Onokor V. State (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, J.S.C. (Delivering the Leading judgment)

This appeal is against the Judgment of the Court of Appeal Benin Division, delivered on the 13th day of December, 2016, affirming the conviction and sentence to death by hanging of the Appellant by the High Court of Justice Delta State, delivered on the 17th day of July, 2013 for conspiracy and armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provision Act Cap R. 11.

The Appellant was arraigned before the High Court of Justice -Delta State on two Counts of Conspiracy to commit armed robbery and armed robbery. Appellant was specifically alleged to have robbed one Sunday Ojei of his Motorcycle on the 11th day of January 2010 while armed with firearm and offensive weapon.

At the trial, the Prosecution called the victim Sunday Ojei as PW2, the prosecution also called Police Constable Chiedu Eboagwu as PW1. In all therefore the prosecution called two witnesses in proof of its case against the Appellant.

​At the trial, the prosecution sought to tender the confessional statement of the Appellant, there was vehement objection by the Appellant, which eventually culminated into trial within trial. Appellant contended that the statement was not voluntary, the prosecution insisted otherwise.

At the conclusion of trial within trial, the trial Court held that the confessional statement was voluntary, it was therefore admitted in evidence as exhibit A. At the close of the case of the prosecution the Appellant testified on his own behalf. At the end of the trial, Appellant was found guilty of conspiracy and armed robbery; he was therefore convicted and sentenced to death by hanging.

Appellant became aggrieved by the decision of the trial Court and therefore appealed against the decision to the lower Court. Appellants appeal was heard and dismissed on the 13th day of December 2016. The lower Court therefore affirmed the decision of the trial Court. Appellant became nettled by the said decision and therefore lodged appeal against the decision of the lower Court to this Court.
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Learned Counsel Sir Victor E. Akpoguma Esq filed the Appellant’s brief of argument on the 17th July 2018, the brief was deemed as properly filed and served on the 1st day of July 2021. Learned Counsel Isaiah Bozimo the Hon Attorney General Delta State filed the Respondents brief of argument on the 4th day of October 2022, the brief was deemed as properly filed and served on the 6th October 2022.

Learned counsel for the Appellant Sir Victor Akpoguma nominated sole issue for determination, the issue is reproduced as follows:

“Whether having regards to the evidence on record, the learned justices of the Court of appeal were right in affirming the conviction of and sentence of the appellant on the sole ground that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt. (Grounds 1,2,3,4, and 5)”

On the other hand, the learned counsel for the Respondent, Isaiah Bozimo nominated a corresponding sole issue for determination; the issue is also reproduced as follows:
“Did the Court of appeal correctly affirm the trial Court’s conviction of the appellant”?

SUBMISSIONS OF COUNSEL FOR THE APPELLANT
Relying on the decision in the case of BELLO v. STATE (2012) 8 NWLR (Pt. 1302) Pg. 207 at 231, learned counsel for the Appellant submitted that for the prosecution to succeed in a charge of conspiracy to rob and armed robbery, it must prove beyond reasonable doubt the following ingredients:

1. “That there was an agreement or confederacy between the convict and others to commit the offence of robbery.
2. That in furtherance of the agreement or confederacy, the appellant took part in the commission of the offence of robbery or series of robberies.
3. That the robberies or each of the robbery was an armed robbery. USUFU v. STATE (2008) ALL FWLR (Pt. 405) 1731″

Learned Counsel further submitted that the evidence adduced at the trial Court was at variance with the charge preferred against the Appellant. Learned Counsel therefore urged this Court to set aside the Judgment of the lower Court.

To demonstrate the conflict in the evidence of the Prosecution, learned Counsel referred to the evidence in respect of the Count which alleged that the Appellant committed the offence on or about the 11th day of January 2010, learned Counsel specifically referred to the particulars of offence which clearly referred to the date of the commission of the alleged offence as 11th day of January 2010.

Learned Counsel then referred to the evidence of PW2, the victim of the robbery incident, in his evidence in chief he referred to the 18th day of January 2010 as the date when the alleged offence was committed.