Minor contradictions can’t vitiate prosecution’s case – SC
Appellant and two others were arraigned on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 6 (b) and 1 (2) (a), respectively, of the Robbery and Firearms (Special Provisions Act Cap R 11 Vol. 14 Laws of the Federal Republic of Nigeria 2004. The charge was laid […]
Appellant and two others were arraigned on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 6 (b) and 1 (2) (a), respectively, of the Robbery and Firearms (Special Provisions Act Cap R 11 Vol. 14 Laws of the Federal Republic of Nigeria 2004. The charge was laid before the High Court of Justice of Ondo State, Akure Judicial Division. Appellant was the 3rd accused person.
The prosecution alleged that appellant and his co-accused persons invaded the premises of Hon. Justice Williams Akin Akintoroye on the 1st day of February, 2008. They were armed and robbed the Judge of the sum of N14,000.00, two laptop computers and other valuables belonging to the Judge and his household.
It was alleged that the appellant and his co-accused inflicted various degrees of injury on the Judge and members of his household. Some of the accused persons were alleged to have raped the family’s housemaid. Appellant and his co-accused pleaded not guilty to each count of the charge.
At the trial, the prosecution called four witnesses and rested its case. Appellant testified for himself but called no other witness. The learned trial Judge found each accused guilty as charged on each count of the charge and sentenced each to death by hanging on 16th August, 2012.
Appellant was aggrieved and he appealed to the Court of Appeal Akure Division. Owoade, JCA, with whom Denton-West and Jombo-Ofo, JJCA, agreed, dismissed the appellant’s appeal on the 16th day of May, 2014.
Still aggrieved, appellant filed a notice containing six grounds of appeal to this Court on 12th June 2014.
ISSUES:
“(i) Whether the lower Court was right in affirming the decision of the learned trial Judge that the prosecution led credible evidence of identification of the appellant as one of the armed robbers that attacked PW1 and PW2.
(ii) Whether having regard to the circumstances and from the totality of the evidence on record, the lower Court was right in upholding the decision of the trial court that the prosecution proved the offences of conspiracy to rob and armed robbery against the appellant beyond reasonable doubt.”
Issue one is on the identification of the appellant as one of the armed robbers that attacked PW1 and PW2. How this issue is resolved depends entirely on the evidence of PW1 and PW2 who gave eyewitness account of the robbery. Generally, the crucial question is not whether or not the crime charged was committed. It is who committed the crime. See Ndidi v. The State (2007) 5 SC 175. In this case it is beyond dispute that the crime of armed robbery was committed as alleged by the prosecution.
Was the appellant identified as one of the armed robbers? In answering the question posed (supra) I will seek guidance against mistaken identity in the following factors:
(1) The circumstances in which the eye-witness saw the appellant.
(2) The length of time the eye-witness saw the appellant.
(3) The fighting conditions under which the eye-witness saw the appellant.
(4) The opportunity of close observation of the appellant by the eye-witness.
(5) Previous contact between the eye-witness and the appellant. See Ndidi v. The State (supra).
1. From the evidence of PW1 and PW2 the armed robbers met them in their rooms. The armed robbers had contact with the eye-witnesses within the confines of their rooms. Both the PW1 and PW2 swore that the armed robbers were not masked.
2, This was not a brief encounter of the armed robbers with their victims. There was time enough for the robbers to tie the hands of the PW1, his wife and PW2 behind their backs before demanding for their belongings.
3. There was undisputed evidence that though there was power outage at about 8 pm when the robbery took place there was light provided by the PWl’s generator.
4. The armed robbers took time to hurt the PW1, tie the hands of PW1, PW2 and the wife of PW1 behind their backs. There is no evidence that the robbers blinded their victims. The PW1 and PW2 had ample opportunity to observe the robbers who did not appear to be in a hurry as they, three of them, allegedly rape the PWl’s housemaid.
5. There was no evidence of previous contact between the PW1 or PW2 and the appellant who was the third accused.
However, in view of issues 1-4 above, the non-previous contact of the witnesses with the appellant pales into insignificance. Under the circumstances above, did the PW1 and PW2 or either of them identify the appellant as one of the armed robbers?
I will start with the evidence of PW1. PW1 said four people came into his room. They were unmasked so he was able to see their faces. He conceded, under cross-examination, that “I did not actually see the third accused person (Nelson Friday) in my house at the time of the incident.”
In my view the evidence of the PW1 cannot be relied on to establish the identity of the appellant as one of the armed robbers.
However, the identification parade was conducted in the presence of PW1. He said that the three accused person which included the appellant formed part of the nine-man identification parade. He said:
“My housemaid who was a victim of their indecent assault easily identified the three accused persons…”
Learned Counsel for the appellant made a heavy weather of the fact that the housemaid was not called. But the fact that the housemaid was not called to say that she identified the three accused persons cannot by itself water down the evidence of what the PW1 saw and heard. PW1 did not say that the housemaid or anyone else informed him of the identification by the housemaid in which case it would have been hearsay and inadmissible to establish the truth of what was said – PW2 gave a more direct evidence of positive identification of the appellant.
He said, inter alia:
“The two other accused persons (1st and 3rd) ordered me to tie (sic) down. The two accused persons (1st and 3rd) tied our hands to our backs and stated demanding for our belongings… We discovered that the female house help had been raped by the 1st and 3rd accused persons. While I was in my room as aforesaid the 1st and 3rd accused persons went and brought my father and my mother into my room with their hands still tied to their backs. The 1st and 3rd accused persons later left us… in my room and they went out.”
The 3rd accused person consistently referred to by the PW2 is the appellant. Under cross-examination, the PW2 maintained that the 3rd accused person, i.e. appellant, was one of those who attacked his family.
I am satisfied that there was sufficient evidence before the trial Court identifying the appellant as one of the armed robbers who attacked the house of PW1 as alleged. The conditions for his proper identification were complied with. See Mbenu v. The State (1988) 3 NWLR (Pt. 84) 615, Abadu v. The State (1985) 1 SC 222.
In the circumstances, the Court below was right to have affirmed the finding of fact that appellant was one of the armed robbers who robbed PW1 and his family on 1/2/2008 by 8 pm. Appellant has not demonstrated any perversity in the concurrent finding of fact (that appellant was one of the robbers) by the Court below nor did he show that there was no sufficient evidence to support the finding. See Njoku & ors v. Erne & ors (1973) 5 SC 293 at 306, KaJu v. Coker (1982) 12 SC 252 at 271, Ibanga v. Usanga (1982) 5 SC 103.
There are therefore no grounds for this Court to disturb the finding. The issue is resolved against the appellant.
In issue 2 appellant questions the proof of conspiracy to commit armed robbery and armed robbery. This is a double-barrelled issue:
(1) whether conspiracy to commit armed robbery was proved; and
(2) whether armed robbery was proved.
Conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. In Stephen’s Digest of the Criminal Law, it is defined as “When two or more persons agree to commit any crime they are guilty of conspiracy whether the crime is committed or not.” It is not necessary to complete the offence that any one thing should be done beyond the agreement or in furtherance of the agreement.
The gist of the offence of conspiracy is the meeting of the minds of the conspirators. It is not easily capable of proof for conspirators hardly invite people to witness their assent. It is a matter of inference from certain criminal acts of the people concerned. See Njovens v. State (1973) 5 SC 17 at 9-90. There must be the criminal intent of two or more people the execution of which will result in the actual crime.
From the facts adduced in the trial Court which that Court accepted and which were affirmed by the Court below appellant and his co-accused did not meet in the house of PW1 on the date and hour in question by chance. They did not converge on the premises of PW1 by coincidence. It is irresistible that the appellant and his co-accused conceived and agreed on the plan to rob the house of the PW1 and this is a separate crime from the substantive offence of armed robbery. It is the egg, as it were, from which the offence of armed robbery germinated.
Armed robbery: It has been sufficiently established by unchallenged evidence that armed robbery took place as charged. The appellant and his co-conspirators were properly identified at the scene. Learned Counsel for the appellant contended that it was unnatural, improbable and against ordinary course of human behaviour for the appellant to rob within a neighbourhood where he could be identified and still remain in the place.
Armed robbery is inhuman behaviour and what is more unnatural and improbable is the fact that during the operation appellant was not masked. The robbery was carried out with impunity as the appellant and his gang deliberately dared the law.
As to the alleged contradiction emphasised by the appellant’s Counsel, a contradiction, if any, is fatal only when it goes to the substance of the case and there is no such contradiction in the case at hand. See Yaki v. State (2008) All FWLR (Pt 440) 618 at 644 SC. Minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged cannot vitiate the prosecution’s case against the appellant. See Enahoro v. Queen (1965) NMLR 265, Emiator v. State (1975) 9-11 SC 107, Nasiru v. State (1999) 1 SC 1.
I agree with learned Counsel for the respondent that contrary to the argument of learned Counsel for the appellant, the cases of conspiracy to commit armed robbery, as well as the substantive case of armed robbery, were proved against the appellant I resolve issue two against the appellant.
Having resolved the two issues against the appellant, I have come to the conclusion that the appeal is devoid of merit. It is hereby dismissed. I affirm the decision of the Court below which had affirmed the decision of the trial Court,
Appeal dismissed.
Counsel
Ayo Asala Esq with him O. N. Idogun Esq and A. E. Alagun Esq for the Appellant.
S. A. Adegoke (Mrs) DDPP, Ministry of Justice Ondo State with her Tunde Babalola Esq for the Respondent.