CORAM
CHIDI NWAOMA UWA
AMINA AUDI WAMBA
MUSLIM SULE HASSAN
PARTIES
USMAN USMAN SHEHU
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, CONSTITUTIONAL LAW
SUMMARY OF FACTS
The appellant and 5 others were accused of Conspiracy to commit Armed Robbery and Armed Robbery by breaking into people’s home and taking away their property. The victim (PW2) said he recognized one of the accused persons by his voice and stature because they had lived in the same area. Two of the accused persons were caught by the Vigilante after their Robbery and taken to the police station. The police brought the accused persons to the victims house the next day and he affirmed that they had indeed robbed him and he could recognize one of the accused persons. PW2 was taken to the police station where he recognized some of his property. The police also claimed that the accused person had made a confessional statement.
The Appellant flatly denied the crime, being at the scene of the crime, or knowing the other defendants.
Trial Court convicted the Appellant on two counts of conspiracy to commit Armed Robbery and Armed Robbery, and sentenced him to death. Aggrieved he made the instant appeal.
HELD
Appeal Dismissed
ISSUES
Whether the lower Court was right to have convicted the Appellant for the offence of conspiracy and Armed Robbery?
RATIONES DECIDENDI
BURDEN OF PROOF – BEYOND REASONABLE DOUBT – THE PROSECUTION WILL ACHIEVE THIS BY
In criminal proceedings the onus is always on the prosecution to establish the guilt of the accused/defendant beyond reasonable doubt, the prosecution will achieve this result by ensuring that all the necessary and vital ingredients of the charge are proved by evidence, under our system of criminal justice, an accused/defendant is presumed innocent until he is proved guilty. There is therefore no question of an accused person proving his innocence before a law Court. The duty of the prosecution is to prove the charge against an accused person beyond reasonable doubt. It should be noted that it is not proof beyond every shadow of doubt but beyond reasonable doubt. See BONIFACE ADENIKE v. THE STATE (2015) LPELR-24281 (SC).
In THE STATE v. JAMES GWANGWAN (2015) 9 SCM 253 at 267 to 268 per OKORO JSC Stated:
‘’It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo v. Commissioner of Police (1992) LPELR-3528 (SC), (1992) 4 SCNJ 113, Ogundujan v. State (1991) LPELR-2333 (SC), (1991) 3 NWLR (Pt. 181) 519, Akibge v. IOG (1959) 4 FSC 203, Onubogu v. The State (1974) 9 SC 1 at 20, Babuga v. State (1996) LPELR-701 (SC), (1996) 7 NWLR (Pt. 460) 297.’’
In SOLOMON ORODE v. THE STATE (2018) LPELR-43788 (CA) Per SHUAIBU JCA at page 16 paragraphs C-F said:
‘’It is settled that the prosecution always bears the burden of proof and the standard of proof of a criminal offence is proof beyond reasonable doubt to secure conviction. However, proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt. Where all the essential ingredients of the offence charged have been proved or established by the prosecution, the charge is proved beyond reasonable doubt. Consequently, proof beyond reasonable should not be stretched beyond reasonable limit.’’ – Per M. S. Hassan, JCA
CONSPIRACY – MEANING
According to TOBI JCA (as he then was) in SHODIYA v. STATE (1992) 3 NWLR (Pt.230) 457 at 499:
‘’Legally conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way. In effect the purpose of the meeting of the two minds or more minds is to commit an offence. While the law does not require the physical meeting of the minds in a predetermined or known place, as the offence of conspiracy could be committed by written communication, the prosecution must establish that the criminal minds really met somewhere to hatch a crime.’’ – Per M. S. Hassan, JCA
PROCEDURE – THE COURTSHOULD FIRST CONSIDER WHETHER THE SUBSTANTIVE OFFENCE HAS BEEN PROVED
I shall at this stage consider the substantive offence before coming back to the Conspiracy count. This is in conformity with the directive of the Supreme Court as re-stated by my learned brother TSAMMANI, JCA in the case of OLANIYI OGUNJIMI v. THE STATE (2017) LPELR-42768 (CA) Pages 5-6 paragraph B:
‘’….the Supreme Court has enjoined that, where a charge of commission of a substantive offence is coupled with conspiracy to commit same, the Count should first consider whether the substantive offence has been proved, before proceeding on the charge of conspiracy. In other words, the Supreme Court has enjoined that where an information contains a charge of conspiracy and a charge for the commission of the substantive offence, the proper approach is to first deal with the charge on the substantive offence before proceeding on a consideration of the conspiracy charge. See Jimoh v. State (2014) 10 NWLR (Pt. 1414) p.105; Lukmon Osetola & Anor v. The State (2012) LPELR-9348 (SC); Folorunsho Alufohai v. The State (2014) LPELR-24215 (SC) and Idowu Okanlawon v. The State (2015) LPELR-24838 (SC). Thus, in the case of Adesina Kayode v The State (2016) LPELR-40028 (SC), My Lord, Ariwoola, JSC said: ‘’It has been settled that the appropriate thing to do when an indictment contains a charge of conspiracy along with the substantive charge is to deal with the main charge first and then proceed later to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy.’’ – Per M. S. Hassan, JCA
ARMED ROBBERY – ESSENTIAL INGREDIENTS
Section 1 (2) (a) and (b) of the said Act provides as follows:
‘’1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
(2) If-
(a) any offender mentioned in subsection (1) of this section is armed with firearms of offensive weapon or is in company with any person so armed;
Or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.’’
Now for the prosecution to succeed under the above Section he must prove three key elements beyond reasonable doubt as stated by the Supreme Court in the case of FABIAN NWATURUOCHA V. THE STATE (2011) LPELR-8119 (SC) Pages 5-6, paragraphs G-C per FABIYI, JSC said:
‘’It is now firmly established that the essential ingredients of the offence of robbery as stated in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) are as follows: (a) That there was a robbery or series of robbery. (b) That each robbery was an armed robbery. (c) That the accused was one of those who robbed. For the above stated ingredients of the offence of robbery, see as well Bozin v. The State (supra) at 469, Alabi v. The State (supra) at 523 and Awosika & Anr v. The State (supra) at page 71.’’ – Per M. S. Hassan, JCA
CHARGES – ONLY GIVES AN ESTIMATED TIME AN OFFENCE MAY BE COMMITTED
Charges as always allowed in criminal cases does not state the exact date and time of the commission of the offence but only gives an estimated time an offence may be committed. When an offence is committed in the instant case after mid-night, a charge may state the day before mid-night or the day after mid-night, that is why the charge would say ‘’on or at about.’’ The same thing applies to time. A charge can only give an estimated and not exact time of the commission of an offence. It cannot reasonably be expected that an offence such as armed robbery can be committed within the exact time stated in the charge. – Per M. S. Hassan, JCA
CHARGES – ON OR ABOUT
Where the phrase ‘’on or about’’ is used in a charge, it is not necessary to prove the exact date the alleged offence was committed. The phrase ‘’on or about’’ is used in a charge to indicate an approximate time or location. – Per M. S. Hassan, JCA
CONSPIRACY – PROVING THE OFFENCE OF CONSPIRACY
In other to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other. All that need be established is that the criminal design alleged is common to all of them. Proof of how they connected with or amongst themselves or that the connection was made is not necessary for there could even be cases where one conspirator may be in one town and the other in another town and they may never have seen each other but there could be acts on both sides which could lead the trial Court to the inference. See ERIM v. STATE (1994) 5 NWLR (Pt. 346) 522 at 533.
For the prosecution to succeed in proving the offence of conspiracy, it must prove the conspiracy as described in the charge and that the accused were engaged in it or prove the circumstances from which the judge may presume or infer it. It may not always be proved by direct evidence as it is generally a matter of inference deduced from certain criminal acts and conducts of the parties accused, done or carried out in pursuance of an apparent criminal purpose in common between them. See IKEMSOM v. STATE (1989) 3 NWLR (Pt. 110) 455. – Per M. S. Hassan, JCA
CONDUCT – THE FACT THAT THEY WENT TOGETHER TO COMMIT THE OFFENCE
The fact that they went together to commit the offence proves beyond any shadow of doubt that they agreed to commit the offence and each of them took part in the agreement. – Per M. S. Hassan, JCA
CONFESSION – WHERE AN ACCUSED PERSON IDENTIFIES HIMSELF BY CONFESSIONAL STATEMENT
The law is settled beyond argument that where an accused person identifies himself by his confessional statement, identification parade becomes unnecessary. See DAVID PHILIP v. THE STATE (2019) LPELR-47388 (SC) Pages 44-45. – Per M. S. Hassan, JCA
CONTRADICTIONS ON MATERIAL FACT – CAN ONLY BECOME FATAL WHERE
It is a settled principle of law that contradictions or inconsistencies in the testimonies of prosecution witnesses on a material fact can only be fatal where the trial Judge fails to advert his mind to the contradictions or inconsistencies thereby resulting to a miscarriage of justice or where the contradictions or inconsistencies are not explained through any of the prosecution witnesses. See the judgment of per ADEKETE, JSC (as he then was) in GAMBO MUSA V. THE STATE (2009) LPELR-1930 (SC) Pages 35-37. – Per M. S. Hassan, JCA
CASES CITED
STATUTES REFERRED TO
1. Robbery and Firearms (Special Provisions) Act, Cap, RII Laws of the Federation of Nigeria, 2004
2. Evidence Act