Bisi V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or lower Court; Coram: Modupe Fashanmi, Nonyerem Okoronkwo and Haruna Simon Tsammani JJCA, who delivered the judgment on the 16th February, 2018 affirming the decision of the High Court of Ogun State delivered on the 17th April, 2014 convicting the appellant of conspiracy to commit armed robbery and armed robbery, per A.J. Lamina J.

BACKGROUND FACTS

The Appellant was charged with a one (1) count offence of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap.R.11, Laws of the Federation of Nigeria and four (4) counts of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11, Laws of the Federation of Nigeria. Count 4 was struck out by the learned trial Judge consequent upon a no-case submission application by the defence, while the Appellant opened his defence at the trial Court with respect to counts 1, 2, 3 and 5. The ruling on the no case submission is at pages 101-107 of the record of appeal.

The particulars of the offences charged per pages 3-4 of the record of appeal are that the Appellant along with others now at large purportedly conspired on the 16th November, 2007 at “P” Sunny Enterprises, Oke Sokori, Abeokuta, Ogun State while armed with an offensive weapon to wit: gun robbed one Idowu Adebayo of the sum of N88,435.00 (Eighty Eight Thousand, Four Hundred and Thirty Five Naira) (Count II). Another count is in respect of the robbing of Raheem Adegbite of the sum of N1,866,375.00 (One Million, Eight Hundred and Sixty Six Thousand, Three Hundred and Seventy Five Naira) (Count III). Yet another count is the robbing of Joseph Bankole of a Mazda 626 car with registration No. AJ 319 AKM and the sum of N50,000.00 (Count V).

​The prosecution listed nine (9) witnesses but only four (4) witnesses gave evidence for the prosecution to wit: PW1 – Mr. Raheem Adegbite, cashier at “P” Sunny Enterprises, PW2 – Mr. Joseph Bankole, a retired soldier, PW3 – Idowu Adebayo, a Salesman and the PW4 – Sgt Lawal Lukman, Police Officer. The Appellant (accused person at the trial Court) gave evidence on his behalf.

The evidence of PW1 is at pages 53 – 57 of the record of appeal. The evidence of the PW2 is at pages 57 – 73 of the record of appeal. The evidence of the PW3 is at page 74 of the record of appeal. The evidence of the PW4 is at pages 76 – 78 of the record of appeal. The evidence of the Accused (Appellant) is at pages 107a – 107d of the record of appeal. The final written address of the Accused (Appellant) is at pages 108 – 110 of the record of appeal while the final written address of the prosecution is at pages 111 – 113 of the record of appeal.

At the conclusion of the trial, the learned trial Judge in his judgment depicted at pages 114 – 140 of the record of appeal found the Appellant guilty as charged for conspiracy to commit armed robbery and armed robbery in respect of grounds 1, 2, 3 and 5 whereupon the Appellant was sentenced to death by hanging consequent upon the Appellant filing an initial appeal to the Court of Appeal, Ibadan Division upon being dissatisfied with the aforesaid judgment of the trial Court.

​The Appellant was granted extension of time to appeal by the Court of Appeal, Ibadan. The subsequent notice and grounds of appeal are depicted at pages 114 – 140 of the record of appeal. The Judgment of the Court of Appeal, Ibadan Division is at pages 190 – 222 of the record of appeal. The appellant being dissatisfied with the judgment of the Court of Appeal, Ibadan Division filed a Notice and Grounds of Appeal to the Supreme Court.

He nominated the following issues for determination, viz:-

1. Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the Court. (Grounds 1, 2, 3 and 6)
2. Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s purported statements – exhibits “B & C- C2” as exhibits and treated same as confessional statement in spite of the fact that same were retracted by the Appellant. (Grounds 4 and 5).

Learned counsel for the respondent Eko Ejembi Eko Esq adopted the brief of argument filed on 11/7/2018 and deemed filed on 5/11/2020 and in it were formulated three issues for determination, viz:-

1. Whether the learned Justices of the Court of Appeal Ibadan division were right to have affirmed the decision of the learned trial Judge, that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of evidence before the Court.
2. Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s statement – Exhibits B, C & C2 as evidence and treated same as confessional statements in spite of the fact that same were retracted by the Appellant.
3. Whether the Appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

The No.3 issue of the respondent is comprehensive and sufficient in the determination of this appeal and I shall use it as a single issue.

LONE ISSUE

Whether the appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

Advancing the position of the appellant, learned counsel stated that the prosecution did not prove its case beyond reasonable doubt against the appellant as to warrant the lower Court affirming the appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the trial Court. That there is no substantiated evidence of the participation of the appellant in the purported robbery incident. He cited Nigerian Airforce v Obiosa (2003) 4 NWLR (pt. 810) 333 at 253; Obiakor v The State (2002) 10 NWLR (pt. 776) 612 at 616.

For the appellant, it was contended that the ingredients of armed robbery were not made out. He cited Lukmon Osetola & Anor v The State (2012) All FWLR (pt. 649) 1020 at 1037; Usman Maigari v The State (2010) All FWLR (pt. 546) 405 at 427.

​That the evidence proffered by the appellant was discountenanced by the trial Court who chose to believe that of the PW1, PW2 and PW3 as to whether there was a robbery incident on the 16/11/2007.

That the common purpose necessary in an offence of conspiracy was not made out and also that the agreement between the parties was not proved beyond reasonable doubt. He cited Smart v The State (2016) LPELR – 40827; Njovens v The State (1973) 5 SC P. 7.

That the prosecution did not lead any evidence from which the trial Court can draw inferences of the offence of conspiracy to commit armed robbery from the acts of the appellant in order to justify its affirmation of the conviction of the appellant by the lower Court.

Learned counsel for the appellant further submitted that there are contradictions in the evidence of the prosecution witnesses which should be resolved in favour of the appellant. He cited Agbo v The State (2006) All FWLR (pt. 309) 1380 at 1399 etc.

Chief Omu of counsel for the appellant contended that the learned trial judge wrongly admitted the extra-judicial confessional statement of the appellant, Exhibits “B & C- C2” as the appellant had retracted the said statements and the Court below was wrong to affirm the reliance of the trial Court on the said statements to convict the appellant. He cited Folorunsho Kazeem v The State (2009) FWLR (pt. 465) 1749 at 1773.

That the trial Court had not determined the truth or otherwise of the confessional statement before admitting and relying on them to convict.

For the appellant, it was contended that the Supreme Court should interfere with the concurrent findings of the two Courts below as they appear perverse, occasioned a miscarriage of justice against the evidence adduced and in violation of some principles of law and procedure. He relied on Ajayi v Adesuyi (2012) All FWLR (pt. 634) 1 etc.

Learned counsel for the appellant concluded that if the Court is not minded to allowing the appeal and acquitting the appellant, the Court should reduce the sentence. He cited Semiu Afolabi v The State (2013) All FWLR (pt. 702) 1690.

Mr. E.E. Eko of counsel for the respondent submitted that the uncontroverted and unchallenged testimonies of the prosecution witnesses show clearly that the appellant in the company of others armed with guns, robbed P. Sunny Enterprises Ltd on 16/11/2007. That the evidence showed that the appellant in conjunction with others within the same vicinity also armed with guns robbed PW2 of his car and valuables on the same day, and then when the appellant was apprehended, he shot PW2 in an attempt to escape.

He went on to contend that the confessional statement of the appellant confirming he was a member of the gang of armed robbers and that he had joined them for the particular robbery that took place on 16/11/2007 which is the date of incident under discourse.

That there was enough evidence with which the conspiracy would be inferred. He cited Bouwor v State (2016) LPELR-26054 (SC) pp. 13 – 14.

Learned counsel for the respondent submitted further that the Court could still utilise the retracted confessional statement if there exist other independent corroborative evidence to give credence to the statement. He cited Ejinima V State (1991) LPELR – 1067 (SC).

That the concurrent findings of the two Courts below ought not to be disturbed as the appellant has not put forward any perverse route in the course of the findings and no violation of law or procedure nor a travesty of justice. He cited Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

The stance of the appellant in brief is captured in his assertion that there was no evidence linking the appellant to the purported robbery and that the confessional statement of the appellant were wrongly relied on by the trial Court and upheld by the Court below and the weight of evidence implored the Court to allow the appeal and set aside the conviction and sentence of the appellant.

The respondent on its part rejected the position of the appellant on all fronts stating that the offences of conspiracy to commit armed robbery and armed robbery were proved by the prosecution beyond reasonable doubt.

The offences of conspiracy to commit armed robbery and armed robbery which are contrary to Sections 6(b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.R.11 LFN.

In the offence of conspiracy to commit armed robbery, in order to secure a conviction the prosecution must prove the following facts:

a. That there was an agreement between the accused and others to commit armed robbery;

b. That in furtherance of that agreement the accused took part in the commission of the armed robbery or series of robbery;

c. That the robbery or each of the robberies was an armed robbery.

To ground a conviction for the offence of armed robbery, the prosecution has the duty of proving beyond reasonable doubt that;

a. That there was a robbery;

b. That the robbers were armed with offensive weapons as at the time of the robbery; and

c. That the accused person participated in the robbery.

The above three elements must be established beyond reasonable doubt before the Court can convict for each of the respective offences. It is to be noted that if any one of these elements is not proved beyond reasonable doubt, the conviction will be quashed on appeal. See the case of THOMAS V STATE (2017) LPELR-41735 (SC). See also Yusuf v State (2018) All FWLR (pt. 405) 1731.

The concept of proof beyond reasonable doubt in criminal trials was orchestrated by the Supreme Court as that reasonable doubt which will justify an acquittal. It is a doubt based on reason arising from evidence or lack of it. That doubt which a reasonable man or woman might entertain and is neither fanciful nor an imaginary doubt. It is such a doubt as would cause an otherwise prudent person to hesitate before acting in a matter of importance concerning themselves. See Jua v State (2010) LPELR-1673 SC per Tobi JSC.

Another way of stating it is that, it is doubt which is logical, rational and lucid and so before a Court can convict for a capital offence such as the offence under review, it must ensure that the evidence before it is credible, coherent, leaving no hesitation that the accused committed the offences.

In the case at hand, the appellant was charged with a one count of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act which ingredients that must be proved to convict for the said offence to be as follows:-

a. That there was an agreement between the accused and others to commit armed robbery;

b. That in furtherance of that agreement the accused took part in the commission of the robbery or series of robberies;

c. That the robbery or each of the robberies was an armed robbery.

Going back in time to the trial Court, PW1 and PW2 gave evidence that appellant was in the company of other persons, armed with offensive weapons when they robbed PW1, PW2 and PW3 on the 16/11/2007 at P. sunny Enterprises Ltd and the immediate environs. In fact PW1 stated that he was in the office at P. Sunny Enterprises Ltd when some people wielding guns ordered him to open the safe in the cash office and the people took the money and rushed out. PW1 later identified appellant firstly at Adigbe Police Station and later at State C.I.D. Eleweran as one of the robbers that robbed him. These pieces of evidence were not challenged or controverted therefore the evidence must be accepted as the correct version of what PW1 said. See Elegushi & Ors v Oseni & Ors (2005) LPELR-1111(SC).

PW3 testified that he was in the company of PW1 when he was also robbed of the sum of N88,435.00 at the same venue on the same date. That it was when he (PW3) entered the office that he met the two boys who were armed with guns and they ordered him to lie down and subsequently dispossessed him of the sum of N88,435.00. Of note is that there was no cross-examination which gives the implication that appellant accepted the narration as the truth of the matter. See Ighalo v State (2016) LPELR – 40840 (SC) per Akaahs JSC.

PW2 testified that he was robbed of his MAZDA car and the sum of N50,000.00 by two people when he tried to assist them after their car fell into a ditch in the vicinity of P. Sunny Enterprises Ltd on the said 16/11/2007. The appellant was subsequently apprehended inside the said car that had fallen into the ditch and when searched by PW2 who recovered a gun and 9 cartridges from him before appellant shot him.

I shall quote excerpts from the testimony of PW2 for more clarity, thus:-

“On the 16/11/2007, around 10.30am, I wanted to go to the bank… as I entered the Street (Ayorinde Street) being a major road, I looked at my left and my right I saw two vehicles pursuing themselves. I just saw a Toyota Camry car entered the gutter that day, I was moved and I came out of my vehicle to rescue them. I thought they had an accident so that I can give a helping hand and take them to hospital if they are (sic were) injured. They pointed a gun at me and asked me to give them my key. I shouted and they took the key of my car and drove my car away.”

PW2 stated further that:

“…The Toyota Camry was still inside the gutter and somebody among the crowd entered the Toyota Camry and off the engine. This person now shouted that somebody is inside the car. The Accused person was inside the car at the side where the Toyota Camry entered the gutter and there was no escape for him and thus he could not to follow his colleagues. He was pulled out of the car and the crowd started beating him. I stopped them that if he was wounded now I will not be able to report to the Police and it may be impossible for me to recover my car that has just been stolen, I held him and started searching him and I brought out nine(9) cartridges from his body. Because I did not allow the crowd to beat him, they started shouting that his colleagues are coming and the crowd disappeared leaving only myself and the Accused. He started to struggle with me and I refused to let leave him. He put/dipped his hand into his pant and brought out a gun. He wanted to shoot me and eventually shot me and I discovered blood on my clothes, so I left him. The gun shot attracted the people out again as they thought he has killed me and I asked them to pursue him as he had dispersed with the only cartridge inside the gun…” (See pp. 57 – 73 of the records of appeal) The Appellant on the 16/11/2007 made a statement to the police wherein he stated that he was in the company of some other people who committed the alleged robberies on the day in question but he didn’t have anything to do with the robberies as he was only in the car; he admitted to having been apprehended in the car and he went on to state further thus:

“…on our way going one BMW car hit our car and he started pursuing us, we got to one street our car got accident with the BMW, Segun and two other came down and escape. I don’t know what they take to escape I was still in the car, when people came around and started beating me. Nobody pursuing me, I was caught inside the car where the car got accident. Inside the car with me they found one locally single barrel gun and one …shot double barrel gun in the black bag, they did not find the gun inside my pocket. The ten life cartridges is inside the black bag. I am not the owner of it. Segun is a student of Moshood Abiola Polytechnic Abeokuta, I don’t know his a robber and I have not followed them to any operation before.” (See pp. 10-12 of the records of appeal)

In a subsequent statement made to the police on the 22/11/2007 the same Appellant stated that he was a member of gang of armed robbers and that he had joined them for the particular robbery that took place on the 16/11/2007 and he had narrated thus:-

“…when I get there, I met them inside Toyota Corolla car black I entered with them. They share the gun which I was given one local made double barrel pistol and all of us were with gun with enough cartridges we got to a place they stopped the car, Segun, Alabi and Abiwere came down of the car and enter one store and they came back with one travelling bag containing money and then enter the car we drove away on our way going one BMW hit our car and started pursuing us until we got to a place, I don’t know the name of the place when the BMW overtake us and the car run into drainage which the car cannot move again, Segun Alabi, Abiwere came down of the car and run away and left me inside the car when I try to escape people around the place pursue me and I was caught with gun in my hand, I hold double barrel pistol locally made …”

In yet another statement made by the same Appellant to the police on the 23/11/2007 the Appellant narrated details of how he joined the armed robbery gang, the names of his gang members and how much he realised from other earlier successful armed robbery operations and stated regarding the specific robbery operation of the 16/11/2007 thus:

“…The place we robbed is one beer depot at Oke Sokori. When Segun and others came back they held one medium sized bag and entered the vehicle. As we were going our vehicle hit one other vehicle in front of us, from there the owner of the vehicle we hit started pursing our vehicle. He pursued our vehicle to it eko where he made our vehicle entered gutter. At that place my other gang members came down from our vehicle because my eyes were turning as a result of the accident. From there my colleagues left me inside the vehicle while they quickly snatched another vehicle with gun to escape from the scene, While I was inside the car, some people came around me up there and beating me …” (See Pages 20-23 of the record of appeal)

The confessional statement of the appellant, exhibits B, C-C2 gave details of the planning, participation of appellant and the others in the robbery which was an armed robbery.

On the matter of conspiracy, it is now well settled that conspiracy to commit an offence is such that it is inferred or deducible from the criminal acts of the accused person done in conjunction with others. Conspiracy in this case is inferred from the common commission of the offence by the accused in company of others as was done by the appellant.

The inference deducible upon which the offence of conspiracy is proved stems from the fact the elements of the offence are embedded in the agreement or plot among the parties which is rarely capable of direct proof hence it is deduced from the acts of the parties towards the realisation of the common criminal purpose. The various acts of the accused and his cohorts including appellant’s extra-judicial statement have given ground to the establishment of the offence of conspiracy to commit armed robbery. See Bouwor v State (2016) LPELR-26054 (SC); Njovens & Ors v The State (1973) 5 SC 17; Haruna & Ors v The State (1972) All NLR 738 at 754.

​The defence pushed by the appellant that he was in a vehicle close to the scene of the robbery and was not one of the robbers, is a story that would have rendered some comic relief except that a serious incident such as armed robbery cannot be a laughable happening. The story he told the Court is not supportable in the light of the overwhelming evidence adduced by the prosecution including the identification of the appellant as participating in the acts and the corroborative confessional statements he proffered.

On the question whether the Court below was right to have affirmed the decision of the learned trial judge admitting the appellant’s statements, Exhibits B, C & C2 as evidence and treating same as confessional statements despite the appellant retracting them. In answer to that poser, I would humbly state that it is now beyond debate as to whether a retracted confessional statement can be used to convict an accused as happened in this instance if there exist other independent corroborative evidence giving credence to the truth of the resiled confessional statement as in this case. See Ejinima v State (1991) LPELR – 1067 (SC) per Nnaemeka-Agu JSC. The mere assertion by the appellant that he did not make the confessional statements did not render them inadmissible nor reduce the weight the trial Court would attach to such evidence. This is because the issue of admissibility or not of extra-judicial statements comes up when the voluntary status of the making is questioned, which is not the case here. See Sunday v State (2017) LPELR – 42259 (SC) per Bage JSC.

Clearly, the circumstances prevailing at the trial Court did not hamper the learned trial judge admitting the retracted or denied confessional statements and going on to rely on them in convicting the appellant on the charges of conspiracy to convict armed robbery and armed robbery itself.

Now comes the final point of the appeal before the Court being based on concurrent findings of fact of the two Courts below. The appellant is asking this Court to reverse those findings and the question thereby thrown up is if the appellant has shown a miscarriage of justice or wrong application of law or procedure for which this Court would go against the policy of Court which is usually loathe to interfere with concurrent findings of facts of lower Courts.

From what is before me, there is nothing persuading a departure from the norm concerning concurrent findings of fact of the two Courts below as what led to those findings are clearly borne out of the record and there was proper application of the law, substantive and procedural and no miscarriage of justice had taken place. Therefore the push to upset those findings are propelled by empty air. See Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

Indeed, there is a surfeit of material on which the trial Court found the essential elements of the offence of conspiracy to commit armed robbery and armed robbery proved beyond reasonable doubt. The Court below rightly affirmed those findings and conclusion and I see nothing on which I can upset what those two lower Courts did.

There is no merit in this appeal and I dismiss it as I affirm the judgment of the Court of Appeal which upheld the conviction and sentences of the appellant.

Appeal Dismissed.

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SC.267/2018