⦿ CASE SUMMARY OF:
Faslat Adepoju v. The State (2014) – CA
⦿ LITE HOLDING
Men’s is not capable of positive proof, it is to be inferred from the overt act.
⦿AREA OF LAW
- Criminal Law.
- Conspiracy to commit robbery.
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
- FOR THE APPELLANT
- C.V.C. IHEKWEAZU, A.C. EZE, AND T.A. MICAH.
- FOR THE RESPONDENT
- MRS. ABIOLA A JAYI, CHIEF STATE COUNSEL.
⦿ FACT (as relating to the issues)
This is an appeal against the judgment of HONOURABLE JUSTICE A. O. WILLIAMS delivered on the 16th day of October, 2009 wherein the Appellant along KEZEEM RAIMI were convicted for the offence of conspiracy and robbery.
Dissatisfied with the judgment, the Appellant appealed against the judgment and the notice of appeal dated 15/03/2013 set out 4 grounds of appeal.
- Whether the trial judge was correct in Law to have relied on the evidence of the two witnesses to sustain that the Prosecution has proved its case beyond reasonable doubt in conviction of the Appellant?
- Whether the prosecution has proved all the elements of the offence of conspiracy to commit robbery and robbery to warrant the conviction of the Appellant?
⦿ RESOLUTION OF ISSUE(S)
- ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The trial Court found ample evidence of agreement between the appellant and the 1st defendant; fundamentally from the evidence of the appellant and the 1st defendant themselves. It is abundantly made clear by the 1st and 2nd defendants in the witness box that they agreed to go and pack the properties and they in fact packed the properties from the house of Pw1 to the house of Dw1 from where same were recovered. The overt act here is the packing of the properties from Victoria Island to Ojodu, Berger, Lagos. As required, it is the overt act that situates the offence of conspiracy. They agreed to go, they went together, they packed the properties together to the house of the 1st defendant. The agreement is replete in the evidence of appellant and 1st defendant see pages 38 lines 20 29 of the record of appeal where the first defendant said thus: “We were bitter about the failed promise so we went to the house of her boss to take her belongings. We were not armed with a gun when we went to pack the things. The properties we packed have been taken by the Police … When we went to pack the properties of the 2nd defendant’s boss, she was not at home, we went to pack the things because the husband of the 2nd defendant boss promised the 2nd defendant that he will give her money to offset medical expenses but he did not give her the money.”
ii. The trial Court diligently reviewed the evidence and the findings were that, from the facts established, conspiracy was proved since the fundamental element of the offence is the agreement of minds which was established. By the evidence highlighted above, the agreement was clearly established. The next element is that they have agreed to an illegal act or to do a legal act by illegal means.
iii. By whatever ingenuity of argument, no valid lien arises under the circumstances of this case. The properties taken belong to a different person, not even related to the one to pay the money. He was not informed before or after packing the properties. So how could a valid lien arise. The argument of Counsel to the Appellant cannot stand as it is a misapplication of the principle of lien to the facts of this case. Therefore the act of packing the things was illegal and in pursuance of the agreement which satisfies the second element of Conspiracy.
- ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. From the facts found by the trial Court, the properties which are the subject matter of the stealing belonged to Pw1 (ETI-OSA OZIGBO ESERE) even though the Appellant claimed that it belonged to one Linda. The items mentioned in the charge were moved from Victoria Island, the house of Pw1 to another part of Lagos, the house of Dw1 – 1st defendant at the trial. This was done through threat as Pw1 told the Court how she was threatened to move to the sitting room to keep quiet and to the bedroom where properties were taken, her evidence is at page 17 – 22. The items taken from Pw1 were: (a) Nokia 6310 and Starcomm Phone (b) 3 wrist watches (c) A pair of white gold earring (d) A pair of gold earring (e) A pendant with blue beads (f) 3 other dress earrings (g) Television Set Big LG Silver 33 inches (h) DVD player and video set. All above listed items are movable things capable of being stolen.
ii. In any case, if there must be corroboration, is the evidence of Dw1 and Dw2 not enough corroboration of what Pw1 told the Court? It is not the law that defence cannot corroborate the evidence of prosecution witnesses. In any case, Pw2 is the investigating Police officer who traced the first defendant and also recovered most of the properties stolen by the Appellant and 1st defendant. Both defendants gave detailed evidence of how they organized and carried out the robbery. There is nothing to stand on to insist that Pw2’s evidence is not corroborative. The trial Court found so and it is so and remain so.
iii. The trial Court diligently evaluated the evidence before the Court before arriving at the verdict. If the appellant and 1st defendant did not testify the question of whether they confessed would arise. But here, they testified and confirmed to a large extent what the two prosecution witnesses told the Court. The appellant copiously in her testimony admitted the act of carting away properties from Pw1’s house even when the person she has a grudge against is living in a different place. She confessed to committing the offence. An appellant Court would not readily interfere with findings of facts by a trial Court except it is perverse and evident on the record.
iv. Usually it is the actus rea that draws out the mens rea just like in this case. The actions of the Appellant clearly established her mens rea. Why cover your face if you are legitimately taking what belongs to your employer? How can you transfer the obligation of Linda’s husband to Pw1 and even Linda. Where are some of the items stolen? Why did she not tell Linda’s husband that she had taken Linda’s properties immediately after the incident? Why did she not report to anybody before her arrest? From the record of appeal, the trial Judge was right in her findings and subsequent conviction because the guilty mind of the Appellant is evident on the record.
Evidence Act 2011.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
ROBBERY: The Court of Appeal in AROWOLO v. THE STATE (2009) LPELR 4913(CA) held as: “In proof of robbery prosecution must establish the ingredients beyond reasonable doubt. There must be proof among other things that the items were stolen accompanied by the use of or threat to use violence; and the Appellant took part in the robbery. See BOZIN v THE STATE (1985) 2 NWLR (pt 8) 465, OKOSUN v. A.G. BENDEL STATE (1985) 3 NWLR (pt 12) 283; NWACHUKWU v. THE STATE (1985) 3 NWLR (Pt 11) 218 at 269. It is also trite that the degree of the burden of proof placed on the prosecution is to prove the accused guilty beyond reasonable doubt. Section 138 of the Evidence Act places such burden beyond reasonable doubt”.
STEALING: ADEJOBI v. STATE (2011) LPELR 97 (SC) where the Supreme Court held thus: A person who fraudulently takes anything capable of being stolen or fraudulently convert to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing are as follows namely: 1. The ownership of the thing stolen 2. That the thing stolen is capable of being stolen 3. The fraudulent taking or conversion.
CORROBORATION: In Dagayya v. The State (2006) 7 NWLR (Pt 980) 637 held thus: “Corroboration entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. Corroboration does not mean that the witness corroborating must use the exact or very like words, unless the matter involves some arithmetic”. PER TOBI J.S.C.
PROOF BEYOND REASONABLE DOUBT: Dibie v. The State (2007) LPELR 941 (SC) said thus: “Proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the Court is entitled to convict him, although there exist shadows of doubt. The moment the proof by prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus rea or both, the prosecution has discharged the burden placed on it by Section 138(3) of the Evidence Act”.
HOST OF WITNESSES: In OCHIBA v. THE STATE (2011) LPELR 8245 (SC) where it was held as follows: “I need to say it that it is settled Law that the prosecution was not obliged to call a host of witnesses in order to discharge the burden placed on it to prove the charge against the appellant beyond reasonable doubt as dictated by section 138(1) of the Evidence Act. A sole witness like P.w.1, who has given credible and clear evidence which was believed by the trial Judge, will suffice. See OBUE V THE STATE (1976) 2 SC 141; SADAM v THE STATE  12 SC (PT.1) 73 at 87-88; AKPAN v THE STATE  3 NWLR (PT 182) 695”.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is trite that the burden of proof in criminal cases is permanently fixed on the prosecution and it does not shift throughout the trial. Every offence has elements that must be established by credible evidence before it can be said to be proved. Here, the offences are Conspiracy and Robbery and the elements for the offence of Conspiracy has been settled by the Apex Court as follows: “(i) an agreement to do something which is unlawful or; (ii) To do something which is lawful by unlawful means.” – Nimpar, JCA. Adepoju v. State (2014)
A lien therefore is not created where there is no contract. It is given by Law as an incident of contract. More or less, a right to enforce a charge upon property of another for payment of debt. – Nimpar, JCA. Adepoju v. State (2014)
The essential ingredients that must be proved to ground a conviction on a robbery charge are: (a) Stealing (b) The stealing must be accompanied by either violence or threatened violence (c) That the Appellant took part in the robbery. – Nimpar, JCA. Adepoju v. State (2014)
Corroboration evidence is relevant where the law requires it. Thus unless corroboration is required by Law, the evidence of a single witness of the right probative value has always been accepted as sufficient proof for the offence as charged. – Nimpar, JCA. Adepoju v. State (2014)
Intention generally is incapable of positive proof because it is a matter of inference of supporting circumstances of every given case. – Nimpar, JCA. Adepoju v. State (2014)