Sgt. Monday Yakubu Vs The State (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

This is an appeal against the -judgment of the Court of Appeal, Abuja Division delivered on 14/4/2011 affirming the conviction and sentence of the appellant by the High Court of Kogi State sitting at Egbe delivered on 11/5/2005. The appellant along with four others was arraigned before the High Court of Kogi State, sitting at Egbe, on three counts of criminal conspiracy, culpable homicide and armed robbery punishable under Section 97 (1), 221 (a) and 298 (b) of the Penal Code. The appellant was the 1st accused at the trial court. All the accused persons pleaded not guilty to each of the three counts. PAGE| 2 The prosecution called 9 witnesses and tendered 29 Exhibits, while the accused persons declined to testify on their behalf or call any witnesses. The brief facts of the case are that on or about the 6th day of May, 2001 at Egbe in Yagba West Local Government Area of Kogi State, around 12.45am the Appellant drove a TATA Green Army Truck with Reg. No. DHQ 154 to Ise Oluwa Sawmill. The other four accused persons accompanied him in the vehicle to the sawmill. A security guard, Joseph Folatayo (PW1), sighted the other four accused persons coming towards him and another security guard (Baba Muri) with a halogen lamp and a gun. PW1 was able to run and inform PW2, Ojo Ayodeji, a manager at the sawmill of what was going on. Unfortunately Baba Muri, the security guard, was killed by the assailants and was later found in a pool of his own blood with his hands and legs tied with rope and his head battered. A blood stained piece of wood was found near his corpse. It was discovered that one of the machine wheels had been loosened and rolled towards the army vehicle, while a sewage machine worth N25,000 had been stolen. A box of tools was also found among other things. The police apprehended the appellant who was in the truck at the entrance to the sawmill. The truck was searched and later taken away to the police station. The police later arrested the four other accused persons. In a considered judgment delivered on 11/5/2005, the appellant was found guilty of criminal conspiracy only. He was convicted and sentenced to 10 years imprisonment without an option of fine. He was dissatisfied with the judgment and appealed to the Court of Appeal, Abuja Division (the lower court). His appeal was dismissed and his conviction and sentence were affirmed. Still dissatisfied he has appealed to this court vide his notice of appeal filed on 13/5/2011 containing ten grounds of appeal. The appellant formulated two issues for determination. They are: 1. Whether the learned Justices of the court below were right to hold that the prosecution had proved a case of criminal conspiracy against the appellant beyond reasonable doubt? (Grounds 1, 2, 4, 5 and 6) 2. Whether the learned Justices of the court below were right in holding that the failure of the learned trial Judge to fully comply with the provisions of Sections 191 and 235 of the Criminal Procedure Code has not rendered the entire trial a nullity? (Ground 9) The respondent on its part formulated four issues for determination. They are: 1. Whether the learned Justices of the court below were right to hold that the prosecution had proved the case of criminal conspiracy against the appellant beyond reasonable PAGE| PAGE * Arabic 3 doubt? (Grounds 1, 3, 6, 7, 8 and 9) 2. Whether the learned Justices of the court below were right in holding that there was substantial compliance with the provisions of Sections 191 and 235 of the Criminal Procedure Code by the trial Judge? (Grounds 2 and 4) 3. Whether the learned Justices of the court below were right in affirming the sentence passed on the appellant? (Ground 5) 4. Whether the learned Justices of the court below were right in holding that the appellant had a fair trial? (Ground 10) The appeal shall be determined on the issues formulated by the appellant. In respect of Issue 1, it is pertinent to note that in his extra judicial statements to the Police, which were tendered in evidence and admitted as Exhibits 19 and 25, the appellant stated that he is a driver at the Defence Headquarters (DHQ) in Lagos and that the TATA army truck that he drove on the day of the incident belonged to the DHQ. He also stated that he was paid a fee of N20, 000.00 by one Kehinde to bring the truck to Kwara State to collect an engine that allegedly belonged to him from the sawmill. He also stated that the said Kehinde detailed about seven boys to accompany him and that the other accused persons were among them. He claimed that he was not aware that the other accused persons were going to carry out a robbery at the sawmill as he believed the engine they went to collect belonged to the said Kehinde. He also admitted that the journey was unauthorised by his employer. It was contended on the appellant’s behalf that to succeed in proving the offence of criminal conspiracy, the prosecution must prove both the actus reus and the mens rea elements of the offence. Learned counsel who settled the appellant’s brief, ABDULLAHI M. ALIYU ESQ., submitted that the charge was not made out against him because the prosecution failed to prove that he voluntarily and intentionally agreed to commit the offence with another. He argued that the appellant was merely Kehinde’s employee and that from his statement it j/vas evident that he was not aware that they were going to Kogi State to steal. To further buttress his assertion that the appellant was not aware that they were there to steal, he noted that he remained in the truck and did not join the others in dismantling the engine and also did not flee upon sighting the Police. Learned senior counsel for the respondent, JOE ABRAHAMS, SAN, the Hon. Attorney General for Kogi State, submitted that from the appellant’s extra-judicial statements and other PAGE| PAGE * Arabic 4 evidence before the court, it was clear that he agreed with the other accused persons to embark on the illegal journey from Lagos to Egbe and also agreed to the objective of unlawfully removing the machines and engine from the sawmill. He submitted that their intent could be inferred from their actions. Relying on the cases of Usufu Vs The State (2007) 3 NWLR (Pt.1020) 94; Ovakhire Vs The State (2006) 15 NWLR (Pt.1001) 157; Alarape Vs The State (2001) 5 NWLR (705) 79, he submitted that the proof of conspiracy is usually a matter of plausible inference deduced from certain criminal acts of the accused persons done in pursuance of an apparent criminal purpose in common between them. He submitted further that proof of an actual agreement between the accused persons is uncommon. He contended that the prosecution proved its case against the appellant beyond reasonable doubt and that the lower court was right to affirm the decision of the trial court. Section 96 of the Penal Code defines “criminal conspiracy” as follows: ‘When two or more persons agree to do or cause to be done: a. an illegal act; or b. an act which is not illegal by illegal means. such an agreement is called conspiracy.” To prove conspiracy, the prosecution must prove the following: 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 an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement. iii. Specifically that each of the accused persons individually participated in the conspiracy. It is well settled that conspiracy is seldom proved by direct evidence. In Obiakor Vs The State (2002) 6 SC (Part in 33 @ 39 – 40 this court held, per Kalgo, JSC held: “Conspiracy as an offence is the agreement by two or more persons To do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts,” (Emphasis mine) On the nature of proof required to establish criminal conspiracy, Achike, JSC had this to say in Oduneye Vs The State (2001) 1 SC (Part I) 1 @ 6-7: PAGE| 5 “A conviction for conspiracy is not without its inherent difficulties. …a successful conviction for conspiracy is one of those offences predicated on circumstantial-evidence which is “evidence not of the fact in issue but of other facts from which the fact in issue can be inferred…. Evidence in this connection must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused.” (Emphasis mine) See also: Patrick Njovens Vs The State (1973) 5 SC 17; Dabo & Anor. Vs The State (1977) 5 SC 22; Kaza Vs The State (2008) 1 – 2 SC 151 @ 164 – 165; Onyenye Vs The State (2012) ALL FWLR (Pt.643) 1810. In order for the circumstantial evidence to lead to a conviction it must be so cogent and unequivocal as to point to no other direction but the guilt of the accused. The quality of the evidence must be such as to leave no reasonable grounds for speculation that some other person other than the accused committed the offence. See: Akinmoju Vs The State (2000) 6 NWLR (662) 608 @ 626 D – E. In the instant case, as conceded by learned counsel for the appellant at page 4 paragraph 4.01 of his brief, the facts adduced by the prosecution through PW1 – PW4 are in the main not in dispute. The issue is whether those facts, as established, are sufficient to warrant the inference of guilt against the appellant. One glaring fact in this case is the fact that the appellant, a driver with the Defence Headquarters Lagos, unofficially and illegally accepted1, a fee for the hire of one of the army TATA trucks belonging to his employer, the Nigerian Army. Not only that, he agreed to drive the truck in the company of others all the way from Lagos to Kogi State in the dead of night for a rendezvous at the Ise Oluwa Sawmill at Egbe. These facts alone suggest the inference that there was an agreement between the appellant and those who accompanied him on that journey to do an illegal act. He claimed he believed he was hired to collect an engine belonging to one Mr. Kehinde. The said Mr. Kehinde was never invited to testify to corroborate the appellant’s story. This was evidence of5a fact within the appellant’s knowledge. Although the prosecution has the burden of establishing its case against the accused person beyond reasonable doubt, and the accused has no duty to prove his innocence, he nonetheless has a duty to adduce evidence in support of facts that are strictly within his knowledge. See Section 140 of the Evidence; Act 2011 (as amended). The appellant did not raise a defence of alibi. It was therefore not the duty of the prosecution, as argued by learned counsel for the appellant, to search for and produce the said PAGE| PAGE * Arabic 6 Kehinde or Sgt. Peter who allegedly introduced the appellant to Kehinde. It is also interesting to note that when the Police, who were invited to the scene, approached the vehicle and demanded to know who was inside, the appellant identified himself as “a soldier man”. (See Exhibit 19 at page 31 of the record). This explains why the appellant did not flee when he saw the Police approaching. He had assumed that he would not be arrested once he identified himself as a soldier. The evidence further revealed that the appellant remained in the vehicle while the other accused persons went into the sawmill to remove the machines and engine, and in the process killed the security guard. After” a careful review of the evidence, the lower court at pages 26.8 – 269 of the record held thus: “It could be inferred that the role of the appellant was to receive the machines or engines which the other accused persons have removed from the sawmill and then facilitate their joint escape as the driver to the Army truck. … It is also striking and disturbing that the activities of the appellant and the other co-accused were carried out around 02.45am in the midnight and this showed that their actions were questionable and illegal since it could not be carried out during the day time. Furthermore, the appellant mentioned Sergeant Peter and one Kehinde in his statements to the Police i.e. Exhibits 19 and 25 but did not call them to confirm his statement. On the whole, it is my view that the prosecution has proved the case of criminal conspiracy against the appellant beyond reasonable doubt.” It is my humble view that the above findings are fully borne out by the record and are not perverse. The appellant has not advanced any reason to warrant interference by this court. With regard to issue 2, it is the appellant’s contention that the learned trial Judge failed to comply with the provisions of Sections 191 and 235 of the Criminal Procedure Code (CPC), which failure occasioned a miscarriage of justice. Section 191 of the CPC enjoins the court, at the close of the prosecution’s case to enquire from the accused person whether he intends to testify on his own behalf or call any witnesses other than witnesses as to character.-While Section 235 empowers the court, where it deems it necessary, after the prosecution to closed its case and before he is called upon for his defence, to put questions to the accused person to enable him explain any circumstances ^appearing in the evidence against him. At the close of the prosecution’s case on 12/5/2004, the following ensued: “Court to the accused persons: Do you want to give evidence or do you want to rely on all that the prosecution has stated. Note: John Owoleke, Court Secretary interpretes from English to Yoruba and vice versa. Yinusa Saliu Driver, interpretes from English to Hausa and vice versa. PAGE| PAGE * Arabic 7 1st accused: I have no additional statement to make to what I have already stated in the trial within trial. Court: The 5 accused persons when asked if they had understood all that had been said against them all agreed that the (sic) understood same. The were equally asked if they wanted to testify on their own behalf, tender any document or call additional witness and they all said that they would be resting their case on all they had stated at the trial within trial and as such would not be adducing any evidence.” (See page 113 lines 1 – 21 of the record) It is noteworthy that the appellant and the other accused persons were represented by counsel throughout the trial and in particular on 12/5/2004. Learned counsel did not raise any objection when the court read out its record nor did he apply to call the appellant or any other witness in his defence. Indeed in the course of addressing the court, he asserted that the appellant and jihe other accused persons were not bound to say even a word in their defence. (See page 121 lines 9 – 12 of the record). I agree with the lower court that there was sufficient compliance with the provisions of the law in the circumstances of this case, particularly as the appellant was represented by counsel. If, as argued by learned counsel for the appellant, the learned trial Judge went over his head and put the wrong options to the appellant directly, he owed it as a duty to his client to raise an objection, which he failed to do. The contention that the appellant was denied a fair hearing, thereby rendering the trial a nullity is misconceived. In conclusion, I hold that the appeal lacks merit. It is hereby dismissed. The judgment of the lower court delivered on 14/4/2011 affirming the conviction and sentence of the appellant by the trial court is hereby affirmed.

SC.196/2011