Ibrahim Adeyemi V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

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

This is an appeal against the judgment of the Court of Appeal also referred to as Court below or lower Court in a judgment delivered by the Ilorin Division of the Court, Coram: Hussein Mukhtar, Isaiah O. Akeju and Uchechukwu Onyenenam, JJCA dated 27th day of February 2014 which lead judgment was delivered by Hussein Mukhtar, JCA. The Court below affirmed the trial Courts conviction and sentence of the accused/appellant to death by hanging for the offences of criminal conspiracy and armed robbery punishable under Sections 6(B) and 1(2) of the Robbery and Firearms Act, Cap R11, Laws of the Federation of Nigeria, 2004.

FACTS BRIEFLY STATED:

The appellant was jointly charged with one Olabisi Olakunle as follows:-

COUNT ONE:

That you Ibrahim Adeyemi and Olabisi Olakunle together with Olaniyi and Taiye (at large) on or about the 13/10/2011 at Ojomo Estate Offa Garage Ilorin, Kwara State within the Jurisdiction of this Honourable Court conspired to commit an illegal act to wit: While armed with guns robbed one Adegbenle Olawale

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and you thereby committed an offence punishable under Section 6(B) of the Robbery and Firearms (Special Provisions) Act Laws of Federation of Nigeria, 2004.

COUNT TWO:

That you Ibrahim Adeyemi and Olabisi Olakunle together with Olaniyi and Taiye (at large) on or about the 13/10/2011 at Ojomo Estate Offa Garage Ilorin, Kwara State within the jurisdiction of this Honourable Court while armed with guns robbed one Adegbele Olawale and you thereby committed an offence punishable under Section 1(2) of the Robbery and Firearms (Special Provision) Act Cap. R11, Laws of the Federation of Nigeria 2004.

COUNT THREE:

That you Ibrahim Adeyemi and Olabisi Olakunle together with Olaniyi and Taiye (at large) on or about the 13/10/2011 at Pipeline Road Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired to commit an illegal act to wit: while armed with guns robbed one Mrs. Bunmi Afolayan and you thereby committed an offence punishable under Section 6(B) of the Robbery and Firearms (Special Provision) Act Laws of the Federation of Nigeria 2004.

The respondent called five witnesses at the trial while the appellant

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testified alone in his defence. After full trial, the learned trial Judge held that the respondent had proved the offences of conspiracy and armed robbery against the appellant beyond reasonable doubt and proceeded to sentence the latter to death by hanging.

The appeal to the Court below was dismissed and further dissatisfied, the appellant has come before the Supreme Court.

On the 13th day of April, 2017 date of hearing, learned counsel for the appellant, Chief J. A. Akinola adopted his brief of argument filed on 6/5/2014 in which he raised two issues for determination of the appeal which are as follows:-

1. Whether the learned Justices of the Court of Appeal were right when they held that the offences of conspiracy and armed robbery had been proved against the appellant beyond reasonable doubt.
2. Whether the learned Justices of the Court of Appeal were right when they held that the evidence of PW2 was neither rebutted nor denied by the appellant.

Taiye Oniyide, Esq., of counsel for the respondent adopted the brief of argument filed on 29/3/17 and deemed filed on the 13/4/17. He also adopted the issues as crafted by the

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appellant which I shall also use as they seem good enough in the determination of this appeal.

ISSUE NO. 1:

Whether the learned Justices of the Court of Appeal were right when they held that the offences of conspiracy and armed robbery had been proved against the appellant beyond reasonable doubt.

Learned counsel for the appellant contended that the prosecution failed to prove the ingredients of the offence beyond reasonable doubt as all the three ingredients had not been established. He cited Section 1(2) of the Robbery and Firearms Act. Cap R 11, L.F.N. 2004. Eke v. The State (2011) 3 NWLR (Pt. 1235) 589; Bello v. The State (2007) 10 NWLR (Pt. 1043) 564; Amadi v. State (1993) 8 NWLR (Pt. 314) 644 at 663 – 664.

That the requirement in the proof is that the three ingredients must be concurrently proved against the accused in order to ground a conviction but in this instance two of the ingredients were not proved and so the prescription of the law had not been met. He citedPaul Onyia v. The State (2006) 11 NWLR (Pt. 991) 267; Section 135 of the Evidence Act 2011; Section 36(5) of the 1999 Constitution of the Federal Republic of

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Nigeria.

In respect to the charge of conspiracy, learned counsel for the appellant stated that to sustain the charge the prosecution must prove the elements of the offence which are:

(a) an agreement by two or more persons to execute an agreed act;

(b) that the agreed act is unlawful,

He cited Aituma v. State (2006) 10 NWLR (Pt. 989) 452.

Chief Akinlola of counsel for the appellant submitted that where there is no evidence in proof of the essential elements of a substantive offence of armed robbery, the charge of conspiracy is also devoid of proof as was in this case and so the conspiracy charge would fail.

Learned counsel for the respondent, Taiye Oniyide, Esq. contended that for the offence of conspiracy it is not mandatory for the prosecution to establish that the conspirators met before carrying out their nefarious activities or the crime in question. That to sustain the offence of conspiracy all that the prosecution needs do is provide circumstances from which an inference of the meeting of the minds of the accused persons can be deduced or inferred. He referred to Section 6(b) of the Robbery and Firearms Act, CAP

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R 11, Laws of the Federation of Nigeria, 2004; State v. Salawu (2010) All FWLR (Pt. 614) 1 at 26; Adekunle v. The State (1989) 12 SCNJ 184; Nwosu v. State (2004) All FWLR (Pt. 218) 916; Iwuneye v. The State (2000) 5 NWLR (Pt. 658) 550 at 560-561; Osondu v. F.R.N. (2000) 12 NWLR (Pt. 682) 483 at 501-502.

That in respect to the offence of armed robbery that the prosecution established that there was a robbery which was an armed robbery and the accused persons took part. Learned counsel cited Okudo v. The State (2011) 3 NWLR (Pt. 1234) 209 at 233; State v. Salawu (2012) All FWLR (Pt. 614) 1 at 34.

In the matter of the offence of Criminal conspiracy levelled against the appellant, it is to be reiterated that to sustain the charge which is pursuant to Section 6(b) of the Robbery and Firearms Act, CAP R11, Laws of the Federation of Nigeria, 2004 the prosecution has the bounden duty to establish the following essential elements which are thus:-

(i) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.

(ii) Where the agreement is other than an agreement to commit

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an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the argument.

(iii) Specifically that each of the accused individually participated in the conspiracy. See State v. Salawu (2010) All FWLR (Pt. 614); 1 at pg. 29; Adekunle v. The State (1989) 12 SCNJ 184; 1989 5 NWLR (Pt. 125) 505; Nwosu v. The State (2004) All FWLR (Pt. 218) 916; (2004) 15 NWLR (Pt. 897) 466 at 486.

Of note in the duty to establish the offence of conspiracy is the fact that the prosecution is not expected to prove that the conspirators met before carrying out their activities which are seen as criminal rather the offence of conspiracy is sustained by the prosecution leading evidence from which the Court can discern or infer the criminal acts of the accused person done in pursuance of the apparent criminal purpose common between or among the conspirators. Again, to be said is that to establish conspiracy all that is expected of the prosecution is to prove the inchoate or rudimentary nature of the offence and the inference from which the meeting of the minds of the accused persons nor is it necessary to establish that the

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conspirators had been in any direct communication one with the other or others as the case may be. There is no hard and fast rule as to how to infer conspiracy as even the mere evidence of complicity is sufficient. I place reliance on Iwuneye v. The State (2000) 5 NWLR (Pt. 658) 550 at 560-561; Osondu v. F.R.N. (2000) 12 NWLR (Pt. 682) 482 at 501-502.

In the instant case, the learned trial judge built the inference or deduction of the conspiracy or meeting of the minds from the evidence of the PW2, Mrs. Victoria Bunmi Afolayan regarding the way and manner the appellant and his co-accused, Olabisi Olakunle robbed her. This the learned trial judge did in a community reading of the evidence of PW2 and the confessional statement of the appellant admitted in evidence after a thorough trial-within-trial. For clarity, I shall quote excerpts of the above mentioned materials as found by the Court of trial viz:-

“PW2 is one Mrs. Victoria Bunmi Afolayan. She lives at No. 6 Afolabi Oyinloye Street, Off Pipeline Ilorin. She stated she knows the two accused persons very well. That on 13/10/2011, she received a call from her daughter coming from Kano that she

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should come and pick her at Oko-Olowo. She went and picked her daughter. She stated when they got to the junction of the house and branched to their street she noticed a car coming behind them. She averred that she told her daughter it must be her father coming behind them. She stated when they got to the gate of the house; she hooted the horn so that the gate would be opened there was no response probably because of the generator that was on. She recalled she noticed the car was parked behind them. She further stated she told her daughter to go and knock at the gate. Her daughter had not gotten to the gate when she was ordered back to the car. Herself was ordered to come down from the vehicle and was ordered to show him the security of the vehicle by one of the accused. She told him the vehicle has no security. He brought out a gun pointing at her, threatening to shoot her. She assured him there was no security in the car. She was told to come out of the car and she obliged. It was then the second accused person pulled her ears to remove the earring. She assisted him to remove it. He cut the neck lace, the wrist watch and equally removed her earring. The

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witness further testified that her daughter was told to lie on the floor and her earring and her handbag were collected from her. The witness stated it was the 1st accused that collected the handbag and earring of her daughter. They told them not to shout or else they would shoot. The accused persons got into the car and drove off. She stated there was two people in the other car. She recalled that they started shouting and banging the gate so that those inside would open the gate for them. It was then her husband came out with the other children. She narrated what happened and they went to ‘A’ Division Police station to report. The Police told them to go they would act on the report. She stated that at about 12:00 noon on the following day, her husband received a call and the person on the other end was asking about his particulars. As the husband was receiving the call, he beckoned to her to come. Her husband confirmed he was the Otunba Afolayan and lives in No.6. The person who called introduced himself as a Police Officer and told the husband the car was recovered at Ibadan. The person was able to call them because of the teller found in the vehicle.

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They took off to Ibadan and as soon as they alighted they saw the accused persons on the floor. The 2nd accused person started begging her and was crying. The Police said she should write statement with her daughter but she told them her daughter was not around but she wrote her statement. Her car was released on bond by Exhibit 2 was returned to her, the sum of N32,000.00 and 3 phones. The witness stated that the car was parked outside the Court and the Court was moved on prosecution to sight the car. The Court went and saw the car on bond by Exhibit 2 outside”.

The extra-judicial statement of the appellant admitted as Exhibit AA1 as considered by the learned trial judge is restated hereunder thus:-

“At this point, myself and Olabisi now joined Mr. Marshall in his car. So as we were going, we met another Toyota Camry with Registration No. LAGOS EM 737 FST trying to enter one compound, so Mr. Marshall blocked the vehicle and Taiye with Olabisi came down and at gun point collected the car key from the woman who was driving the car and gave me the key to drive. I did not know what other things that were collected from the woman. Marshall then asked

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me to drive to take the Toyota Camry to Ijebu-Ode that he will come the following day to collect if from me…

We met about N32,000.00 in the Toyota Camry with my remaining money making about N36,000.00. Along Ibadan-Ijebu-Ode road we were intercepted by Highway patrol team. They requested for the car particulars which I gave them. But when they saw the woman handbag and some phones belonging to the owner of the first Camry and the one we are taking to Ijebu-Ode from there they suspected us to one Police Station…..”

On this matter of inference and the near impossibility of direct evidence being available with which the offence of conspiracy can be established, this Court as in numerous occasions stated the guideline and I shall refer to Onyeye v. The State (2012) 15 NWLR (Pt. 1324) at 586 wherein it was held as follows:-

“Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The Courts tackle the offence of

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conspiracy as a matter of inference to be adduced from certain criminal acts or inactions of the parties”.

Clearly the learned trial judge had more than enough from which he could and did in fact infer that the conspiracy had been established as required by law and the Court of Appeal correctly affirmed same with regard to the offence of Armed Robbery for which the appellant was charged, it is to be said that to sustain the offence contrary to Section 1(2) of the Armed Robbery and Firearms Act Cap R11, Laws of the Federation 2004, the prosecution has to establish the following:-

1. That there was a robbery.
2. That the robbery was an armed robbery, and
3. That the accused person took part in the robbery.

I rely on the cases of Okudo v. The State (2011) 3 NWLR (Pt. 1234) 209 at 233; State v. Salawu (2012) All FWLR (Pt. 614) 1 at 34.

In this case at hand, again the narration of PW2, Mrs. Victoria Bunmi Afolayan is germane as in it is seen the way and manner she was robbed with all the details in such a way that the prosecution can be said to have established the essential ingredients of the offence beyond reasonable doubt.

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For emphasis in that evidence, the PW2 stated how one of the accused brought out a gun pointed at her, ordering PW2 to come out of the car. Then the other accused pulled her ears to remove the earrings which she helped in removing while he cut her necklace and took away her wrist watch and wedding ring. Again the fact of the two accused persons including the appellant ordering PW2’s daughter to lie on the floor while appellant collected her earring and handbag. From the above evidence, it is manifest that there was a robbery, an armed robbery at that and the appellant participated in it. Therefore, all the three essential ingredients required under Section 1(2) of the Robbery and Firearms Act, Cap R.11, Laws of the Federation of Nigeria, 2004 have been met.

ISSUE NO. 2:

Whether the learned Justices of the Court of Appeal were right when they held that the evidence of PW2 was neither rebutted nor denied by the appellant

Learned counsel for the appellant contended that the appellant had clearly stated that he was arrested on the 10th October, 2011 at Ibadan and been in police custody from the said date and past the 13th day of October 2011 which

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is the date the alleged robbery took place but the police failed to investigate the said alibi which is fatal to the prosecutions case. He cited Nnunukwe v. State (2003) 14 NWLR (Pt. 840) 219; Azeez v. State (2005) 8 NWLR (Pt. 927) 312.

That the failure of the police to rebut or confirm the alibi produced a doubt which should be resolved in favour of the accused/appellant. He cited Yau v. State (2005) 5 NWLR (Pt. 917) 1; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129.

For the respondent, it was submitted that the appellant did not raise the alibi timeously to enable the police to investigate in rebuttal or affirmation. That bringing up the alibi at the defence stage went to no issue and so the trial Court and later the Court below were right to consider the alibi as untrue. He cited Udobre v. State (2001) FWLR (Pt. 59) 1244 at 1258-1259.

It is not surprising that the learned trial judge dismissed the alibi raised by the appellant considering that the appellant put across that defence of being elsewhere at the time of the commission of the offence as a defence that did not hold water. This is because the appellant brought up this

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story of being in police custody at the material time for the first not at the time of his arrest for the incident in question now but during his testimony in defence by which time it had became too late and of no effect. The reason is that an alibi is to be raised at the earliest opportunity because of the role the prosecution has to play in it after the accused has furnished the prosecution with the details of his whereabout at the relevant time. It is with those particulars that the prosecution would then set about investigating the alibi to produce one or the other result that is either the alibi affirmed or debunked. Therefore the accused/appellant in this case raising the alibi at this late stage, the effect is akin to a still birth and the alibi so raised comes to naught. See Udobre v. The State (2001) FWLR (Pt. 59) 1244 at 1258-1259.

Indeed, there is no peg on which the Court can hang an interference with the concurrent findings and conclusion of the two Courts below which are founded on sound evaluation of the evidence before the trial Court nor was there any taint of perverseness or a wrong application of the law. This Court or any appellate Court

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for that matter does not disturb concurrent findings of Courts below just for the heck of it but has to do so in very rare instances of infraction in the application of the law or miscarriage of justice which are clearly absent in this matter. Again to be said is that nothing the appellant has proffered now or at the two Courts below could a doubt no matter how slight be inferred from which it can be stated that the prosecution had not proved its case beyond reasonable doubt.

From the foregoing, I have no hesitation in stating that the two issues raised have been resolved against the appellant. The appeal lacks merit and I dismiss it as I uphold the judgment of the Court of Appeal in its affirmation of the decision, conviction and sentences meted to the Appellant.

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