Ado Masa Ogugu & Ors V. The State (1990)

LawGlobal-Hub Lead Judgment Report

BABALAKIN, J.C.A. 

Before the Lagos State High Court the 5 appellants and others were charged with the offence of conspiracy to commit robbery punishable under Section 403(A) of Criminal Code (Amendment No.1) Law, 1980 and robbery of various persons contrary to Section 402 (2)(a) of the Criminal Code (Amendment No.1) Law, 1980. They all pleaded not guilty to the charges. The prosecution called 8 witnesses to prove the charges against the appellants. The Appellants gave evidence in their defence.

Summarily the facts of this case are that the appellants armed with guns went to the house boat of Julius Berger Company on Lagos Lagoon on 8/9/82 and with threat robbed the inmate of various articles among which were Coloured Television, Radio, Cassettes player, Cameras, Bottle of Charms and a calculator. In the process they shot at the watchman attached to the place known as PAPA who died as a result of the shot.

During investigation, the 1st, 2nd, 3rd and 5th appellants made confessional statements in respect of the charges against them. After a review of the evidence adduced, the learned trial Judge convicted the 1st, 2nd, 3rd and 5th Appellants on both charges.

The 4th appellant was convicted on the 2nd count of conspiracy only.

Dissatisfied with the judgment, the appellants have now appealed to this Court.

Briefs of arguments were filed and exchanged.

In the brief of argument filed on behalf of the 1st appellant the following issues were formulated for determination:-

“(i) Whether the learned trial Judge was correct when he convicted the 1st appellant for conspiracy when no shred of evidence was led before him to prove conspiracy.

(ii) Was his lordship the trial Judge right when he convicted the 1st appellant when the case against him was not proved to the hilt as required by the law?

(iii) Was his lordship right in convicting the 1st appellant on the various counts for armed robbery when there was no proof that 1st appellant was not merely a receiver of those goods which were found in his possession.”

In the Second appellant’s brief the following issues were formulated-

“(i) Whether there was sufficient evidence before the Court to warrant the conviction of the 2nd appellant on counts 1, 2 and 3 of the charge as the Honourable Court did.

(ii) Was the learned trial Judge right in convicting the 2nd appellant when the only witness who said he recognised him was the 1st P.W. who said that 2nd appellant was one of those who robbed the four (4) expatriates, whereas none of those four (4) was called to testify.

(iii) Was his lordship right in convicting the 2nd appellant when the 2nd P.W. who was robbed at the same time said he recognised only the 1st Accused/Appellant as one of the robbers?

(iv) Was his lordship right in rejecting the alibi put up by 2nd Appellant without any consideration in view of the evidence before the Hon. Court.

(v) Was the learned Judge right in convicting the 2nd Appellant simply because 1st Appellant pointed at him?”

As against the above, learned counsel for the Respondent in his brief filed in respect of the 1st and 2nd Appellants stated the issues for determination as-

“1. Whether the charges against the 1st and 2nd appellants were proved beyond reasonable doubts.

2. Whether the prosecution evidence against the 2nd appellant required corroboration in law, and if so, whether the prosecution evidence was corroborated.”

The issues formulated for determination in the brief filed on behalf of the 3rd appellant are:-

“The main issue that calls for determination in this appeal is whether, on the totality of the evidence adduced, the appellant was rightly convicted:-

(1) on the count of conspiracy; and

(2) on counts 2, 3 and 7 of armed robbery.”

The issues formulated in the brief filed on behalf of the 4th Appellant are:-

“(a) Whether the conviction of the appellant for conspiracy to commit robbery is proper and justifiable after he had been discharged on the substantive offence of armed robbery.

(b) Whether the conviction of the appellant for conspiracy to commit armed robbery was not in breach of his constitutional right to Fair Hearing under Section 33 (6)(c) and (d) of the Constitution of the Federal Republic of Nigeria 1979 when it was shown that he was denied the services of Counsel at certain stages of his trial.

(c) Whether the conviction can be justified and sustained from the totality of the evidence adduced against him at the trial.”

In the respondent’s brief, counsel put the issues for determination in respect of the 3rd and 4th Appellants as follows:-

“1. Whether there is anything to urge in favour of the 3rd appellant.

2. Whether the conviction of the 4th appellant was in breach of Sections 33 (6) (e) and (d) of the 1979 Constitution.
3. Whether the conviction of the 4th appellant for the offence of conspiracy can be sustained after he had been discharged for the substantive offence of armed robbery.
4. Whether the conviction of the 4th appellant can be justified from the totality of the evidence adduced at the trial.”

Lastly, the issues formulated in the brief filed on behalf of the 5th appellant are as follows:-

“There is nothing useful to urge in favour of the appellant since various issues at the trial court were sufficiently considered and dealt with.

(1) The 5th appellant was identified by P.W.1 and his confessional statement Exhibit “U” (page 31 – 33) confirmed the events of that day.

(2) Even though none of the stolen property was found in the possession of the 5th appellant his confessional statement that he fired a round of ammunition in the house boat (page 32) was sufficient evidence that he took part in the robbery.

(3) In the Court below, despite the fact that the defence counsel’s job was made less cumbersome by the confessional statements of the 5th appellant, it is desirable in view of your lordships observation, in the unreported case of Sunday Elija & Ors. v. The State CA/L/174/86 delivered on the 9th of February, 1988, that accused persons facing capital charges should be assigned separate counsel to ensure that their rights under Section 33 (6)(b) of the 1979 Constitution are not infringed.

I submit, however, that even if the 5th appellant had a Counsel to himself at the trial of this matter, the verdict of the Court could not have been different. The evidence against him was so overwhelming that no defence was available to him.

(4) From the totality of the evidence before the Court the case against the 5th Appellant was proved beyond reasonable doubt.”

In respect of this Appellant, the Respondent put the issues for determination as follows:-

“The Respondent agrees with the 5th Appellant’s counsel that there is nothing to urge in favour of the 5th Appellant.”

The submissions of learned counsel for the 1st Appellant in the brief of argument filed on behalf of the said 1st Appellant are that the guilt of the Appellant has not been proved to the hilt.

That on the facts of this case, the Appellant was entitled to the benefit of doubt.

That failure to call the other four Europeans who were robbed to give evidence is fatal to the case of the prosecution.

She cited legal authorities to support her submissions and urged us to allow the appeal.

Learned counsel for the Respondent in the brief of argument filed in respect of this Appellant contended that the Appellant has made the work of the prosecution eminently very easy by his confessional statement. That the Appellant can be convicted on his confessional statement alone.

That the prosecution is only bound to call the number of witnesses necessary to prove its case.

He too cited legal authorities to support his contentions and urged us to dismiss the appeal.

In the brief filed on behalf of the 2nd Appellant it was contended that the charges against the Appellant have not been proved beyond all reasonable doubt. That the 2nd Appellant was not caught red-handed in the act of crime.

That the pieces of conflicting, inconsistent and fragile evidence adduced in this case is sufficient to create a heap of doubt in the mind of the learned trial Judge which should have been resolved in favour of the 2nd Appellant.

She cited legal authorities to support her contentions and urged us to allow the appeal.

Learned counsel for the Respondent countered these submissions in the brief filed in respect of the said 2nd Appellant by submitting that the Appellant himself has admitted taking part in the robbery by his confessional statement which was admitted in evidence and the statement therein materially corroborated the evidence of P.W.1 and P.W.2 about the part played in the act by the 2nd Appellant.

He too cited legal authorities in support of his submissions and urged us to dismiss the appeal.

The conclusions of learned counsel for the 3rd appellant in the brief of argument filed on his behalf are as follows:-

“After a careful consideration of the totality of the evidence adduced in this case, the findings of the learned trial Judge in respect of the appellant cannot be assailed. His conviction for conspiracy and also armed robbery can be convincingly supported. I find nothing to urge in his favour.”

With the above conclusions learned counsel for the respondent readily agreed.

The submission of learned counsel for the 4th appellant in the brief of argument filed on behalf of the said 4th Appellant are that the statements of the appellant exhibits ‘N’ and ‘T’ have a ring of consistency throughout and one significant issue in both is that the 1st appellant who agreed to sell the video cassette to the appellant at N400.00 later came to him and complained that the video he promised to sell to him in secret had now become a public issue and as a consequence, if the police came to arrest him, he would come to arrest him too. Indeed the 1st appellant carried out this threat because he took the police to arrest him.

That the main reason the learned trial Judge drew the inference of conspiracy of this Appellant with the other appellants was this issue of video which the Appellant mentioned in his statement exhibit ‘T’ when the learned trial Judge wrote as follows:-

“In exhibit ‘T’ the 4th accused admitted knowing the 1st accused and about the video, stolen from the Julius Berger boat.”

That the plank of the inference does not necessarily follow. This is reinforced by the fact that the Appellant went into box to give his explanation of events and his testimony did not shift any grounds from his statements.

That on the contrary the 1st Appellant made statements which were totally in conflict with his testimony in the witness box.

That having found the Appellant not guilty of the substantive offence he cannot be guilty of conspiracy to commit the offence of which he had been acquitted.

That the conviction of the appellant is based on suspicion and suspicion however strong cannot found a conviction.

The brief further contended that failure of the learned trial Judge to grant counsel for the Appellant an adjournment to address the Court at the close of the case for the defence and before judgment was given was a breach of section 33(6)(c) and (d) of the Constitution of the Federal Republic of Nigeria 1979 and this makes the trial null and void in respect of the appellant.

He cited legal authorities in support of his submissions and urged us to allow the appeal on the ground that the trial of the Appellant was unfair. That the Appellant should be discharged instead of sending him back for another trial having regard to the particular circumstances of his conviction in this case.

In reply to these submissions learned counsel for the Respondent in the brief of argument filed in respect of the 4th Appellant contended that there is no law that an acquittal on a substantive offence must in all cases lead to acquittal on the count of conspiracy to commit the offence.

That there was sufficient evidence to convict the Appellant of conspiracy in this case in that the 1st, 2nd, 3rd and 5th Appellants in their extrajudicial statements cited the 4th Appellant as their confederate. That these statements were made available to the 4th Appellant and he did not breath a word about this allegation in those confessional statements.

That he must therefore have been deemed to have adopted that statement of the 1st, 2nd, 3rd and 5th Appellants by conduct.

That where the evidence of an accused is at variance with his extrajudicial statement the court should reject both.

The brief contended that there was no breach of section 33(6)(c) and (d) of the 1979 Constitution in that what happened was that after addressing the Court on behalf of the 4th Appellant, counsel for the Appellant kept on absenting himself from Court on 8/8/85, 23/8/85, 21/12/85 and 28/11/85 respectively when the State Counsel was to address the court. It was after this delay of six months that the address of the State Counsel was taken on 28/11/85 in the absence of the Counsel for the 4th Appellant. That in these circumstances there was no miscarriage of justice occasioned in respect of the case for the 4th Appellant.

He too cited legal authorities in support of his submissions and urged us to dismiss the appeal.

The conclusions reached by learned counsel for the 5th Appellant in the brief of argument filed on behalf of the said 5th Appellant are as follows:-

In view of the above, it is submitted regrettably that there is nothing useful to urge in favour of the Appellant in this appeal.”

To this counsel for the Respondent replied thus:

“The Respondent agrees with the 5th Appellant’s Counsel that there is nothing to urge in favour of the 5th Appellant.

Conclusions

The Respondent respectfully urges your Lordships to dismiss the 5th Appellant’s appeal as there is nothing to urge in his favour.”

The cases of the 3rd and 5th Appellants are straight forward. They made confessional statements in respect of the charges against them. The prosecution contended that they were rightly convicted. The learned counsel representing each of them submitted that they have nothing useful to urge on their behalf in this appeal.

Learned counsel for the 3rd Appellant put the situation clearly thus:-

After a careful consideration of the totality of evidence adduced in this case, the findings of the learned trial Judge in respect of the Appellant cannot be assailed. His conviction for conspiracy and also armed robbery can be convincingly supported. I find nothing to urge in his favour.”

The above remarks to my mind, apply with same force to the case of the 5th Appellant. I have read the printed record of proceedings and I too am in entire agreement that the 3rd and 5th Appellants were rightly convicted on proof of evidence beyond reasonable doubt that they committed the crime for which they were convicted.

Their appeals lack merit and are hereby dismissed.

The cases of the 1st and 2nd Appellants are also similar. They both made confessional statements in respect of the charges against them. These statements were corroborated in material particulars by the evidence of P.W.1 and P.W.2.

The confessional statements themselves were direct, positive, true and unequivocal about their committal of the crime for which they were convicted.

A court is entitled to convict an accused person on confessional statements made in the circumstance in which these two Appellants made theirs on the facts of this case. See the cases of Okegbu v. The State (1984) 8 S.C. 65 and Yusufu v. The State (1976) 6 S.C. 167 at p.173. The most important submission of learned counsel for these two Appellants is that the prosecution has failed to prove the guilt of the Appellants to the hilt. I am of the view that in the circumstance of this case this submission is mis-conceived. In addition to their confessional statements there is evidence by P.W.1 and P.W.2 that the Appellants committed the offence for which they were charged. From the printed records of proceedings which I have read I am of the firm view that the prosecution has proved the case against the 1st and 2nd Appellants beyond all reasonable doubt. Their own appeals also lack merit and are hereby dismissed.

With regard to the 4th Appellant, I repeat the issues formulated in the

Appellant’s brief for determination:-

“(a) Whether the conviction of the appellant for conspiracy to commit robbery is proper and justifiable after he had been discharged on the substantive offence of armed robbery.

(b) Whether the conviction of the appellant for conspiracy to commit armed robbery was not in breach of his constitutional right to Fair Hearing under Section 33(6)(c) and (d) of the Constitution of the Federal Republic of Nigeria 1979 when it was shown that he was denied the services of Counsel at certain stages of his trial.

(c) Whether the conviction can be justified and sustained from the totality of the evidence adduced against him at the trial.”

On issue (a) –

the submission that because the 4th Appellant was acquitted of the offence of armed robbery he cannot be convicted of conspiracy to commit the offence of armed robbery is not tenable in law for the simple reason that a person may make preparations for the committal of armed robbery and fail to be caught in the execution of the act of robbery itself. By being a confederate of those who planned or conceived the act of armed robbery and on legal proof that he so did, he will be convicted of conspiracy to commit that offence even though he would not be convicted of taking part in the act of armed robbery itself. See the case of Atano v. Attorney-General (1988) 2 N.W.L.R. (Pt.75) 201 where the Supreme Court held that where an offence has in fact been committed and it is found that an Appellant conspired to commit the same he can be convicted of conspiracy to commit that offence even though for good reason he was discharged of the substantive offence.

On issue (b)-

what really happened was that the 4th Appellant was represented by counsel throughout the whole trial. The counsel after the conclusion of evidence of prosecution and the defence addressed the Court on behalf of the 4th Appellant.

After his address however he did not attend the Court on 8/8/85, 23/8/85, 21/12/85 and 28/11/85 to which the case was adjourned at his instance for the State Counsel representing the Respondent to address the court.

The result was that six months after counsel for the 4th Appellant had addressed the Court the State Counsel was yet to address the Court until he (the State Counsel) did so on 28/11/85.

There was nothing in the reply of the prosecution that prejudiced the Appellant.

The facts of the case are plain and straight forward.

This is a case where mere absence of counsel in the proceedings cannot lead to acquittal of the Appellant as no miscarriage of justice is engendered thereby: Udofia v. The State (1988) 3 N.W.L.R. (Pt.84) 533.

Finally it has been held by the Supreme Court that addresses are designed to assist the court. That Court may dispense with address where facts are straight forward and undisputed and that failure to call on one party’s counsel to address the Court is not a matter for the other party to complain about:

Niger Construction Ltd. v. Chief A.O. Okugbeni (1987) 4 N.W.L.R. (Pt.67) 787 S.C.

The question of breach of provisions of section 33(6) (c) and (d) of the Constitution of the Federal Republic of Nigeria 1979 dealing with issue of fair hearing does not arise on the facts of this case as so ably orchestrated by learned counsel for the 4th Appellant in the brief of argument filed by him on behalf of his client.

On issue (c) I will examine the cases of the prosecution and the Appellant closely. The Appellant made two statements Exhibits ‘N’ and ‘T’ in respect of the charge against him. In exhibit ‘N’ he stated as follows:-

“On the 11th September, 1982 at about 11.00 hrs., Michael the first accused person come to me and reported that he has one video cassette to sell, he further stated that he will be selling the video cassette at the cost of four hundred naira N400.00.

I replied that I will like to see the video, he said that he cannot bring the video. I cannot pay for what I did not see. He then went to his house. On the 12/9/82 he came back again and said that he was surprise to hear that the video he promise of selling to you in secret had now been published and that any time police came to arrest him he will also be arrested. Yesterday the 13th September, 1982 at the evening hrs. I heard that police men are in town and that they have arrested Michael. This morning I was on my bed when I saw Michael and the police who later arrested me to the police station Benson Oketola 14.9.82.”

In exhibit ‘T’ he stated as follows:-

“On 11th September, 1982 when I was in my house at Gedegede village one Mike come to me said that he has one video for sell. I asked him how much will he sell it to me, he said that is N1,000.00 but I price it down to N400.00. He said that he will not sell it like that, from there he went away, the second day 12.9.82 he come to me again that the video he come to sell it to me yesterday, he have been hearing some rumour about it from peoples that if police come to arrest him he will come to arrest me too, from there (we) he went away, then on the 14.9.82 at about 12.30 hrs. p.m. he Mike come to my house with police and arrested me and take me to the police station. It was at the police station I hear that some people went to Julius Berger and broke their house carried away TV. sets, video and radio cassette and also that they kill person. At the Julius Berger site, but I know Mike (immedde) immediately they come to Gedegede village this year. I know him as a business man due to his sign board he put at his office that is what I know.

(Sign) Benson Oketola 22.9.82.”

He then went into the witness box to testify and gave the following evidence:-

“S.W.4 BENSON OKETOLA, sworn on Bible, states in Yoruba I lived at 42, Ilado, Maroko, I am a fisherman. I heard prosecution witnesses. I did not rob anyone; on 8.9.81.

Marine Police had arrested me before on a charge of stealing boat. I was taken to police station. I was set free.

On 13.9.82, I went fishing near Falomo, when police engine caught my net. Police were tearing my net. I pleaded. They were beaten me and took me to station.

On 8.9.82 I was at home I did not rob in any house boat. I made statement to police. I was forced to sign it – Exhibit ‘N’. I did not make the statement.

Cross-Examination: I am a fisherman. I have my boat. I fish at Maroko and environs. I live at Ilade. I make two statements to police. Onikan and at Panti. I signed statement at Panti. I was forced to sign. Second statement is Exhibit T. I do not know 1st accused or any other accused. We were all charged to Magistrate Court, Yaba.

1st accused did not take police to my house to arrest me.

P.W.1 did not identify me.

Re-Examination: No question.

OLATUNBOSUN: Case for 4th accused.”

When an accused person retracts the statement made to the Police at trial his testimony is to be treated as unreliable while the statement is not evidence upon which the court can act:

Umani v. The State (1988) 1 N.W.L.R. (Pt.70) 274; (1988) 2 S.C. (Part 1) 88 at p. 98.

One is now left with the case made against the Appellant and it is only if the totality of that evidence falls short of being beyond all reasonable doubt or creates a doubt in favour of the Appellant that he will be entitled to acquittal.

I now consider the case against the Appellant as made out by the prosecution.

Upon the arrest of the 1st, 2nd, 3rd and 5th Appellants they all confessed that they undertook the operation to commit the offence with the 4th Appellant. Vide exhibits L, P, Q, R and U.

The 4th Appellant in his statements to the Police exhibits N and T quoted above claimed that the 1st Appellant approached him to buy a video and that the 1st Appellant came back threatening to implicate him if the news about the video leaks out. He claimed that the 1st Appellant made good his promise by implicating him.

But he retracted these statements on oath as indicated above.

I have stated the implication of such a retraction above.

The confessional statements of the 1st, 2nd, 3rd and 5th Appellants were available to the 4th Appellant before the trial as proofs of evidence yet he did not deny this vital allegation.

He must in law be deemed to have adopted by conduct the contents of those statements in terms of section 27(3) of the Evidence Act which states-

“(3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”

This can take place before or at the trial.

See cases of Helwani and Gouch v. Commissioner of Police (1946) 12 W.A.C.A. 61 and R. v. Falayi & Ors. (1949) 12 W.A.C.A. 492.

There is however one aspect of this case that is worthy of consideration and that is the fact that none of the 1st, 2nd, 3rd and 5th Appellants in their evidence in Court implicated the 4th Appellant for conspiracy or robbery.

Inspite of the behaviour of the Appellant which portrays him as a man of shady character the evidence proffered by the prosecution in respect of his involvement in this case creates some doubt in my mind and I hereby resolve that doubt in his favour.

His appeal therefore succeeds and is allowed.

In effect the appeals of the 1st, 2nd, 3rd and 5th Appellants fail and are hereby dismissed.

Their convictions and sentence as contained in the judgment of Desalu, J., delivered on 28th February, 1986 are hereby affirmed.

The conviction of the 4th Appellant is hereby quashed and he is hereby acquitted and discharged.

Other Citations: (1990)LCN/0104(CA)