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State V. Fafuru (2022)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C.

This appeal emanated from the judgment of the Court of Appeal, Lagos Division (hereafter called the “Court below”) delivered on 9th of June, 2016, wherein the Court below set aside the judgment of the trial High Court of Lagos State, holden at Ikeja, which convicted the Respondent for the offence of conspiracy to commit robbery, and sentenced him to 21 years imprisonment, with hard labour.

The Respondent was charged along others, at the trial Court, as follows:

STATEMENT OF OFFENCE – 1ST COUNT

Conspiracy contrary to Section 403A of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

Abraham Abiodun ‘m’, Michael Fafuru ‘m’ and Abiodun Akinbami ‘m’, on or about the 11th day of June, 2006, along Ikorodu Road, by Palmgrove Bus Stop, in the Ikeja Judicial Division, conspired together to commit Robbery.

STATEMENT OF OFFENCE – 2ND COUNT

Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

STATEMENT OF OFFENCE – 3RD COUNT

Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

STATEMENT OF OFFENCE – 4TH COUNT

Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

STATEMENT OF OFFENCE – 5TH COUNT

Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

The summary of facts leading to this appeal, is that by an amended Information dated 17th March, 2008, the Respondent, who was the 2nd Defendant, was charged along with two others, on five counts of Conspiracy to commit robbery and Robbery contrary to Section 403A and Section 402 (1) of the Criminal Code Law, Cap C17 Vol. 2, Laws of Lagos State 2003. They all, pleaded “not guilty” and the matter proceeded to trial.

The Prosecution called only one witness, one Corporal Sunday Ogbamebor (PW1) and closed its case. PW1/IPO testified that while he and his team were on patrol on 11th June, 2006, they noticed a suspicious commercial bus and decided to tail it. At about 11 pm around Fadeyi bus stop, they noticed one of the passengers jumped off the bus unceremoniously and when interviewed he stated to the police team that his reason lay behind the fact that he was being taken off his agreed route. This fact strengthened their decision to continue pursuing the bus. Upon reaching the top of the bridge at Fadeyi, they heard screams of distress of passengers and decided to bring the bus to a halt. When that was done the Respondent and two others were thereafter arrested upon identification by the passengers that they tried to rob them.

The Respondent’s counsel on his part filed a no case submission. In delivering his Ruling dated 22nd February, 2010 the trial Judge dismissed the 2nd – 5th counts (four counts) of Robbery against the Respondent and the other Defendants, but however held that the Respondent had a case to answer in respect of the first count of conspiracy to commit robbery.

Consequently, the Respondent’s Counsel opened its case by calling the Respondent DW2, and the other Defendants, as his witnesses. It is the case of the Respondent that he was not part of any conspiracy. He stated that on 12th June, 2006 as he was returning from his shop at Ladipo at about 6.00pm. He took a commercial motorcycle from Ladipo to Oshodi. On alighting from the motorcycle, he gave N500 note to the motorcyclist who became agitated as he did not have any change. He went out to look for change but with no success. The motorcyclist who was now infuriated sped off and immediately thereafter, he was accosted by three men who demanded to know what he gave to the motorcyclist and he explained to them. Disbelieving him, they slapped and molested him with the butt of their gun and ordered him into their pick-up van and drove him to Shomolu Police Station.

At the Police Station he was tortured, however he denied making or signing any statement/document.

At the conclusion of the trial, the trial Court in a considered judgment found the Respondent and the 1st and 3rd Defendants guilty of the offence of conspiracy, and sentenced each of them to 21 years imprisonment, with hard labour, as aforestated.

The Respondent was aggrieved by the decision of the trial Court and lodged an appeal at the Court below, asking the following questions:

(1) Whether the prosecution discharged the burden of proof required by law to establish the offence of Conspiracy against the Appellant.

(2) Whether the learned trial Judge was right to have convicted the Appellant on Exhibit P1, the alleged confessional statement.”

In its judgment, the Court below set aside the judgment of the trial Court.

The Appellant is dissatisfied with the judgment of the Court below and appealed to this Court. The 2nd Amended Notice of Appeal, deemed filed on the 4th of March, 2021, is upon Three (3) Grounds.

At the hearing of the appeal on the 17th of March, 2022, Idowu O. Benson, Esq., of Counsel for the Appellant, adopted and relied on the Appellant’s amended brief of Argument, dated the 2nd of March, 2021, filed on the 3rd of March, 2021 but deemed filed on the 4th of March, 2021, wherein he raised the following two issues:

Whether the eminent Justices of the Lagos Judicial Division of the Court of Appeal were right in unanimously holding that the learned trial Judge wrongfully inferred conspiracy from the evidence of PW1 and Exhibit P2?
Whether the eminent Justices of the Lagos Judicial Division of the Court of Appeal were right in refusing to rely on the trial Court’s findings of fact?

In the Amended Respondent’s brief of argument, a sole issue was formulated, to wit:

“Whether the Court of Appeal was right to hold that the Appellant failed to prove the offence of Conspiracy to commit robbery against the Respondent beyond reasonable doubt?”

I have closely examined the issues identified in the respective briefs of the parties. I find that the Respondent’s sole issue has subsumed the two Issues raised by the Appellant. For this purpose, I take the view that the Respondent’s sole Issue is actually determinative of this appeal.

For the avoidance of doubt, the sole Issue reads thus:

“Whether the Court of Appeal was right to hold that the Appellant failed to prove the offence of Conspiracy to commit robbery against the Respondent beyond reasonable doubt?”

It is submitted for the Appellant that a thorough evaluation of the facts presented and the evidence adduced at the trial Court, will reveal that all the ingredients of the offence of conspiracy to commit robbery had been established beyond reasonable doubt against the Respondent, based on the credible and cogent testimony of PW1, the eyewitness before the trial Court. Reliance was placed on the case Maikudi Aliyu v. The State (2013) LPELR-20748 SC.

Referencing the case of Yakubu v. The State (2014) LPELR-22401 (SC), learned counsel defined conspiracy to be an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. He maintained that from the evidence of PW1 at pages 126 – 127 of the Record, as well as the confessional statement of the Respondent, Exhibit P2, and that of the 1st and 3rd Defendants (Exhibits PI and P3), the common criminal intention of the Respondent and the other Defendants, can be inferred.

Learned Counsel for the Appellant contended that the Respondent in Exhibit P2, not only gave a graphic account of his activities with the 1st and 3rd Defendants, but that his version was in consonance with the testimony of PW1 as well as the statement of the 1st Defendant. He invited this Court’s attention to some portions of Exhibit P2, at Pages 15 and 16 of the Record, where in his view, the Respondent established the common criminal intent to commit the offence of robbery.

He pointed out that the offence of conspiracy is inferentially deduced from the acts of parties thereto which are focused towards the realization of their common or mutual criminal purpose. These cases were relied on:

Oduneye v. The State (2001) 2 SC 71; Daboh & Anor v. The State (2001) 2 SC 71;

Segun Balogun v. A.G. Ogun State (2002) 2 SC (Pt. 11) 89.

He added that where a charge of conspiracy accompanies a charge for a substantive offence, the two charges remain separate and a conviction of conspiracy cannot fail merely because the Defendant had been acquitted of the substantive offence. Reliance was placed on the case of Akinrinlola v. The State (2016) LPELR-40641, amongst others.

It is the opinion of learned Counsel for the Appellant that the retraction of Exhibit P2 by the Respondent, only affected the weight to be attached to the statement and the trial Court relied not only on the Exhibit P2, but he also sought and found independent corroborative evidence from the evidence of PW1 whose evidence before the trial Court is one of a vital and material eyewitness.

He opined further that the finding of the Court below that the testimony of PW1, being that of an Investigative Police Officer, was not one of an eye witness, was misconstrued as there exists no rule of practice or evidence that restricts an investigating Police Officer from testifying as an eyewitness. Reliance was placed on the case of Ogedengbe v. The State (2014) LPELR-23065, as well as Section 200 of the Evidence Act, 2011, as amended.

On the refusal of the Court below to rely on the trial Court’s findings of fact, learned Appellant’s Counsel quoted copiously, the judgments of the trial Court and the Court below, at pages 193 – 197 and 291 – 298 of the Records, respectively, and submitted that the Court below, failed to take cognizance of the findings of the trial Court, which is against the express admonition of this Court that appellate Courts ought not to interfere or disturb the findings of fact of a Court of first instance, except under exceptional circumstances. The case of Guardian Newspaper Ltd & Anor v. Ajeh (2011) LPELR 1343 SC, amongst others, was relied on.

In conclusion, this Court is urged to resolve this issue in favour of the Appellant, allow the appeal, and set aside the judgment of the Court below.

In response to the above, it is submitted for the Respondent that the learned Justices of the Court below were right in holding that the Appellant failed to prove the offence of conspiracy to commit Robbery, against the Respondent, the fact being that the essential elements of the offence of conspiracy were not established against the Respondent.

Referring to the case of Kaza v. State (2008) 7 NWLR (Pt. 1085) 125, amongst others, Learned Senior Counsel for the Respondent set out the essential ingredients which the Prosecution must establish to ground the offence of conspiracy, and opined that the Court below was right to set aside the findings of the trial Court.

Learned Silk contended that nowhere in the testimony of the PW1, was the offence of conspiracy established, adding that the Court below was right to set aside the judgment of the trial Court, which was based mainly on suspicion. He cited and relied on the case of Al-Mustapha v. The State (2013) NWLR (Pt. 1383) 350. He maintained that the Prosecution failed to show that there was any physical or overt act by the Respondent, sufficiently proximate to proceed with the purported offence, or from which an agreement to commit an offence may be inferred, as rightly held by the Court below.

He argued that the case of Segun Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt. 763) 512, cited by the Appellant, is not on all fours with the instant appeal. According to him, in that case, evidence showed that the Appellant and his colleagues had a common purpose and agreement. They were together at the victim’s premises armed with a gun, where they demanded money from him. The PW1, who testified to the effect that he had known the Appellant therein, for more than 10 years, clearly saw him in his bedroom. In the instant case however, there is no scintilla of evidence of meeting of minds, agreement or coming together between the Respondent and the other defendants to carry out any robbery, and thus Court is urged to so hold. He placed reliance on the case of Roda v. FRN (2015) 10 NWLR (Pt. 1468) 427.

It is the opinion of learned Senior Counsel for the Respondent that the Court below was right to hold that there was no sufficient evidence to establish Conspiracy, and Exhibit P2, (the extra-judicial statement of the Respondent), was unreliable to have been the basis for the Respondent’s conviction for conspiracy.

Further on Exhibit P2, which the Respondent had denied making, it is the submission of learned Senior Counsel that the where an accused person retracts his earlier statement to the Police, the weight to be attached to such a statement is governed by the tests laid down in the R v. Sykes (1913) 8 CR APP R. 233, and approved in various decisions of this Court, including:

Dawa v. The State (1980) 8 – 11 SC 236; and

Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.

He noted that there is nothing outside of Exhibit P2 to make it probable the Court below was right to have set aside the judgment of the trial Court.

This Court is therefore urged to resolve this sole Issue against the Appellant, dismiss the appeal and uphold the judgment of the Court below.

The offence of conspiracy is established once it is shown that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not have started the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. The offence of conspiracy is not specifically defined in our Penal or Criminal Code. Consequently, a direct positive evidence of the plot among the conspirators is hardly provable. The Courts therefore tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or omissions of the parties concerned. All the same conspiracy constitutes an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See:

Nwosu v. The State (2004) 15 NWLR (PT 897)466;

Obiakor v. The State (2002) 10 NWLR (PT 776) 612.

It is also trite that the Conspirators need not know themselves and need not have agreed to commit the offence at the same time. But conspiracy can be inferred from the facts of doing things towards a common goal, where there is no direct evidence in support of an agreement between the accused persons. See:

Aituma vs. State 2006 10 NWLR (PT 989) 452.

Innocent v. State (2013) LPELR-21200.

The ingredients of the offence of conspiracy under the Penal Code are as follows:

a) 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.

b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in the agreement, and

c) Specifically, that each of the accused persons individually participated in the conspiracy.

See:

Musa v. The State (2016) LPELR-42803 SC;

Obiako v. The State (2002) 6 SC (Pt. 11) 33; (2002) LPELR-2168SC.

Thus, it is hard and almost impossible for the Prosecution to procure and proffer, in proving the offence of conspiracy against an accused person, hard evidence of how the conspiracy was hatched by the conspirators. Therefore, direct evidence of a plot by the conspirators is hardly achievable. The bottom line of the offence of conspiracy, is the meeting of the minds among the conspirators for them to commit a criminal offence and they need not to meet physically and arrange how their criminal mission will be actualized. However, it is from each of the overt actions of the conspirators, in furtherance of their criminal agreement, that the offence of conspiracy is inferred. And most often, it is from the testimonies of some of the accused persons at the trial, of how they each got linked with one another, that the offence of conspiracy becomes apparent.

Now let me briefly examine the evidence adduced at the trial.

The summary of the evidence of PW1, is that while they were on patrol they suspected a commercial vehicle and followed it. They noticed the occupants were wailing and crying. They pursued it with sirens and he heard a shot fired from the vehicle. They also shot at it and eventually stopped it. Some occupants ran away and they pursued and captured them. Then the passengers identified the three accused persons/defendants as the robbers. He took them to the Pedro Police Station and recorded their statement first, before he took them to his DPO and cautioned them. He sought to tender the extra-judicial statement of the Respondent recorded by a certain Sgt. Ossai Chukwuka, who was said to be deceased. The Respondent’s counsel objected to its admissibility on grounds that it offended Section 35 of the old Evidence Act. After hearing arguments, the trial Court overruled the objection and admitted the statement in evidence as Exhibit P2.

Under cross-examination, he stated that it was the alleged victims who identified the robbers. He also stated that no investigations and findings were carried out on the bus.

The Respondent, in his testimony stated that he was not part of any conspiracy. He stated that on 12th June, 2006 as he was returning from his shop at Ladipo at about 6.00pm. He took a commercial motorcycle from Ladipo to Oshodi. On alighting from the motorcycle he gave N500 note to the motorcyclist who became agitated as he did not have any change. He went out to look for change but with no success. The motorcyclist who was now infuriated sped off and immediately thereafter, he was accosted by three men who demanded to know what he gave to the motorcyclist and he explained to them. Disbelieving him, they slapped and molested him with the butt of their gun and ordered him into their pick-up van and drove him to Shomolu Police Station. At the Police Station he was tortured, however he denied making or signing any statement/document. Simply put, he retracted his extra-judicial statement, Exhibit P2.

It has been an established practice that a Defendant in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial Court.

However, where the Defendant retracts his confessional statement during trial, that alone cannot render the statement inadmissible. This is because retraction of or resiling from a confessional statement or denial by an accused person/Defendant of his having made such a statement does not ipso facto render it inadmissible in evidence. See:

Alarape v. The State (2001) 5 NWLR (Pt.205) 79.

Thus, a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The trial Court should not, however, act on the confession without first testing the truth thereof. But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration.

The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make it probable that the confession is true.

In R. v. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to include:

Whether there is anything outside the confession to show that it is true.
Whether the statement is corroborated, no matter how slight.
Whether the facts contained therein, so far as can be tested, are true.
Whether the accused person had the opportunity of committing the offence.
Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
Whether the confession of the accused person was possible.

The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases, including:

Dawa v. The State (1980) 8 – 11 SC 236;

Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.

I have thoroughly perused Exhibit P2. It did not give any graphic details of the activities of the offence the Respondent is charged with. This much was conceded by the trial Court, when at page 195 of the Record, it held inter alia:

“The 2nd Defendant in his statement Exhibit P2, did not give a graphic account of their activities but he stated that he was one of those alleged robbers arrested on the 11th day of June, 2006. He also gave account of some other robberies he participated in and their modus operandi.”

In commenting on the evidence adduced at the trial, the Court below, at pages 289 – 298 of the Record of Appeal, held conclusively inter alia:

“For us to understand the case of the Appellant, the Court would go through the evidence of the witnesses in this case. The Prosecution only proffered evidence from only one witness, the IPO. The job of the IPO is to investigate crime and come to Court to testify as to the form or outcome of his investigations. From the evidence of the IPO, PW1, he saw a bus and he suspected the occupants of some nefarious activities. He claimed that they followed the bus. He claimed they saw people fighting in the bus and could hear them screaming. He admitted that the patrol car had the siren on and the revolving lights on. The IPO claimed they were pursuing the bus and it stopped and one man jumped out. They interrogated the man who jumped out. The man said the bus was heading away from the destination he called. The man did not say there were robbers in the bus robbing people. The IPO did not get the number of the bus he had been following for a long time. He also did not produce in Court the people the Appellant robbed. He did not recover any of the items stolen. He also claimed that the occupants of the vehicle fired at them and they returned fire by shooting at the tires of the bus. No weapons were recovered from the scene. The above information is the sum of the IPO’s evidence. The job of an IPO is to investigate crime. He said he was at the spot when the bus stalled and the passengers rushed out. In that rush he was able to quickly identify the passengers and the robbers. The IPO did not arrest all the passengers if he was there as they were rushing out of the vehicle. The IPO could not recover any of the so called stolen items from the robbers neither could they recover any gun. The vehicle used in that robbery was neither detained and the driver of the vehicle was not identified either. In the usual run of events, if the bus was used in committing a crime, it is detained for some time until investigation is over. There was no mention of this aspect. You will recall that the IPO said that the patrol team shot at the tires of the vehicle to demobilize it. The IPO forgot to state what happened to the person who was hit by their bullets. I believe that this charge is trumped up to cover for the shooting of an innocent man in a bus. How could the IPO in a patrol car with siren blowing and the blue lights on, see the fracas in the vehicle and hear the sound of the cries of the occupants of the bus. It is unimaginable. When the vehicle stalled the passengers scampered off as the policemen in the patrol car had shot at them. Probably the ones who couldn’t run away fast enough were arrested beaten and made to confess. The DWS had given different testimony of how they were arrested at various bus stops. The other passengers who were robbed did not get to the police station to say how they were robbed and to state their missing items. How can there be a robbery, you arrested the robbers supposedly at the scene of crime and no items found including the firearms used. The IPO in any investigation is not usually an eye witness to any crime. He investigates alleged crimes reported to him. He interrogates the suspects, and takes down their statements. He visits the locus in quo for further investigations. He interviews witnesses and investigates alibi. The IPO never gave in evidence, that he interviewed anyone. There was only one supposed eye-witness Kayode Babalola who he interviewed and obtained his statement, Exhibit P4 but was not called as a witness to corroborate the extra-judicial statement of the Appellant. The Appellant’s evidence in Court was at variance with his extra-judicial statement made to the deceased colleague of PW1 who does not appear to be a truthful witness from his anecdote of how the Appellant and two other accused persons were arrested. The inconsistency rule is to the effect that where a witness statement to the police contradicts with the evidence in Court, the Court should regard him as an unreliable witness and discountenance both his statement to the police and his testimony in Court. It would be recalled that none of the items stolen was found on the Appellant nor with the other two accused persons. The stolen items were not also found in the bus nor around where the Appellant was arrested… Because the evidence of the Appellant was in total contradiction with his extra-judicial statement, the Court would need to corroborate the evidence of PW1. Evidence in corroboration must be an independent testimony, direct or circumstantial which confirms in some material particular not only that an offence has been committed but that the accused person has committed it. Corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge… As it stands now, there is no corroboration of the testimony of the Appellant. The IPO/PW1 is not in any position to corroborate any evidence of the Appellant. Without corroboration of the tainted and unreliable evidence of the IPO, PW1, it would be difficult to convict the Appellant with this sort of evidence. Unreliable to say the least! It is true that the conspiracy is difficult to prove except by inference…The prosecution could not prove that there is any agreement between the Appellant and the 1st and 3rd accused persons. Apart from the discredited Exhibit P2, nothing connects the Appellant with the crime. There was no proof that the Appellant knew the two other accused persons before now. He was arrested on a different date other than the date the crime was said to have been committed. The prosecution gave in evidence that the Appellant and the other two accused were arrested at the scene. It turned out they were not arrested at the scene. It turned out they were arrested at different but stops on different days. It is true that the conspirators need not know themselves and need not to have agreed to commit the offence at the same time. A conspiracy can be inferred from the facts of doing things, towards a common end, where there is no direct evidence in support of an agreement between the accused persons …It is difficult to decipher how the PW1 would manufacture evidence that may be inferred to convict the Appellant of conspiracy. The learned trial judge was therefore wrong to have believed the cock and bull story of the IPO, PW1. His story was incredible to say the least. At best he concocted the statement of the Appellant and the other two accused persons to cover their own crimes. The IPO, PW1 and his crew shot a passenger in the vehicle. They claimed the vehicle was used to rob some imaginary people. The vehicle was neither detained nor the driver investigated. How then could any iota of conspiracy be inferred from a botched investigation. The learned trial judge was therefore wrong in inferring conspiracy from the evidence of PW1 and the so called Exhibit P2.”

I am satisfied and in total agreement with the finding of the Court below. The judgment is well researched and reasoned. Indeed the Court below effectively settled the matter of the offence charged and it would not be just, to split hairs and go into repetition of the issue of the Conspiracy, as the Court below has, done a thorough job of it. I adopt the judgment as mine and have nothing further to add.

I find in conclusion, that it was not established by credible evidence that the Respondent acted in concert; nor was there a meeting of minds to commit an unholy cause which can very properly be inferred from the surrounding circumstances of this case. There is no evidence before this Court, which suffices for the Court to make a finding of Conspiracy as charged.

The summation of all I have been saying, is that there is no iota of merit in this appeal. It is accordingly dismissed by me.

The judgment of the Court of Appeal, Lagos Division, delivered on the 9th of June, 2016, is hereby affirmed by me.

Appeal dismissed.

SC.597/2016

State V. Fafuru (2022) LLJR-SC

State V. Fafuru (2022)

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