Ndubuisi Nwadibia & Ors. V. The State (2009)

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ADZIRA GANA MSHELIA, J.C.A.

This is an appeal by the appellants against the judgment of Onyeabo J. of the Lagos High Court delivered on the 21st day of October, 2004 whereby appellants were convicted and sentenced to a term of 11 years imprisonment each for committing the offence of Conspiracy to commit armed robbery. The accused persons (hereinafter referred to as) appellants were arraigned on a two count charge of conspiracy to commit Armed robbery contrary to section 4(b) of the Robbery and Firearms (special provisions) Decree (now Act) 1984 and armed robbery contrary to section 12(b) of the Robbery and Firearms (special provisions) Decree (now Act) 1984. For case of reference and emphasis the two counts read as follows:-

“STATEMENT OF OFFENCE – 1ST COUNT

Conspiracy to commit Armed Robbery contrary to section 4(b) of the Robbery and Firearms (special provisions) Decree 1984.

PARTICULARS OF OFFENCE

Ndubuisi Nwabibia (m), Uchechukwu Ekpe (m) and Benjamin Inyang (m) on or about the 22nd day of April, 1995 between Costain Lagos State conspired together to commit a Felony of wit: Armed Robbery.

STATEMENT OF OFFENCE – 2ND COUNT

Armed Robbery contrary to section 1(2)(b) of the Robbery and Firearms (special provisions) Decree 1984.

PARTICULARS OF OFFENCE

Ndubuisi Nwadibia (m) Uchechukwu Ekpe and Benjamin Inyang (m) on or about the 22nd day of April, 1995, along the Shagamu-Benin Expressway, near Ijebu-Ode whilst armed with poisoned drinks, stocks and iron rods robbed Waidi Akano (m) of lorry load by cement property of Costa in Nigeria Plc. ”

When the case came up for hearing on 31/01/2002 the charges were read over to the accused persons now appellants and they all pleaded not guilty on both counts. At the trial, three witnesses testified for the prosecution while the three accused persons/appellants testified for themselves. The third accused/appellant called one other witness for himself. At the conclusion of prosecutions case appellants counsel entered a no case submission which was refused by court who called on the appellants to open their defence. Counsels addressed the court and after due consideration of the evidence adduced, Onyeabo J. found the appellants guilty of conspiracy and convicted them as charged. The learned trial Judge at page 181 of the record had this to say:-

“In the final analysis therefore, the only offence proved is that of conspiracy as contained in the Count 1. The evidence of conspiracy is quite separate and distinct and does not merge in the substantive offence. Consequently the failure of the 2nd Count will not and does not automatically lead to the failure of this count. The 1st, 2nd and 3rd accused persons are therefore found guilty of the offence of conspiracy as charged. They are however not found guilty of either armed robbery as charged in count 2 nor of the lesser offence of robbery under the same Act. They are acquitted on the said count. That is the Judgment of the court.”

Dissatisfied with the decision of the lower court each appellant filed notice of appeal on 13/1/05 which were amended by order of court on 15/11/06. Each notice contained three grounds of appeal. In accordance with the practice of this court Appellant’s counsel filed amended appellants’ brief of argument on 25/6/07 and a reply brief on 18/02/09 which was deemed properly filed on 11/3/09. Respondent’s brief of argument was filed on 27/3/08 but same deemed properly filed and served on 6/11/08. When the appeal came up for hearing on 20/5/09 both counsel adopted their respective briefs of argument. Respondent filed a notice of contention on 27/03/08 and same deemed properly filed on 6/11/08. Appellants counsel on 18/2/09 filed a notice of intention to rely upon preliminary objection to the respondent’s notice of contention. Before the adoption of briefs appellants counsel argued the preliminary objection. Respondent’s counsel also presented her reply.

From the nine grounds of appeal appellants distilled one Issue for determination as follows:-