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INTRODUCTION
A few weeks ago an abnormally bloody armed robbery incident took place in Ofa town in Kwara State in which a police station and six banks were robbed and 33 persons killed. Later some suspects were arrested, interrogated and detained in preparation for arraignment in Kwara. The Police High Command subsequently called for a transfer of the case to Abuja. It was in Abuja for the first time that some of the suspects confessed that they were among the thugs Saraki used to “dabaru” election and that Saraki gave them a car and money. The police than invited Saraki for questioning as a probable party to the offence of armed robbery. Now, let us first examine the crime of robbery.
ROBBERY AND ARMED ROBBERY
The definition of robbery is contained in S. 401 of the criminal code which provides that any person who steals anything and, at or immediately before or immediately after the time of stealing it, uses or threats to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is said to be guilty of robbery.
Section 402 (1) provides that any person who commits the offence of robbery shall upon conviction be sentenced to imprisonment for not less than 21 years.
Section 402(2) provides that if:-
(a) any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or any obnoxious or chemical materials or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of robbery, the said offender wounds any person,
the offender shall upon conviction be sentenced to death.
In ADEYEMI v. STATE, the Supreme Court held that the ingredients of the offence of armed robbery under S.402 (2) are that the person changed with the offence must be armed with any firearms or any offensive weapon or chemical or obnoxious material and that the person charged with the offence even if not armed must be in company of any person so armed.
OTTI v. STATE, is illustrative on what amounts to robbery. The victim was compelled by the appellant and his partners to ride in a car in great fear for her life, or at least, actual bodily injury. In the circumstance she was compelled to surrender, and where she hesitated, forcibly snatched her dress ring, earring, money and other valuable items.
It was held that this conduct comes within the mean of robbery in S. 401. This is because the property was taken without her consent by threats of violence immediately before the robbery, and it was also retained by similar threat of violence.
Once it is proved that an accused person was armed in a robbery raid, it becomes armed robbery, which attracts death sentence whether the gun is loaded, or not.
In BABALOLA v. STATE it was lead that if a person threatens another with a gun the natural inference is that the threatened person would expect to receive actual violence if he did not accede to the order to hand over his money. He could not be expected to ask the person threatening him to show him whether the gun was loaded or not so as to determine whether he was put in fear of actual violence. The test is whether the threatened person reasonably believes in the apparent circumstances that the threat is likely to be carried out and being so put in fear hands over his money (or goods demanded).
Under S. 402, where an offensive weapon or firearm is used the robbery attracts death sentence; but where the offence of robbery is committed without firearm or offensive weapon, the punishment is life imprisonment
In IBRAHIM v. STATE, the victim was driving his car. He got to a spot where he saw three men in army uniform. They stopped him and asked for a lift to a specific place. When he saw their hostile appearances, he later told them that he was not going towards their destination. One of them dipped his hand into his pocket and removed the money he had there. Others demanded money, which he could not provide. They beat him up and told him to choose between the vehicle and his life; he chose his life. After beating him up with a horsewhip, they pushed him into a ditch and drove away in his vehicle. Only the appellant was arrested by the police; others escaped. He was convicted of armed robbery. His appeals to the Court of Appeal and the Supreme Court were dismissed. The Supreme Court held that where the weapon used is proved to be an offensive weapon the robbery will attract death sentence; but where the offence of robbery is committed without firearms or offensive weapon, then it carries only life imprisonment.
Under S. 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1970, robbery with the aid of any firearms or offensive weapon is punishable by death. It is punishable by 21 years imprisonment under S. 1(1) of the same Act.
In OKOSUN v. A.G. BENDEL STATE, the Supreme Court held that under the Robbery and Firearms (Special Provisions) Decree, 1971, robbery simpliciter is punishable by 21 years imprisonment, whereas robbery accompanied by firearms or any offensive weapon or persons accompany persons committing robbery with firearms or offensive weapon, or wound or using violence in robbery is punishable by death. In ODILI v. STATE, the appellant was in possession of a firearm and was accompanied by another man armed with a machete in a robbery raid. The robbers tied up the night guards, pushed them under the bed and terrorised their victims who were two reverend sisters with the gun and wounded the sisters with the machete. The sisters were robbed of a sum of money. The appellant was convicted of armed robbery and sentenced to death by a tribunal established pursuant to the provision of the Robbery and Firearms (Special Provision) Decree, 1970. His appeal to the Supreme Court was dismissed.
THE SARAKI CASE
In relation to the Offa bank robbery, Senator Saraki is not guilty of any crime known to the laws of Nigeria. He is not even a suspect. At best the robbery incident has revealed evidence which could be enough for the prosecution to sustain a charge of violating the electoral laws of Nigeria. Police may well consider initiating a charge of electoral malpractice against Saraki since that was probably why he gave out a car and money. From the statements of the accused persons, Saraki sponsored their activities as thugs by providing them resources to “dabaru” elections. On whether Saraki was aware of the robbery before they embarked on it, one of the suspects said: “They did not send us for the robbery but because we are their political thugs, that was why we did what we did.” Once a man is used as a thug, whatever crimes he commits in future unrelated or unconnected with the job of thuggery cannot be ascribed to the sponsor of thugs. One of the classes of principal offenders is in section 7 (c ) of the criminal code which is: “Every person who aids another person in committing the offence.” If Saraki had specifically given out the car to commit bank robbery, his conduct would have fallen under the subsection but it is very far from it and very remote because he gave them the car as his electoral foot soldiers may be for thuggery.
On why he decided to rob considering that he could easily access the Senate President and the governor and ask for anything, Akinnibosun said: “It is the work of the devil.” Meaning Saraki is the devil now. “We have been working for him since when he was the governor of Kwara State. When he was in PDP.”
“We mobilise for him and we are the ones that do political arrangements for him. For example, where we cannot win, we mobilize people and make ‘dabaru’ arrangement there. We scatter elections if we don’t win.” On who gave him guns for political thuggery, he said: “It is the Chief of Staff to Kwara State Governor but he was not aware we were going to rob with them.” On how they got the weapons: “It was through one dismissed Police officer Michael Adikwu. He came with ammunition. That fateful day, it was, Arrow, Alex, Stand Well Well and Niyi. It was five of us that went. We took off from Ajase Ipo with another Mercedes Benz to Offa. When we got to Offa, I positioned everybody but I stood at Total filling station. When we got there, we met Michael Adikwu who came in one Audi car. He brought out five AK47 from a Nissan vehicle.”
PRINCIPAL OFFENDERS (PARTIES TO AN OFFENCE)
Let us have a look at the law and see whether Saraki has any element of culpability. S.7 of the Criminal Code provides that when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it; that is to say:-
a. every person who actually does the act or makes the mission which constitutes the offence.
b. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
c. Every person who aids another person in committing the offence.
d. Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counseling and procuring its commission.
A conviction for aiding an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
When a person assists another to commit an offence and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.
From the provisions of S.7 (a) every person who actually does the act or makes the omission, which constitutes the offence, is guilty as a principal offender. In R V. IDIONG & UMO, Idiong, intending to procure an abortion induced Umo a native doctor to administer a drug to a woman who died as a result. The West African Court of Appeal held that Umo was not criminally responsible, being an innocent agent, and that Idiong was solely liable because “it is the same as if the unlawful act had been done by the appellant himself”. The court applied common law principle and not S.7.
By virtue of S.7 (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence is guilty as a principal offender.
In EDEDEY V. STATE, the Supreme Court held that S.7 (b) which provides that “every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence” shall be deemed to be a party to the offence envisages the complicity of a person who does not actually commit the offence himself but whose act or omissions is deliberately aimed at the specified purpose or purposes; consequently, the witnesses who were (acting under the appellant’s superior orders) were in fact engaged with the appellant in the acts grounding the charges, though with different intents, cannot be regarded as accomplices by virtue of the provision.
Mere presence in the scene of the crime does not make a person a party to the offence.
In ENWEONYE V. R, a dispute arose over fishing nets between the occupants of two canoes in a river. Those in one shot those in the other, and their clansmen on the bank of the river helped to carry the bodies away. The only evidence against the third appellant was that he was on the bank at the time and that a call was made to him to pursue one of the disputants, though this shout appears to have had no effect. The West African Court of Appeal quashed his conviction as a principal offender.
The above case was decided under S.7(c), which provides that every person who aids another person in committing the offence is guilty as a principal offender.
In BUJE V. STATE, the Court of Appeal held that actual presence together with prior abetment means participation in the offence on criminal liability of an abettor, the court held that when a person aids the commission of an offence by being present at the scene not as a mere onlooker but with the purpose of aiding and assisting any other person or persons committing the offence he is equally guilty of committing the offence as a principal. It further held that once an abettor is found to be present at the commission of the offence he abetted, he automatically becomes a principal offender and it is mandatory on the trial court to convict him of the main offence.
In LOCKMAN V. STATE, the Supreme Court held that where an accused person who is not shown to have hit the deceased himself was present at the scene not as a mere onlooker but with the purpose of aiding and assisting the others who were brutally beating the deceased, he may be rightly convicted of murder.
IYARO V. STATE, is helpful as a case of aiding. The appellant and another were charged with armed robbery. The appellant used his taxicab to facilitate the commission of the crime in that he had conveyed his passengers to what appeared to be a prearranged spot and stopped the car for no apparent reason. He gave a signal and five men emerged and robbed the ladies seated in the taxi of their valuables while the appellant sat and watched. The robbers went away when they thought they had finished the job. He again hooted to the robbers, which indicated that there was still another victim. The robbers promptly returned and finished the job. He promptly took off upon a crowd forming in response to the cries of the victims. He was convicted for aiding and abetting. The Supreme Court dismissed his appeal.
Under S. 7 (d) any person who counsels or procures any other person to commit the offence is guilty as a principal offender.
In IYARO V. STATE, the Supreme Court held that the essential ingredients of the offence under S.7 is the procuration of another to do any act of such a nature that if he had himself done the act or made the omission, the act or the omission, would have constituted an offence on his part. He would be liable to the same punishment as a principal offender as if he had himself committed the act or the omission.
OKOTIE-EBOH V. D.P.P., is illustrative. The first appellant and others were convicted of forcible entry. The evidence showed that the first appellant gave the other defendants, his contractors, written authority to enter upon the land and demolish and clear away any buildings, structures or obstructions thereon and armed with that authority, the contractors made entry and demolished the properties. It was held by the Supreme Court that a person who counsels or procures the commission of an offence is deemed to have taken part in committing it, and may be convicted of the offence even though he was neither present at the time of or took part in its commission.
COMMON INTENTION
By the provisions of S.8 of the Criminal Code, when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence: ALARAPE V STATE (2001) 5 NWLR Pt. 705, 79).
In ADEKUNLE V. STATE the Supreme Court held that the ingredients that must be present under S.8 before a conviction is possible are:
(a) There must be two or more persons.
(b) They must form common intention
(c) The common intention must be towards prosecution of an unlawful purpose in conjunction with one another.
(d) An offence must have been committed in the process.
(e) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose.
In that case, the second prosecution witness went to take her ailing mother. She tied her on her back in the manner in which mothers tie their children in our land. As they were leaving the compound, the appellant followed them. Other persons joined. The appellant pulled at her cloth making her and her mother to fall to the ground. The appellant threw blocks at her mother causing her severe injuries. Others joined in throwing the blocks. The appellant was convicted of murder. His appeals to the Court of Appeal and the Supreme Court were dismissed. The Supreme Court held that the proof of common intention is a condition precedent to conviction in the case of a group attack because if a combination of this kind is proved, a fatal blow though given by one of the party is deemed in the eye of the law to have been given by those present and aiding. The person actually delivering the blow is no more than the hand by which the others all strike.
To sustain conviction under S.8, there must be evidence of common intention to prosecute an unlawful purpose in conjunction with one another, which resulted to the commission of an offence.
In OKOSI V. STATE, in a case of armed robbery, the first appellant knew the second appellant was armed with a gun. And by the evidence the second appellant provided he covered while the first appellant did the searching and ransacking. At the slightest threat of interference at the scene by the deceased he shot at him and he fell, thus facilitating the escape of the appellants from the scene. The court therefore held that the fact that the first appellant knew that the second appellant bore firearms was enough for the common purpose to make him equally guilty of murder. There was a common intention right from the outset to apply force that was capable of causing grievous harm in prosecuting the robbery and each knew or ought to reasonably know that death was probable consequence of such an act.
Where two or more persons go to steal and they knew that one of them is caring a lethal weapon, then it is their common intention to use violence when necessary.
ETEMODE & ORS V. QUEEN, is illustrative. The defendants stopped a canoe, pretending they were policemen, and alleging the goods in it were being smuggled in. They had the goods transferred to their own canoe, and the owner went into it too. And they moved ahead ostensibly going to the customs house. The man paddling the other canoe and following them heard the owner calling out for help in the distance; he lost sight of them. Later the corpse of the owner was found floating; it had machete wounds on it. One of the defendants was visibly armed with a machete when they accosted the other canoe. They were all convicted of murder.
It was held that if two or more men set out to steal and one of them is known by the others to be armed with a lethal weapon, all of them may be held criminally responsible for any consequences which result from the use of the weapon by the one who carried it, even if there is no evidence to show that there was any express pre-concerted agreement that he was to use it. The test of liability under S.8 is not whether the others counseled or procured him to use the weapon but whether it was probable consequence of the prosecution of their joint unlawful purpose. It was further held that where three men set out to steal and they all knew that one of them was carrying a cutlass, it was held to be a justifiable inference that their common intention extended to achieving their common purpose at least, by threat of violence if necessary, and since the evidence pointed irresistibly to the conclusion that one of the three used the cutlass in the presence of the other two to murder a person whose goods they were engaged in stealing, all three were held guilty of murder.
The offence must have been committed in the course of prosecuting their common unlawful purpose.
In QUEEN V. BELLO,16 the appellants and two other men waylaid a dealer, Fodi, and his assistant, Ahmadu, while carrying cloth from a market. The appellant wounded Ahmadu with an arrow, and robbed him of the cloth he was carrying. The other men shot and killed Fodi with arrows and robbed him. Ahmadu identified the appellant and the identification was corroborated by the discovery of pieces of the stolen cloth in the possession of persons who had received them from the appellant or his admitted associates; and also by a statement made to the police by the appellant in which he admitted taking part in the armed robbery with two others whom he named, though he denied shooting an arrow. The Supreme Court held that when in the prosecution of a common unlawful purpose by the accused and others a third person is killed the accused is guilty of murder, and it is immaterial that he personally was not one of those who actually attacked and killed the deceased.
In such a case each person is liable for his acts or omissions as well as the acts or omission of others.
In BUJE V. STATE, one Mariama was once the girl fiend of the deceased at the time of the incident. Two other men, Abubakar and Musa, made love advances to the said Mariama, which she refused. About midnight of the day of the incident the appellant, Abubakar and Musa went to the scence of incident and waited there until mariama and the deceased were passing through there. The appellant, Abubakar and Musa attacked Mariama and the deceased. The appellant with the aid of a stick pursued Mariama and was beating her with the stick until she ran into the house of her uncle in the area. When it was dawn, the corpse of the deceased, with a cut on the throat, was found at the scene of the incident. The trial court found the appellant guilty of abetting the offence, and convicted him to death. His appeal to the Court of Appeal was dismissed. It was held that if two or more persons intentionally do a thing jointly it is the same as if each had done it individually. Each person is not only liable for his own acts but also for the sum of the acts of his fellow conspirators in furtherance of the common intention.
ACCESSORIES AFTER THE FACT
A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.
In ABACHA V STATE (2002) 11 NWLR Pt. 779, 437, it was held that an accessory after the fact to an offence is a person who receives or assists another who is to his knowledge, guilty of an offence, in order to enable him to escape punishment.
In EKPO V. STATE, the defendant and others went up a creek in two canoes loaded with smuggled goods. Some custom officers came in a canoe; this some smugglers capsized and one officer got bogged in the mud; the first defendant shot him and the second swam up and gave him a machete cuts. Then the smuggling party went off. A fisherman who happened to be thereabouts, identified the first defendant only, the evidence against the second came from two of the smugglers. The trial judge thought these two witnesses could not have known that the defendants would go as far as murder to escape arrest as smugglers; also that the smugglers went off to avoid being caught with contraband, and not necessarily for the purpose of avoiding punishment for the murder. He did not regard those two witnesses as accomplices, and the main question in the appeal was whether that was not a mistake (an accomplice include an accessory after the fact). It was held that the party ran away to avoid arrest for the murder as much as to avoid being caught with contraband goods and in that common aim to escape, they, including those two witnesses, were helping the defendants to escape punishment and should have been regarded as accessories after the fact and therefore as accomplices.
There is an exception to the rule in S.10. A wife does not become an accessory after the fact to an offence of which her husband is guilty by receiving or assisting him in order to enable him to escape punishment; nor by receiving or assisting, in her husbands presence and by his authority, another person who is guilty of an offence in the commission of which her husband has taken part, in order to enable that other person to escape punishment; nor does a husband become an accessory after the fact to an offence of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment. This is provided for in the second paragraph of S. 10; which also provides that in that section, the terms “wife” and “husband” mean respectively the wife and husband of a Christian marriage. Punishments for accessories after the fact are provided for in sections 519 –521. S. 519 provides that any person who becomes an accessory after the fact to a felony is guilty of a felony, and is liable, if no other punishment is provided to imprisonment for two years.
S. 520 provides that any person who becomes an accessory after the fact to a misdemeanor is guilty of a misdemeanor, and is liable to a punishment to which the principal offender is liable on conviction.
S. 521 provides that any person who becomes an accessory after the fact to a simple offence is guilty of a simple offence and is liable to a punishment equal to one–half of the greatest punishment to which the principal offender is liable on conviction.
In STATE V. AKPABIO, the Court of Appeal held that from facts of the case, the 2nd and 3rd respondents were procured by the 1st respondent from their respective houses and in reaching the house of the 1st respondent she told them to treat the deceased as a thief is normally treated. In the context of what followed by a prolonged assault on the deceased in the presence of the 1st respondent by whipping and/or hitting that would appear to mean that the second and third respondents were counseled by her to severely beat up the deceased. The 2nd and 3rd respondents acted in concert in that regard. In that situation, it is not necessary to show counsel of the 1st respondent as long as it is proved that it was carried out, all of them being present. In other words, it does not matter which of the second and third respondents did what. What the 1st respondent did amounted to procuring and counseling within the mean of S 7(a). In this case the moment the 2nd and 3rd respondents accepted the counsel of the first accused and from the prolonged and violent assault on the deceased after his legs have been tied and the hands tied also behind him so that he was rendered completely defenseless, a common intention under S.8 at least to do grievous harm to him was present.
I see no area in the statements of the suspects directly or even circumstantially linking Saraki with the Offa robbery incident.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Direct evidence means the evidence of a fact in issue in a trial. For example, in a charge of murder, the fact in issue is whether it was the accused who killed the deceased.
Consequently, the evidence of a witness who saw the accused in the process of committing the crime is direct evidence. On the other hand, circumstantial evidence is not of the fact in issue but of other facts from which the fact in issue can be inferred. Circumstantial evidence becomes vital when there is no direct evidence on the issue. Where direct testimony of an eyewitness is not available, the Court is permitted to infer from the facts proved, the existence of other facts that may be logically inferred.
In State v Ogbunbunjo (2001) 2 NWLR Pt. 698, 576, it was held that circumstantial evidence is evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. Moreover, in Ijioffor v State (2002) 9 NWLR Pt. 718, 371 it was held that for circumstantial evidence to support a conviction, there must be a complete and unbroken chain of evidence as would justify a jury or trial court in coming to the irresistible conclusion that the prisoner and no one else committed the offence alleged.
In Adeyeye v. State, a conviction for murder based solely on circumstantial evidence was upheld by the Supreme Court. There, the mutilated bodies of the deceased and three other passengers in a lorry driven by the appellant were later found in a bush. Moreover, the plate number of the lorry was found in the bush by the corpses. In his statement to the Police, the appellant admitted that he plied the route where the corpses were found. Blood stains found in the scene of the crime and blood stains collected from the lorry after the commission of the offence, and blood stains in appellant’s clothes recovered from his house were found to be human blood of the same groups. Before his arrest, the appellant had escaped to a neighbouring country, during which he wrote a later to his father that he was avoiding Police arrest. Upon the above circumstances, he was convicted for the murder of the deceased.
As the Supreme Court said in Udo-debia and others v. State, where direct testimony of an eyewitness is not available, the Court is permitted to infer from the facts proved, the existence of other facts that may be logically inferred. Moreover, in Oladejo v. State, Nnamani J.S.C. was of the view that it is settled that circumstantial evidence is often the best evidence.
In Uche v. State, the deceased and the appellant were the only persons in a room. The sound of a gunshot was heard while they were there. Later the appellant was seen carrying the deceased in whose hand a gun was loosely and clumsily held instead of being tightly grasped. A case of suicide was ruled out because it was found that the entry part of a bullet lodged in the head of the deceased was about four inches behind the left ear. Since the only reasonable inference was that the deceased was shot at from behind at a distance by the only person who was present with him in the room (that is the appellant), the appellant was convicted.
Moreover, Peter Igho v. State, is illustrative. A charge of murder was laid against the appellant. There was evidence by three witnesses that the deceased was last seen alive with him being given a ride by the appellant on the back of his bicycle. The trial Court accepted this evidence and rejected the denial of the appellant that he carried the deceased on his bicycle or even saw her. The Supreme Court held that the only irresistible inference from the circumstances presented by the evidence was that the appellant killed the deceased.
As the Court said:
“The facts which were accepted by the learned trial Judge, amply supported by evidence before him called for explanation and beyond the untrue denials of the appellant (as found by the learned Judge) none was forthcoming, though this constitutes circumstantial evidence, it is proof beyond every reasonable doubt of the guilt of the appellant.”
Despite the relevance of circumstantial evidence, the Courts should be very careful before it is received and acted upon. The liberty of the individual is as important as the interest of justice.
CONCLUSION
An assessment or appraisal of sections 7. 8. 9 and 10 of the criminal code and the facts of the robbery incident cannot be said to link Saraki with the commission of a crime. No reasonable court or tribunal will convict Saraki on a charge based on the so called confessional statements of the suspects unless may be it is a charge relating to the violation of the electoral laws of Nigeria. It could be true that Saraki gave out the car to his thug for election purpose. The subsequent armed robbery they used the car to commit is not Saraki’s business. The mens rea or guilty mind of the suspects does not automatically translate to Saraki’s mens rea or evil intention to commit robbery.
Courtesy Prof S Edeko
Dean, Faculty of Law, Ambrose Alli University
Ekpoma, Edo State
