11 December 2006

Nigeria: Conviction for Robbery Conspiracy Not Inferred From Substantive Offence


Lagos — 'Where in a criminal trial, there are inconsistencies, contradictions or conflicts in the prosecution's case; it is not the function of the trial court to offer explanation. It is for the prosecution to explain the circumstances of the contradiction and prove its case beyond reasonable doubt.' So held the Court of Appeal in this case.

The appellant and two others were arraigned before the Criminal Division of the High Court of Lagos State charged with conspiracy to commit robbery and armed robbery contrary to sections 403 (A) and 40 (2) (a) of the Criminal Code Law Cap.31 laws of Lagos State, 1973. The two other were Sumaila Sokoto and Danladi Abdullahi.

They were alleged to have conspired with others still at large to rob one Mrs. Rhoda Atiati and in furtherance of that, did rob the said Rhoda Atiati of the sum of N200 (two hundred Naira) while armed with cutlass and knives on or about September 12, 1981.

The prosecution called two witnesses to prove its case and tendered the extra-judicial statements of the three accused persons in evidence. The appellant and the two other convicts gave evidence in their respective defence and called no additional evidence. At the close of the case, Justice A. Desalu convicted each of the accused persons as charged and sentenced them to 21 years imprisonment for the 1st count and to death by hanging on the 2nd count.

It was against the judgment that the appellant had appealed through a notice of appeal brought on April 9, 2003. Six grounds of appeal were identified. In line with the Rules of the Court of Appeal, briefs were filed and exchanged and the appeal came up for hearing on October 5, 2006. Learned counsel for the appellant, Mr. Ogwemoh identified, adopted and relied on the argument contained in his brief and urged the Court to allow the appeal.

From the six grounds of appeal, three issues were identified for determination by both counsel for appellant and respondent. The three issues were identical, mainly whether the finding of conspiracy against the appellant was not latently speculative and based on conjecture and suspicion. Also, whether or not any evidence existed on the records capable of sustaining a finding of guilty in respect of the offence of conspiracy to commit robbery. In arguing the first issue, counsel for the appellant Mr. Ogwemoh submitted that the prosecution did not prove its case against the appellant beyond reasonable doubt because the extra-judicial statements of PW1, the alleged robbery victim and her oral evidence during the trial were contradictory and therefore unreliable. He further submitted that the prosecution did not establish the essential ingredients of the offence of robbery and as such the lower court was therefore in error to have returned a verdict of guilty on the appellant. He also argued that the withholding of the evidence of five witnesses out of seven witnessed that was attached to the information at the lower court was an admission that their testimonies would have been unfavourable to the prosecution. He cited the cases of OKOROJI v THE STATE (2002) 5 NWLR (Pt. 759) 21, STATE v EMINE (1992) 7NWLR (Pt. 256) 658, AMUSA v THE STATE (1980) 3 NWLR (PT.30) 536. and many others. He concluded that the identity of those who allegedly committed the crime had not been established and so the appellant was wrongly arraigned before the court as the offender.

In reply, learned Director of Public Prosecution, Mrs. Okikiolu-Ighile admitted that the burden of proof in a criminal case is always on the prosecution who must prove beyond reasonable doubt the guilt of the accused person. Her submission was based on sections 236, 138 and 139 of the Evidence Act Cap. 112 Laws of the Federation. She also cited the authorities of MUFUTAU BAKARE v THE STATE (1987) 3 SC 1 at 32, OKERE v THE STATE (2001) 2 NWLR (PT. 697) 397 at 415, BOZIN v THE STATE (1985) 2 NWLR (PT8) 465 and MICHAEL v THE STATE (2001) 32 NWLR 121 at 127. She urged the court to hold that the prosecution had proved its case beyond reasonable doubt.

It was established that the contradiction between the extra-judicial statement of the PW1 and her oral evidence in court had rendered her oral evidence unreliable.

Having weighed the arguments of counsel on both sides, the it was held that 'where the prosecution relies on the commission of the substantive offence by an accused person and others to infer conspiracy, and the accused person is convicted therefore on the basis of his conviction for the substantive offence, the conviction for the conspiracy charge will fail if the conviction for the substantive offence is set aside on appeal.' For this the court cited the cases of NJOVENS v THE STATE (1973) 5SC 17 and AMACHREE v NIGERIAN ARMY (2003) 3 NWLR (PT807) 256 at 281.

In conclusion, the court held that 'It follows therefore that the conviction for conspiracy to commit robbery cannot stand since such conspiracy was inferred from the evidence on the substantive offence of robbery.' The issue was thereby resolved in favour of the appellant.

On the strength of the acquittal of the 3rd convict who was convicted on the basis of the same evidence against the appellant, the appellate court found merit in the appeal and it was unanimously allowed. The decision of the trial High Court was set aside and quashed accordingly. In its place a verdict of acquittal was entered and the appellant was discharged and acquitted.

Sylva Ogwemoh and Edward Jarikre for the appellant

R. T. Oluwole, Asst. Director of Public Prosecution, Lagos State for the respondent.

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