CORAM

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Tunde Oyebanji Awotoye Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Abdu Dogo Justice of the Court of Appeal

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PARTIES

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TUKUR

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, ARMED ROBBERY, CULPABLE HOMICIDE, CONSPIRACY, EVIDENCE, APPEAL, PRACTICE AND PROCEDURE, BURDEN OF PROOF, FIREARMS OFFENCES, CONSTITUTIONAL LAW

 

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SUMMARY OF FACTS

The Appellant, along with 18 other persons, was arraigned before the High Court of Kwara State on July 30, 2018, on a ten-count charge involving conspiracy to commit armed robbery and armed robbery, conspiracy to unlawfully possess firearms and unlawful possession of firearms, conspiracy to commit kidnapping and kidnapping, conspiracy to associate with and belong to gang of brigands and associating with and belonging to gang of brigands, and conspiracy to commit culpable homicide and culpable homicide. The charges arose from an incident on January 22, 2018, when armed bandits attacked the villages of Nuku and Woro in Kaiama Local Government of Kwara State, allegedly robbing persons and killing one person in Woro. Vigilante groups mobilized to trail the armed bandits, resulting in gun battles that led to the death of four vigilante members. The Appellant was identified as the leader of the armed bandits and was arrested along with the other defendants. At trial, all defendants pleaded not guilty. The lower court discharged all other defendants but convicted the Appellant of conspiracy to commit armed robbery, armed robbery, conspiracy to unlawfully possess firearms, unlawful possession of firearms, conspiracy to commit culpable homicide, and culpable homicide. The Appellant was sentenced to death for conspiracy to commit armed robbery, armed robbery, conspiracy to unlawfully possess firearms, and culpable homicide, and to ten years imprisonment for unlawful possession of firearms and conspiracy to commit culpable homicide. Dissatisfied with the verdict, the Appellant appealed to the Court of Appeal.

 

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HELD

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1.The appeal was allowed in part and dismissed in part.

2.The conviction of the Appellant by the lower Court of the offences of conspiracy to commit armed robbery and conspiracy to unlawfully possess firearms, as well as the offence of armed robbery, was set aside and replaced with a discharge and acquittal.

3.The conviction and sentence of the Appellant by the lower Court of the offence of culpable homicide punishable with death was affirmed.

4.The conviction and sentence of the Appellant in respect of the offences of criminal conspiracy to commit culpable homicide and unlawful possession of firearms remained since there was no appeal against these convictions.

 

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ISSUES

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1.Whether the learned trial Judge was right when he convicted the Appellant of the offences of conspiracy to commit armed robbery and conspiracy to unlawfully possess firearms despite the fact that all other Defendants with whom the Appellant was charged were all discharged and acquitted of the same offences?

2.Whether the trial Judge was right in law to have convicted the Appellant of offence of armed robbery, despite the admission of failure to prove the offence beyond reasonable doubt by the Prosecution/Respondent?

3.Whether the Trial Judge was right in law to have convicted the Appellant of offence of culpable homicide punishable with death, without proving the causal link between the acts of the Appellant and the acts leading to the death of the deceased, despite grievous discrepancies and inconsistencies in the evidence of the prosecution/Respondent’s witnesses and the prosecution admitting not to have proved the offence at the trial Court?

 

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RATIONES DECIDENDI

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CONSPIRACY TO COMMIT OFFENCES – WHETHER A SINGLE PERSON CAN BE CONVICTED OF CONSPIRACY WHEN CO-ACCUSED ARE DISCHARGED

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“The offence of conspiracy can only be constituted by the agreement of two or more persons to commit an offence. In other words, a single person cannot commit the offence of conspiracy.” – Per ABDU DOGO, J.C.A.

 

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CONSPIRACY CHARGES – GENERAL RULE ON DISCHARGE OF CO-CONSPIRATORS

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“I concede that generally, as it takes two to conspire, a person cannot be convicted of conspiracy, if the others are acquitted and discharged. However, each case must be considered on its own facts. To convict only one for conspiracy, suggests that the others, were equally guilty of conspiracy though acquitted and discharged.” – Per ABDU DOGO, J.C.A.

 

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CONSPIRACY CONVICTIONS – EXCEPTIONS TO THE GENERAL RULE

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“However, I am humbly of the view that there are exceptions to this rule. One of the exceptions is where the charge includes a person or some persons who is/are at large. In that circumstance, it is possible to convict one or more of the defendants that stood trial for the offence of conspiracy and discharge the other(s) if the evidence before the Court shows that the person(s) convicted conspired with the other(s) at large to commit the offence.” – Per ABDU DOGO, J.C.A.

 

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CONSPIRACY CHARGES – ERROR IN CONVICTING SINGLE DEFENDANT AFTER DISCHARGING CO-ACCUSED

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“As earlier stated above, the charge against the Appellant does not include other persons at large or unknown. As such, I am humbly of the view that the learned trial Judge erred in law in convicting the Appellant alone of the offences of conspiracy to commit robbery and conspiracy to unlawfully possess firearms after discharging the other defendants charged with the same offences along with the Appellant.” – Per ABDU DOGO, J.C.A.

 

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ARMED ROBBERY – ESSENTIAL INGREDIENTS AND BURDEN OF PROOF

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“The law is settled that the prosecution has the burden to prove all the essential ingredients of the offence charged, and if the prosecution fails to prove any of the essential ingredients, the person accused is entitled to be discharged of the offence.” – Per ABDU DOGO, J.C.A.

 

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ARMED ROBBERY – HEARSAY EVIDENCE AND PROOF OF ESSENTIAL FACTS

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“With due respect to the learned trial Judge, I hold the view that the evidence of the PW1 and PW2 on the occurrence of the alleged robbery are nothing but hearsay evidence as they were told that there was robbery. Similarly, the observation of the PW4 that from what they saw when they visited Nuku village, the village was actually attacked failed short of proving the essential facts of who was/were robbed and what was he or where they dispossessed of by the armed robbers.” – Per ABDU DOGO, J.C.A.

 

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CONTRADICTIONS IN EVIDENCE – MATERIAL VERSUS IMMATERIAL CONTRADICTIONS

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“To begin with, the law is settled that it is not every contradiction or discrepancy in the prosecution’s case that is fatal to the prosecution’s case. In other words, only contradiction on material issue in respect of the offence alleged that will negatively affect the prosecution’s case.” – Per ABDU DOGO, J.C.A.

 

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DISCREPANCIES IN PROSECUTION EVIDENCE – ASSESSMENT OF MATERIALITY

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“However, I hold the view that the discrepancy is not material so as to affect the credibility of either the PW1 or PW4… I hold the view that the discrepancy in respect of the date of the encounter is nothing but a slip of tongue or human error.” – Per ABDU DOGO, J.C.A.

 

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CULPABLE HOMICIDE – IDENTIFICATION AND LINKING ACCUSED TO DEATH

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“PWs 1, 2 and 4 clearly identified the Appellant as one of the alleged armed robbers they trailed and with whom they exchanged gun fire which led to the death of four vigilante members. It is apparent from the evidence before the lower Court that PWs 1, 2 and 4 knew the Appellant very well before the encounter as he was one time also a vigilante member.” – Per ABDU DOGO, J.C.A.

 

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CULPABLE HOMICIDE – COMMON INTENTION AND GROUP LIABILITY

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“It is obvious that the said alleged armed robbers had a common goal which was to escape from being arrested or apprehended by the vigilante members, and in furtherance of that goal they engaged the vigilante members in a gun battle which led to the death of four vigilante members. The law is settled that a blow/strike by one member of a group of persons in furtherance of their common criminal objective is seen in the eyes of the law as a blow/strike by all the members of the group.” – Per ABDU DOGO, J.C.A.

 

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CULPABLE HOMICIDE – NECESSITY OF MEDICAL REPORT TO PROVE CAUSE OF DEATH

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“On the contention of the Appellant that a medical report was not tendered by the prosecution to prove the cause of death, I simply say that the position of the law is that where the cause of death is obvious, a medical report is unnecessary to prove the cause of death.” – Per ABDU DOGO, J.C.A.

 

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CORROBORATION OF EVIDENCE – RECOVERY OF EXHIBITS AND WITNESS TESTIMONY

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“The Appellant admitted or confessed that 3 AK 47 riffle with live ammunitions and camouflage army uniform were recovered from his residence few days after the occurrence of the incident that led to the death of the four vigilante members. PWs 1, 2 and 4 all testified that they saw the Appellant among the alleged armed robbers bearing an AK 47 riffle and dressed in a camouflage army uniform. I hold the view that the recovery of the AK 47 riffle and camouflage army uniform from the Appellant’s residence corroborates the testimonies of the PWs 1, 2 and 4 that the Appellant was among the alleged armed robbers.” – Per ABDU DOGO, J.C.A.

 

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APPEAL – EFFECT OF UNAPPEALED FINDINGS

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“It is a settled principle of law that any unappealed finding in the judgment of a Court remains binding on the parties… the jurisdiction of this Court to review any decision of the lower Court on appeal is restricted to the findings complained of in the grounds of appeal. Any issue or finding not complained of in the grounds of appeal contained in the Notice of Appeal cannot be required into by this Court.” – Per ABDU DOGO, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)

Robbery and Firearms Act, Cap R11, Laws of the Federation of Nigeria, 2004

Kwara State Prohibition of Kidnapping Law, 2010

Penal Code Law

Evidence Act, 2011

Administration of Criminal Justice Law of Kwara State, 2018

 

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