Latest Supreme Court Judgment: Whether failure to prove a substantive offence can render the conviction for conspiracy inappropriate

OKE SHOLA V THE STATE

APPEAL NO: SC. 671/2018

AREAS OF LAW: APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, JUDGMENT AND ORDER, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS:

The   Accused person/Appellant   on    17/7/2013   at   Araromi Obu conspired with others at large while armed with cutlasses and axe to rob about 2000kg of rubber lumps valued at Nl, 000,000.00 from the Rubber Estate Limited Plantation and in the process injured one Samuel Ajayi, a guard on duty, with cutlass cuts. They escaped but the Appellant was arrested later at Igbotako. The Appellant’s story however is that he was only framed up by one Bamidele Jimba, one of the guards, who had a grouse with him and threatened to deal with him in 2012 for marrying the former girlfriend of his younger brother, Gbenga Jimba. Being charged on a three-count charge of conspiracy to commit armed robbery, armed robbery and attempted murder, the Appellant was found guilty of conspiracy to commit armed robbery and armed robbery but discharged of the 3^rd count of attempted murder. The Court of Appeal upheld the Appellant’s conviction hence, a further appeal before this court.

HELD:

Appeal Dismissed

ISSUE FOR DETERMINATION:

• Whether, having regard to the evidence led by the prosecution, the trial court and the Court of Appeal were right in holding that the prosecution proved the case of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

RATIONES:

CRIMINAL LAW AND PROCEDURE. LAW OF EVIDENCE, PRACTICE AND PROCEDURE

PROOF IN A CHARGE OF CONSPIRACY- FACTS A PROSECUTION MUST PROVE TO DISCHARGE THE BURDEN OF PROOF IN A CHARGE OF CONSPIRACY

“On the charge of conspiracy to commit armed robbery, the duty on the prosecution is not with absolute certainty that the conspirators must be seen on the same table or bed of conspiracy conspiring and agreeing or that all their hands must have been on the deck of conspiracy for it to be established. It needs be said that the prosecution is not expected to prove its case with absolute certainty as absolute certainty is the prerogative and preserve of the Eternal   God   and   beyond   the   realm   in   any human adventure of which the administration of criminal justice is one of its components. It is with that in focus at all times that the onus placed on the prosecution merely admits a high degree of probability. To state it another way is to say that what the prosecution needs do to discharge the burden of proof for a charge of conspiracy and armed robbery was to show in keeping with Section 135 Evidence Act 2011 thus:- (a) There was a robbery’ or series of robberies, (b) The accused was one of the robbers or the robber (c) That the accused or one of the robbers was armed. See Per Peter-Odili, JSC in Nomayo V. State (2015) LPELR-44729(SC).” PER U. M. A. AJI, J.S.C.

WORDS AND PHRASES

“CONSPIRACY”- MEANING OF “CONSPIRACY”

“Conspiracy is said to be an agreement between two or more persons to do or carry out an unlawful act. It is a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly are ever confined to one place.” PER U. M. A. AJI, J.S.C.

CRIMINAL LAW AND PROCEDURE. LAW OF EVIDENCE, PRACTICE AND PROCEDURE

CONVICTION FOR CONSPIRACY- WHETHER FAILURE TO PROVE A SUBSTANTIVE OFFENCE CAN RENDER THE CONVICTION FOR CONSPIRACY INAPPROPRIATE

“However, being in itself a separate and distinct offence which is independent of the actual offence conspired to commit, failure to prove a substantive offence does not make conviction for conspiracy inappropriate.  See Per ARIWOOLA,  JSC in Akinlolu V. State (2017) LPELR-42670(SC).” PER U. M. A. AJI, J.S.C.

CRIMINAL LAW AND PROCEDURE. LAW OF EVIDENCE, PRACTICE AND PROCEDURE

OFFENCE OF CONSPIRACY – WHETHER THE OFFENCE OF CONSPIRACY CAN BE COMMITTED BY PERSONS WHO HAVE NEVER MET

“When a co-conspirator does an act or makes an omission in furtherance of a conspiracy, his act or omission is ascribable and binding on all the conspirators. See Ikwunne V. State (2000) 5 NWLR (PT.658) 550. The conspirators may be in direct communication in respect of the offence and only one person may be the hub of which the others revolve in respect of the offence. It is therefore possible for the offence of conspiracy to be committed by the persons who have not met or known themselves and the conspirators need not be seen together planning the offence. A Court of law can infer from criminal acts of the parties, including evidence of complicity.” PER U. M. A. AJI, J.S.C.

 

CRIMINAL LAW AND PROCEDURE. LAW OF EVIDENCE, PRACTICE AND PROCEDURE

OFFENCE OF ARMED ROBBERY- INGREDIENTS A PROSECUTION MUST ESTABLISH TO PROVE THE OFFENCE OF ARMED ROBBERY

“The prosecution in a charge of armed robbery such as the present case, has to establish that a. That there was robbery or series of robberies, b. That the robbery was an armed robbery  carried  out with  firearms  or offensive weapons, c. That the person charged with the offence was one of the robbers or implicated therein. The method of carrying out the proof can be any’ or a combination of the methods, viz: i. Confessional statement of the accused, ii. Circumstantial evidence linking the accused to the crime iii. Zwidence of an eye-witness. See Per PETER-ODILI, JSC in Orisa v. State (2018) LPELR-43896(SC).” PER U. M. A. AJI, J.S.C.

LAW OF EVIDENCE, WORDS AND PHRASES

CONTRADICTORY EVIDENCE – MEANING OF CONTRADICTORY EVIDENCE

“Contradictory evidence is that which asserts the opposite and is inconsistent with the other. A contradictory statement is an affirmation of the contrary of what was earlier stated or spoken. A piece of evidence is contradictory only where it is the direct opposite of what was earlier asserted. Two pieces of evidence contradicts one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other evidence says or contains some minor difference in details. See Rhodes-Vivour, JSC in Nwankwoala v. FRN (2018) LPELR-43891(SC).” PER U. M. A. AJI, J.S.C.

 

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

IDENTIFICATION PARADE – INSTANCES WHERE AN IDENTIFICATION PARADE WILL BE UNNECESSARY

“Identification parade is only one way of establishing the identification of an accused person in relation to the offence charged. Where, for instance, the accused person is well known to the witness before the day of the commission of the offence alleged, there can be no need for an identification parade. Similarly, where the witness had ample opportunity to identify the accused person, as in the case on hand, I would not think an identification parade was necessary. See Per Ogundare, JSC in Eyisi & Ors V. State (2000) LPELR-1186(SC).” PER U. M. A. AJI, J.S.C.

 

LAW OF EVIDENCE, COURT, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE

CONTRADICTIONS – NATURE OF CONTRADICTIONS IN TESTIMONIES OF WITNESSES THAT CAN VITIATE THE DECISION OF COURT

“True, indeed, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed in Ogun v Akinyele [2004] 18 NWLR (pt 905) 362, 392; Emiator v State [1975] 9-10 SC 112; Ikemson v State[1989] 3 NWLR (pt 110) 455, 479; Afolalu v State [2009] 3 NWLR (pt 1127) 160.

This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoziebu V State [2003] 11 NWLR (pt 831) 327, 341; Nasaru v State [1999] 6- 9 SC 153; Ikemson v State (supra). In any event, courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyele [2004] 18 NWLR (pt 905) 362, 392.

In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person, Nwosisi v State [1976] 6 SC 109; Ejigbadero v State [1978] 9- 10 SC 81; Kalu v State [1988] 4 NWLR (pt 90) 503; Igbiv State [2000] FWLR (pt 3) 358; [2000] 3 NWLR (pt 648) 169.” PER C. C. NWEZE, J.S.C.

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

CONTRADICTIONS – PROCEDURE FOR CONTRADICTING A WITNESS AS REGARDS HIS PREVIOUS STATEMENT

“The procedure, under Section 233 of the Act, for contradicting a witness with intent to impeach his credibility as to his previous statement in writing is that the previous statement in writing shall be shown to the witness and his attention drawn “to those parts of the writing which are intended lor fie purpose of contradicting him.” PER E. EKO, J.S.C.

STATUTE REFERRED TO:

Evidence Act, 2011