Freeborn Okiemute V. The State (2016)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
This Appeal is against the judgment of the Court of Appeal, Benin Division, delivered on the 15th day of November, 2012 which affirmed the judgment of the High Court of Ozoro, (Delta State). Delivering its judgment on 14th July, 2010, the trial High Court convicted the Appellant of the offence of conspiracy to commit armed robbery and robbery.
The Appellant was arraigned on the 22nd day of January, 2009 before the trial Court upon information containing six counts stated as follows:
STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit armed robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE:
Freeborn Okienute (M) and others now at large on or about the 17th day of November, 2006 at Ozoro in the Ozoro Judicial Division conspired to commit armed robbery.
STATEMENT OF OFFENCE: COUNT II
Armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Law of the
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Federation 2004.
PARTICULAR OF OFFENCE:
Freebom Okiemute (M) and others now at large on the 17th day of November, 2006 at Ozoro in the Ozoro Judicial Division, robbed one Okonedono Bight of his Sagen handset while armed with gun.
STATEMENT OF OFFENCE: COUNT III
Armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation 2004.
PARTICULAR OF OFFENCE:
Freebom Okienute (M) and others now at large on the 17th day of November, 2006 at Ozoro in the Ozoro Judicial Division robbed one Beauty Egbamuno of her handset while armed with gun.
STATEMENT OF OFFENCE: COUNT IV
Armed robbery punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation 2004.
PARTICULARS OF OFFENCE:
Freeborn Okiemute (M) and others now at Large on the 17th day of November, 2006 at Ozoro in the Ozoro Judicial Division robbed one Ajiri Egbamuno of her Samsung handset while armed with gun.
STATEMENT OF OFFENCE: COUNT V
Armed robbery punishable under Section 1(2) (a) of the
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Robbery and Firearms (Special Provisions) Act, Laws of the Federation 1990.
PARTICULARS OF OFFENCE:
Freebom Okiemute (M) and others now at large on the I7th day of November, 2006 at Ozoru in the Ozoro Judicial Division robbed one Mathilda Egbanu (F) of N500,000.00 cash, jewelry, wrappers and other personal belonging while armed with gun.
STATEMENT OF OFFENCE: COUNT VI
Armed robbery punishable under Section 1(2) (a) of the Robbery and Firearms(Special Provisions) Act, laws of the Federation 1990.
PARTICALARS OF OFFENCE:
FreebornOkienute (M) and others now at large on the 17th day of November, 2006 at Ozoro in the Ozoro Judicial Division robbed one Marvelous Okomedono (M) of his Siemens handsets while armed with gun.”
The Appellant pleaded not guilty to the six counts charge. The trial proceeded. The prosecution called six witnesses, while the Appellant testified for himself. At the conclusion of the trial, the trial Court discharged and acquitted the Appellant in respect of the counts Il, lll, IV and VI but convicted him in respect of counts I and V relating to the robbery committed against PW3 and held that the
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prosecution proved its case beyond reasonable doubt.
Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court below which dismissed the appeal and affirmed the decision of the lower Court. Both Courts placed reliance on the oral evidence of PW3 and her extra judicial statement Exhibit ‘C’.
In this further appeal to this Court, the Appellant in his Notice of Appeal raised seven grounds of appeal from which two issues were distilled in his brief of argument settled by AYO ASALA ESQ thus:-
“(i) Whether the lower Court was right in upholding the finding of the trial Court that the PW3 gave positive evidence of identification/recognition of the appellant as one of the armed robbers that robbed PW3,
(ii) Whether from the totality of the evidence on the record, the lower Court was right in affirming the conviction of the appellant by the trial Court for the offences of conspiracy to rob and armed robbery.”
On behalf of the Respondent in the brief of argument settled by O.F ENENMO ESQ on 24th May, 2013, one issue was distilled for determination of this appeal as follows:-
“Whether the lower Court was wrong
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in affirming the judgment of the trial Court that the prosecution proved the count on the information beyond reasonable doubt.”
On the 28th day of April, 2016 this appeal came up for hearing counsel for the respective parties AYO ASALA ESQ and P. MRAKPOR ESQ (Hon. Attorney-General of Delta State) were both in Court representing the Appellant and Respondent herein. They both adopted and relied on their respective briefs of argument. While the learned counsel for the Appellant urged the Court to allow the appeal.
Learned counsel for the Respondent urged the Court to dismiss the appeal.
The two issues raised by the Appellant but compressed into single issue by the Respondent’s counsel is quite apt to the determination of the Appeal. For the main plank of the lower Court decision was its affirmation of the finding of the trial Court that the PW3 gave positive evidence of identification of the Appellant as one of the armed robbers that robbed her. It is the submission of learned counsel for the Appellant that the concurrent findings of the two lower Courts were perverse and should be interfered with and therefore set aside. Reliance was placed
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on OGUONZEE v. THE STATE (1998) 5 NWLR (Pt. 551) 521; ARUNA v. STATE (1995) 6 NWLR (Pt. 155) 125; STATE v OGBUBUNJO (2001) FWLR (Pt. 37) at 1097 at 1115. That while the trial Court rightly held that counts, II, IV and VI had not been proved beyond reasonable doubt against the Appellant the Court wrongly relied on the inconsistent and unreliable evidence of PW3 to convict the appellant in respect of Counts I and V. This is because the extra judicial statement of PW3 of 19/11/2006 was not rendered in evidence before the trial Court. It is conceded however that the Court below examined the contents of an extra judicial statement which though form part of the proof of evidence was not tendered in evidence.
On the question of material inconsistencies in the evidence of the prosecution witnesses, learned counsel for the Appellant submitted that there are some between the oral testimony of PW3 and Exhibit ‘C’, her extra judicial statement made on 16/1/2007, as to how she came about recognizing the Appellant as the armed robbers that attacked her. It is further submitted that the evidence of PW2 contradicted the evidence of PW3 on the description of the Appellant
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and his physiognomy (facial appearance). That the lower Court in addressing the issue of the inconsistency between the oral evidence of PW3 and Exhibit ‘C’ wrongly concluded that both statements are not inconsistent, capable of affecting the credibility of PW3 as regards the evidence she gave on oath and her extra judicial statement. It is contended that the issue of whether the PW3 personally saw the Appellant in the course of the armed robbery attack or whether it was information given to her by a third party was a live issue at the trial Court. This is because the Appellant was consistent in his extra judicial statement and oral testimony that it was one Apijah who brought PW3 to the police station, where the Appellant was arrested for a different offence of assault and the said Apijah pointed the Appellant to PW3 as one of the armed robbers. In view of the foregoing, the learned counsel submitted that PW3’s evidence as to the identification of Appellant as one of the robbers is not based on her personal knowledge but on information she received from other persons who were not called by the prosecution to give evidence. It is argued that the evidence of PW3
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as contained in Exhibit ‘C’ that she was informed that the Appellant was the leader of the armed robbers gives credence and corroborates the defence of the Appellant that he did not participate in the armed robbery, but that it was one Apijah with whom the Appellant had some misunderstanding that informed PW3 that the Appellant was one of the armed robbers.
Another reason adduced by the learned counsel for the appellant for his submission that the lower Court was wrong to have affirmed the decision of the trial Judge in relying on the evidence of PW3 is because of her evidence lacks credibility. That she was not a witness of truth and appeared as interested witnesses set on seeing to the conviction of the Appellant at all cost. This contention is backed by the fact that the PW3 in her evidence-in-chief had stated that she was able to recognize the Appellant as one of the robbers that attacked her because the Appellant had previously visited her compound with others in a failed robbery attempt. Besides, the learned counsel wonders why PW3 had failed to report her previous encounter with the Appellant to any of her relations, including PW1 and PW4.<br< p=””
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Concluding his submission, learned counsel for the Appellant contended that having regard to the totality of the evidence led at the trial Court, the Court below was wrong to have affirmed the conviction of the Appellant. This Court is urged to discharge and acquit the Appellant.
The substance of the argument of the Respondents counsel is that having regard to the evidence before the trial Court, the Court below was right in law when it affirmed the judgment of the said trial Court. In other words, it is his submission that the trial Court rightly held that the prosecution proved the case of conspiracy to commit robbery and armed robbery against the Appellant beyond reasonable doubt as provided in Section 135 of the Evidence Act, 2011.
Learned counsel for the Respondent in the brief set out three undisputed evidence on record which the trial Court believed and based its findings and equally affirmed by the Court below viz:-
(a) That PW3 was robbed of her money, jewelry, wrappers and other belongings on 17th November, 2006.
(b) That the robbers that attacked the PW3 on that day were armed with cutlasses and guns.
(c) That the PW3
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recognized the Appellant as one of the robbers.
Learned Counsel for the Respondent, has urged this Court to affirm the judgment of the two lower Courts and dismiss the appeal on the grounds that:
(a) The evidence of PW3 that she recognized the appellant among the armed robbers that robbed her at her residence on 17/11/2006 is credible and un-contradicted.
(b)The PW3’s oral evidence in Court and Exhibit ‘C’ are facts which the Court below relied on in affirming the findings of the trial Court to the effect that her evidence on the issue of recognition was proper.
All the two issues formulated by the learned counsel for the Appellant considered together boil down mainly to his complaint that the Appellant was convicted on Counts I and V on the incredible, inconsistent and unreliable evidence of PW3. But in reference to the findings of the learned trial Judge particularly, the portion dealing with his reasons to dispense with an identification parade, I must say, those reasons were in line with the laid down principles on identification by this Court in a number of its decisions, notably, IKEMSON v. THE STATE (1989) 6 SC (Pt.5) ADAMU v. THE STATE
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(1991) 4 NWLR (Pt.187) 530; ALABI v. STATE (1993) 7 NWLR (Pt.307) 24; ISIBOR v. STATE (2002) 3 NWLR (Pt.754).
It must always be borne in mind that an identification parade is not necessary in all cases, It is however, necessary in the following circumstances; where:-
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence:
(b) The victim or witness was confronted by the offender for a very short time; or
(c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.
However, the instances, where identification parade is not necessary are as follows: where
(a) there is a clear and un-contradicted eye witness account and identification of the person who allegedly committed the crime;
(b) witness knew the accused previously;
(c) the defendant is linked to the offences by convincing, cogent and compelling evidence; and
(d) the accused in his confessional statement identified himself with the crime.
It must be noted, however that an identification parade is not a sine qua non to a
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conviction. lt has to be established or proved that the accused is guilty of the offence he is being charged with, beyond reasonable doubt.
In the instant case, the facts relied on by the learned trial Judge in convicting the Appellant on the two-count offences of conspiracy to commit armed robbery are credible. The evidence of PW3 at the trial during cross-examination, where she clearly identified the Appellant was not challenged. Let it be noted that the only issue raised by the Appellant at the Court below which the trial Judge duly considered in his judgment is that the police did not conduct any identification parade. I agree with the learned counsel for the Respondent that the Appellant did not make the findings of the trial Court on the issue of identification parade an issue in the appeal before the Court below. In this case, one of the abiding principles of law regarding the identification parade is applicable. That an identification parade is not necessary when the witness claims that the perpetrator of a crime is a familiar or definite person by name or his abode who can be positively identified if the victim is given the opportunity to do so.
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See NDIDI v. THE STATE (2007) ALL FWLR (Pt.381) Pt. 1617. The victims in this case, testified as eyewitnesses, and mentioned specific names of people previously known to them, thus clearly excluding the necessity of an identification parade.
I am of the firm opinion that the credibility of PW3 was properly evaluated to warrant the Court coming to the conclusion that the conviction of the Appellant based on the evidence of PW3 was proper.
Learned counsel for the Appellant has urged this Court to apply the consistency rule to the evidence of PW3 simply to discountenance both Exhibit ‘C’, the extra judicial statement made to the police by him and the evidence made on oath at the trial on the basis of irreconcilable inconsistencies and contradiction in both statements from which this Court cannot pick and choose. What are the main inconsistencies, the Appellant is agitating One of these is PW3 had stated in Exhibit ‘C’ that she was informed that the Appellant was the leader of the armed robbery gang but on oath she said she identified the Appellant while the robbery was taking place. If the purpose of tendering Exhibit ‘C’ is to show inconsistency of
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PW3’s evidence that purpose is not served, in the circumstance of this case. Inconsistency rule does not apply to render the evidence of PW3 incredible and unreliable and to be discountenanced. See UWAGBOE v . THE STATE (2008) 12 NWLR (Pt.1102) Page 621; particularly when such inconsistency is a minor nature that does not affect the live issue. See BASIL v. THE STATE (2008) 4 SCNJ 250; THE STATE v. FATAI AZEEZ 4 SCNJ 325; AYO GABRIEL v. THE STATE (1989) 5 NWLR (Pt.122) 457.
I do not find both aforementioned statements inconsistent, capable of affecting her credibility. The Court below on this point lucidly stated at page 179 of the record thus:
“I do not regard both statements as seriously inconsistent statements capable of affecting her credibility and regards the evidence she gave on oath and her extra judicial statement regarding the salient ingredients of the offence. That is to say that even if it is conceded that there was inconsistency on that point, PW3 at the earliest opportunity on 19th November, 2006, after the robbery while in hospital gave a good description of the Appellant and mentioned him by name. There was no challenge by the defence
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regarding the description she gave of him in her earlier statement on 19th November,2006 which she referred to on oath. Neither was there a challenge in that said statement referred to by her under cross examination where she specifically mentioned the Appellant by name as one of the robbers. The question of whether or not he was the leader of the armed robbery gang pales into insignificance when the totality of her evidence on oath and Exhibit C is considered”.
From the foregoing the Court below did clearly take the same stance of the trial learned Judge when he placed reliance on the evidence of PW3 on oath at page 52 of the record. The extract of her evidence runs thus:
“I know their names (sic) of the one recognized. The armed robbers in the course of beating me dragged me outside where I recognized one of them who is black in complexion, short and black boy. I recognized others the short one I recognized told me that he came purposely because of me. I do not know the name of the short one. But the other one of the armed robbers I recognized is FREEBORN who is slim and little bit tall in height. The Freeborn I recorgnized among the armed robbers
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is the accused person in the dock. I was able to recognize the accused person on that day because prior to the day of the armed robbery incident the accused person had come once before me in a group of armed robbers who came to the house, but the doors of the house were locked.”
I agree with the Court below that there was no significant inconsistency in the evidence of PW3 and Exhibit .C’ which she made about a month after the incident as to render the evidence unreliable. The Appellant was recognized by PW3 as one of those who committed the armed robbery. I must say that it is preposterous for the learned counsel for the Appellant to urge the Court to totally discountenance the evidence of PW3 on oath vis-a-vis Exhibit “C”. To do this is to lose sight of the fact that she had made an earlier statement to the police in which she claimed to have identified the Appellant and mentioned his name. The extract of her earlier statement copied above referred. See further the case of IDEMUDIA v. STATE (2015) 24 LRCN 1 at 26 -27; WAKALA v. STATE 1991 8 NWLR (Pt.211) P. 552 at 565.
The conclusion of the learned trial Judge at page 101 of the
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record, which the Court below equally adoptedis apt on this point. It reads thus:-
” The close contact the armed robbers had with the PW3 and the length of time spent at the house of PW3 was enough for PW3 to recognize the accused person in spite of the time of the robbery incident at night time.”
Another point raised by the learned counsel for the Appellant is that of contradiction between the evidence PW3 and PW4 in that while PW3 claimed that it was the Appellant who lived at Erovie Quarters, PW4 said it was one Stainless who lived at that address.
The Court below in resolving this issue had the following explanation at page 181 of the record.
” I cannot find with reasoning any contradiction on this issue of fact. All the victims stated that the robbers were numerous in number and each identified different persons while PW3 on oath specifically said she could identify and mentioned the Appellant by name. PW3 did not mention him among those he could identify even though he mentioned by name Boy ‘O’-Oyoyo and Stainless who lived at Erovie Quarters and also one Deco. The fact that PW3 recognized him and PW4 recognized others does not in
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my view constitute contradiction. It would have been on entirely different thing if they both identified the Appellant but gave different physical description of him and where he lived”.
I do not think this is a case where the trial Court and the Court below did choose and pick from the evidence of the prosecution witnesses on this point, as contended by the learned counsel for the Appellant. The Court below is not wrong to have upheld the decision of the trial Judge which preferred the testimony of PW3 as against PW2 or PW4 on the identity and physical description of the Appellant.
For the offences of conspiracy and armed robbery, it is the contention of the Appellant that having regard to the totality of the evidence led at the trial Court, the Court below was wrong to have affirmed his conviction. On the other hand, it is the case of the Respondent that the Court below was right when it affirmed the conviction of the Appellant on the ground of conspiracy.
In affirming the judgment of the trial Court on this issue, the Court below concluded at page 191 of the record thus:
“The record and evidence of the prosecution witnesses clearly shows
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that the armed robbers who committed the offence were several in numbers. I cannot help but agree with the learned trial Judge that inference of conspiracy can be and must be made from these facts and irrefutable conclusion of conspiracy to commit armed robbery.
We must take into consideration the fact that both the learned trial Judge and my humble self have found sufficient evidence on record to ground the substantive charge of armed robbery”.
Regarding count 1 in which the offence of conspiracy was alleged, the learned trial Judge having carefully reviewed the testimonies of PWl, PW2, PW3 and PW4 held at page 103 of the record thus:
“In Count I, the accused person and others at large are charged with the offence of conspiracy to commit armed robbery at Ozoro on the 17th of November, 2006. In proof of the offence the prosecution called six witnesses who testified in these proceedings. I have already in this judgment reviewed the evidence of PW1, PW2, PW3 and PW4 in relation to the substantive offence of armed robbery on which the prosecution relies for the offence of conspiracy to commit armed robbery.”
Indeed the correct legal
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principles on evidence of criminal conspiracy is well considered and summed up by the two Courts below. The conspiracy is either by direct evidence of how the conspiracy came about or by inference from certain criminal acts of omissions of the parties concerned, done in pursuance of an apparent criminal purpose common to them. OZAKI v. STATE (1990) 1 SC 109; ONYENYE v. STATE (2012) 15 NWLR (Pt. 1324) 586; NJOVENS v. THE STATE (1973) 5 SC 7 at 10; BALOGUN v. ATT. GEN. OGUN STATE (1992) 2 NWLR (pt.763) 512.
This Court will not ordinarily disturb concurrent findings of fact by the two lower Courts or even with findings based on evidence believed by the trial Court, unless in very exceptional circumstances, for example where the findings or judgment appealed against are perverse: KARIMU v. STATE (1999) 13 NWLR (Pt.633) 1 at 4.
There is no satisfactory evidence of self-defence as raised by the Appellant to the charge of conspiracy to commit armed robbery. His defence at the trial Court was that he was arrested for assault. According to him it was while he was in police custody for the offence of assault that he was identified by PW3 as one of the robbers
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that robbed her. He contended that the police did not investigate his defence. On this issue the Court below in affirming the findings of the trial Court held at page 187 of the records thus:
“On the issue regarding the failure of the police to investigate the defence raised by the Appellant, it is pertinent to understand that the Appellant’s insistence that he was arrested for assault and not armed robbery cannot be a defence to the charge. Admittedly, he denied the charge, but nowhere in his extra judicial statements. Exhibits G and F and his evidence on oath in his defense did he provide an alibi for the night of the robbery. The problem we have here is that the Appellant was named by one of the complainants, PW3 in a statement to the police on 19th November, 2006, while on admission in hospital after the incident.”
At page 559 of the record PW5, the I.P.O explained why the statements of PW1and PW3 were obtained late when he stated thus:
“The statements of PW1and PW3 were recorded about a day or two after the complaint was reported at the police station because they were injured and were hospitalized. I recorded their statements in the
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hospital.”
I have quoted the evidence of PW3 extensively. Her evidence fixed the Appellant at the scene of the crime is to allow him proffer credible alibi and not his defence that he was arrested for a different offence.
When the Appellant was first arrested on 16th January, 2007 and he made Exhibit F he did not mention that he was arrested for assault. He came up with the story of how he was arrested in his statement on oath on 30th January, 2007. At pages 62 64 of the record he claimed that he fought with one James who reported him for assault for which he was arrested. That the statements of PW1 and PW3 were made on 16th January, 2006 but backdated to 19th November, 2006 in order to implicate him in the robbery. What an incredible tell-tale! Who really wanted to implicate him; PW1 or PW3 if I may ask I agree with the learned counsel for the Respondent that “it would have taken a lot of collaboration to get the PW1 and PW3 to the station at the time when the Appellant was accused in order to set about implicating him in the dastardly manner suggested by the Appellant.”
Learned counsel put up a valid argument in his brief. Indeed, if the
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Appellant had not been identified by PW3 as one of the armed robbers and was accurately described in her statement to the police after the event, and the Appellant had promptly and properly raised the defence of alibi, the police would have been obliged to carry out the investigation of his claim. Having believed the evidence of IPO on oath as to the circumstances of the Appellant’s arrest, I do not think that the defence set up by the Appellant will avail him. Appellant’s counsel argued that the Appellant should have been charged and convicted separately with offence of conspiracy to commit armed robbery because the facts upon which both counts were based are the same.
This Court has deprecated the practice of including a count of conspiracy to commit an offence in an information as well as a count for actually committing it, where the evidence to support the two counts are the same. The reason is obvious. This is because:
(i) evidence which otherwise would be inadmissible on the substantive charges against the accused becomes admissible, and
(ii) such a joinder of charges adds to the length and complexity of the case so that the trial may
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easily be well near unworkable and impose a quite intolerable strain on the Court.
See R V DAWSON v. WENLOCK (1960) 44 CR APP. R 87 Page 93 where the opinion of the Court of Appeal in England on the issue was adopted in lie Nigerian case of CLARK v. STATE (SUPRA). See further AIYEOLA & 2 ORS v. THE STATE SC/27/69 (Unreported) of 7/8/1970. This proposition is good if there will be clogging of otherwise simple trial with a count of complicated conspiracy, especially when there is no independent evidence of conspiracy. This is the merit of this proposition of the law. It should not be over-stressed or stretched to a ridiculous elasticity. I agree with the stance of the Court below on the point when it held on page 190 of the record, while relying on the cases of CLARK v. STATE (Supra) and SULE v. THE STATE (2009) 17 NWLR (Pt.1169) 33 thus:
“That position of law is eminently suitable (sic). This is because in a charge of conspiracy to commit on (sic) offence such as armed robbery, even although a separate offence from armed robbery, where the facts are intricately interwoven the Courts are enjoined to the deal with the main offence first, since, if the
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substantive offence is unproven; the case for conspiracy is (sic) such circumstances collapses.”
However, in the present appeal, I am in no doubt that the evidence, as clearly pointed out earlier, support the count of conspiracy to commit armed robbery as well as the count for actually carrying it out. The circumstances of this case when considered, then the charging of Appellant with conspiracy along with the substantive charge does not render the information inherently bad in law.
For all the reasons which I have given above, lead me to conclude that the prosecution did prove its case against the Appellant, beyond reasonable doubt. The appeal fails. I affirm the decision of the Court of Appeal which confirmed the conviction and sentence of the Appellant to death by the High Court of Ozoro, Delta State in case No. HC2/13C/2008 on 14th July, 2010.
Appeal dismissed.
SC.501/2012