CORAM

---

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

---

PARTIES

---

LUCKY AJARIKRE

APPELLANTS 

---

THE STATE

RESPONDENTS 

---

AREA(S) OF LAW

---

CRIMINAL LAW, EVIDENCE LAW, ARMED ROBBERY, CRIMINAL PROCEDURE, IDENTIFICATION EVIDENCE, CONSPIRACY, CONFESSIONAL STATEMENTS, CONSTITUTIONAL LAW, JUDICIAL PRECEDENT, BURDEN OF PROOF, CRIMINAL JURISPRUDENCE, PRACTICE AND PROCEDURE

 

---

SUMMARY OF FACTS

The Appellant, Lucky Ajarikre, was charged before the High Court of Edo State, Benin City Division, on a two-count charge of conspiracy to commit armed robbery and armed robbery, contrary to Sections 6(b) and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R.11, Laws of the Federation 2004.

The prosecution alleged that on April 10, 2010, at No. 4 Egbede Lane, Off New Road, Benin City, the Appellant and others now at large robbed one Major Godspower Okotogbe (Rtd) of his Nissan Ultima 2.5z with Registration number AV897USL valued at N3.5 Million, a Nokia handset valued at N7,000, and at the time of the robbery they were armed with guns.

According to the prosecution, Major Godspower Okotogbe (PW1) drove his car into his compound at about 3pm when two men, one of whom was the Appellant, dispossessed him of the car at gunpoint. The Appellant then drove the car away after being accosted by PW2 (the wife of PW1) who later testified as an eyewitness. The prosecution claimed the Appellant was arrested in Damaturu with the car.

The Appellant relied on the defense of alibi, claiming that on the day of the incident, he was in Zaria, Kaduna State, as a trader buying Tinko (dry cow meat) when a riot broke out. He said he ran to a nearby Police Station for security and remained there for about 9 days before being taken to the State CID in Benin City, Edo State.

At the trial, the prosecution called three witnesses, while the Appellant testified as a sole witness in his defense. The Appellant denied making confessional statements at Damaturu and contested the voluntariness of the confessional statement allegedly made at State CID, Benin City, which led to a trial-within-trial. The trial Court admitted the confessional statement as Exhibit P1.

In its judgment delivered on February 14, 2019, the trial Court discharged and acquitted the Appellant on the count of conspiracy to commit armed robbery but convicted him for the offense of armed robbery and sentenced him to death.

Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal, filing an Amended Notice of Appeal predicated on five grounds.

 

---

HELD

---

1. The appeal was dismissed in its entirety and the judgment of the trial High Court of Edo State in Charge No. B/16C/2011 delivered by P.I. Imoedemhe, J. on 14/02/2019, convicting and sentencing the Appellant, was affirmed.

2. The Court held that an identification parade was not necessary in this case as the Appellant was properly identified by PW1 and PW2, who gave eyewitness accounts of the robbery which occurred in broad daylight. Additionally, the Appellant’s confessional statement (Exhibit P1), which was found to be voluntarily made, further dispensed with the need for an identification parade.

3. The Court rejected the Appellant’s argument that he should have been convicted for the lesser offense of receiving stolen property instead of armed robbery. The Court found that Exhibits P5, P6, and P7, which the Appellant himself denied making, could not be relied upon to ground a conviction for receiving stolen property, especially as the ingredients for this offense were not subsumed in the charge of armed robbery.

4. The Court held that conspiracy to commit an offense is distinct from the actual commission of the offense. The Appellant could be convicted of armed robbery even though he was discharged of the conspiracy charge. Furthermore, the Court noted that one does not necessarily have to be personally armed to be convicted of armed robbery if the offense was committed by two or more persons, as long as any of them was armed.

5. The Court rejected the Appellant’s argument regarding the inadmissibility of his confessional statements due to the absence of a legal practitioner during their recording. The Court found that the statements were recorded in 2010, whereas the Edo State Administration of Criminal Justice Law, which the Appellant relied on, was enacted in 2016. The applicable law at the time was the Criminal Procedure Law, Laws of Bendel State of Nigeria (1976).

 

---

ISSUES

---

1. Whether the appellant was properly identified by PW1 and PW2 in accordance with principle governing identification parade in criminal matters, having regards to the fact they had never met the appellant before the incident?

2. Having regards to the crucial fact that the Appellant was discharged in respect of the conspiracy to commit armed robbery and having regard to the clear content of documentary evidence in Exhibits P5-P7 that the Appellant was only given possession of the car for onward delivery to the person whose name was given to him, whether the conviction for receiving of stolen property would have been appropriate rather than conviction for armed robbery?

3. Whether in the absence of a conviction for conspiracy to commit armed robbery whether the Appellant can be convicted of the actual offence of armed robbery where all evidence adduced during trial reveals that the appellant was never in possession of any arm or weapon?

4. Whether in view of the failure of the prosecution Police Officers to provide or at least offer the Appellant the right to a legal practitioner whilst recording his statement renders exhibits P1, P5, P6 and P7 inadmissible?

 

---

RATIONES DECIDENDI

---

NECESSITY OF IDENTIFICATION PARADE – CIRCUMSTANCES REQUIRING IDENTIFICATION PARADE

---

“While an identification parade is not a sine qua non in every case, the facts and circumstances of each case will determine whether it ought to be conducted or not. It will not be necessary where: (a) There is clear and uncontradicted eye witness account and positive identification of the perpetrator; (b) The witness knew the accused previously; (c) There is convincing, cogent and compelling evidence linking the accused to the offences; (d) The accused identified himself with the crime in his confessional statement. An identification parade is necessary where: (a) The victim did not know the accused previously and his first acquaintance with him was during the commission of the offence; (b) The victim or witness was confronted by the offender for a very short time; (c) The victim due to time and circumstances might not have had the opportunity of observing the features of the accused.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

EFFECT OF TRIAL WITHIN TRIAL – BINDING NATURE OF UNCHALLENGED FINDING ON VOLUNTARINESS

---

“The Appellant had the right to appeal against the ruling of the lower Court on the trial within trial by way of an interlocutory appeal, which he never did. The Apex Court and this Court had on several occasions reiterated the right of an accused person to appeal against the decision of a trial Court on a trial within trial, whose decision is normally not tampered with by the appellate Courts, as it concerns credibility of witnesses… This Court in Yusuf Abdullahi vs. State (2023) LPELR-60276 (CA) @ 46, held, per Abiru, JCA (as he then was) thus: ‘The Appellant did not appeal against the Ruling of the lower Court on the trial within trial either at the time it was delivered or as part of this appeal against the final judgment. The law is that, in these circumstances, the finding of the lower Court on the voluntariness of the confessional statement is binding on the parties and conclusive and cannot be tampered with by this Court.'” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

PROBATIVE VALUE OF EVIDENCE – REQUIREMENT FOR EVIDENCE TO BE IMPECCABLY DEVOID OF FAULTS

---

“It is settled law that for probative value to be accorded any piece of evidence, it must be found to be impeccably devoid of faults. See Anyegwu & Anor vs. Onuche (2009) LPELR-521 (SC); Maurice & Anor vs. Ogbaga & Ors (2019) LPELR-48866 (CA). In the instant case, Exhibits P5, P6 and P7 were tainted by fault of denial by the alleged maker, who stands to benefit from their content. Therefore, considering the Appellant’s denial of making these Exhibits during trial, the lower Court was right in discountenancing the said Exhibits P5, P6 and P7 as same were tendered by the same person who resiled from them.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

CONVICTION FOR LESSER OFFENCE – CRITERIA FOR FINDING GUILT ON LESSER OFFENCE

---

“The law is settled that a Defendant in a criminal trial can be convicted for a lesser offence if the evidence on record fell below the threshold of proof of the offence charged but is sufficient to sustain a lesser charge… Before an accused person can be convicted of a lesser offence, the ingredients of the lesser offence must be subsumed or embedded in the original offence charged and the circumstances in which the lesser offence was committed must be similar to those contained in the offence charged… Where the ingredients of the lesser offence cannot be extracted from the ingredients of the principal offence, it would amount to a breach of the appellant’s fundamental right to fair hearing guaranteed by Section 36 (6) (a) of the 1999 Constitution.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

INGREDIENTS OF ARMED ROBBERY – ELEMENTS REQUIRING PROOF BEYOND REASONABLE DOUBT

---

“The law is settled that the ingredients required to be proved beyond reasonable doubt in order to secure a conviction for the offence of Armed Robbery are as follows: (a) That there was a robbery or series of robberies; (b) That the robber or robbers were armed and (c) That the accused was the armed robber or he participated in the robbery with others.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

NATURE OF CONSPIRACY – DISTINCTION BETWEEN CONSPIRACY AND SUBSTANTIVE OFFENCE

---

“The law is trite that conspiracy to commit an offence is distinct from the actual commission of the offence. That is the reason why they are distinctly created and distinctly punished in our penal laws. As a criminal offence, conspiracy is an agreement by two or more persons to commit an unlawful act or a lawful act by unlawful means… The offence of conspiracy is hardly proved through direct evidence because of the utmost secrecy involved in hatching it. It is basically an inferential offence ordinarily proved by cogent inferences to be drawn from the subsequent acts done by the conspirators in the execution of their agreement. Therefore, while the proof of the offence of conspiracy is dependent on the overt acts done in pursuance of the conspiracy, proof of the substantive offence conspired to be committed is not dependent on the proof of conspiracy. The substantive offence can be proved independent of the conspiracy to commit it.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

GIST OF CONSPIRACY OFFENCE – AGREEMENT AND INDEPENDENCE FROM SUBSTANTIVE OFFENCE

---

“The gist of the offence of conspiracy lies in the agreement itself or the meeting of the minds of the conspirators. The two or several conspirators need not to have met each other before or to have expressly agreed to do an unlawful act or do an unlawful act by lawful means before they will be found guilty of the offence of conspiracy. It is sufficient if the evidence on record discloses that there was a meeting of the minds of the conspirators towards achieving an unlawful common goal. Conspiracy is a separate offence, independent of the principal offence, such that even if the principal offence is not proved or is abandoned, a person can nevertheless be found guilty for conspiracy if he had been involved in an agreement or scheme to carry out an unlawful act or a lawful act by unlawful means.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

PARTICIPATION IN ARMED ROBBERY – CONVICTION WITHOUT PERSONAL POSSESSION OF WEAPON

---

“One does not necessarily have to be personally armed before he can be charged and convicted for the offence of armed robbery if the offence was committed by two or more persons. This position is supported by a statutory provision, specifically, Sections 1 and 6 of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation, 2004. In the case at hand, there is evidence that the person who dispossessed PW1 of his car and gave the keys to the Appellant was armed. It was therefore a clear case of armed robbery and I see nothing wrong in the conviction of the Appellant for that offence, notwithstanding his discharge on the charge of conspiracy.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

APPLICABILITY OF PROCEDURAL LAWS – TEMPORAL APPLICATION OF CRIMINAL PROCEDURE LAWS

---

“The Appellant’s statements in dispute were taken on 29 March, 2010 and at that time, the relevant law in relation to criminal procedure in Edo State was the Criminal Procedure Law, Laws of Bendel State of Nigeria (1976) as applicable to Edo State, and not the Edo State Administration of Criminal Justice Law of 2016. The question now is whether or not the Edo State Administration of Criminal Justice Law of 2016 should apply to the statements of the Appellant in this circumstance. The answer is in the negative because the act of recording the Appellant’s statement was concluded in 2010, six years before the promulgation of the Edo State Administration of Criminal Justice Law, 2016. The provision of that law does not apply to the mode of recording Exhibits P1, P5, P6 and P7.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

TEMPORAL APPLICATION OF PROCEDURAL LAW – NON-RETROSPECTIVE EFFECT ON COMPLETED PROCEDURAL STEPS

---

“There is no doubt that in respect of practice and procedure, the rules of practice are those in force at the time of the trial… Nevertheless, when a step had already been taken and completed in the past according to the old rules then applicable, a change of the rules will not affect what had already been ‘done and dusted’ under the old rules. This is because no enactment has retrospective effect to undo what has been rightly done under the former enactment.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

BURDEN OF PROOF IN CRIMINAL TRIALS – NON-SHIFTING NATURE OF PROSECUTION’S BURDEN

---

“The burden of proof in a criminal trial is always on the Prosecution and this burden never shifts. See Section 135 of the Evidence Act, 2011. See also Onwe vs. State (2017) LPELR-42589 (SC) (Pp. 65-66 paras. E-A), where the Apex Court, per Galinje, JSC asserted that: ‘The law is very clear on who the burden of proof in a criminal case resides. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift.'” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

PROOF BEYOND REASONABLE DOUBT – STANDARD OF PROOF IN CRIMINAL CASES

---

“Proof beyond reasonable doubt is not synonymous with proof beyond all doubts, it only means proof with compelling evidence which is consistent with high degree of probability. See Bassey vs. State (2012) LPELR- 7813 (SC).” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

---

APPLICABLE LAW TO CAUSE OF ACTION – TEMPORAL APPLICATION OF PROCEDURAL LAWS

---

“It is beyond dispute that the law applicable to a cause of action is a law prevailing at the time the cause of action arose notwithstanding that that law had been repealed at the time the action is being tried. See: Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Fatola v. Mustapha (1985) 2 NWLR (Pt. 7) 438; Alao v. Akano (1988) 1 NSCC 329; (1988) 1 NWLR (Pt. 71) 431; Uwaifo v. Attorney General Bendel State (1982) 7 S.C. 124.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

• Robbery and Firearms (Special Provisions) Act Cap R.11, Laws of the Federation 2004

• Evidence Act, 2011 (Section 135)

• Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Section 36)

• Edo State Administration of Criminal Justice Law, 2016

• Criminal Procedure Law, Laws of Bendel State of Nigeria, 1976 (as applicable to Edo State)

• Criminal Procedure Act (Section 179)

• Criminal Procedure Code (Section 217, 218)

 

---

CLICK HERE TO READ FULL JUDGMENT