Segun Balogun V. Attorney General Of Ogun State (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

The appellant was arraigned on a two-count charge at the Ogun State Robbery and Firearms Tribunal under the Robbery and Firearms (Special Provisions) Act (Cap.398) Laws of the Federation of Nigeria 1990 (the Act). The first count was conspiracy to commit armed robbery contrary to section 5(b) while the second count was armed robbery contrary to section 1(2)(a) of the Act. On 14 January, 2000, upon the evidence before the tribunal, Oduntan, J. who presided found the appellant guilty on both counts. He convicted him on each and accordingly sentenced him to death by firing squad. The Court of Appeal, Ibadan Division, allowed the appeal against those convictions and the sentence and substituted for the convictions, conspiracy to commit robbery and attempted robbery. I shall refer later to the matter of the sentences awarded.

The appellant has now appealed against those convictions to this court and has set down the following two issues for determination:

“1. Whether the learned Justices of Appeal were right in relying on contradictory evidence to convict the appellant of the offences of conspiracy to commit robbery and attempted robbery.

2. Whether the learned Justices of Appeal were right in holding that the defence of alibi raised by appellant was properly rejected.”

The facts relied on were that on 9 March, 1997, a gang of armed robbers invaded the premises of Toyin Agarawu, who testified as p.w.1 at No.1 Anoye Street, Oke-Agbo, Ijebu-Igbo at night. He was woken up by his wife who had heard the groaning of their night guard, and then peeped through his bedroom window overlooking the back of his house. The security light (otherwise referred to as halogen light) was on and this helped him to see a group of men among whom he recognised three of them. These were the appellant, one Tajudeen Oluwalambe and one Dokun Asegbe. He watched them for about three minutes before raising an alarm as to the presence of thieves. As a result of the alarm, the men fired at his direction and the shot ripped off the netting of his bedroom window, at the same time hitting the back of his head. He then ran away from that position and hid himself in another room. The men eventually broke the entrance door and forced their way into the house. They accosted the wife of p.w.1 and demanded for money. She claimed she had none in the house. They met PW1 where he was hiding and also demanded for money. He told them the only money he had in the house was on the table. They ransacked the house for about three hours before they left. As would be discovered by p.w.1 later, the men had killed his security guard by strangulation. Within a couple of hours, a report was lodged by p.w.1 at the Ijebu-Igbo police station. He made a statement to the police in which he named the appellant and two others. He led the police to appellant’s house but appellant was not found at home.

On 7 May, 1997, PW. I received information that the appellant and his colleagues were at a local beer parlour in town. He went there and saw the appellant and two others drinking. He ordered for a bottle of soft drink while he secretly sent for the police. On sensing what the p.w.1 was up to, the appellant got out of the beer parlour and attempted to escape. The p.w.1 promptly followed and grabbed him. In an ensuing struggle, both fell into a gutter but P.W.1 held fast onto him. The appellant’s two colleagues hurriedly left the place and drove off in a car they had parked nearby. The police later came and got the appellant apprehended and taken to the police station. In his statement to the police on 8 May, 1997, the appellant denied being one of those who had gone to PW.1’s house to rob there and kill his night guard. He alleged that on 3 May, 1997, he and p.w.1 fought at a locality called Itamerin in Ijebu-Igbo in a canteen when p.w.1 ordered a bottle of beer for him. He said he turned down the offer because of the bad blood that had existed between him and p.w.1 because he (appellant) had refused to participate in vigilante work with p.w.1 and others at Itamerin; and that for refusing the beer, the p.w.1 engaged him in a fight. He said he was a driver to one Baba-Ijebu now at Seme border and that on 9 March, 1997 he and his family were at seme border with the said Baba Ijebu. In his evidence in court he said he had known p.w.1 for over 25 years and that he had been involved in the vigilante operation for their neighbourhood for one and a half months in 1996 when he left Ijebu-Igbo that year for seme border to drive for one Baba ljebu there. He claimed that it was on 6 May, 1997 that he and the said Baba Ijebu with a charter party drove down to Ijebu-Igbo from seme border in his vehicle to attend a burial ceremony. It was after he discharged his passengers that he took the vehicle to a car wash. While the car was being washed, he took time off to go to a nearby beer parlour to have some drink. It was there the p.w.1 met him and they had an encounter which led to a fight between them.

In his appeal to the Court of Appeal against his convictions, the appellant raised two issues for determination, namely

(1) whether the prosecution proved the offence of conspiracy to commit armed robbery and the offence of armed robbery beyond reasonable doubt and

(2) whether the appellant had been positively identified with the offences charged having regard to the alibi raised by him and the contradictory evidence led by the prosecution on the identification of him.

The court below held that there were no material conflicts in the evidence led by the prosecution in support of the charge. In his leading judgment, Akintan J.C.A. observed inter alia: “The main argument raised in the appellant’s brief regarding conflicts in the evidence led by the prosecution in support of the charge was in respect of the description of how p.w.1 came to recognise the appellant and two others whose names he also gave the police. It is alleged that since the witness failed to mention that he was able to see the robbers through the aid of the hallogen light which was on in his compound that day in his statement to the police, such failure amounted to a material conflict between what he wrote in his statement to the police and his oral testimony before the court. I do not believe that what is said to be a conflict amounts to any conflict. Infact reading through the statements made by the witness (p.w.1) to the police and his evidence given at the trial as recorded by the learned trial Judge, I do not find any conflict that could warrant disturbing the findings of fact made by the learned Judge. The account of the incident given both to the court and in his statements to the police was that a gang of robbers came to his house on the night of the incident. He further told the court that he was able to see the robbers clearly because of his security light that was on at the material time. The alleged minor disparities between what was recorded in the witness (sic) statement to the police and his evidence in court are what are expected in an unconcocted evidence given from human memory. There is therefore no merit in the allegation that there were material conflicts in the evidence led by the prosecution in support of the charge.”

In his argument before this court by learned counsel for the appellant, the contradiction referred to is in regard to the statement made to the police as per exhibits A and A1 by p.w.1 and his evidence in court in regard to whether the armed robbers stole any property on the occasion in question. In the said exhibit A, he said the armed robbers demanded for money and when he told them that he had at home the sum of N1,000.00, they took it away along with his ring and necklace. He repeated in exhibit A that they collected N1,000.00 from him and some jewelry from his wife worth about N2,000.00. But in his evidence, he merely said as follows: “They asked me to bring out my money. I told them I had no money inside the house, and that the only money I had was on the table in the house. They started ransacking everywhere in the house. They were in my house for about three hours. I lay there shivering. I did not get up until I heard the early muslim call to prayer by which time the robbers had gone.” No mention was made of money or jewelry allegedly taken away by the armed robbers in this oral testimony. The question before the court below was whether it could be said that it had been established by the prosecution that the armed robbers stole anything on that occasion. Learned counsel for the appellant drew attention to the fact that the court below accepted that there was contradiction between the statements to the police and the oral testimony of PW 1 on the point whether anything was stolen. He referred to a passage from the judgment of Akintan JCA inter alia as follows: “As already set out above, the witness failed to tell the court in his evidence in court that the robbers stole anything from him. But he categorically confirmed that the robbers stole N1,000, his ring and neck chain in his two aforementioned statements. Although the position of the law is that before any contradiction can be established between the evidence of a witness and the statement made previously by the witness, the statement must be brought to the attention of the witness for explanation, if possible in accordance with the provisions of sections 199 and 209 of the Evidence Act (Cap. 112), Laws of the Federation, 1990 (see Kwaghshir v. The State (1995) 3 NWLR (pt.386) 651, the onus of ensuring compliance with the requirement of the provisions of those sections of the Evidence Act was, in the instant case, on the prosecution. The prosecution failed to do so despite the fact that the contradiction in question was in respect of an important ingredient which the prosecution had to prove before it could succeed on the second count of robbery. As the contradiction in the instant case is very material to the second count of robbery, it is imperative that it must be resolved in favour of the accused/appellant. His conviction and the sentence of death imposed on him for robbery can therefore not stand. The conviction and sentence of death imposed on him are accordingly set aside”.

Learned counsel for the appellant, in this court, now submits

(1) that since it was the same evidence which was led in support of the armed robbery that was led on the offence of conspiracy to commit armed robbery and since the conviction for armed robbery had been set aside the conviction for the conspiracy to commit armed robbery cannot stand;

(2) that the conviction and sentence on conspiracy should be set aside since the substantive offence of armed robbery was not proved beyond reasonable doubt. Learned counsel cited R. v. Cooper & Compton (1947) 2 All ER 701; Adebayo v. State (1987) 2 NWLR (Pt.57) 468; Atano v. A.G. Bendel State (1988) 2 NWLR (Pt.75) 201; and Erim v. State (1994) 5 NWLR (Pt.346) 522. I have to say that these authorities cannot help the appellant in the present case. All the Nigerian authorities cited above decided contrary to what learned counsel in the present case has contended for. They are consistent with the principle laid down in Ogbozor v. Inspector-General of Police (1964) 1All NLR 9 and Lawson v. State (1975) 4 SC 115 that conviction for conspiracy does not become inappropriate simply because the substantive offence has not been successfully proved. It is a known principle of law that conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related. The offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted, or may have become impossible to commit.

In the present case, the evidence is that the appellant and others were together armed in the premises of p.w.1 from whom they made demand for money under threat. Conspiracy to commit an offence is quite often inferred from circumstantial evidence. As a result of lack of evidence that money or property was stolen by the appellant and others on that occasion, the offence of armed robbery was not established. But the evidence is clear that the men had a common purpose, namely, to rob with violence. That was what can be inferred that they conspired to do. The fact of that conspiracy remained even though the armed robbery itself did not materialize because there was no property available to be stolen at the appropriate time and place. The facts of R. v. Cooper & Compton (supra), one of the authorities cited by learned counsel for the appellant, were such that with the quashing of the conviction for stealing on four counts, the conviction for conspiracy to steal, based on the facts in regard to those counts, was found by the English Court of Appeal, on the peculiar circumstances of those facts, to have become untenable. I am satisfied in the circumstances that the court below was right in the present case to uphold the conviction of the appellant for conspiracy to commit armed robbery even after the conviction for armed robbery had been altered to attempted armed robbery. The failure in the evidence of PW1 to establish that money or property was stolen was a failure to prove a necessary ingredient of the offence of armed robbery. This was a result of the contradiction between his statements to the police and his evidence in court. Notwithstanding that contradiction, which was an act of p.w.1, the common intention to rob with violence that was conceived and attempted to be implemented by the appellant and others was by no means any longer inchoate but had been fully formed and remained an offence of conspiracy to commit armed robbery although no stealing took place. I am of the view however, that the court below misapplied the observation of this court in Kwaghshir v. State (supra) at pages 661-662 as to how to establish any contradiction between the evidence of a witness and the statement previously made by him in the course of cross-examination by virtue of sections 199 and 209 of the Evidence Act. In the present case in which the evidence and statement of a prosecution witness (PW1) were involved, the court below expressed the view that the onus was on the prosecution to ensure compliance with those sections. That is, with due respect, an erroneous view. It is the defence that would, in the particular instant, have to comply with the provisions of those sections 199 and 209 of the Evidence Act since it would be its duty to cross-examine p.w.1 if it so wished. It is not the duty of the prosecution unless when it confronts, in the course of cross-examination, a defence witness who has given evidence inconsistent with any statement he made to the police. The purpose sections 199 and 209 of the Evidence Act serves is two-fold: one is that a witness may be cross-examined as to previous statements made by him in writing relative to the subject matter; in that case such writing need not be shown to him: the other is that the witness may be contradicted with such writing after his attention is drawn to those parts of the writing which are to be used for the purpose of contradicting him. In the present case there is nothing on record that the p.w.1 was contradicted in cross-examination with his statements to the police through the procedure laid down. As that issue was not taken on appeal at any time, I say nothing more on it except to repeat that it did not rest on the prosecution to comply with that procedure in the present instant, as the court below erroneously held, since the prosecution could not adopt the procedure to contradict its witness unless under the extraordinary procedure of first having him declared as a hostile witness, a procedure entirely inapplicable upon the facts of the present case.

Still on the issue of contradiction, learned counsel for the appellant has argued that when the incident was still fresh in the mind of p.w.1, he did not mention identifying the appellant through the aid of the security light in his compound in his statement (exh.A) to the police, but that he gave this in evidence for the first time. He contends that since the appellant was not arrested until some two months after the crime, the identification evidence of p.w.1 of the appellant was unsatisfactory particularly that no identification parade was conducted after the arrest. Learned Attorney-General for the respondent has submitted first, that the trial court found that there was no contradiction between exhibit A and the evidence of p.w.1 which finding was affirmed by the court below although that court added that there were minor discrepancies; and second, that in the circumstances of this case, identification parade was unnecessary and if held would have been a ruse. I think the learned Attorney-General is right. In my view, such an identification parade would be nothing other than a parody of a parade conducted to no purpose. An identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based upon the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade: see Ogoala v. State (1991) 2 NWLR (Pt. 175) 509. Such a parade is absolutely unnecessary when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection: see Williams v. The State (1992) 8 NWLR (pt.261) 515; Bashaya v. The State (1998) 5 NWLR (Pt.550) 351. In such a situation it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect In the present case the p.w.1 named the appellant as one of the armed robbers he saw that night. He said he had known the appellant for over ten years before the incident. The appellant himself said he and the p.w.1 lived in the same neighbourhood and that he had known p.w.1 for some twenty-five years. The p.w.1 had taken the police to appellant’s house a couple of hours after the commission of the crime and encountered him later at a beer parlour which led to his being arrested by the police. What then is it that an identification parade is intended to ensure The contention about lack of identification parade by learned counsel for the appellant is completely without merit. In regard to the defence of alibi raised by the appellant, the learned Justice of Appeal said that all an accused needs to do is merely to put forward promptly and properly facts of such defence to the police and that the onus is on the prosecution to disprove those facts and not on the accused to prove the defence of alibi. Having said that the learned Justice proceeded to observe as follows: “The appellant, in the instant case, told the police in his statement that he was working as a driver to a man known as Baba-Ijebu who resides at Seme border. But he failed to be specific as to where he was at the material time the crime in question was committed. The story would have been a different one if, for example, he had told the police that he was with his employer at the material time on the night of the incident. But the alibi he gave to the police was insufficient to justify the inference that he could not have been at the scene of the crime as at the time the crime was committed. It follows, therefore, that although the appellant promptly raised the defence of alibi, he however failed to establish in his said alibi that he could not have been at the scene of the crime on the night of the incident. ” [Emphasis mine] With due respect, I think the underlined portion in particular of the passage quoted above, is likely to mislead both as to the facts as stated by the appellant and as to the burden placed on him by law in regard to the defence of alibi. The appellant told the police in his statement: “On 9/3/97 I was in Seme (sic) with my family. Sunday Baba Ijebu my (car) owner can as well testify that I was in Seme on 9/3/97.” From these facts, it is not easy to accept the view of the learned Justice that the appellant could not justify the inference that he could not have been at the scene of crime as at the time the offence was committed just because he had not categorically told the police that he was with his employer at the material time on the night of the incident. In my respectful view, had the appellant told the police that he was with Baba Ijebu in Seme border at the specific time on the night of the incident, that would not have enhanced the alibi he raised. I think the difficulty created by the deficiency in that alibi is that it was not sufficiently particularised. The law is that it is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi. If the accused said he was in a particular locality or with a particular person or persons, he must give a lead as to the specific place, the names and/or addresses of who to contact and the relevant period he was away from the scene of crime: see Obiode v. The State (1970) 1 All NLR 35. In this particular case, it was certainly not enough for the appellant to say he was with Baba Ijebu at Seme border on 9 March, 1997. Seme border is not a particularised address and it seems to me that the police would not be expected to go on a wild goose chase at Seme border over an alibi.

The second aspect of what the learned Justice said was that the appellant failed to establish in his alibi that he could not have been at the scene of crime on the night of the incident. This is a misdirection, with due respect, which suggests that an accused has the burden of proving his alibi. The law is clearly that if an accused person puts forward the defence of alibi, it simply means he was somewhere else and not at the scene of crime when the offence with which he is charged was committed. The onus is not on him to prove that defence but on the prosecution to disprove it as part of the duty on it to prove the charge against an accused beyond reasonable doubt. The duty of the accused is to raise the defence promptly and properly: see Yanor v. The State (1965) NMLR 337; Njovens v. The State (1973) 5 SC 17. The onus on the prosecution to prove the charge against an accused person beyond reasonable doubt never shifts and when alibi is relied on as a defence the duty on the accused does not initially go beyond introducing the evidence or facts of alibi: see Bozin v. The State (1985) 2 NWLR (pt.8) 465. But where the prosecution has adduced evidence intended to disprove the defence of alibi raised by an accused, it is then the accused has the onus to lead evidence in order to weaken or discredit the evidence of the prosecution. In that regard, the standard of proof required of the accused is on the balance of probabilities: see Obiode v. The State (1970) 1 All NLR 35; Ozaki v. The State (1990) 1 NWLR (Pt.124) 92. When, of course, the prosecution is able to lead cogent and unassailable evidence which shows that an accused was at the scene of crime at the material time, his alibi, when placed alongside the evidence against him in the normal evaluation of evidence, collapses: see Ntam v. The State (1968) NMLR 86 at 88; Njovens v. The State (1973) 5 SC 17 at 65; Onuchukwu v. The State (1998) 4 NWLR (Pt.547) 576 at 592.

In the present case, it has not been shown that the p.w. I was mistaken as to having seen the appellant in company with others in his compound on the night in question armed with a gun. He had known the appellant for years in the same neighbourhood. There is no doubt about this as the appellant himself confirmed it. The appellant said that he knew the p.w.1 very well and that p.w.1 also knew him and his family very well. The defence of alibi put up by the appellant was very weak. The strong evidence by p.w.1 which fixed the appellant at the scene of crime at the material time has easily demolished that alibi. I therefore do not find any merit in the appeal. The question of the sentences passed on the appellant by the court below after the conviction for armed robbery had been substituted with conviction for attempted armed robbery remains to be properly settled. The attention of both counsel was drawn to this by this court in the course of hearing the appeal. Both were asked to address us on it. Learned counsel for the appellant while conceding that the sentence prescribed by law for attempted armed robbery is life imprisonment, contended that the appellant did not appeal against sentence and therefore there would be no cause for revisiting the sentence of 20 years’ imprisonment imposed by the court below. Learned Attorney-General on the other hand admitted that he did not advert to the fact that 20 years sentence was imposed otherwise he would have formally appealed against it. But he submitted that the sentence of life imprisonment was mandatory and that since it could not be reduced, he urged this court to correct the error.

The court below per Akintan JCA towards the conclusion of the judgment set aside the conviction of the appellant for armed robbery. The learned Justice then reproduced section 2 of the Act.

Section 2, subsection (1) deals with persons unarmed but who with intent to steal, assaults any other person or at or immediately after the assault, uses or threatens to use actual violence etc, and shall on conviction be sentenced to not less than fourteen years but not more than twenty years. Subsection (2) reads thus:

“(2) If-

(a) any offender mentioned in subsection (1) of this section is armed with any fire arms or an offensive weapon or is in company with any other person so armed; or

(b) at or immediately before or immediately after the time of the assault the said offender wounds or uses any other personal violence to any person, the offender shall upon conviction under this Act be sentenced to imprisonment for life”.

The learned Justice was obviously aware that the statutory sentence is imprisonment for life. This is further confirmed by what he said just after reproducing the provisions of section 2(2) above as follows: “As the evidence led at the trial in this case is sufficiently in support of attempted robbery as provided in section 2 of the Act quoted above, I accordingly find the accused/appellant guilty of attempted robbery for which the sentence provided is imprisonment for life.”

Learned counsel for the appellant assumed that the court below imposed sentence of life imprisonment on the appellant when he stated in the appellant’s brief of argument thus: “The court below allowed the appeal in part. The court set aside the conviction and sentence imposed by the trial court and substituted in its stead conviction for conspiracy and attempted robbery. The court also varied the sentence to life imprisonment.” However, it is in the last paragraph of the judgment of Akintan JCA that a mistake was made in regard to the sentence. That paragraph follows the last pronouncement of the learned Justice that the sentence provided under the Act for attempted robbery was life imprisonment, and reads thus: “In conclusion, therefore and for the reasons set out above, the conviction and sentence of death imposed on the appellant are hereby set aside. In their place, I hereby substitute a conviction for conspiracy to commit robbery and attempted robbery. The appellant is therefore sentenced to 10 years I.H.L. on the 1st count of conspiracy; and 20 years I.H.L. on the 2nd count of attempted robbery. The sentences are to run concurrently and should start from the date of this judgment.” The above conclusion, obviously, does not flow from what the learned Justice reasoned all along on the question of the sentence to be imposed on a conviction for attempted armed robbery, which is life imprisonment. By section 5 of the Act, it is also clear that the appellant cannot be sentenced to less than life imprisonment for the conspiracy.

It seems to me that in the circumstances, the learned Justice did not intend to impose lesser sentence than the law statutorily mandates. He mistakenly, in my view, allowed the sentencing to be affected by his earlier reference to section 2(1) of the Act which he quoted. That subsection reads:

“2(1) Any person who, with intent to steal anything assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.”

It must be appreciated that the above is in respect of mere attempted robbery and not attempted armed robbery having regard to section 2(2) of the Act. What the learned Justice did by imposing the sentences prescribed under section 2(1) can, in my view, be regarded as a clerical error which can be corrected as such. But even if it were not such a clerical error but that by the court below was minded to impose those sentences, this court has the power to regard the sentences thus imposed as erroneous and to correct the situation. It was in this connection that this court invited counsel on both sides in the course of hearing this appeal, to address it on the propriety of the lower court imposing sentences less than the statute has mandated; and they did. Even though, as argued by learned counsel for the appellant, there was no appeal against the sentences, yet this court can intervene under section 26 of the Supreme Court Act, 1960 which provides:

“26. On the hearing of an appeal under this Part [i.e. Part V – Appeals in Criminal Cases from the Court of Appeal], the Supreme Court may exercise any power that could have been exercised by the Court of Appeal ….”

[Parenthesis supplied]

As I said, notwithstanding that there is no appeal against the sentences, this court has the power to correct suo motu what was wrongly done by the court below. In R v. Gbenu Jhunu (1943) 9 WACA 61, the appeal was simply against conviction in a case of burglary by a gang of men who descended by night upon a certain house and burgled it by force. The appeal was dismissed and the court increased the sentence from three years’ I.H.L. to ‘five years’ I.H.L. on the ground, in the view of the court, that the public must be protected against burglary of that nature carried out by gangs. A fortiori, in the present case, the statute recognises the seriousness of the offence of attempted armed robbery and the conspiracy relating thereto. It has accordingly imposed a mandatory sentence of life imprisonment. Any reduction in the sentence cannot be justified under whatever circumstances. This appeal is dismissed and accordingly, I alter the sentences imposed by the court below on the appellant to imprisonment in respect of the two convictions.

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SC.160/2001