Proper approach to an indictment which contains a charge of conspiracy and a substantive charge

SHUAIBU IDRIS BOKA v. THE STATE

CITATION: (2021) LPELR-53213 (CA)

In the Court of Appeal
In the Kano Judicial Division
Holden at Kano

ON TUESDAY, 9TH FEBRUARY, 2021
Suit No: CA/K/619A/C/2018

Before Their Lordships:

ABUBAKAR DATTI YAHAYA Justice of the Court of Appeal
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of the Court of Appeal
AMINA AUDI WAMBAI Justice of the Court of Appeal

Between
SHUAIBU IDRIS BOKA – Appellant(s)
AND
THE STATE – Respondent(s)

LEADING JUDGMENT DELIVERED BY HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
FACTS
The Appellant alongside eight other persons, were alleged to have conspired to commit armed robbery and committed armed robbery by attacking one Alhaji Ibrahim Umaru of Durumin Dishe, Auyakawa, old Gwaram with dangerous weapons in his house, beating him up and making away with valuable properties, including the sum of N800,000.00. The Appellant was charged alongside the eight other persons with two counts of conspiracy to commit armed robbery and armed robbery contrary to the provisions Sections 1(2)(b) and 5(b) of the Robbery and Firearms (Special Provisions) Act of 1990.

The Appellant pleaded not guilty to the charge and the matter proceeded to trial. In the course of the trial, the Respondent called five witnesses and tendered the Hausa and English versions of the confessional statement of the Appellant in proof of its case against the Appellant and the Appellant testified as the fifth defence witness, sole witness, in his defence. At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to death by hanging on the two counts of conspiracy to commit armed robbery armed robbery.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the following issues:
i. Whether the arraignment, trial, conviction and sentence of the Appellant by the learned trial Judge were not a nullity due to the failure of the Respondent to file a separate charge sheet apart from that engrossed on the application to prefer a charge.

ii. Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

APPELLANT’S SUBMISSIONS
Counsel to the Appellant stated that there was no proper charge in the records of appeal on which the Appellant was tried and convicted and what was in the records of appeal was an application to prefer a charge and that it was on this application that the Appellant was tried and convicted. He maintained that there was a difference between an application to prefer a charge and a charge and that the lower Court was wrong to have assumed jurisdiction to try the Appellant on the basis of an application to prefer a charge, and without a formal charge.
Counsel stated that since there was no formal charge filed by the Respondent to invoke its jurisdiction, it was wrong for the lower Court to have assumed jurisdiction to try and convict the Appellant.

Appellant’s Counsel cited the case of Awosika Vs State (2010) LPELR 44351(SC) wherein the definition and nature of the offence of conspiracy was explained by the Supreme Court. He traversed the testimonies of the first to the fifth Prosecution witnesses and stated that there was nothing in the testimonies suggesting that the Appellant conspired with the other co-accused persons to commit the offence of armed robbery for which he was tried, convicted and sentenced.

Counsel stated that the lower Court relied on unreliable pieces of evidence to convict the Appellant and thereby occasioned a miscarriage of justice. Counsel reiterated the six-way test that a confessional statement must be subjected to by a trial Court before relying on it. The case of Yahaya Vs State (2016) LPELR 40254 (CA). He stated that there was no credible evidence led to satisfy any of the six tests.

Counsel stated that the evidence led by the Respondent did not meet the threshold of proof beyond reasonable doubt and he referred to the case of Umar Vs State (2019) LPELR 47617(CA) on the meaning of proof beyond reasonable doubt and the case of Yahaya Vs State supra on the indispensable ingredients that must be proved to sustain a charge of armed robbery.

RESPONDENT’S SUBMISSIONS
The Respondent’s Counsel stated that the two counts charge of offences were read to the Appellant in the language he understood, after the grant of the application to prefer the charge, and he pleaded not guilty to them and his plea was recorded by the lower Court and that the charge was clear and expressive enough to tell the Appellant the case alleged against him and there was nothing showing that the Appellant was misled and/or did not understand the charge.

He cited Section 215 of the Criminal Procedure Code on arraignment and to the basic requirements of a valid arraignment as laid down by the Courts in Akinlolu Vs State (2017) All FWLR (Pt 927) 1, and stated that all the requirements were met in the present case.

Counsel stated that it is trite law that an agreement to commit a crime, criminal conspiracy, need not be express and it can be inferred from the facts and circumstances of the case and that where two or more persons commit a crime in concert or with a common purpose, criminal conspiracy to commit the crime can be inferred and he referred to the case of Yahaya Vs State (2018) All FWLR (Pt 986) 546. He further stated that the Appellant and his co-accused persons detailed in their confessional statements where and how they met and agreed to rob their victim and that these aspects of the confessional statements were highlighted and properly evaluated by the lower Court.

Counsel submitted that the confessional statement of an accused person is the best evidence and that where such confessional statement is voluntary, free, direct and positive, and the trial Court is satisfied with its truth, it is alone sufficient to sustain a conviction and he referred to the case of Ayedatiwor Vs State (2018) All FWLR (Pt 952) 1. He posited that the lower Court did subject the confessional statement to the six-way test reiterated by the Supreme Court in the case Afolabi Vs State (2016) All FWLR (Pt 955) 446.

Counsel referred to the ingredients of the offence of armed robbery as echoed in the case of Dawai Vs State (2018) All FWLR (Pt 970) 923 and stated that there was credible evidence in the case presented by the Respondent proving all the ingredients of the offence beyond reasonable doubt.

He stated that there were no contradictions in the testimonies of the first to the fifth prosecution witnesses and that, if indeed such contradiction did exist, they were not material enough to warrant the quashing of the conviction of the Appellant. Cited Ogu Vs COP supra,

RESOLUTION OF ISSUES
The Court stated that an arraignment involves the taking of the plea of an accused defendant. That the plea is an accused person’s formal response of guilty or not guilty or no contest to a criminal charge. The Court stated the trite position of the law that one of the fundamental requirements of a valid trial in a criminal matter is a valid arraignment. See Idemudia Vs State (1999) 7 NWLR (Pt 610) 202 at 219 B-C. The Court equally cited the provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria.

The Court held the contention of the Appellant’s counsel to be doubtful in view of the order made by the lower Court upon the grant of the application to prefer the charge, i.e. that the “Information Charge Sheet dated 3/6/03 is hereby ordered to be read to each and every accused person.” That it presupposes that there was an Information Charge Sheet, other than the application to prefer a charge, before the lower Court. The Court went further to explain that assuming the contention of the Appellant’s counsel was indeed correct, then the objection should have been brought at the appropriate time. That the law is, that by not raising an objection either to the application to prefer the charge and/or to the two-count charge at the time it was read to him, the Appellant acquiesced with the procedure used in preferring the charge against him, and that, having done so, he cannot now be heard to complain that the procedure was irregular. The case of Shafiu Vs State (2019) LPELR 47923(CA).

The Court relying on Ofordike Vs State (2019) LPELR 46411(SC) explained that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed. That conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related.

The Court explained that proof of actual agreement is not always easy to come by. That thus a trial Court can infer conspiracy and convict on it if it is satisfied that the actual person pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. See Ayinde Vs State (2019) LPELR 47835(SC). The Court therefore held that the reliance placed on the contents of the confessional statements of the Appellant’s co-accused persons by the trial Court, in making the finding of conspiracy was proper.

The Court stated the essential ingredients the Prosecution must prove to secure a conviction for armed robbery which are that there was robbery or series of robberies; that the robbery was an armed robbery carried out with firearms or offensive weapons and that the person charged with the offence was one of the robbers or implicated therein. The Court reiterated that the lower Court found that the Respondent led credible evidence to prove the three ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. That the lower Court found that on or about the 30th day of November, 2001 in Tsohuwar Gwaram in Gwaram Local Government Area of Jigawa State one Alhaji Ibrahim Umaru of Durumin Dishe, Auyakawa, old Gwaram was indeed robbed, that the robbery was carried out with offensive weapons, and that the Appellant participated with other persons in the robbery. The Court held the findings of the trial Court as being conclusive and binding because the Appellant did not contend against them. See Daniel Vs Federal Republic of Nigeria (2015) 13 NWLR (Pt 1475) 119

The Court held that contents of the confessional statement of the co-accused was positive, direct and unequivocal on the part played by the Appellant in the commission of the armed robbery. That once a confessional statement is direct, positive and unequivocal, a trial Court is entitled to convict on it so long as it is satisfied of its truth, even without corroboration. See the case of State Vs Ahmed (2020) LPELR 49497(SC).

HELD
The appeal was dismissed and the judgment of the trial Court was upheld.

APPEARANCES:
Sule Shuaibu with him,
Ibrahim Baba – For Appellants(s)

A. S. Gadanya with him,
A. A. Dabo & J. H. Adam – For Respondent(s)

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