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Conspiracy: Circumstantial evidence, inference enough to ground conviction – SC

 In the Supreme Court of Nigeria HOLDEN AT ABUJA Friday, February 12, 2016 Suit number: SC.83/2012 Between ADESINA KAYODE — Appellant And THE STATE —…

 In the Supreme Court of Nigeria HOLDEN AT ABUJA Friday, February 12, 2016 Suit number: SC.83/2012
Between
ADESINA KAYODE — Appellant
And
THE STATE — Respondent
 Walter Samuel Onnoghen (JSC), Nwali Sylvester Ngwuta (JSC), Mary Ukaego Peter-Odili (JSC), Olukayode Ariwoola (JSC), Musa Dattijo Muhammad (JSC)
Judgement
 (delivered by Olukayode Ariwoola, JSC)
This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on the 12th day of October, 2011, wherein the conviction and sentence of the appellant for the offences of conspiracy to commit armed robbery and armed robbery were affirmed.
 The appellant and two others had been arraigned and jointly charged before the High Court of Justice of Ogun State sitting in Ijebu Ode, with the following offences:
Count I
Conspiracy to commit armed robbery contrary to Section 6(b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, (Cap. R.ll), Laws of the Federation of Nigeria, 2004.
 Count II
 Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap, RII, Laws of the Federation of Nigeria, 2004.
 FACTS
Upon arraignment, the appellant had pleaded not guilty as the other two co-accused. The prosecution called two witnesses and tendered couple of exhibits including Statements obtained by the police. The appellant testified but called no other separate witness while the others also testified in defence. The 1st accused however called his mother to testify.
 The prosecution’s case is that sometime on the 7th day of May, 2007, at about 930p.m.y PW1 – Osiyemi Rafiu Niyi, the managing director of the FAO Petroleum Filling Station, llese via Ijebu-Ode, closed from work at the station and drove out in a M/Benz 230 car and headed toward the toll gate. He was in the car with one Samson Agbo, one of the petrol attendants. He carried with him in the car the total sum N357,150 being the proceeds of that day’s sale. As he got to hone, a motorcycle he had noticed through the side mirror coming behind with three men on it overtook him and crossed his car in the front blocking his way. The said the men came down and ordered him to come out of the car. He was dragged out of the car, attacked and taken into the nearby bush, where he was stabbed with a broken bottle. The attendant with him in the car escaped and ran away. The three assailants took away the money he had with him and two telephone handsets. One of them threw his car key away into the bush, and sped off with the motorcycle. PW1 cried for help and people came round to help. Some commercial motorcyclists pursued the assailants but could not get them. One of his brothers, Leke Osiyemi, later came to the scene of the incident and mentioned that he had earlier seen the 1st accused, Kolawole Okunade, who was a member of the staff of petrol station, around the station.
The attack was reported to the police. On the next morning of 8th May, 2007 at about 6.30am, PW1 went to the house of the 1st accused to ask him if he had any clue to the attack on him. The lst accused was not in the house but one Biodun, a senior brother to him assisted to call the 1st accused on phone. The police were invited and arrested the 1st accused in his house. He later confessed to the crime and gave the names of the appellant and another as co-accused. Both the appellant and the co-accused were arrested. The sum of N243,130 was later recovered from 1st accused while one of the handsets – a Nokia – was recovered from the appellant. The 1st accused took the police and PW1 to the spot where he had kept the black jacket he wore and used for the operation. The victim was later taken to the state hospital for treatment.
 In defence, the appellant and the co-accused resiled on their statements earlier made to the police confessing to the crime. After the conduct of trial within trial, the trial court overruled the objection to the admissibility of their statements. Each statement was admitted as exhibit. At the conclusion of the trial, the court in its considered reserved judgment found the accused persons guilty as charged, convicted and sentenced each of them to death by hanging.
The appellant was dissatisfied with the judgment of the trial court hence he appealed to the Court of Appeal, Ibadan, The court below found the appeal unmeritorious and dismissed same leading to the instant further appeal to this court.
 Issues for determination
Issue 1 – Whether the justices of the court appeal were right, in view of the findings of fact and the circumstances of the case, in affirming the conviction and sentence of the appellant by the trial court.
Issues 2 – Whether the justices of the Court of Appeal were right in the circumstances of this case, to have endorsed the trial court’s reliance on Exhibits C and G in convicting and sentencing the appellant.
Issue 3 – Whether the court below was right in affirming that the prosecution in the circumstance of this case proved the offences of conspiracy to commit armed robbery and armed robbery, against the appellant beyond reasonable doubt as required by law.
 As earlier stated, the appellant and two others were charged with two counts of conspiracy to commit armed robbery and armed robbery.
 The three men were tried and convicted as charged. The appellant appealed to the court below but his appeal was dismissed while his conviction and sentence by the trial court were affirmed by the court below leading to the instant appeal.
 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.
 Generally, conspiracy is an agreement between two or more persons to do an unlawful act. Therefore, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence, in itself, independent of the actual offence conspired to commit.
On the first issue, the appellant had contended that the findings of the court below in its judgment which led to the affirmation of the conviction and sentence of the appellant were perverse and led to miscarriage of justice against the appellant.
There is no doubt that from the record, it was clear that the only employee of PW1, the victim of the armed robbery attack, was the 1st accused person but not the appellant as erroneously stated in the judgment of the court below. But it cannot be said, in all sincerity and fairness that the error alone influenced the decision of the court below to affirm the conviction and sentence of the appellant. It was mainly Exhibit G – which was his confessional statement, I am therefore of the firm view that the mistake or error is not material enough to have caused a miscarriage of justice to lead to the setting aside of the judgment of the court below. It is already established, that it is not every mistake or error in a judgment that necessarily determines an appeal in favour of an appellant or automatically results in the appeal being allowed. The error or mistake to result in the upturn of a judgment must be substantial and must have occasioned a miscarriage of justice. The appellate court is bound to interfere once the court is satisfied that such error has occasioned miscarriage of justice.
In this case, the fact that the appellant was described as the employee of PWl who was an insider cannot be said to be substantial enough to occasion a miscarriage of justice in the face of other material evidence available on record. The court below was therefore in order in affirming the conviction and sentence of the appellant notwithstanding the slip in the findings on page 209 of the record as the error did not occasion miscarriage of justice.
The second issue is whether the justices of the Court of Appeal were right in the circumstances of the case to have endorsed the trial court’s reliance on Exhibits C and G in convicting and sentencing the appellant.
 It is noteworthy that Exhibits C and G were the statements made to the police by the 1st accused and the appellant herein who was the 2nd accused at the trial court.
 PW2 was a Force No.33129 – Police Constable Babalota Solomon, attached to Area Commander’s Office formally Atan Divisional Police Headquarters. He was the Investigating Police Officer (IPO) who took the statements of the appellant and the other two accused persons who stood trial – each of them objected to the admissibility of the statements and the trial court ordered a trial within trial on each of the statements. When the trial judge later found that the statements were indeed voluntarily made and were direct and possible, the objections were overruled and the statements were admitted as exhibits.
 At the close of the trial within trial, on the objection to the admissibility of the statements being sought to be tendered as confessional statement of the 1st accused, the court had stated, inter alia, as follows:
 “I have also evaluated the evidence led by both defence and prosecution. While that of the prosecution is straight forward, that of the 1st accused is full of twists and turns from what he would first say and later take a different position. I have also looked at the evidence led by Police Constable Solomon. This police officer who was alleged to have beaten the 1st accused with a cutlass. It was while the 1st accused was giving evidence that he introduced that he was beaten with a cutlass. The veracity of PW2 was never impugned.
 In the light of the above I am satisfied that this statement sought to be tendered was made voluntarily by the 1st accused. The objection made to it being tendered as exhibit is overruled and the statement is admitted and marked Exhibit C.”
In the same vein, at the close of the trial within trial conducted the objection to the admissibility of the appellant’s confessional statement, the trial judge found as follows:
“The 2nd accused in his testimony during the trial within trial had stated he was beaten before he signed the statement in question. He however, in his testimony admitted he did attend Itele High School and that he does not know the 1st accused. Also in his evidence on oath, the 2nd accused did not deny what is in the statement that the handset belonging to the complainant was stolen by him while the robbery was going on as Police Constable Solomon’s fabrication.
 These pieces of information contained in the statement of 2nd accused in my view are not pieces that were within the personal knowledge of the Investigating Police Officer and hence It could not be concocted.
 I have also looked at the signature credited to the 2 accused on the purported statement. The signatures of the 2nd accused is regular and the same throughout. The signature did not strike me as the signature of a man who signed after he had been mercilessly beaten and covered in blood, I expected even to see stains of blood on the statement but it contained none at all.
From the above, I am convinced that the statement of the 2nd accused was made voluntarily and I so hold. The objection to it being tendered is overruled and it is admitted and marked Exhibit G.”
 On record, it is clear that in the statement made to the police upon his arrest, Exhibit C was where the 1st accused mentioned the appellant’s name among those who joined him to carry out the operation. The arrest of the appellant was sequel to the mention of his name by the 1st accused who initiated the operation. Upon his arrest, the appellant also made Exhibit G which, as the trial judge found, contains information which were entirely within the personal knowledge of the appellant and was therefore admitted as a voluntarily made statement in which he made admission to the operation.
There is no doubt that the trial court relied on the appellant’s confessional statement having been satisfied that it was possible and was made by the appellant voluntarily. Notwithstanding the retraction by the appellant, the trial court was satisfied, when other pieces of evidence were considered that the confession was proved.
It is trite law and already settled in several decided cases by the court that, where an extra-judicial confession has been proved to have been made voluntarily and it is found positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt, regardless of the fact that the maker had retracted it at the trial in his evidence on oath in court.
Because the trial court had done all it was required to do to a retracted extra-judicial statement of a suspect before coming to the conclusion that it was proved by the prosecution as having been made voluntarily, I am of the firm view that the court below was right to have endorsed the use of the two exhibits, C & G, by the trial court in convicting the appellant and the court was right to have affirmed the conviction and sentence based on the said exhibits. Accordingly, this issue is resolved against the appellant.
 Now to the issue of whether the court below was right in affirming that the prosecution in the circumstances of this case proved the offences of conspiracy to commit armed robbery and armed robbery, against the appellant beyond reasonable doubt as required by law.
 It is trite law that for the prosecution to establish the offence of armed robbery as required by law, the following must be proved:-
 (i) That there was in fact robbery;
 (ii) That the robbery was an armed robbery; and
 (iii) That accused person was the armed robber or one of the armed robbers.
 See; Bozin Vs State (1985) 2 NWLR
To establish the above requirements, the prosecution relied on the testimony of PW1, PW2 and Exhibits C and G, the confessional statements of the 1st accused and the appellant respectively.
 The trial court had found as follows:-
 “In the present case, the evidence of PW1 as to how he was attacked by three men and robbed is in consonance with all the confessional statements the accused persons have made together with the fact that the material items of the PW1 as contained in his evidence were also mentioned in the statements of the accused persons as having been stolen during the attack on PW1.”
 The trial court went further as follows:
 “The evidence of PW2 also corroborated Exhibit G to the extent that the handset of the PW1 was found in (sic) the 2nd accused when he was arrested. All these pieces of evidence make Exhibits C, E, F, G and H, the confessions true and also most probable. It is for these reasons I do not believe the cock and bull story of the three accused persons that it was the police who asked them to name each other as conspirators of all the people 1st accused knew why was it 2nd and 3rd accused he mentioned. Why was the handset found with 2nd accused and part of the money found with 1st accused. The only inference is that they were all working in concert.”
 When cross examined during the trial by the learned counsel for the 2nd accused, the instant appellant, Mr. Sonuga, the PW2 stated, inter alia, as follows:
“The 1st accused had mentioned the names of 2nd and 3rd accused as committing the offence with him and two others now at large and so we had to release the manager of the petrol station and others we have arrested. The 2nd accused was arrested where he was hiding near his house, the handset of the complainant was found on him as we tried to call the number of the phone, it was ringing where he was and this led us to 2nd accused and one Ajilete also assisted us.
Before the 2nd accused was arrested, we had been looking for the 2nd accused the night before the vigilante were helping us but the morning he was eventually arrested he had gone to hide upon sighting the police but the ringing of the complainant’s mobile handset with him gave him away.”
 From the record of proceedings inclusive of the above there is no doubt that the prosecution adduced ample evidence to show that there was infact a robbery incident on the 7th day of May, 2007 at former Ijebu Ode toll gate in the Ijebu Ode Judicial Division. And that the said robbery was an armed robbery as the men involved were armed with dangerous weapon, such as broken bottle.
 Furthermore, from the statements made to the police by the appellant, coupled with the other material evidence found by the trial court, there is no iota of doubt that the appellant was one of the men that carried out the attack on PW1 whereby he was robbed with a broken bottle and dispossessed of certain amount of money and telephone handsets.
 In its judgment, the court below had alluded to the confessional statement made by the appellant and described it as follows:-
“In this instance, Exhibit G was not only possible but was actually voluntarily made by the appellant. The evidence of PC Solomon at the trial within trial that he never beat the appellant to extract a confession from him was not demolished by cross examination, neither was the evidence of PC Solomon that the appellant voluntarily handed over to him (PC Solomon) a Nokia handset belonging to PW1 which he (the appellant) stole during the armed attack on PW1 demolished during cross examination. Is Exhibit G consistent with the other facts which had been ascertained and which have been proved? The totality of the prosecution’s case put forward so far is eloquent testimony to the fact that the appellant’s confessional statement is consistent with other facts which have been ascertained and proved.”
 At another place in the judgment of the court below, it was found that “all the facts and evidence point to the conclusion that Exhibit G was voluntarily made by the appellant.” I cannot agree less with the trial court and court below on exhibit G being a voluntarily made statement by the appellant. The statement contains so much graphic details of the day to day activities and background of the appellant that only he himself could have voluntarily given but not concocted by anyone to implicate him. I am therefore not in the slightest doubt that the prosecution adduced sufficient evidence to establish the offence of armed robbery against the appellant.
 Accordingly, this issue is resolved against the appellant.
 Now to the charge of conspiracy to commit armed robbery with which the appellant was charged, convicted and sentenced and has appealed to this court against the affirmation of the court below.
On this, the trial court had referred to the confessional statements of the three accused persons that stood trial and were found guilty, convicted and sentenced for the two counts, including conspiracy.
Generally, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of the parties accused which are done in pursuance of an apparent criminal purpose in common between them. See; Folorunsho Alufoha Vs The State (2015) 3 NWLR (Pt. 1445) 172; (2015) All FWLR (Pt.765) 198. In other words, in order to secure conviction on a count of conspiracy, the prosecution must establish the elements of agreement to do something which is unlawful or to do something which is lawful but by unlawful means. Conspiracy has been held to be an offence which is difficult to prove by direct evidence as it is often hatched in secrecy. However, circumstantial evidence and inference from certain proved facts are enough to ground conviction for the offence.
 It is interesting to note, as I had earlier alluded to in this judgment, that learned counsel for the appellant on the issue of conspiracy to commit the offence charged, referred to the statements of the appellant made to the police and that of the co-accused persons in paragraphs 4.80-4.86 and conceded that at best the parties may have conspired to assault PW1 or at worst, cause him grievous bodily harm.
 Having read the portions of the confessional statements of the appellant and the co-accused quoted by the appellant’s counsel, I consider it apposite to state it here that it was quoted out of context to suit counsel’s argument.
 In the record, the 1st accused had stated, inter alia, as follows:-
“I am the person who organised the attacked (sic) because of the way Niyi Oshiyemi, the managing director usually treat me in the place of work that is why I called my brother who lives in Lagos, one Adewole to bring his motorcycle and one Segun who live at Ogbere and plan to attack him but only to beat him up whether he will change but when we cross (sic) him on the road, my people whom we went together says (sic) we should carry the money inside the car, this is how we carry (sic) the money and the total money we carry (sic) was N250,125. And even the label of the total money was on the money, it’s the other two boys that beat him.”
 On page 23 of the record is the confessional statement of the appellant. He stated, inter alia, as follows:
 “I know Kolawole Okunade (1st accused) of Ijebu Ife. We were childhood friend and attend same school. I also know one Segun who live at Itele for about four – five years ago. On the 7/5/2007 around evening time, Segun came to our house at Ogbere.
Segun explain to me that Kolawole Okunade came to him and explain that he was cheated by somebody and he want us to beat that person up.”
It is noteworthy that, it is clearly on the record that the statement made by the 1st accused – Kolawole Okunade led to the arrest of the appellant as one of those with whom he carried out the attack on PW1.
 It is the law, that in a trial for conspiracy, evidence of what one accused person says in the absence of the other conspirators is rendered admissible against such others on the basis that if they were all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it was said in the absence of the other conspirators. This is said to be an exception to the hearsay rule.”
Upon further reference to the testimony of PW1 and PW2 on the appellant’s role in the attack on PW1, in concert or agreement with others the court below came to the following conclusion.-
 “The evidence was not demolished by cross examination. The confessional statement of the appellant – Exhibit G is also in harmony with the confessional statement of Okunade Kolawole (1st accused) a former employee of PW1 who was in fact the mastermind of the robbery attack. It was through his confessional statement, Exhibit C, that the appellant was arrested.”
It is settled law that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether or not the accused persons had knowledge of its unlawfulness. See; Ikechukwu Okon Vs The State (2014) Clark Vs The State (1986) 4 NWLR (Pt.35) 381.
From the confessional statement of the appellant and that of the co-accused persons, in particular, the 1st accused person who masterminded the operation, which statements were correctly found to be direct, positive and voluntarily made, by the trial court, I am of the firm view without an iota of doubt that the prosecution proved the offence of conspiracy against the appellant in accordance with the law. As a result, the conviction and sentence was correctly affirmed by the court below. Accordingly, the issue is resolved against the appellant.
It is interesting to note that this court already dealt with the appeal of the 1st accused, Okunade Kolawole whose, statement to the police led to the arrest of the appellant as a co-accused in the attack on PW1. In that case reported as Okunade Kolawole Vs The State (2015) 1 SCM 195 at 223, in the short but beautiful contribution in support of the leading judgment My Lord Nweze. JSC clearly states thus:-
“As already indicated in the leading judgment; the complainant’s stolen  items  were  found  in the appellant’s possession soon after the robbery incident complained of.  It was therefore, clear case for the invocation of the presumption in Section 149 (a) of the Evidence act (applicable in 2009 when the appellant took his trial), being the Nigerian Statutory version of the English doctrine of recent possession, Eze Vs The State (1985) LPELR – 1189 (SC) 11-13. In my humble view, the lower court, rightly affirmed the judgment of the trial court even on this score alone.
“It could not have been otherwise for if a person is found in possession of property, which was property reported to have been recently stolen, with or without violence from another person, it is open to a trial court to convict that person of the offence, Isibor Vs The State (2002) LPELR – 1553 SC 22-23, G-C; R Vs Loughlin 35 CR App.69; In Re Karimu attanda Vs The State (1985) 6 SC 1.”
 As I had earlier alluded to in this judgment, it is on record that one of the two mobile phone handsets that were stolen from the car of PW1 during the attack on him was found on the appellant. Indeed, a call to the said phone gave him away from his hiding in a place close to his house when the police were looking for him as the phone was ringing on his body. The trial court found that no explanation was provided by the appellant for its possession of the said stolen telephone handset.
What more can anybody ask for before coming to the conclusion that the appellant was one of the group that attacked PW1 on the day in question.
 In the final analysis, and without any further ado, I hold that this appeal is unmeritorious and deserves to be dismissed. The appeal is hereby dismissed. The judgment of the court below delivered on 6th January, 2012 which affirmed the conviction and sentence of the appellant by the trial court is affirmed.
 Counsel: Uche Obi, SAN with A. M. Sanusi, Esq and S. R. Akinrinlade for the appellant.
 A U Mustapha , Esq with 0. Ehikoya, Esq. for the respondent

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