Yakubu Ibrahim V. The State (1994)

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PATS-ACHOLONU, J.C.A.

This appeal arose from the judgment of the Lagos High Court presided over by Hotonu J. in which the applicant and another were convicted and sentenced to terms of imprisonment. The appellant Yakubu Ibrahim had been charged along with one Shola Akin alias Akin Shola of (a) attempted robbery contrary to section 2(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970 in that being armed with an offensive weapon – a knife with intent to steal assaulted one Opera Odjei and at the same time threatened to use actual violence on him, and (b) of conspiracy contrary to section 3(a)(b) of the Robbery and Firearms Act aforesaid in that on the same date the two people conspired to commit robbery.

The facts of the case are that the complainant Opera Odjei, P.W.1 was on the 21st of the month of February, 1979 stopped and more or less blocked by the accused persons with their motor-cycle at Ilupeju, after the said riders have been dutifully following him for quite some time. When the complainant was forced to stop Sola Akin came to his side and demanded the key of his vehicle which he naturally refused to give him and he forcefully entered his vehicle and when he still refused to give him his car key, he brought out a knife which he brandished and threatened him with bodily harm. All this time Yakubu was on the motor-cycle. Prior to that a signal had been sent to some policeman in mufti on that area that there were two people on motor-cycle who were stopping vehicles on the road with intent to rob them. One of the policemen beholding the incident taking place now ran to the scene intending to effect the arrest of the culprits whoever they were. The two culprits surrendered themselves after a while but later the 2nd Accused, Akin Shola bolted away and tried to make for safety. He was pursued and caught after he had been shot by the policeman, Muriama Alao one of the policemen in mufti and they were all taken to the Police Station. It was found that the motor-cycle had no registration number. The story of the appellant and his cohort was however different. They stated that the complainant was driving rather recklessly and with that dangerous manner of driving stopped suddenly and the motor-cyclist driven by one of the accused persons – Yakubu almost hit it from behind and this made him sustain an injury on the right hand. He then approached the complainant (P.W.1 in the court below) and demanded to know why he nearly killed him. At first, according to his narration the complainant used offensive language on him but later he apologised and at this time he too relented and was about continuing with his journey when two plain clothed men arrived and asked Yakubu to surrender to them the key of his motor-cycle. He denied that his co-accused was his friend. Ishola Akin added that when he was stopped by one of the policemen and he asked him (as he was in mufti) whether he was a policeman that he shot him on the leg at a point blank range and he emphatically denied running away when he saw the policeman. After the trial, the accused persons i.e., the appellant and Ishola Akin (deceased) were found guilty, convicted and sentenced to 25 years terms of imprisonment. In his judgment the court held inter alia as follows:

“After a careful consideration, I have found that the stories of the two accused persons in defence of the charge against them are mere fabrications. The stories of the two accused persons in defence of the charge against them are mere fabrications. The stories are cleverly woven up thus showing how crafty the accused are. But being not true the stories have got loop holes some of which I have already pointed out. I am unable to accept as true the evidence of the two accused persons… On the other hand, I have found, all the four witnesses for the prosecution reliable. They have impressed me as witnesses of truth and I believe their evidence. I am unable to see any material contradiction in their evidence.”

Continuing near the end of that judgment he said:

“Count 1 charging the substantive offence has been satisfactorily proved against the two accused. There is no separate evidence by the prosecution to prove count 2 which is conspiracy to commit the offence… I am entitled to and have drawn the inference of conspiracy from the acts of the two accused. Considering the circumstances of the case, I am firmly of the view that the two accused had conspired before they actually committed the substantive offence of attempted robbery.”

Now being dissatisfied with the judgment of the learned trial Judge the appellant filed 4 grounds of appeal and pursuant thereto formulated 4 issue for determination to wit:

“1. Whether the appellant is not entitled to the benefit of doubt in view of section 137 of the Evidence Act having regards to the findings by the trial Judge that the appellant did not commit the offence and at the same time that he committed the offence?

2. Having regards to the principles of fair hearing and the adversary system of criminal justice was the learned trial Judge right in taking over the cross-examination of the appellant from State Counsel?
3. Whether the learned trial Judge was right in relying on the knife Exh. C. that was re-covered in the absence of the appellant and which the driver complainant P.W.1 did not see until the trial in court, to convict and sentence the appellant to an enhanced 25 years of imprisonment?
4. What is the effect of charging a substantive offence before a charge of conspiracy in a criminal case.

The Respondent framed these issues as emanating from the grounds of appeal:

“!. Whether the decision of the learned trial Judge was reasonable having regard to the evidence adduced by the prosecution and the finding that the appellant did not actually commit the offence.

2. Whether the learned trial Judge by asking the appellant questions descended into the arena.
3. Was the arrangement of the count of robbery before conspiracy vital to the case of the prosecution.

The core of this case is whether the appellant and the person charged (accused) along with him were insensed with the alleged dangerous driving of the complainant by which he was said to have caused the appellant’-s motor-cycle to hit his vehicle or whether the story was a ruse to cover a case of attempted robbery.

To prove attempted robbery there is the essential need to prove the use of or intended use of violence in the perpetration of the act complained about.

I shall first of all deal with the issue raised by both parties as to the propriety of charging the count of conspiracy first before that of the main offence. The learned counsel for the appellant lampooned the awkward procedure whereby the substantive charge was first set out before the conspiracy to commit such an offence. In his brief, he argued as follows:

“The defence it is submitted has been misled by the way the charges are framed and prosecuted against the appellant. Where the substantive offence had been found by the trial Judge not to have been proved against the appellant and the prosecution relies on the same facts to sustain the charge of conspiracy against the appellant, it is our submission that the trial Judge erred in law in convicting the appellant on that circumstances and that the appellant is entitled to a discharge and acquittal.”