Lekan Sodiya V. The State (2009)

LawGlobal-Hub Lead Judgment Report

SIDI DAUDA BAGE, J.C.A.

The Appellant, Lekan Sodiya (1st Accused), was arraigned and tried along with two others before an Abeokuta High Court, sitting at Isabo, Abeokuta, Coram S. A. Oduntan, for conspiracy to commit armed robbery to one Mr. Olusesan Sowunmi’s residence at Kemta Housing Estate, Idi-Aba, Abeokuta, contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) of the Federation of Nigeria, 1990, as amended by the Tribunals (Certain Consequential Amendments) ETC Act 1999. The two other accused persons and others at large were charged with the actual offence of armed robbery.

The accused pleaded not guilty to the charge. Evidence was led by the prosecution in proof of the offence, called a total of Ten (10) Witnesses and tendered Four (4) Exhibits. The Appellant testified in his defence and called One (1) Witness, his mother, who testified on his behalf. He was however convicted by the High Court on the conspiracy charge on 1/8/2000.

Aggrieved by the decision, the Appellant appealed against the whole decision to this Court on the Amended Notice of Appeal containing Three (3) Grounds filed on the 9/10/2007. The Parties have in compliance with the Rules of this Court, filed and exchanged their Briefs of Argument. Three Issues for determination were formulated by the Appellant in his Brief of Argument filed in this matter and they are as follows:-

(1) Whether the prosecution has proved or established the offence of conspiracy against the Appellant (Ground 1, Notice of Appeal).

(2) Whether the entire judgment of the High Court and conviction of the Appellant for conspiracy can be supported having regard to the evidence before the High Court (Ground 2, Notice of Appeal).

(3) Whether the High Court was right in admitting Exhibit “C2” in evidence and attaching any weight to it (Ground 3, Notice of Appeal).

The Respondent in its Brief raised one issue for determination viz:

“Whether the prosecution had proved beyond reasonable doubt the offence of conspiracy against the Appellant having regard to the evidence before the Court”,

The Appellant argued Issues 1 and 2 together. Adverting to Sections 516 and 517 of the Criminal Code Cap 77 Laws of the Federation of Nigeria defining conspiracy, the Appellant debunked the said charge as not availing the Respondent in this matter as it takes two or more persons to conspire together to effect an unlawful purpose, or to effect a lawful purpose by an unlawful means. See:- Amachree Vs. Nigerian Army (2003) 3 NWLR (Pt. 807) 256 at 281. And it was more so here particularly when there was nothing in the prosecution’s case to suggest conspiracy between the Appellant and the other accused persons towards committing the offence of armed robbery.

The Appellant further submitted that from the record, it does appear that the learned trial judge was able to locate the evidence in support of the said conspiracy mainly from the statement made to the Police by the 1st and 3rd Accused persons which he admitted as confessional statements, marked as Exhibits “C” and “C2”. The Appellant further submitted the Exhibits “C” and “C2” did not and could not have provided “sufficient direct evidence” beyond reasonable doubt as required in criminal trials to justify the conviction of the Appellant on Count 1. The Appellant submitted further that in Exhibit “C”, the statement of the 3rd Accused, he never mentioned any conspiracy with the Appellant. He never mentioned the Appellant’s name throughout his statement and in his oral evidence.

The Appellant further submitted that to say why the learned trial judge did not consider the statement of the 2nd Accused (Exhibit “C3”). The 2nd Accuser’s statement reveal that he knew Sesan and his house, he had an “axe to grind” with him and planned to rob him with his gang. He never mentioned the name of the Appellant. The Appellant furthered his submission that it is clear that the statements of the 2ndand 3rd Accused persons and their evidence before the Court cannot under any stretch of imagination be said to have confirmed that the contents of the confessional statements of the Appellant that he conspired with them are true. They are in fact contradictory to Exhibit “C2” they neither corroborated nor give much comfort to any assertion that the content of Exhibit “C2” is true. The Appellant further submitted that there is nothing in the evidence of PW1, PW2, PW3, PW4, PW5, PW6 and PW7 which corroborates, confirm the truth of the statement of the Appellant (Exhibit “C2”). There is a plethora of evidence and circumstances before the trial Court which makes the Appellant’s statement inconsistent with facts ascertained and proved and renders the so called confession suspicious and doubtful.

The Appellant submitted the undenied fact that he did not sleep in the house on the night of the robbery incidence, this can only arouse suspicion and not a conclusion that he conspired to commit the armed robbery in the absence of evidence to support same from the prosecution. It is trite law that suspicion no matter how strong, will never be enough to convict a person for a crime when the crime alleged is not proved against such a person. The appellant submitted further that the learned trial Judge dismissed Count 3 of the Charge which alleged that John Adole (PW2) was robbed of N2, 000.00. Thus, the charge of conspiracy to rob at Sesan Sowunmi’s house under Count 1, could not have applied to John Adole’s (PW2) robbery in Count 3. It could only have applied to Count 2 which relate to robbing of PW1 (Mrs. Sowunmi) of jewelleries and N6, 000.00. Yet the evidence of witness and the judgment of the learned trial Judge relied heavily on the supposed fact that Appellant sent John Adole (PW2) to Oja Odan and he was robbed in the aftermath. The Appellant submits that with respect, the learned trial Judge with all the serious doubt as to the culpability of the Appellant in the conspiracy to commit armed robbery for which he was charged found him guilty at the lower Court. This does not conform to the principles laid down in R. vs. Obiosa (1962) SCNLR 402, and the judgment of this Court in Appeal No. CA/I/2/2006: Samodi Mustapha Vs. The State delivered on 19th March, 2007. The Appellant further submitted that Exhibit “C2” is not consistent with other facts before the lower Court, its truth is doubtful and it is not corroborated, and thus unsafe to convict the Appellant on Count 1. The proper consideration of all the issues raised above show that the charge of conspiracy to commit armed robbery was not proved against the Appellant even in the face of Exhibit “C2”. This Court is urged to resolve Issues 1 and 2 in favour of the Appellant.

On Issue 3, the Appellant submits that the learned trial Judge ruled upon a conclusion of trial within trial that Exhibit “C2” was made voluntary. The Appellant nevertheless still maintained in his evidence before the lower Court that Exhibit “C2” was induced by violence. The Court should have discountenanced Exhibit “C2” or should not have placed any probative value on the said Exhibit. See: – Section 28 of the Evidence Act. Also, R. vs. Haske (1961) SCNLR 90; Amachree vs. Nigerian Army (Supra) Page 279 Paragraphs B-C. The Appellant further submits that he gave copious and lucid evidence of how he was beaten, hung on a ceiling fan and seriously tortured before he was made to sign Exhibit “C2” against his wish. The Appellant also maintained constantly that the Police wrote the statement, but that, he had no choice but to sign and confirm the second time they took him before Superior Police Officers when the torture was becoming unbearable he agreed to sign the statement which reads: – “Now, I want to say what happen”.