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Abiodun Oke Ayinde V. The State (2019) LLJR-SC

Abiodun Oke Ayinde V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan, delivered on 6th March, 2015 wherein the lower Court affirmed the judgment of the High Court of Ogun State which convicted and sentenced the appellant to death for the offence of conspiracy to commit armed robbery and armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act Cap 398 LFN 1990 as amended by The Tribunal (certain consequential offences ETC) Act 1999. The facts leading to this appeal may be stated as follows:

As contained in the record of Appeal, on 15th March, 2006, at Oke Bode, Abeokuta in Ogun State, the PW1 (Tomori Osoko (f)) was going to Kuto to buy fish when the Appellant and two others who were on a motorcycle, pushed her into a drainage and robbed her of the sum of N9,000:00. That shortly after the incident, the PW2 (Otun Bashir Adekunle) drove by and the Pw1 tried to caution him from going into the street on which she had just been robbed. He ignored her and ran straight into the robbers who were using a motorcycle. The robbers also

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attempted to rob the Pw2 but he called their bluff even after the appellant showed him a gun he was holding. The three robbers then took off on a motor cycle, shooting in the air when they noticed Pw2 was giving them a chase. Pw2 actually gave them a chase. He drove behind them until they got to a corner where he drove and overtook them. He immobilized them and caused an accident. Two of the robbers were injured well enough to be immobilized and were caught, one at the scene and the other at a nearby school where he ran to hide. It was the appellant who escaped with minor injury and was able to flee the scene of the “accident” with the weapon of assault – a gun.

The other two accused persons were eventually handed over to the police and by information emanating from them, the Appellant was arrested at his house. The appellant and the other accused persons made confessional statements which they each resiled from at the trial. The prosecution sought to tender the statements, but was each rejected upon objection raised by the learned counsel to the accused persons. The ground of objection was that the

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statements sought to be tendered were recorded in English, contrary to the claim of the accused persons that they each spoke in Yoruba.

At the trial, the appellant denied the charge and stated that himself and the 2nd accused person were victims of a motor accident when they were knocked down by the Pw2 while riding a motor cycle. The appellant asserted that it was Pw2 who brought police to his house on the following day where he was arrested.

At the end of trial, the learned trial Judge convicted the three accused persons and sentenced them to death for armed robbery. Appellant was dissatisfied with the judgment of the learned trial Judge and he appealed to the Court below. On 6th March, 2015, the lower Court affirmed the Judgment of the High Court and dismissed the appellant’s appeal.

Again, dissatisfied with the Judgment of the Court of Appeal, the appellant has appealed to this Court vide Notice of Appeal filed on 31st March, 2015. Out of the three grounds of Appeal contained in the notice of Appeal, the learned counsel for the Appellant, Olumide Ekisola, Esq, distilled two issues for the determination of this appeal. The issues are:<br< p=””

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Whether in the circumstance of this case, the Court of Appeal was right to hold that the prosecution has proved beyond reasonable doubt the offence of Armed Robbery for which the Appellant was charged.

  1. Whether the learned Justices of the Court of Appeal have not placed the burden of proving his innocence on the Appellant while justifying the judgment of the trial Court and thus occasion a miscarriage of justice in this case.In the Respondents’ brief filed on 24/3/16 by Dr. Olumide Ayeni, Hon. Attorney General of Ogun State, one issue is formulated for the determination of this appeal. The said issue states thus.

“Whether from the entirety of the evidence on record as well as material available, the respondent as prosecution established the offences of conspiracy to commit robbery and armed robbery against the Appellant beyond reasonable doubt to warrant a dismissal of the Appeal on 31st March, 2015.”Now, having regard to the facts of this case and the decision of the Court of appeal, the subject matter of this appeal, I agree with the learned counsel for the Respondent that the

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sole issue distilled by the Respondent is apt and all-encompassing for the determination of this appeal. I shall therefore determine this appeal based on the sole issue as couched by the Respondent. This means that appellant’s

issues one and two shall be taken together.

ARGUMENTS

Learned Counsel for the appellant submitted that in order to prove armed robbery beyond reasonable doubt, the prosecution must prove that:-

(a) There was a robbery or series of robberies.

(b) The robbery or each robbery was an armed robbery

(c) The accused person was one of those who took part in the robbery.

See also  Solomon Ogboh V. The Federal Republic Of Nigeria (2002) LLJR-SC

He cited the cases of the people of Lagos State v Umoru (2014) 7 NWLR (Pt. 1407) 584 at 609, Martins v State (1997) 1 NWLR (pt. 481) 355, Nwachukwu v State (1985)3 NWLR (pt. 11) 218. He submitted that the 2nd and 3rd ingredients of the offence were not proved. It is his view that failure to tender the gun used in the robbery is fatal to the prosecution’s case. That the search conducted in appellant’s house did not produce any gun. Learned Counsel also submitted that the failure to tender the extra Judicial statement of the

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appellant left the trial merely on the viva voce of the prosecution witnesses. He further contended that since the trial of the case was heard about four years after the incident, the prosecution ought to have tendered extra-Judicial statements of prosecution witnesses and that the presumption in Section 167(a) of the Evidence Act avails the appellant, relying on the People of Lagos State v Umoru (supra)at 620, 622 and 628.

According to learned counsel, the prosecution failed to prove that gun was used and that the appellant took part in the robbery.

He opined that other than being present at the scene of the accident, the evidence of the appellant did not corroborate that of the prosecution nor did it add any pungency to the evidence of the prosecution as held by the Court below.

On the defence put up by the appellant, learned counsel submitted that it was wrong for the Court below to agree with the trial Court which rejected the defence of appel lant. That the reason given by the learned trial judge was untenable in view of the severity of the charge against the appellant, relying on Anekwe v State (2014)10 NWLR (pt

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1415)353, Felix Nwosu v State (1986)4 NWLR (pt 35) 348 at 359.

On his second issue, the learned counsel for the appellant submitted that the Court below was wrong to have observed that the appellant had a duty to explain why his motor cycle was at the scene of crime, arguing that in criminal cases, it is only the prosecution that has the duty to prove the charge against the accused person, relying on Musa v The State (2013) 9 NWLR (pt 1359) 214, Ononuju v State (2014) NWLR (pt 1409)345, Ogundiyan v State (1991) 3 NWLR (pt 181)579. He urged this Court to resolve these issues in favour of the appellant.

In response, learned counsel for the respondent submitted that conspiracy is usually inferred from the circumstances of each case which on the strength of these materials and evidence in this appeal, was clearly established on how conspiracy can be inferred and/or proved, he referred to the case of Kaza v The State (2008) 7 NWLR (pt 1085) 125, Upahar v The State (2003) 6 NWLR (pt 816) 230, Shodiya v The State (2013) 12 scm, 175.

Learned Counsel submitted that from the evidence of Pwl and Pw2 and that of the appellant, all of them

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were present at the scene of crime and that the Pw1 testified of how the Appellant pointed a gun to her ear while robbing her of her N9,000 before pushing her into the drainage. After reviewing the evidence, learned counsel

submitted that the prosecution placed enough and cogent materials before the trial Court to sustain the conviction of the appellant.

On the argument of non-tendering of gun at the trial, learned counsel submitted that it is immaterial as tendering of weapon of the robbery is not a sine qua to the proof of the offence especially as there is evidence that the appellant escaped with the gun. He urged the Court not to interfere with the concurrent findings of the two Courts below.

Appellant filed a reply brief. The issue of lesser sentence as argued by the Respondent’s counsel is neither a ground of appeal nor an issue before this Court. Since I ignored it in respondent’s brief, I also ignore same in appellant’s reply brief.

On issue of conspiracy, he submitted that the Court below was wrong to uphold the findings of the trial Court that conspiracy was proved. He submitted that the three accused persons stated

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the various reasons that brought them together at the scene of crime. He urged this Court to hold that conspiracy was not proved.

RESOLUTION OF ISSUE

Let me start by stating that there are concurrent findings of the trial High Court and the Court of appeal in this matter. The attitude of this Court to concurrent findings of fact of the two Courts below is well known and, that is, that this Court will not disturb such findings unless the findings are perverse and/or leads to miscarriage of justice. See Obasuyi & Anor v Business Venture Ltd (2000) 5 NWLR (at 658) 668, Sobakin v The State (1981)5SC 75, Ukaegbu & Son VS Ugoji & Ors (1991) 6 NWLR (pt 196)127 Ferodo Ltd & Anor v Ibeto Industries Ltd (2004)5 NWLR (pat 866) 317. It must however be noted that concurrent findings on both issues of fact and law raised in a case can only be justified if they are well supported by the evidence on record. See Olagunyi v Oyeniran & ors (1996) 6 NWLR (pt 45 3)127, Woluchem & Ors v Gudi & Ors (1981) 5 SC 291.

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Having said that, it is no longer news that for the prosecution to establish the offence of armed robbery against an

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accused person, it must lead credible evidence to prove the following.

  1. That there was a robbery or series of robberies.
  2. That the robbery/robberies were armed robberies.
  3. That the accused person was the robber or one of the robbers.

See Eureka v The State (2014) 13 NWLR (PL 1425) 614, Afolalu v The State (2010) 5-7 SC (pt 11) 93, (2010) 16 NWLR (pt 1220) 584, Ikemson v The State (1989) 3 NWLR (pt 110) 455, Eze v FRN (2017) LPELR – 42097 (SC); Bozin v The State (1985) 2 NWLR (pt 8) 465.

The learned counsel for the appellant appears to have conceded the first ingredient of the offence i.e. that there was robbery against PW1 on 15th March, 2006 at Oke-Ibode, Kuto, Abeokuta as he made his arguments on the 2nd and 3rd ingredients of the offence only. It was his argument that since the gun allegedly used by the robbers was not tendered, the two Courts below were wrong to hold that it was an armed robbery. With due respect to the submission by the learned counsel for the appellant on this issue, there is no law which states that the prosecution must tender the weapons used in the robbery

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before a case of armed robbery can be proved beyond reasonable doubt against an accused person. The circumstances of armed robbery does not permit a mandatory tendering of weapons used as the robbers usually flee with the weapons. See Simon v The State (2017)LPELR-41988 (SC), Chukwunyere v The State (2017)LPELR 43725 (SC), Peter Ogu v Commissioner of Police (2017) LPELR- 43832 (SC), Olayinka v The State (2007) 30 NSCQR 149 at 162 – 163, (2007) 4 SC (pt 1) 210, Esene v The State (2017) LPELR – 41912 (SC), Agugua v The State (2017) LPELR – 42021 (SC), Alor v The State (1997) SC76.

In the instant case, the appellant is said to have escaped the scene of crime with the gun he used to rob Pw1. Thus, apart from the fact that the appellant ran away with the weapon and disposed of same before he was arrested makes counsel’s argument inconsequential.

One other matter raised by the appellant in this issue is that there were discrepancies in the evidence of prosecution witnesses. One such discrepancy relates to the time the offence was committed. For whereas the Pw1 testified that the offence took place

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about 6.30 am, the Pw3 i.e the IPO testified that a report of the offence was made about 5.50 am. In my view, the two Courts below have satisfactorily dealt with the matter. The learned trial Judge in his judgment made the following observation on pages 108 – 109 of the record-

“There is however some discrepancy that I noticed from the evidence of the prosecution. The 1st Pw under cross examination replied that the incident happened around 6.30 am. The 3rd Pw, the IPO then at Ibara Police Station, stated that the 1st P.W, reported the incident at about 5.50 hours. No doubt either of the 1st and 3rd PW was mistaken on the issue of time. For the time of the encounter with the 1st PW should be earlier in time before the report of the Police. If the discrepancy had been in the evidence of the 1st and 2nd PW, I could have concluded that each was referring to different incidents.”

(underlining mine for emphasis).

The Court below took time to consider the views expressed by the learned trial Judge on the issues and came to the following conclusions on pages 180-181 of the record thus:

“The inference of error by the learned trial Judge

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is not fatal to the decision. The principal actors, that is the Pw1, Pw2 and the Appellant have each indicated that the early morning was the time in reference.

Ex facie, “this discrepancy as dwelled upon extensively by the learned counsel to the appellant at pages 6-11 of the Appellants brief seems grave. However, with all the other facts put together, the value of the discrepancies pales into insignificance. Not every discrepancy in the case of the prosecution renders the case impotent.

In this appeal the pungent evidence of Pw1 and Pw2, the Scene of crime and the very evidence of the Appellant himself at the trial clearly show that the discrepancy highlighted is not such as can destroy the case of the prosecution. It would have been different if he Appellants’ accident took place at a widely contrary time and place. St Joseph’s College and the street of the incidence Oke Ibode are all features which are common in the testimonies of the prosecution witnesses. The Appellant whose motor cycle was directly involved in the induced accident had to cook up a story to justify his presence at the scene.”

I agree. But let me add

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that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when these is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. A Discrepancy may occur when a piece of evidence says or contains some differences in details. There is no doubt that when two or more persons are called as witnesses to say what they saw on a particular incident, there are bound to be discrepancies in those testimonies in respect of details.

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Courts of law should therefore concentrate on material facts and not on peripherals that have no bearing on the substance of the case. See Egunu v The State (2013)13 NWLR (pt 1372) 525, Gabriel v The State (1989) 5 NWLR (pt 122) 460 Uwagboe v The State (2008) 12 NWLR (pt 1102) 621, Ochemaje v The State(2008) 15 NWLR (pt 1109) 57, Ejeka v The State (2003) 4 SCNI 161.

The time referred to by both Pw1, and Pw3 refer to early morning hour, not noon or midnight. All agree it took place early in the morning. Therefore, the much weather made on the issue is of no moment. The Pw1 testified clearly how

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she was robbed of her N9,000 by the appellant and his two other friends. She told the trial Court how the appellant pointed a gun on her ears. Thereafter, they pushed her into a drainage. There is no evidence to controvert this. She warned Pw2 about the presence of armed robbers in the street he wanted to enter. Pw2 decided to dare them with his car. He hit the robbers with his car and wounded them which led to the arrest of two immediately. Appellant who was less wounded escaped but was arrested in his house with the help of the other two. Appellant says he was an innocent motorcyclist who carried a passenger to the area but was hit by the Pw2. Appellant has however not told the Court how his passenger was able to know him and locate his house. The Court below said this much on page 183 of the record as follows:

“In denying his involvement in the robbery, the Appellant tried to explain his presence at the scene as – the usual course of his duty as a passenger motorcyclist. His passenger was badly injured and could not escape. It was the said passenger who gave the particulars which led to the arrest of the Appellant. The Appellant is

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silent on how a total stranger whom he picked up that morning came to know his name and residential address where he was arrested.” (underlining mine for emphasis)

As I remarked at the beginning of resolving this issue, the two Courts below made these findings based on the evidence before the Court.

I am strongly persuaded to agree with the Court below that the defence of the Appellant was an afterthought. I also agree that the prosecution proved the case against the appellant beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Nwaturuocha v The State (2011) 6 NWLR (pt 1242)170, Ajayi v The State (2013) 9 NWLR (pt 1360) 589, Alabi v The State (1993)7 NWLR (pt 307)511, Nasiru v The State (1999) 2 NWLR (pt 589) 87, Akalezi v The State (1993) 2 NWLR (pt 273) 1.

The question is, could the accused persons-appellant inclusive, been able to carry out the robbery attack on the Pwl without first agreeing

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to do so Was it an accidental action I do not think so. There must have been what is called in law-conspiracy. Conspiracy has been defined as an agreement by two or more persons to commit an unlawful act or a lawful act with unlawful means coupled with an intent to achieve the agreement’s objective.

See Ajayi v The State (2013) 9 NWLR (pt 1360) 589, The State v Salawu (2011)18 NWLR (pt 1279) 580.

The offence of conspiracy is usually shrouded in secrecy. Therefore, it is established once it becomes clear to the Court that the conspirators knew of the existence and the intention or purpose of the conspiracy. In most cases, conspiracy is inferred or presumed.

Afolabi v The State (2013)13 MWLR (pt 1371)292, Osuagwu v The State (2013) 1-2 SC (pt I) 37,Lawson v The State (1975) 4 SC 115, Mumuni v The State (1975) 6 SC 79.

In the instant case, there is no doubt that the appellant and the other two robbers had reached an agreement to commit armed robbery before they met that morning at the scene of crime with a gun and robbed the Pw1 of her money. I am satisfied to agree with the Court below that the prosecution proved the

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offences of armed robbery and conspiracy against the appellant. I also agree that the offences were proved beyond reasonable doubt. Accordingly, I resolve this issue against the appellant.

Having resolved this issue against the appellant, I hold that this appeal lacks merit and is dismissed. I affirm the judgment of the Court below delivered on 6th March, 2015.

Appeal Dismissed.


SC.996/2015

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