the victims of the alleged offence, while PW1 and PW3 are investigating Police officers. It is proper for this Court to reproduce the charge against the Appellant and proceed to consider the grievance of the Appellant against the decision of the lower Court.

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The two-count charge against the Appellant read as follows:
STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to commit a felony to with: Armed Robbery contrary to Section 297 of the Criminal Law of Lagos State 2011.
PARTICULARS OF OFFENCE
MADUBIGWE AWELLE (M) and others now at large on or about the 26th day of August 2010 at about 5:10 am at No. 15 Abayomi Odubena Street Owutu, Ikorodu, Lagos in the Ikeja Judicial Division did conspire with others now at large to commit a felony to wit Armed Robbery.
STATEMENT OF OFFENCE ? 2ND COUNT
Armed Robbery contrary to Section 295 (2) (a) of the Criminal Law of Lagos State 2011.
PARTICULARS OF OFFENCE
MADUBIGWE AWELLE (M) and others now at large on or about the 26th day of August 2012 at about 5:10 am at No. 15 Abayomi Odubena Street, Owutu Ikorodu Lagos in the Ikeja Judicial Division with a gun did dispossess one Mr. Gbenga Adeshina of his red coloured Murano Jeep with Registration No. BQ 496 KUJ worth Three million, Five hundred naira.

The Learned Director of Public Prosecutions Lagos State Ministry of Justice, Mrs. Olabisi Ogungbesan, filed the charge against the

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Appellant at the lower Court. Upon reading the charge to the defendant, he pleaded not guilty and trial commenced; the Prosecution called three witness and tendered exhibit P1. The Appellant also testified at the trial. At the conclusion of trial Appellant was found guilty and sentenced to death. Appellant became dissatisfied with the decision of the lower Court and therefore filed Notice of appeal on the 17th day of August 2015 containing five grounds of appeal. The Notice of appeal is at page 97-100 of the record of appeal.

The Appellant through learned counsel Chijioke Emeka filed Appellants brief of argument on the 20th day of October 2015 and nominated three issues for determination, Appellant canvassed argument on the three issues and filed reply brief. Appellant’s three issues for determination are reproduced as follows:
1. Whether the prosecution discharged the burden of proof required by law to establish the offence of conspiracy against the Appellant.
2. Whether the learned trial Judge could safely convict the Appellant on the strength of Exhibit P1 in the face of the hearsay evidence of the prosecution witness.
3. Whether the

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Prosecution proved that the Appellant committed the offence of armed robbery for which he was convicted and sentenced to death.

The learned Director of Public prosecutions Lagos State Ministry of Justice filed the Respondents brief of argument on the 21st day of January 2016, the brief was deemed as properly filed and served on the 27th day of January 2016. The Respondent apparently adopted Appellant’s issues for determination, holding the view that issues one and three as crafted by the Appellant are substantially similar and therefore argued the two together while issue number two was argued separately by the Respondent. I therefore think that in the determination of this appeal the issues nominated by the Appellant shall form the core of discourse, I too therefore adopt them as the issues to resolve in this appeal. I also share the view that issues for determination one and three distilled by the Appellant being substantially similar may be conveniently treated together for the purpose of determining this appeal, I will therefore take the argument of counsel in that order, after taking the submissions of counsel on the entire issues submitted for

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determination, I will then proceed to resolve the issues in the final determination of the appeal.

Submitting on issue number one, learned Counsel for the Appellant said, the learned trial Judge failed to properly evaluate the evidence placed before the Court. He referred to the findings of the lower Court at page 95 of the record of appeal where the learned trial Judge found the Appellant guilty on count one and said conspiracy is a meeting of two or more minds on a plan to carry out an unlawful act, relying on the decision in ADELEKE v. STATE (2013) 16 NWLR (Pt. 1385) 125. Learned Counsel said from the findings of the lower Court, there was nothing to show that anything was said or done by the Appellant or others at large that remotely suggested anything or had any discussion or common intention to do anything at all. Counsel said the evidence relied on by the lower Court to convict the Appellant failed to meet the standard set in the case of YAKUBU v. STATE (2012) 12 NWLR (Pt. 1313) 131 at 142-143, as the evidence failed to disclose consent, agreement, or mutual consultation to commit offence between the Appellant and any other