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Gabriel Ogogovie V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

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

This is an appeal against the judgment of the Court of Appeal, Benin Judicial Division (hereafter called the Lower Court), delivered on the 9th day of July, 2014, affirming the judgment of the High Court of Delta State, Warri Judicial Division delivered on 10th day of October 2012 convicting and sentencing the appellant to death by hanging, having been found guilty and convicted for the offence of conspiracy to commit armed robbery and armed robbery.

BACKGROUND FACTS

From the Record of Appeal are garnered the following facts for an easier understanding of the journey from the trial Court to this Appeal at the Supreme Court.

On the 1st day of April, 2009, the appellant was arraigned before the trial Court on a three (3) count charge of conspiracy to commit armed robbery and armed robbery. It was alleged that the appellant and others while armed with guns robbed one Ogbama Simon (PW2) and one Godwin Inieke Esen on 25th day of May, 2008, and thereby committed an offence contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act, Cap R II Vol. 14,

Laws of the Federation of Nigeria (LFN) 2004. See page 2 of the Record.

The appellant pleaded not guilty to the three count charge and the case proceeded to hearing. To prove the three count charge against the appellant. The prosecution called two witnesses and tendered various exhibits. PW1 is the police investigating officer while PW2 is one of the victims of the armed robbery incident that took place at Evwreni junction at Ughelli/Patani Road within the Ughelli judicial division. The following exhibits were tendered by the prosecution;

(i) Statement of appellant Exhibit A

(ii) Second statement of the appellant Exhibit B

(iii) Shirt Exhibit C

(iv) 2 ATM Cards Exhibit D

(v) Search Warrant Exhibit E

At the close of the prosecutions case, the appellant testified in his defence and called two witnesses. In line with his extra judicial statements to the police (Exhibits A and B), the appellant in his oral evidence denied his involvement in the armed robbery incident. He maintained that he was never at the scene of the armed robbery incident which occurred late in the night on 24/05/2008 till the early hours of the morning of 25/05/2008, but that he was at his

residence at No. 19 Uduophori Street, Otovwodo, Ughelli at the material time.

In defence, the appellant gave evidence and called witnesses whose evidence remained un-contradicted under cross examination that the appellant visited the scene of the crime in the morning. That is 25/05/2008 when they went to recover the vehicle of his co-drivers who was a victim of the armed robbery Incident. The appellant stated both in his extra judicial statements and oral evidence that it was when he went with his co-drivers to recover the vehicle that he picked the cloth and the ATM card which he found at the scene of the armed robbery. Despite the explanation given by the appellant as to how he came about Exhibits “C and D, the learned trial judge in his Judgment relied on the fact that Exhibits C and D were found with the appellant in holding that the prosecution proved beyond reasonable doubt the two count charge of conspiracy and armed robbery against the appellant and convicted him accordingly. The learned trial judge consequently sentenced the appellant to death by hanging. The learned trial judge, however, discharged and

acquitted the appellant in respect of third count for failure of the prosecution to adduce evidence in support of the particulars of the charge.

APPEAL

Dissatisfied with the judgment of the trial Court, the appellant unsuccessfully appealed to the Lower Court. On 9/07/2014, the Lower Court dismissed the appellants appeal and affirmed the decision of the trial Court. Aggrieved by the decision of the Lower Court, the appellant appealed to this Court vide a notice of appeal filed on 5/8/2014. The notice of appeal contained three grounds of appeal. See the notice of appeal at pages 184 to 186 of the Record.

On the 10th day of March, 2016 date of hearing learned counsel for the appellant, Ayo Asala Esq. adopted his Brief of Argument filed on the 19/11/14 in which he raised a sole issue.viz:

Whether having regard to the circumstances of this case and the totality of the evidence on record, the Lower Court was right in upholding the decision of the learned trial judge that the prosecution proved the charges of conspiracy and armed robbery against the appellant beyond reasonable doubt.

For the respondent, learned counsel, peter Mrakpor Esq., the Attorney General of Delta

State adopted the Brief of Argument of the respondent settled by Martins A. Omakor, Assistant Director of Public Prosecutions of Delta State, filed on 30/1/2015 and in which was crafted a single issue also which is as follows:

Whether the Lower Court was right in affirming the judgment of the learned trial judge that the prosecution proved the cases of conspiracy and armed robbery against the appellant beyond reasonable doubt.

The path taken in crafting the issue on either side though different came to the same question and so whichever is utilized does not matter and so I shall use that as framed by the appellant.

SOLE ISSUE

Learned counsel for the appellant contended that prosecution failed to establish any of the ingredients against the appellant as required by law. That Exhibits C and D found in possession of the appellant are not conclusive

proof that appellant participated in the armed robbery despite his explanation as to how he came in possession of Exhibits C and “D”, He cited Usufu v State (200S) ALL FWLR (Pt.405) 1631;Section 148 (a) now 167 (a) of the Evidence Act 2011; Omopupa v State (2008) ALL FWLR (Pt.445) 1648.

That the appellant gave sufficient explanation as to how he came about Exhibits C and D. He relied on Yongo v. COP (1992) 8 NWLR (Pt.237) at 75. The People of Lagos State v. Umaru (2014) 7 NWLR (Pt.1407) 541.

That it is wrong for the Lower Court to rely on the evidence of the prosecution witnesses to discredit the explanation offered by the appellant in keeping with Section 167(a) of the Evidence Act 2011.

For the appellant is contended that there are grounds upon which the concurrent findings of the two Courts below should be set aside.

On the issue of alibi, learned counsel, Ayo Asala Esq. submitted that the defence of alibi raised by the appellant was not properly investigated and so doubts arose which should be resolved in favour of the appellant. That this Court should therefore interfere with the concurrent findings on that defence of

alibi put forward by the appellant. He cited Oguonzee v State (1998) 5 NWLR (Pt.551) 521; Aruna v State (1990) 6 NWLR (Pt.155) 125 etc. That there was no independent evidence from the prosecution linking the appellant with the commission of the offence charged and so appellant is entitled to be discharged and acquitted.

The Honourable Attorney General Delta State, Peter Mrakpor Esq. for the respondent contended that to succeed in a charge of armed robbery the prosecution has the onus to prove beyond reasonable doubt the ingredients of armed robbery which ingredients are thus:(a) That there was a robbery or series of robberies.

(b) That each robbery was an armed robbery.

He cited Bozein v State(1998) Vol. ACLR 1 at II; Ikemson v The State (1998) Vol. 1 ACLR 80 at 103.

He stated on that in discharging the onus of proof, there are three ways to prove the commission of crime which are:

(i) By evidence of eye witness

(ii) By confessional statements

(iii) By circumstantial evidence where direct confessional statements are lacking.

He relied on Moses v. The State (2003)

FWLR (Pt.141) 1969 at 1986.

Learned counsel contended that there is now a further method of discharging the burden of proof which is admission by conduct of the accused person/appellant. In this he cited Dapara Gira v The State (1996) 4 SCNJ 95 at 106; Udo v. R (1964) 1 ALL NLR 21 at 23; Utteh v. The State (1992) 2 NWLR (Pt.223) 257.

For the respondent was canvassed that the possession of Exhibits “C” and “D by the appellant so soon after the robbery brought into operation the presumption of either being the robber or one of them or had received the goods knowing them to have been stolen pursuant to Section 148(d) Evidence Act now Section 167 of the Evidence Act 2011. That the trial Court before invoking the presumption examined the essential ingredients which must co-exist and found the explanations of the appellant on how he came in possession of the items inconsistent and unacceptable. He cited Salami v. The State (1988) 3 NWLR (Pt.85) 670 at 672; Madaguwa v. State (1988) 5 NWLR (Pt.92) 60.

That the Court below was right to have made similar findings thus making the concurrent findings of the two Courts well supported by the records. He referred to Ibe

The State (1992) LPELR (1386) 1 at 10; Igbi v The State (2000) LPELR (1444) 1 at 13 – 14.On the alibi raised by the appellant, the learned Attorney General stated that the Lower Court correctly applied the law on Alibi when it stated that the defence of Alibi had to be raised at the earliest opportunity preferable in the extra judicial statement of the accused person to the police wherein he must give sufficient particulars of where he was and those with him at the material time which were absent in this case. He cited Omotosho v. The State (2009) LPELR 2663 1; Ochemaje v. The State (2008) 15 NWLR (Pt.1109) 57 at 90.

In respect to the offence of conspiracy learned counsel for the respondent said the Lower Court was correct to affirm the finding of the trial Court which had inferred the conspiracy from the commission of the substantive offence. He cited Lawson v. The State (1975) 4 SC 115 at 123; Atono v A. G. Bendel State (1988) 2 NWLR (Pt.201) 232; Amachree v Nigerian Army (2003) 3 NWLR (Pt.807) 256 at 281 etc.

That there is no basis for the Supreme Court to interfere with the concurrent findings thereof.

The position of the appellant upon which he seeks this

Court to allow the appeal stem from the fact that appellant states he gave sufficient explanation as to how he came about the Exhibits “C” and “D’; the stolen items. Also that the prosecution failed to properly investigate the defence of alibi promptly raised by the appellant upon his arrest that he was in his matrimonial home at the material time when the offence was committed. Also that there was no independent evidence from the prosecution linking the appellant with the commission of the offence charged.

The opposite stance of the respondent is that the appellant failed to show that a miscarriage of justice was occasioned by the judgment of the Lower Court and nothing to support any perversity in the concurrent findings of the two Courts below. That there was adequate consideration of the alibi raised by the appellant which defence fell short of what would be termed an alibi. Also that the doctrine of recent possession under Section 167 (a) of the Evidence Act, 2011 was properly invoked in the circumstances of this case.

At the risk of repetition of what has become trite, to succeed in a charge of armed robbery the prosecution had the duty to prove beyond

reasonable doubt the essential ingredients of armed robbery which are well stated in the cases of Ikemson v The State (1998) Vol. 1 ACLR 80 at 103; Bozein v State (1998) Vol. ACLR 1 at 11 to be thus:

(a) That there was a robbery or series of robberies.

(b) That each robbery was an armed robbery.

To carry out this onus of proof there are four ways to prove the commission of the crime which are as follows;

(i) By evidence of eye witness

(ii) By confessional statements

(iii)By circumstantial evidence where direct or confessional statements are lacking.

(iv) Admission by conduct of the accused person/appellant.

See Moses v The State (2003) FWLR (Pt.141) 1969 at 1986: Emeka v The State (2001) FWLR (Pt.66); Dapara Gira v The State (1996) 4 SCNJ 95 at 106.

In the case at hand, the prosecution made use of the evidence of PW1 and PW2, the recovery of Exhibits “C” and “D” which invoked the doctrine of recent possession under Section 148(d) now Section 167(a) of the Evidence Act 2011 which the trial Court placed reliance to convict the appellant which findings and

decision the Court below affirmed.

A brief recast of the facts would be that PW2, Ogbame Simon was travelling between Lagos and Yenagoa on the 25th day of May, 2008 when they were attacked by armed robbers along the Ughelli/Port Harcourt Highway and his bag containing clothes among other items was stolen. Then on the 17th June, 2008 the said PW2 was travelling between Yenagoa and Lagos when upon arrival in Ughelli he saw the appellant wearing his jersey shirt, one of the clothes in the bag stolen by the robbers during the robbery incident of 25th May 2008. PW2 alerted the police and the appellant was arrested and upon a search warrant being executed at appellants resident an ATM Card belonging to the PW2 was recovered.

The appellant’s defence was that he picked the jersey shirt at the scene of crime. The Jersey shirt and Oceanic Bank ATM card were admitted as Exhibits C and D.

With regard to the stolen items, Exhibits “C” and “D” the Jersey shirt belonging to the complainant and also the Oceanic Bank ATM Card of the same ownership/ the provisions of Section 148(d) now Section 167 (a) of the Evidence Act. 2011 is relevant and it

stipulates thus:

“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events/ human conduct and public and private business in their relations to the facts of the particular case, and in particular the Court may presume that:

(a) A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen/ unless he can account for his possession.

The learned trial judge held thus at page 83 of the record thus:

“The accused in his evidence in Court testified how he accompanied several persons to the scene of the robbery to retrieve Akpos Cars, Accused testified he left for the scene in the company of some policemen, one Macaulay, Obazee, Ojo and some other drivers. He testified how he picked Exhibits “C” and “D” to Akpos and told Akpos, he would use Exhibit C for “training”. White still at the box, the accused realized the story he was building up was stranger than fiction. The accused obviously knew nobody not even Akpos could corroborate the outrageous story. So the accused quickly changed his

story and went in another direction. This time, the story of the accused was that he picked Exhibits “C” and D from the ground at the scene of the robbery before entering Akpos vehicle. Am afraid the accused only convinced me he was a skillful and seasoned liar. His evidence that “various properties were scattered on the road” was not corroborated by D.W.1 and D.W.2 whom he called as witnesses. The D.W.1 and D.W.2 could not also corroborate the evidence of the accused that accused picked Exhibits “C” and “D” from the scene of the robbery. On my part, from the totality of the evidence as demonstrated and tested together with the demeanor of the witnesses, I do not believe robbed properties such as Exhibits “C and (sic) “D” were lying on the ground at the scene of the robbery as at the time the accused accompanied D.W.1 and D.W.2 to the scene if at all accused followed them to the scene after the robbery.”

The Court of Appeal stated at page 174 of the Record per Ogakwu JCA thus:

“The Lower Court found the account presented by the appellant as outrageous consequence of which he described the appellant as a skillful and seasoned

liar. The Lower Court disbelieved the appellants story after considering the “totality of the evidence as demonstrated and tested together with demeanour of the witnesses” (See pages 82 of the record). Consequently, the Lower Court held that the appellant’s explanation of how he came into possession of Exhibits “C and D were not consistent with innocence, Where a finding made in a particular case is supported by the evidence believed by the trial judge, an appellate Court will be loath to interfere with such finding unless it is evidently perverse. Igbi v State (supra) having duly considered the record, I am of the firm conviction that the Lower Court rightly invoked the doctrine of recent possession as at the indices for the application of the doctrine were in place and the appellant as rightly found by the Lower Court did not give an explanation which was consistent with innocence.”

Learned counsel for the appellant had put forward his stand that the explanation given for the possession of the stolen items, Exhibits C and D were sufficient to demolish the presumption of either being one of the robbers or received the items knowing

them to have been stolen in keeping with the presumption under Section 148 (d) of the Evidence Act. A foray Into the proceedings would show that the appellant had made his first extra judicial statement, Exhibit A, he made no mention of picking the ATM Card at the scene of the robbery the same time he picked the Jersey shirt.

In Court the appellant testified in his own defence and at pages 67 to 68 stated as follows:

“My name is Gabriel Ogagovie. I lived at Otovwodo Opposite the palace Ughelli, I am a driver by profession. On 24/5/2008 I was at the motor part opposite Kubi Motel in Ughelli when a fellow driver named Akpos who has earlier left for Bayelsa returned to the motor part late without his vehicle. He informed us that robbers had blocked the Ughelli/Patani highway with a Trailer and he had run into the trailer and damaged his own vehicle. Apart from myself there were other members of our Union in the motor park at the material time. The vice chairman of the motor park was present at the material time. The vice chairman Mr. Ubogu asked him if he had reported the matter to the police and he replied that the matter was reported at Evweni the previous day.

The driver left and later returned with some policemen amongst them were one Macaulay Obazee and one Ojo. Myself and some other drivers then accompanied Akpos and the policemen to the scene of robbery. At the scene of the robbery various properties were scattered on the road. As we were about to tow Akpos vehicle back to Ughelli, I entered the front seat of Akpos vehicle. As we were coming towards Ughelli, I saw a jersey shirt in Akpos vehicle. I also saw a card, I picked them and showed them to Akpos and he said I should put them on the dash board. We towed the vehicle to a panel beaters workshop along Samaco Road Ughelli where we left the vehicle. At the workshop I told Akpos I would take the shirt. He asked me what I would use the shirt for and I replied I will use it for training. I also took the card which I had seen inside the vehicle. I now say that I picked the shirt and the card from the ground at the scene of the robbery before I entered Akpos vehicle. I took the shirt and the card to my house. I kept the card at the top of my shelf while I washed the shirt. I had used the jersey for a while until 17/6/2008. On 17/6/2008 while I was at the

motor park three vehicles suddenly drove into the park. The armed policemen in the vehicles arrested me to the police station Ughelli. The police asked me how I came about the jersey I was putting on and I told the police how I came by the jersey. The PW2 and some policemen thereafter accompanied me to my house. The police searched my house and recovered the card and when I was asked how I came by the card I told the police I picked the card at the scene of the robbery, I did not participate in the robbery. I was arrested because of the shirt and the ATM card I took from the scene of the robbery.

Ese Ekpensi, DW1 testified that he is a driver at the Otovwoeo Motor park and stated that on the day of incident he drove into the robbery scene and the wind shield of his vehicle was destroyed when the robbers fired at him and so he ran into the bush and only came out after the police arrived the scene. That on the 25/5/2008 while going to recover his vehicle, the accused/appellant and some other drivers accompanied him other to the robbery scene.

DW2, Akpos Unuosefe stated that he went on the 25/5/2008 to the motor park when he was informed of a robbery which

involved his vehicle and that one Charles had accompanied him to the scene of the robbery.

Of note is that the two witnesses called by the appellant stated that they did not see him picking the jersey shirt and the ATM card from the scene of crime. They had no knowledge of the two items. While the appellant in Exhibit A, his first statement mentioned picking the jersey shirt at the scene of crime, he made no mention of the ATM card. Thereafter on the conclusion of the search in his room in which the ATM Card was found that in his subsequent statement Exhibit B he stated that he collected the ATM card Exhibit D from the scene of robbery thus displaying what the trial Court termed a “deceptive conduct in taking the police to another persons room when they came to search and the actual owner of the said room re-directed them to the proper room of the appellant.

These accounts shown in the extra-judicial statements Exhibits A and B did not tally with appellants testimony in Court. Also his account in Court contradicted the versions put forward by his witnesses DW1 and DW2 and I shall quote appellants answers in cross-examination

thus:

“Akpos and a policeman called Macaulay saw me when I picked up the shirt and ATM Card at the scene. I made statements to the police. It is not correct as suggested that I did not tell the police in my extra judicial statements that Akpos and Macaulay saw me when I took the shirt and the ATM Card at the scene of the robbery. Macaulay saw me when I picked the shirt and ATM Card but I did not tell him I was going to take both items to my house. I deny the suggestion that Akpos and Macaulay never saw me pick the shirt and ATM Card. Akpos and Macaulay are alive. It is correct I did not to the police about the ATM card until after my house was searched and the card discovered inside my house.

It is not correct as suggested that when PW2 confronted me about the shirt Exhibit C I told him I bought the shirt, it is not correct as suggested that I told the police that I bought the shirt at the initial stage of my arrest. It is not correct as suggested that I pointed out another apartment to the police when I was told to take the police and PW2 to my house. See page 68 of the Record.

“It is to be said that neither of DW1 nor DW2 testified seeing

the appellant pick any of items from the scene or seeing the items scattered on the ground and so the concurrent findings of the two Courts below rejecting the appellant’s explanations as to how he came into possession of the said stolen items in the course of an armed robbery that took two human lives on the basis that the explanations were contradictory. Therefore, leaving the trial Court and as affirmed by the Court of Appeal with the only option that the presumption under Section 148(d) Evidence Act now Section 167(a) Evidence Act 2011 applicable. See the cases of Ibe v. The State (1992) LPELR (1386) 1 at 10; Igbi v The State (2000) LPELR (1444) pg. 1 at 13 – 14.

The situation is all the more poignant when seen in the light of the evidence of the appellant materially contradicting his earlier statements to the police, Exhibits A and B and no explanation proffered to reasonably explain those discrepancies. See the English case of R v Golden (1960) 1 WLR page 1169; Onubogu v. The State (1974) 9 SC 1; Nwankwoala v. State (2006) LPELR (2112) 1 at 16 – 17.

On the defence of alibi raised by the appellant, it has to be reiterated that for that defence to be

taken seriously, the accused had to raise it at the earliest opportunity with the accompanying materials with sufficient particulars of where he was and with whom to enable the police investigate to support the alibi or debunk it as the case may be. The reason for this guide is that the police should not embark or be involved in a wild goose chase or looking for a needle in a haystack as to unravelling the whereabout of an accused person at the time the crime was committed. It behoves the accused to provide specific particulars of where he was at the material time to enable the police move straight to the place to carry out the inquiry expected by the law. I rely on Omotola v. The State (2009) LPELR (2663) 1; Ochemaje v The State (2008) 15 NWLR (Pt.1109) 57 at 90.

It is therefore in furtherance of the guideline on the defence of alibi and what should be done before it can fly as a defence that I find it difficult to fault what the two lower Courts found that the appellant did not mention the names of persons who lived in the same house with him or even give the name of his wife. Even then the co-tenants in the course of the police investigation could not

remember seeing the appellant at home at the material time. Therefore in the light of the appellant merely stating being at home during the relevant hours is neither here nor there and apart from the police having no tools to work out whether indeed the alibi stood or not, there was much linkage upon which the alibi can be said to have been scuttled and the appellant firmly pinned to the scene of crime at the material time. The cases of Chukwu v. State (1996) 7 NWLR (pt.463) 686 at 697; Aigbadion v. State (2000) 4 SCNJ page 1 at 13 which the appellant called in aid have not been helpful to him rather they support the stance of the respondent and what the two Courts below did.

In respect to the issue of conspiracy, the Court of Appeal stated thus at pages 164 to 164 per Ogakwu JCA as follows:

“The Lower Court clearly took cognizance of these principles when it not only stated the counts in the information will be conveniently taken together, it duly considered the live issue on the count of armed robbery, id est, whether the appellant was one of the robbers before applying the doctrine of recent possession under Section 167(a) of the Evidence Act 2011 and then

drew the inference that the appellant was culpable on the count of conspiracy. The general principle of law is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. See Lawson v. State (1975) 4 SC 115 at 123, Akano v A – G Bendel State (1988) 2 NWLR (pt. 201) 232, Amachree v. Nigerian Army (2003) 3 NWLR (Pt.807) 256 at 281; D – E and Nwose v. State (2004) 15 NWLR (pt. 497) 466. The Lower Court inferred proof of the offence o conspiracy from the conviction of the appellant for the substantive offence of armed robbery. The implication is that if the appellant succeeds in his appeal against his conviction for armed robbery, then by parity of reasoning, the conviction for conspiracy will not stand.”

Those concurrent findings as displayed in the summation of the Court below, the appellant had a grouse against stating that there was no peg on which to hang the offence of conspiracy. I am however in agreement with the contention of learned counsel for the respondent in his submission that the two Courts below rightly

applied the law of conspiracy. Conspiracy in its definition is an agreement by two or more persons to do an unlawful act or to do a lawful act by illegal means and so to establish the offence there must exist a common design or agreement by two or more persons to do or omit to do an act criminally. Since the implication is that one cannot conspire with himself but two or more person must be involved for the issue of conspiracy to evolve. That is to say that the ingredient of conspiracy is the agreement between parties to do an unlawful act by unlawful means. However one is mindful that the secrecy with which criminals perpetrate their crimes or even have the meeting of minds has tended to create difficulties for the prosecution in many cases of no eye-witnesses and so confession in such situations alone without corroboration may suffice to support a conviction as long as the Court is satisfied of the truth of such a confession. The other area of solution can be by the deduction from inferences from the acts of the parties and in such instances the proof of conspiracy will naturally be recognized. It is to be stated therefore that in the matter of inference of

conspiracy from the acts of the participants in the armed robbery incident as witnessed by PW2 was what enabled the trial Court to arrive at the inescapable finding that conspiracy existed among the appellant and the other participants, a conclusion which the invocation and application of the doctrine of recent possession supplied. See the cases of Achabua v. State (1979) 12 SC 63 at 68; Igago v. The State (2011) 2 ACLR 104 at 126; Segun Odineye v. The State (2001) FWLR (Pt. 38) 1203 at 1213: Atano v. A. G. Bendel State (1988) 2 NWLR (Pt.201) 232.

Indeed the route taken by the Court below is right that the commission of the substantive offence was proved and the trial Court was right to have inferred the common criminal design necessary to convict for conspiracy from the proven commission of the substantive offence since conspiracy is seldom proved by direct evidence. Therefore these concurrent findings, I cannot see myself interfering with as I see no perversity in the application of the law or a violation of some principles of law or procedure which has occasioned a miscarriage of justice. I am therefore loathe to deviate from what the two Courts below found

and its being settled that when the situation such as the present occur in concurrent findings there is no basis to upset what the trial Court and the Court below did. See Oguonzee v. The State (1998) 5 NWLR (Pt.551) 521; Aruna v. State (1990) 6 NWLR (Pt. 155) 125; Sele v. The State (1993) 6 NWLR (pt. 269) 276; Igbi v. The State (2000) FWLR (pt. 3) 358 at 369; Eze v. The State (1985) 3 NWLR (Pt.13) 429.

In conclusion, I am satisfied that the Court of Appeal was right in affirming the judgment of the learned trial judge that the prosecution proved the cases of conspiracy and armed robbery against the appellant beyond reasonable doubt. The appeal is lacking in merit I hereby dismiss it. I affirm the decision of the Court below in its affirmation of the conviction and sentence of the appellant by the trial High Court when it sentenced the appellant to death by hanging.

SC.598/2014

Gabriel Ogogovie V. The State (2016) LLJR-SC

Gabriel Ogogovie V. The State (2016)

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