SEGUN BALOGUN

V.

ATTORNEY GENERAL OF OGUN STATE

SUPREME COURT OF NIGERIA

SC. 160/2001

ABUBAKAR BASHIR WALI, J.S.C. (Presided)

EMANUEL OBIOMA OGWUEGBU, J.S.C.
UTHMAN MOHAMMED, J.S.C.
UMARU ATU KALGO, J.S.C.
SAMSON ODEMWINGIE UWAIFO, J.S.C. (Read the Leading Judgment)

MONDAY, 25TH FEBRUARY, 2002

APPEAL - Supreme Court - Power of to correct errors of Court of Appeal suo motu - Section 26
of the Supreme Court Act 1960.

COURT - Supreme Court - Power of to correct errors of Court of Appeal suo motu - Section 26 of
the Supreme Court Act 1960.

CRIMINAL LAW AND PROCEDURE - Alibi - Defence of - Where raised - Duty on accused to
furnish particulars of same - Failure to so do - Effect on the defence.

CRIMINAL LAW AND PROCEDURE - Alibi - Defence of - Where raised - Onus and standard of
proof on accused - Onus on prosecution to prove guilt of accused beyond reasonable doubt -
Whether shifts.
[2002] 6 NWLRBalogun v. A.-G., Ogun State513
CRIMINAL LAW AND PROCEDURE - Alibi - Defence of - Purport of - Duty on accused to raise
properly and timeously.

CRIMINAL LAW AND PROCEDURE - Alibi - Plea of - How may be destroyed by the prosecution
- Effect whereso destroyed.

CRIMINAL LAW AND PROCEDURE - Alibi - Defence of - Where raised by accused - Respective
onus on accused and the prosecution - Duty on accused to give particulars of the alibi - Duty
on prosecution to disprove same.
CRIMINAL LAW AND PROCEDURE - Charges - Charges of conspiracy to commit an offence
and commission of the substantive offence - Joinder of- Impropriety of.

CRIMINAL LAW AND PROCEDURE - Conspiracy - Where substantive offence is not proved -
Whether defeats charge of conspiracy to commit the offence.

CRIMINAL LAW AND PROCEDURE - Identification of accused - Identification parade - When

necessary - When unnecessary - Governing principles.

CRIMINAL LAW AND PROCEDURE - Proof of crime - Conspiracy - Charge of- How established
- Whether can be inferred from criminal acts of the parties.

CRIMINAL LAW AND PROCEDURE - Sentencing - Attempted armed robbery - Proper sentence
therefor - Section 2 of the Robbery and Firearms (Special Provisions) Act - Mandatory nature
of.

EVIDENCE - Evidence Act - Sections 199 and 209 thereof - Purpose of - Application of.

EVIDENCE - Proof of crime - Conspiracy - Charge of - How established - Whether can be inferred
from criminal acts of the parties.
514Nigerian Weekly Law Reports29 April 2002
STATUTE - Evidence Act - Sections 199 and 209 thereof - Purpose of - Application of.

Issue:
1.Whether the Court of Appeal was right in relying on contradictory evidence to convict the
appellant of the offences of conspiracy to commit robbery and attempted robbery.
2.Whether the Court of Appeal was right in holding that the defence of alibi raised by the appellant
was properly rejected.
3.Whether the Court of Appeal was right in imposing a sentence of 20 years imprisonment on the
appellant on his conviction for attempted armed robbery.

Facts:
On 9th March, 1997, a gang of armed robbers invaded the premises of one Toyin Agarawu,
who testified as P.W.l, at Ijebu- Igbo. He was woken up in the night by his wife who heard the
groaning of their security guard, and then peeped through his bedroom window with the aid of the
security light in the premises. He saw a group of men among whom he recognised the appellant
and two others. After watching the men for sometime, he raised an alarm as to the presence of
thieves. As a result of the alarm, the armed robbers shot at his direction and the shot hit him at the
back of his head. PW1 then ran away and hid himself in another part of his house.
The armed robbers eventually broke the entrance door and forced their way into the house
where they met PW1 and his wife, and demanded for money from them. PW1 subsequently found
out that the armed robbers had killed his security guard by strangulation and he proceeded to report
the robbery attack at the police station where he made a written statement. He named the appellant
and two other persons as members of the robbery gang. He stated that the appellant and his
colleagues took the sum of N1,000.00, a ring and a necklace from him. In another statement made
to the police, P. W. 1 repeated that the appellant and the other two persons collected Nl,000.00
from him and some jewelry worth N2,000.00 from his wife. P.W.1 also led the police to the
appellant's house but the appellant was not found at home.
On 7th May, 1997, PW1 received information that the appellant
[2002] 6 NWLRBalogun v. A.-G., Ogun State515
and his colleagues were at a local bar in town he went there and saw the appellant and his
colleagues drinking. P.W.l bought a drink and secretly sent for the police. The appellant and his
colleagues subsequently suspected the plans of P.W.l and attempted to leave the bar but the PW1
grabbed the appellant. In an ensuing struggle, both fell into a gutter but PW1 held fast to the
appellant while the appellant's colleagues made good their escape from the scene. The police later
came and apprehended the appellant and took him to the police station.
In his statement to the police on 8th May, 1997, the appellant denied being one of the robbers
who had gone to P.W.l's house to rob and kill his security guard. He alleged that on 3rd May, 1997,
he and P.W.l fought at a canteen after he turned down P.W.l's offer of a drink because of the bad
blood that existed between him and P.W. 1 over the appellant's refusal to participate in vigilante
work with P.W.l. He said that he was a driver and that on 7th March, 1997, he and his family were
at Seme border with his employer.
Thereafter, the appellant was arraigned on a two count charge at the Robbery and Firearms
Tribunal under the Robbery and Firearms (Special Provisions) Act. The first count was conspiracy
to commit armed robbery contrary to section 5(b) of the Act while the second count was armed
robbery contrary to section l(2)(a) of the Act.
At the trial, P.W.l gave evidence that he had known the appellant for over 10 years before
the robbery attack against him by the appellant and his colleagues. He testified as to the events of
the aback and arrest of the appellant. He, however, did not testify that the appellant and his
colleagues took the sum of N1,000.00 and some jewelry from him and his wife respectively as
stated in the statements he made to the police which were tendered and admitted in evidence.
On his part, the appellant testified that he had known P.W. 1 for over 25 years and that he
had been involved in the vigilante operation for their neighbourhood for one and half months in
1996 when he left for Seme border to work as a driver. He claimed that it was on 6th May, 1997
that he and his employer together with a charter party drove down to Ijebu-Igbo town from Seme
border in his vehicle to attend a burial ceremony and that he took the vehicle to a car wash and
proceeded to the nearby bar while the car was being washed and that it was at the bar that P.W.l
met him and they had the fight.
516Nigerian Weekly Law Reports29 April 2002
On 14th January, 2000, upon the evidence before the Tribunal, it found the appellant guilty
on both counts, convicted the appellant on each and sentenced him to death by firing squad. The
appellant was aggrieved with the decision of the tribunal and appealed to the Court of Appeal.
 The Court of Appeal in its decision allowed the appeal against the convictions and sentence
passed on the appellant and substituted for the convictions, conspiracy to commit armed robbery
and attempted armed robbery. The court then sentenced the appellant to terms of 10 years and 20
years imprisonment respectively with hard labour with both sentences running concurrently.
The appellant was aggrieved with the decision of the Court of Appeal and he appealed to the
Supreme Court. The contention on behalf of the appellant was that it was the same evidence which
was led in support of the offence of armed robbery that was led in support of the offence of
conspiracy to commit armed robbery and that since the conviction for armed robbery had been set
aside 'the conviction for the offence of conspiracy to commit armed robbery cannot stand. It was
also contended for the appellant that the conviction and sentence on conspiracy to commit armed
robbery should be set aside since the substantive offence of armed robbery was not proved beyond
reasonable doubt. It was further contended on behalf of the appellant that the Court of Appeal
ought to have upheld the alibi of the appellant.
At the hearing of the appeal, the Supreme Court, on its own motion, raised suo motu, and
received address from counsel, the issue of the propriety of the sentence for attempted robbery
passed on the appellant by the Court of Appeal. Counsel for the appellant conceded that the
sentence prescribed by law for attempted armed robbery is life imprisonment but contended that
the respondent did not appeal against the sentence and that there was no need to revisit the sentence
imposed by the Court of Appeal. The Attorney-General on the other hand, contended that the
sentence of life imprisonment was mandatory and that since it could not be reduced, the Supreme
Court should correct the error made by the Court of Appeal.
In determining the appeal, the Supreme Court construed section 2 of the Robbery and
Firearms (Special Provisions) Act, Cap.398, Laws of the Federation of Nigeria, 1990 which reads
as follows:
"2(1)Any person who, with intent to steal anything, assaults any other person and at or immediately
after the time
[2002] 6 NWLRBalogun v. A.-G., Ogun State517
of assault, uses or threatens to use actual violence to any other person or any property
in order to obtain the thing intended to be stolen shall upon conviction under this Act
be sentenced to imprisonment for not less than fourteen years but not more than
twenty years.
(2) If -
(a)any offender mentioned in subsection (1) of this section is armed with any fire-arms or any
offensive weapon or is in company with any other person so armed; or
(b)at or immediately before or immediately after the time of the assault the said offender wounds
or uses any other personal violence to any person,
the offender shall upon conviction under this Act be sentenced to imprisonment for
life."

Held (Unanimously dismissing the appeal):

1.On Whether there can be conviction for conspiracy to commit an offence where the substantive
offence is not proved -
A conviction for conspiracy does not become inappropriate simply because the
substantive offence has not been successfully proved. This is because, conspiracy
to commit an offence is a separate and distinct offence which is independent of
 the actual commission of the offence to which the conspiracy is related.
Consequently, the offence of conspiracy may be fully committed even though the
substantive offence may be abandoned or aborted or may have become
impossible to commit. In the instant case, the Court of Appeal was right when it
upheld the conviction of the appellant for conspiracy to commit armed robbery
because the common intention to rob with violence that was conceived and
attempted to be implemented by the appellant and others was no longer inchoate
but had been fully formed although no stealing took place. [Lawson v. State (1975)
4 SC 115; Ogbozor v. Inspector-General of Police (1964) 1 All NLR 9; Adebayo v.
State (1987) 2 NWLR (Pt.57) 468; Atano v.
518Nigerian Weekly Law Reports29 April 2002
A.-G., Bendel State (1988) 2 NWLR (Pt.75) 201 ; Erim v. State (1994) 5 NWLR
(Pt.346) 522; Balogun v. State 20 NLR 148 referred to.] (Pp.531-532, paras. G-B;
532- 533, paras. F-A)

2.On How conspiracy established -

Conspiracy to commit an offence is a matter of inference, deduced from certain
criminal acts of the parties accused that are done in pursuance of 'an apparent
criminal purpose common to them. In the instant case, a conspiracy to rob with
violence was inferable from the evidence adduced at the trial court. In the
circumstance, a conviction of the appellant for an offence of conspiracy was
proper. [Haruna v. State (1972) All NLR 738 referred to.] (Pp.532, paras. C-D;
540, paras. F-H) Per OGWUEGBU, J.S.C. at pages 540-541, paras.G- A:
"The common criminal acts short of stealing were proved by the
prosecution. In the peculiar circumstances of this case, it is incorrect to
contend that an acquittal on the count charging the substantive offence,
renders the conviction on the other count unreasonable or inconsistent
unless the evidence is distinct on each chaise. The court below did not lose
sight of the fact that the appellant was convicted for attempted robbery as a
result of material contradiction which it found in the oral testimony of P.W.l
and his extra-judicial statements (exhibits "A", ''AI" and "B") as to
whether the robbers stole anything from the complainant"
Per UWAIFO, J.S.C. at page 532, paras. C-D:
"Conspiracy to commit an offence is quite often inferred from
circumstantial evidence. As a result of lack of evidence that money or
property was stolen by the appellant and others on that occasion, the offence
of armed robbery was not established. But the evidence is clear that the men
had a common purpose, namely, to rob with violence. That was what can be
inferred that they conspired to do."
[2002] 6 NWLRBalogun v. A.-G., Ogun State519
3.On Purpose of sections 199 and 209 of the Evidence Act and how applied -
The purpose of sections 199 and 209 of the Evidence Act serve two-fold:
(a)one is that a witness may be cross-examined as to previous statements made by him in
writing relative to the subject-matter, in that case writing need not be shown to him; and
 (b)the other is that the witness may be contradicted with such writing after his attention is
drawn to those parts of the writing which are to be used for the purpose of contradicting
him.
In the instant case, it was the duty of the defence and not of the prosecution, to
cross-examine P.W.l as to the contradictions between the statements P.W.l
made to the police and his evidence before the Tribunal. The defence, however,
did not cross-examine PW1. (P.533, paras. D-G)
Per UWAIFO, J.S.C. at pages 532-533, paras. F-D:
"I am satisfied in the circumstances that the court below was right in the
present case to uphold the conviction of the appellant for conspiracy to
commit armed robbery even after the conviction for armed robbery had
been altered to attempted armed robbery. The failure in the evidence of
PW1 to establish that money or property was stolen was a failure to prove
a necessary ingredient of the offence of armed robbery. This was a result of
the contradiction between his statements to the police and his evidence in
court. Notwithstanding that contradiction, which was an act of PW1, the
common intention to rob with violence that was conceived and attempted
to be implemented by the appellant and others was by no means any longer
inchoate but had been fully formed and remained an offence of conspiracy
to commit armed robbery although no stealing took place. I am of the view
however, that the court below misapplied the observation of this court in
520Nigerian Weekly Law Reports29 April 2002
Kwaghshir v. State (supra) at pages 661-662 as to how to establish any
contradiction between the evidence of a witness and the statement
previously made by him in the course of cross- examination by virtue of
sections 199 and 209 of the Evidence Act. In the present case in which the
evidence and statement of a prosecution witness (PW1) were involved, the
court below expressed the view that the onus was on the prosecution to
ensure compliance with those sections. That is, with due respect, an
erroneous view. It is the defence that would, in the particular instant, have
to comply with the provisions of those sections 199 and 209 of the Evidence
Act since it would be its duty to cross-examine P.W.l if it so wished. It is not
the duty of the prosecution unless when it confronts, in the course of cross-
examination, a defence witness who has given evidence inconsistent with any
statement he made to the police."

4.On Principles governing identification parade -

An identification parade will only be useful when a witness claims to have seen
an unfamiliar person who escaped from a crime scene in circumstances which
require putting to test the witness, power of recognition based upon the physical
features and or other peculiarities of the person he claims to have seen. There
must be real doubts as to who the witness claims he saw in connection with the
offence to require identification parade. Such parade is absolutely unnecessary
when the witness claims to have seen a familiar or definite person whom he
perhaps names or knows his abode or family connection. In such a situation, the
 proper step is to test the credibility of the witness, rather than conduct an
identification parade. In the instant case, P.W.l named the appellant as one of
the armed robbers that attacked him. He testified that he had known the
appellant for over ten years and also took the police to
[2002] 6 NWLRBalogun v. A.-G., Ogun State521
the appellant's house a couple of hours after the commission of the crime and
encountered him later at a beer parlour which led to the arrest of the appellant
by the police. In the circumstance, an identification parade was not necessary.
[Ogoala v. State (1991) 2 NWLR (Pt.175) 509; Williams .v State (1992) 8 NWLR
(Pt.261) 515; Bashaya v. State (1998) 5 NWLR (Pt.550) 351 referred to.] (P.534,
paras. C-H)

5.On Purport of defence of alibi and whether shifts burden of proof on accused -
An accused person who puts forward a defence of alibi is simply saying that he
was somewhere else and not at the scene of crime when the offence with which
he is charged was committed. Therefore, the onus is not on the accused to prove
that defence but on the prosecution to disprove it as part of the duty on it to
prove the charge against an accused beyond reasonable doubt. Thus, in the
instant case, it was a misdirection for the Court of Appeal Tribunal to hold that
the appellant failed to establish in his alibi that he could not have been at the
scene of the crime on the night of the incident. (P.536, paras. B-D)

6.On Duty on accused person raising and relying on defence of alibi -

It is not enough for an accused to raise the defence of alibi at large. He must give
adequate particulars of his whereabout at the time of the commission of the
offence to assist the police to make a meaningful investigation of the alibi. If the
accused said he was in a particular locality or with a particular person or
persons, he must give a lead as to the specific place, the names and addresses of
who to contact and the relevant period he was away from the scene of crime. In
the instant case, it was not enough for the appellant to say he was with his
employer at Seme border on 9th March, 1997, because, Seme border is not a
particularised address and the police would not go on a wild goose chase at Seme
border over an alibi. [Obiode v. State (1970) 1 All NLR 35 referred to.] (Pp.535-
536, paras. G-B)
522Nigerian Weekly Law Reports29 April 2002
7.On Duty of accused person to raise defence of alibi timeously and properly -
An accused who intends to rely on the defence of alibi has the duty to raise the
defence promptly and properly. [Yanor v. State (1965) NMLR 337; Njovens v.
State (1973) 5 SC 17 referred to.] (P.536, para. D)

8.On Respective onus of proof on prosecution and accused person where a defence of alibi is
raised -
 The onus on the prosecution to prove a charge against an accused person beyond
reasonable doubt never shifts and when an alibi is relied on as a defence, the duty on
the accused does not initially go beyond introducing the evidence or facts of alibi. But
where the prosecution has adduced evidence intended to disprove the defence of alibi
raised by an accused, it is then the accused has the onus to lead evidence in order to
weaken or discredit the evidence of the prosecution. In that regard, the standard of
proof required of the accused is on the balance of probabilities. [Bozin v. State (1985)
2 NWLR (Pt.8) 465; Obiode v. State (1970) 1 All NLR 35; Ozaki v. State (1990) 1
NWLR (Pt.124) 92 referred to.] (P.536, paras.E-G)

9.On How defence of alibi destroyed by the prosecution -

Where the prosecution is able to lead cogent and unassailable evidence which
shows that an accused was at the scene of crime at the material time, his defence
of alibi will fail. In the instant case, it was not shown that the PW1 who knew the
appellant very well as confirmed by the appellant himself, was mistaken as to
having seen the appellant armed with a gun and in company with others in his
compound on the night of the robbery. In the circumstance, the evidence of the
PW1 effectively demolished the appellant's defence of alibi. [Ntam v. State (1968)
NMLR 86; Njovens v. State (1973) 5 SC 17; Onuchukwu v. State (1998) 4 NWLR
(Pt.547) 576 referred to.) (Pp.536-537, paras. G-B)
[2002] 6 NWLRBalogun v. A.-G., Ogun State523
10.On Proper sentence on conviction of an accused for attempted armed robbery -
By virtue of section 2(1) of the Robbery and Firearms (Special Provisions) Act,
conviction for attempted armed robbery entails a sentence of life imprisonment.
The term of imprisonment is mandatory and once an accused is convicted of
attempted armed robbery the trial court has no choice but to impose the
statutory sentence. In the instant case, the proper sentence for the appellant
upon his conviction for attempted armed robbery is life imprisonment. It was
therefore a mistake on the part of the Court of Appeal to have imposed a lesser
sentence of 20 years. (Pp.537-538, paras. G-E)

11.On Power of Supreme Court to correct error of Court of Appeal suo motu -
By virtue of section 26 of the Supreme Court Act, 1960, the Supreme Court has
the power to correct suo motu what was wrongly done by the Court of Appeal.
In the instant case, the Court of Appeal erroneously imposed a sentence of
twenty years imprisonment on the appellant instead of a sentence of life
imprisonment. In the circumstance, the Supreme Court can impose the correct
sentence of life imprisonment on the appellant. (Pp.539-540, paras. D-B)
Per UWAIFO, J.S..C at pages 539-540, paras. D-B:
"But even if it were not such a clerical error but that the court below was
minded to impose those sentences, this court has the power to regard the
sentences thus imposed as erroneous and to correct the situation. It was in
this connection that this court invited counsel on both sides in the course of
hearing this appeal, to address it on the propriety of the lower court imposing
 sentences less than the statute has mandated; and they did. Even though, as
argued by learned counsel for the appellant, there was no appeal against the
sentences, yet this court can intervene under section 26 of the Supreme
524Nigerian Weekly Law Reports29 April 2002

Court Act, 1990 which provides:

"26.On the hearing of an appeal wider this Part [i.e. Part V -Appeals in Criminal Cases from the
Court of Appeal], the Supreme Court may exercise any power that could have been exercised by
the Court of Appeal... "
[Italics supplied]
As I said, notwithstanding that there is no appeal against the
sentences, this court has the power to correct suo motu what was wrongly
done by the court below. In R v. Gbenu Jhunu (1943) 9 WACA 61, the appeal
was simply against conviction in a case of burglary by a gang of men who
descended by night upon a certain house and burgled it by force. The appeal
was dismissed and the court increased the sentence from three years' I.H.L.
to five years' I.H.L. on the ground, in the view of the court, that the public
must be protected against burglary of that nature carried out by gangs. A
fortiori, in the present case, the statute recognises the seriousness of the
offence of attempted armed robbery and the conspiracy relating thereto. It
has accordingly imposed a mandatory sentence of life imprisonment. Any
reduction in the sentence cannot be justified under whatever
circumstances."

12.On Impropriety of joinder of charge of conspiracy to commit an offence with charge of

commission of the substantive offence -
Per OGWUEGBU, J.S.C. at page 540 paras, paras. D-E:
"The practice of including a count for conspiracy to commit an offence in
an information as well as a count for actually committing it, where
evidence to support the two counts is the same should be discouraged and
where both counts are included as in this case, the conspiracy does not
merge in the substantive offence."
[2002] 6 NWLRBalogun v. A.-G., Ogun State525
Nigerian Cases Referred to in the Judgment:
Adebayo v. State (1987) 2 NWLR (Pt.57) 468
Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt.75) 201
Balogun v. Police (1953) 20 NLR 148
Bashaya v. State (1998) 5 NWLR (Pt.550) 351
Bozin v. State (1985) 2 NWLR (Pt.8) 465
Erim v. State (1994) 12 NWLR (Pt.346) 522
Haruna v. State (1972) All NLR 738
Kwaghshir v. State (1995) 3 NWLR (Pt.386) 651
Lawson v. State (1975) 4 SC 115
Njovens v. State (1973) 5 SC 17
Ntam v. State (1968) NMLR 86
 Obiode v. State (1970) 1 All NLR 35
Ogbozor v. Inspector-General of Police (1964) 1 All NLR 9
Ogoala v. State (1991) 2 NWLR (Pt.175) 509
Onuchukwu v. State (1998) 4 NWLR (Pt.547) 576
Ozaki v. State (1990) 1 NWLR (Pt.124) 92
Williams v. State (1992) 8 NWLR (Pt.261) 515
Yanor v. State (1965) NMLR 337

Foreign Cases Referred to in the Judgment:

R. v. Cooper & Compton (1947) 2 All ER 701
R. v. Jhunu (1943) 9 WACA 61

Nigerian Statutes Referred to in the Judgment:

Robbery and Firearms (Special Provisions) Act, Cap.398, Laws of the Federation of
Nigeria, 1990 Ss.1 (2)(a); 2 & 5(b); Evidence Act, Cap. 112, Laws of the Federation of
Nigeria, 1990 Ss.199, 209;
Supreme Court Act, 1960, S.26.

Appeal:
This was an appeal against the decision of the Court of Appeal which reversed the judgment
of the High Court convicting the appellant of conspiracy to commit armed robbery and armed
robbery and sentencing him to death. The Court of Appeal substituted for the convictions
conspiracy to commit armed robbery and attempted armed robbery, but sentenced the appellant to
concurrent terms of 10 years and 20 years imprisonment respectively. The Supreme Court, in a
unanimous decision, dismissed the appeal and substituted sentence of life imprisonment on the
appellant's conviction.
526Nigerian Weekly Law Reports29 April 2002
Editor's Note:
The Court of Appeal decision which is herein affirmed by the Supreme Court has bene
reported in (2001) 14 NWLR (Pt.733) at page 331.

History of the Case:

Supreme Court
Names of Justices that sat on the appeal: Abubakar Bashir Wali, J.S.C. (Presided);
Emanuel Obioma Ogwuegbu, J.S.C.; Uthman Mohammed, J.S.C.; Umaru Atu Kalgo,
J.S.C.; Samson Odemwingie Uwaifo, J.S.C. (Read the Leading Judgment)
Appeal No.: SC. 160/2001
Date of Judgment: Monday, 25th February, 2002
Names of Counsel: Afolabi Fashanu, Esq., - for the Appellant
 Chief Oluseyi Oyebolu, Attorney-General, Ogun State (with him, N. I. Agbelu, Director
of Public Prosecutions, Ministry of Justice, Ogun State) - for the Respondent

Court of Appeal:
Division of the Court of Appeal to which the appeal was brought: Court of Appeal,
Ibadan
Names of Justices that sat on the appeal: Sunday Akinola Akintan, J.C.A. (Presided
and Read the Leading Judgment); Dalhatu Adamu, J.C.A.; Francis Fedode Tabai, J.C.A.
Appeal No.: CA/I/76/2000
Date of Judgment: Wednesday, 7th March, 2001
Names of Counsel: Afolabi Fashanu - for the Appellant
Chief Oluseyi Oyebolu, Attorney-General, Ogun State (with him A. O. Asenuga [Mrs],
Director of Public Prosecutions, Ministry of Justice, Ogun State) - for the Respondent

Tribunal:
Name of the Tribunal: Robbery and Firearms Tribunal, Abeokuta
Name of the Judge: Oduntan, J.,
Suit No.: RFT/12/98
Date of Judgment: Friday, 14th January, 2000
Names of Counsel: Ihenuke, Esq. - for the Accused
Olukoya, State Counsel, Ministry of Justice, Ogun State - for the State
[2002] 6 NWLRBalogun v. A.-G., Ogun State(Uwaifo, J.S.C. )527
A

F
G

Afolabi Fashanu, Esq., - for the Appellant

Chief Oluseyi Oyebolu, Attorney-General, Ogun State (with him, N. I. Agbelu, Director
of Public Prosecutions, Ministry of Justice, Ogun State) - for the Respondent

UWAIFO, J.S.C. (Delivering the Leading Judgment): The appellant was arraigned on a two-
court charge at the Ogun State Robbery and Firearms Tribunal under the Robbery and Firearms
(Special Provisions) Act (Cap.398) Laws of the Federation of Nigeria 1990 (the Act). The first
count was conspiracy to commit armed robbery contrary to section 5(b) while the second count
was armed robbery contrary to section 1(2)(a) of the Act. On 14 January, 2000, upon the evidence
before the tribunal, Oduntan, J. who presided found the appellant guilty on both counts. He
convicted him on each and accordingly sentenced him to death by firing squad. The Court of
Appeal, Ibadan Division, allowed the appeal against those convictions and the sentence and
substituted for the convictions, conspiracy to commit robbery and attempted robbery. I shall refer
later to the matter of the sentences awarded.
The appellant has now appealed against those convictions to this court and has set down
the following two issues for determination:
"1.Whether the learned Justices of Appeal were right in relying on contradictory evidence to
convict the appellant of the offences of conspiracy to commit robbery and attempted robbery.
2. Whether the learned Justices of Appeal were right in holding that the defence of
alibi raised by appellant was properly rejected."
The facts relied on were that on 9 March, 1997, a gang of armed robbers invaded the
premises of Toyin Agarawu, who testified as p.w.l at No. 1 Anoye Street, Oke-Agbo, Ijebu-Igbo
at night. He was woken up by his wife who had heard the groaning of their night guard, and then
peeped through his bedroom window overlooking the back of his house. The security light
(otherwise referred to as hallogen light) was on and this helped him to see a group of men
528Nigerian Weekly Law Reports29 April 2002(Uwaifo, J.S.C. )
A
B

among whom he recognised three of them. These were the appellant, one Tajudeen Oluwalambe
and one Dokun Asegbe. He watched them for about three minutes before raising an alarm as to the
presence of thieves. As a result of the alarm, the men fired at his direction and the shot ripped off
the netting of his bedroom window, at the same time hitting the back of his head. He then ran away
from that position and hid himself in another room.
The men eventually broke the entrance door and forced their way into the house. They
accosted the wife of p.w.l and demanded for money. She claimed she had none in the house. They
met PW1 where he was hiding and also demanded for money. He told them the only money he
had in the house was on the table. They ransacked the house for about three hours before they left.
As would be discovered by p.w.l later, the men had killed his security guard by strangulation.
Within a couple of hours, a report was lodged by p. w. 1 at the Ijebu-Igbo police station. He made
a statement to the police in which he named the appellant and two others. He led the police to
appellant's house but appellant was not found at home.
On 7 May, 1997, PW. I received information that the appellant and his colleagues were at a
local beer parlour in town. He went there and saw the appellant and two others drinking. He
ordered for a bottle of soft drink while he secretly sent for the police. On sensing what the p.w.l
was up to, the appellant got out of the beer parlour and attempted to escape. The p.w.l promptly
followed and. grabbed him. In an ensuing struggle, both fell into a gutter but P.w. 1 held fast onto
him. The appellant's two colleagues hurriedly left the place and drove off in a car they had parked
nearby. The police later came and got the appellant apprehended and taken to the police station.
In his statement to the police on 8 May, 1997, the appellant denied being one of those who
had gone to PW.l's house to rob there and kill his night guard. He alleged that on 3 May, 1997, he
and p.w. 1 fought at a locality called Itamerin in Ijebu-Igbo in a canteen when p.w. 1 ordered a
bottle of beer for him. He said he turned down the offer because of the bad blood that had existed
between him and p.w.l because he (appellant) had refused to participate in vigilante work with
p.w.l and others at Itamerin; and that for refusing the beer, the p.w.l engaged him in a fight. He
said he was a driver to one Baba-Ijebu now at Seme border and that on 9 March, 1997 he and his
family were at Seme border with the said
[2002] 6 NWLRBalogun v. A.-G., Ogun State(Uwaifo, J.S.C. )529
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Baba Ijebu. In his evidence in court he said he had known p.w.l for over 25 years and that he had
been involved in the vigilante operation for their neighbourhood for one and a half months in 1996
when he left Ijebu-Igbo that year for Seme border to drive for one Baba Ijebu there. He claimed
that it was on 6 May, 1997 that he and the said Baba Ijebu with a charter party drove down to
Ijebu-Igbo from Seme border in his vehicle to attend a burial ceremony. It was after he discharged
his passengers that he took the vehicle to a car wash. While the car was being washed, he took
time off to go to a nearby beer parlour to have some drink. It was there the p.w. 1 met him and
they had an encounter which led to a fight between them.
In his appeal to the Court of Appeal against his convictions, the appellant raised two issues
for determination, namely (1) whether the prosecution proved the offence of conspiracy to commit
armed robbery and the offence of armed robbery beyond reasonable doubt and (2) whether the
appellant had been positively identified with the offences charged having regard to the alibi raised
by him and the contradictory evidence led by the prosecution on the identification of him. The
court below held that there were no material conflicts in the evidence led by the prosecution in
support of the charge. In his leading judgment, Akintan, J.C.A. observed inter alia:
"The main argument raised in the appellant's brief regarding conflicts in the evidence
led by the prosecution in support of the charge was in respect of the description of
how p.w. 1 came to recognise the appellant and two others whose names he also gave
the police. It is alleged that since the witness failed to mention that he was able to see
the robbers through the aid of the hallogen light which was on in his compound that
day in his statement to the police, such failure amounted to a material conflict between
what he wrote in his statement to the police and his oral testimony before the court. I
do not believe that what is said to be a conflict amounts to any conflict. Infact reading
through the statements made by the witness (p.w. 1) to the police and his evidence
given at the trial as recorded by the learned trial Judge, I do not find any conflict that
could warrant disturbing the findings of fact made by the learned Judge.
The account of the incident given both to the court
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and in his statements to the police was that a gang of robbers came to his house
on the night of the incident He further told the court that he was able to see the
robbers clearly because of his security light that was on at the material time. The
alleged minor disparities between what was recorded in the witness (sic)
statement to the police and his evidence in court are what are expected in an
unconcocted evidence given from human memory. There is therefore no merit in
the allegation that there were material conflicts in the evidence led by the
prosecution in support of the charge."
In his argument before this court by learned counsel for the appellant, the contradiction
referred to is in regard to the statement made to the police as per exhibits A and A1 by p.w.l and
his evidence in court in regard to whether the armed robbers stole any property on the occasion in
question. In the said exhibit A, he said the armed robbers demanded for money and when he told
them that he had at home the sum of Nl,000.00, they took it away along with his ring and necklace.
He repeated in exhibit A1 that they collected N1,000.00 from him and some jewelry from his wife
worth about N2,000.00. But in his evidence, he merely said as follows:
"They asked me to bring out my money. I told them I had no money inside the
house, and that the only money I had was on the table in the house. They started
ransacking everywhere in the house. They were in my house for about three
hours. I lay there shivering. I did not get up until I heard the early muslim call to
prayer by which time the robbers had gone."
No mention was made of money or jewelry allegedly taken away by the armed robbers in this
oral testimony. The question before the court below was whether it could be said that it had been
established by the prosecution that the armed robbers stole anything on that occasion. Learned
counsel for the appellant drew attention to the fact that the court below accepted that there was
contradiction between the statements to the police and the oral testimony of PW1 on the point
whether anything was stolen. He referred to a passage from the judgment of Akintan, JCA inter
alia as follows:
"As already set out above, the witness failed to tell the
[2002] 6 NWLRBalogun v. A.-G., Ogun State(Uwaifo, J.S.C. )531
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court in his evidence in court that the robbers stole anything from him. But he
categorically confirmed that the robbers stole Nl,000, his ring and neck-chain in his
two afore-mentioned statements. Although the position of the law is that before any
contradiction can be established between the evidence of a witness and the statement
made previously by the witness, the statement must be brought to the attention of the
witness for explanation, if possible in accordance with the provisions of sections 199
 and 209 of the Evidence Act (Cap. 112), Laws of the Federation, 1990 (see Kwaghshir
v. The State (1995) 3 NWLR (Pt.386) 651, the onus of ensuring compliance with the
requirement of the provisions of those sections of the Evidence Act was, in the instant
case, on the prosecution. The prosecution failed to do so despite the fact that the
contradiction in question was in respect of an important ingredient which the
prosecution had to prove before it could succeed on the second count of robbery.
As the contradiction in the instant case is very material to the second count of
robbery, it is imperative that it must be resolved in favour of the accused/appellant.
His conviction and the sentence of death imposed on him for robbery can therefore
not stand. The conviction and sentence of death imposed on him are accordingly set
aside".
Learned counsel for the appellant, in this court, now submits (1) that since it was the same
evidence which was led in support of the armed robbery that was led on the offence of conspiracy
to commit armed robbery and since the conviction for armed robbery had been set aside the
conviction for the conspiracy to commit armed robbery cannot stand; (2) that the conviction and
sentence on conspiracy should be set aside since the substantive offence of armed robbery was not
proved beyond reasonable doubt. Learned counsel cited R. v. Cooper & Compton (1947) 2 All ER
701; Adebayo v. State (1987) 2 NWLR (Pt.57) 468; Atano v. A. G. Bendel State (1988) 2 NWLR
(Pt.75) 201; and Erim v. State (1994) 5 NWLR (Pt.346) 522. I have to say that these authorities
cannot help the appellant in the present case. All the Nigerian authorities cited above decided
contrary to what learned counsel in the present case has contended
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for. They are consistent with the principle laid down in Ogbozor v. Inspector-General of Police
(1964) 1 All NLR 9 and Lawson v. Sate (1975) 4 SC 115 that conviction for conspiracy does not
become inappropriate simply because the substantive offence has not been successfully proved. It
is a known principle of law that conspiracy to commit an offence is a separate and distinct offence
and is independent of the actual commission of the offence to which the conspiracy is related. The
offence of conspiracy may be fully committed even though the substantive offence may be
abandoned or aborted, or may have become impossible to commit.
In the present case, the evidence is that the appellant and others were together armed in the
premises of p.w.l from whom they made demand for money under threat. Conspiracy to commit
an offence is quite often inferred from circumstantial evidence. As a result of lack of evidence that
money or property was stolen by the appellant and others on that occasion, the offence of armed
robbery was not established. But the evidence is clear that the men had a common purpose, namely,
to rob with violence. That was what can be inferred that they conspired to do. The fact of that
conspiracy remained even though the armed robbery itself did not materialise because there was
no property available to be stolen at the appropriate time and place. The facts of R. v. Cooper &
Compton (supra), one of the authorities cited by learned counsel for the appellant, were such that
with the quashing of the conviction for stealing on four counts, the conviction for conspiracy to
steal, based on the facts in regard to those counts, was found by the English Court of Appeal, on
the peculiar circumstances of those facts, to have become untenable.
I am satisfied in the circumstances that the court below was right in the present case to uphold
the conviction of the appellant for conspiracy to commit armed robbery even after the conviction
for armed robbery had been altered to attempted armed robbery. The failure in the evidence of
PW1 to establish that money or property was stolen was a failure to prove a necessary ingredient
of the offence of armed robbery. This was a result of the contradiction between his statements to
the police and his evidence in court. Notwithstanding that contradiction, which was an act of p.w.l,
the common intention to rob with violence that was conceived and attempted to be implemented
by the appellant and others was by no means any longer inchoate but had been fully formed and
remained an offence
[2002] 6 NWLRBalogun v. A.-G., Ogun State(Uwaifo, J.S.C. )533
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of conspiracy to commit armed robbery although no stealing took place. I am of the view however,
that the court below misapplied the observation of this court in Kwaghshir v. State (supra) at pages
661-662 as to how to establish any contradiction between the evidence of a witness and the
statement previously made by him in the course of cross-examination by virtue of sections 199
and 209 of the Evidence Act. In the present case in which the evidence and statement of a
prosecution witness (PW1) were involved, the court below expressed the view that the onus was
on the prosecution to ensure compliance with those sections. That is, with due respect, an erroneous
view. It is the defence that would, in the particular instant, have to comply with the provisions of
those sections 199 and 209 of the Evidence Act since it would be its duty to cross-examine p.w.l
if it so wished. It is not the duty of the prosecution unless when it confronts, in the course of cross-
examination, a defence witness who has given evidence inconsistent with any statement he made
to the police.
The purpose sections 199 and 209 of the Evidence Act serves is two-fold: one is that a
witness may be cross-examined as to previous statements made by him in writing relative to the
subject matter; in that case such writing need not be shown to him: the other is that the witness
may be contradicted with such writing after his attention is drawn to those parts of the writing
which are to be used for the purpose of contradicting him. In the present case there is nothing on
record that the p.w.l was contradicted in cross-examination with his statements to the police
through the procedure laid down. As that issue was not taken an appeal at any time, I say nothing
more on it except to repeat that it did not rest on the prosecution to comply with that procedure in
the present instant, as the court below erroneously held, since the prosecution could not adopt the
procedure to contradict its witness unless under the extraordinary procedure of first having him
declared as a hostile witness, a procedure entirely inapplicable upon the facts of the present case.
Still on the issue of contradiction, learned counsel for the appellant has argued that when
the incident was still fresh in the mind of p.w.l, he did not mention identifying the appellant through
the aid of the security light in his compound in his statement (exh. A) to the police, but that he
gave this in evidence for the first time. He contends that since the appellant was not arrested until
some two
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months after the crime, the identification evidence of p.w.l of the appellant was unsatisfactory
particularly that no identification parade was conducted after the arrest. Learned Attorney-General
for the respondent has submitted first, that the trial court found that there was no contradiction
between exhibit A and the evidence of p.w.l which finding was affirmed by the court below
although that court added that there were minor discrepancies; and second, that in the
circumstances of this case, identification parade was unnecessary and if held would have been a
ruse. I think the learned Attorney- General is right. In my view, such an identification parade would
be nothing other than a parody of a parade conducted to no purpose.
An identification parade will be useful when a witness claims to have seen an unfamiliar
person who escaped from a crime scene in circumstances which require putting to test the witness's
power of recognition based upon the physical features and/or other peculiarities of the person he
claims to have seen. There must be real doubt as to who was seen in connection with the offence
to require identification parade: see Ogoala v. State (1991) 2 NWLR (Pt.175) 509. Such a parade
is absolutely unnecessary when the witness claims to have seen a familiar or definite person whom
he perhaps names or knows his abode or family connection: see Williams v. The State (1992) 8
NWLR (Pt.261) 515; Bashaya v. The State (1998) 5 NWLR (Pt.550) 351. In such a situation it is
the credibility of the witness that will be open to be tested at the appropriate time rather than the
staging of a farcical identification parade for a person whose mind has been firmly fixed upon a
particular suspect. In the present case the p.w.l named the appellant as one of the armed robbers
he saw that night. He said he had known the appellant for over ten years before the incident. The
appellant himself said he and the p.w. 1 lived in the same neighbourhood and that he had known
p.w.l for some twenty-five years. The p.w.l had taken the police to appellant's house a couple of
hours after the commission of the crime and encountered him later at a beer parlour which led to
his being arrested by the police. What then is it that an identification parade is intended to ensure'
The contention about lack of identification parade by learned counsel for the appellant is
completely without merit.
In regard to the defence of alibi raised by the appellant, the learned Justice of Appeal said
that all an accused needs to do is merely to put forward promptly and properly facts of such defence
to the police and that the onus is on the prosecution to disprove

[2002] 6 NWLRBalogun v. A.-G., Ogun State(Uwaifo, J.S.C. )535

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those facts and not on the accused to prove the defence of alibi. Having said that the learned Justice
proceeded to observe as follows:
"The appellant, in the instant case, told the police in his statement that he was working
as a driver to a man known as Baba-Ijebu who resides at Seme border. But he failed
to be specific as to where he was at the material time the crime in question was
committed. The story would have been a different one if, for example, he had told the
police that he was with his employer at the material time on the night of the incident.
But the alibi he gave to the police was insufficient to justify the inference that he
could not have been at the scene of the crime as at the time the crime was committed.
It follows, therefore, that although the appellant promptly raised the defence of alibi,
he however failed to establish in his said alibi that he could not have been at the scene
of the crime on the night of the incident. " [Emphasis mine]
With due respect, I think the underlined portion in particular of the passage quoted above, is
likely to mislead both as to the facts as stated by the appellant and as to the burden placed on him
by law in regard to the defence of alibi. The appellant told the police in his statement: "On 9/3/97
I was in Semen (sic) with my family. Sunday Baba Ijebu my (car) owner can as well testify that I
was in Seme on 9/3/97." From these facts, it is not easy to accept the view of the learned Justice
that the appellant could not justify the inference that he could not have been at the scene of crime
as at the time the offence was committed just because he had not categorically told the police that
he was with his employer at the material time on the night of the incident. In my respectful view,
had the appellant told the police that he was with Baba Ijebu in Seme border at the specific time
on the night of the incident, that would not have enhanced the alibi he raised. I think the difficulty
created by the deficiency in that alibi is that it was not sufficiently particularised. The law is that
it is not enough for an accused to raise the defence of alibi at large. He must give adequate
particulars of his whereabouts at the time of the commission of the offence to assist the police to
make a meaningful investigation of the alibi. If the accused said he was in a particular locality or
with a particular person or persons, he must give
536Nigerian Weekly Law Reports29 April 2002(Uwaifo, J.S.C. )
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a lead as to the specific place, the names and/or addresses of who to contact and the relevant period
he was away from the scene of crime: see Obiode v. The State (1970) 1 All NLR 35. In this
particular case, it was certainly not enough for the appellant to say he was with Baba Ijebu at Seme
border on 9 March, 1997. Seme border is not a particularised address and it seems to me that the
police would not be expected to go on a wild goose chase at Seme border over an alibi.
The second aspect of what the learned Justice said was that the appellant failed to establish
in his alibi that he could not have been at the scene of crime on the night of the incident. This is a
misdirection, with due respect, which suggests that an accused has the burden of proving his alibi.
The law is clearly that if an accused person puts forward the defence of alibi, it simply means he
was somewhere else and not at the scene of crime when the offence with which he is charged was
committed. The onus is not on him to prove that defence but on the prosecution to disprove it as
part of the duty on it to prove the charge against an accused beyond reasonable doubt. The duty of
the accused is to raise the defence promptly and properly: see Yanor v. The State (1965) NMLR
337; Njovens v. The State (1973) 5 SC 17. The onus on the prosecution to prove the charge against
an accused person beyond reasonable doubt never shifts and when alibi is relied on as a defence
the duty on the accused does not initially go beyond introducing the evidence or facts of alibi; see
Bozin v. The State (1985) 2 NWLR (Pt.8) 465. But where the prosecution has adduced evidence
intended to disprove the defence of alibi raised by an accused, it is then the accused has the onus
to lead evidence in order to weaken or discredit the evidence of the prosecution. In that regard, the
standard of proof required of the accused is on the balance of probabilities: see Obiode v. The State
(1970) 1 All NLR 35; Ozaki v. The State (1990) 1 NWLR (Pt.124) 92. When, of course, the
prosecution is able to lead cogent and unassailable evidence which shows that an accused was at
the scene of crime at the material time, his alibi, when placed alongside the evidence against him
in the normal evaluation of evidence, collapses: see Ntam v. The State (1968) NMLR 86 at 88;
Njovens v. The State (1973) 5 SC 17 at 65; Onuchukwu v. The State (1998) 4 NWLR (Pt.547) 576
at 592.
In the present case, it has not been shown that the p.w. I was mistaken as to having seen the
appellant in company with others in
[2002] 6 NWLRBalogun v. A.-G., Ogun State(Uwaifo, J.S.C. )537
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his compound on the night in question armed with a gun. He had known the appellant for years in
the same neighbourhood. There is no doubt about this as the appellant himself confirmed it. The
appellant said that he knew the p.w.l very well and that p.w.l also knew him and his family very
well. The defence of alibi put up by the appellant was very weak. The strong evidence by p.w.l
which fixed the appellant at the scene of crime at the material time has easily demolished that alibi.
I therefore do not find any merit in the appeal.
The question of the sentences passed on the appellant by the court below after the conviction
for armed robbery had been substituted with conviction for attempted armed robbery remains to
be properly settled. The attention of both counsel was drawn to this by this court in the course of
hearing the appeal. Both were asked to address us on it. Learned counsel for the appellant while
conceding that the sentence prescribed by law for attempted armed robbery is life imprisonment,
contended that the appellant did not appeal against sentence and therefore there would be no cause
for revisiting the sentence of 20 years' imprisonment imposed by the court below. Learned
Attorney - General on the other hand admitted that he did not advert to the fact that 20 years'
sentence was imposed otherwise he would have formally appealed against it. But he submitted that
the sentence of life imprisonment was mandatory and that since it could not be reduced, he urged
this court to correct the error.
The court below per Akintan, JCA towards the conclusion of the judgment set aside the
conviction of the appellant for armed robbery. The learned Justice then reproduced section 2 of
the Act. Section 2, subsection (1) deals with persons unarmed but who with intent to steal, assaults
any other person or at or immediately after the assault, uses or threatens to use actual violence etc,
and shall on conviction be sentenced to not less than fourteen years but not more than twenty years.
Subsection (2) reads thus:
"(2) If-
(a)any offender mentioned in subsection (1) of this section is armed with any fire-arms or an
offensive weapon or is in company with any other person so armed; or
(b)at or immediately before or immediately after the time of the assault the said of-
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fender wounds or uses any other personal violence to any person, the offender shall
upon conviction under this Act be sentenced to imprisonment for life".
The learned Justice was obviously aware that the statutory sentence is imprisonment for life.
This is further confirmed by what he said just after reproducing the provisions of section 2(2)
above as follows:
"As the evidence led at the trial in this case is sufficiently in support of attempted
robbery as provided in section 2 of the Act quoted above, I accordingly find the
accused/appellant guilty of attempted robbery for which the sentence provided is
imprisonment for life."
Learned counsel for the appellant assumed that the court below imposed sentence of life
imprisonment on the appellant when he stated in the appellant's brief of argument thus:
"The court below allowed the appeal in part. The court set aside the conviction and sentence
imposed by the trial court and substituted in its stead conviction for conspiracy and attempted
robbery. The court also varied the sentence to life imprisonment." However, it is in the last
paragraph of the judgment of Akintan, JCA that a mistake was made in regard to the sentence.
That paragraph follows the last pronouncement of the learned Justice that the sentence provided
under the Act for attempted robbery was life imprisonment, and reads thus:
 "In conclusion, therefore and for the reasons set out above, the conviction and
sentence of death imposed on the appellant are hereby set aside. In their place, I
hereby substitute a conviction for conspiracy to commit robbery and attempted
robbery. The appellant is therefore sentenced to 10 years I.H.L. on the 1st count of
conspiracy; and 20 years I.H.L. on the 2 count of attempted robbery. The sentences
are to run concurrently and should start from the date of this judgment."
The above conclusion, obviously, does not flow from what the learned Justice reasoned all along
on the question of the sentence to be imposed on a conviction for attempted armed robbery, which
is life imprisonment. By section 5 of the Act, it is also clear that the appellant cannot be sentenced
to less than life imprisonment for the conspiracy.
[2002] 6 NWLRBalogun v. A.-G., Ogun State(Uwaifo, J.S.C. )539
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 It seems to me that in the circumstances, the learned Justice did not intend to impose lesser
sentence than the law statutorily mandates. He mistakenly, in my view, allowed the sentencing to
be affected by his earlier reference to section 2(1) of the Act which he quoted. That subsection
reads:
"2(1) Any person who, with intent to steal anything assaults any other person and at or immediately
after the time of assault, uses or threatens to use actual violence to any other person or any property
in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced
to imprisonment for not less than fourteen years
but not more than twenty years."
It must be appreciated that the above is in respect of mere attempted robbery and not attempted
armed robbery having regard to section 2(2) of the Act. What the learned Justice did by imposing
the sentences prescribed under section 2(1) can, in my view, be regarded as a clerical error which
can be corrected as such.
But even if it were not such a clerical error but that by the court below was minded to
impose those sentences, this court has the power to regard the sentences thus imposed as erroneous
and to correct the situation. It was in this connection that this court invited counsel on both sides
in the course of hearing this appeal, to address it on the propriety of the lower court imposing
sentences less than the statute has mandated; and they did. Even though, as argued by learned
counsel for the appellant, there was no appeal against the sentences, yet this court can intervene
under section 26 of the Supreme Court Act, 1960 which provides:
"26.On the hearing of an appeal under this Part [i.e. Part V - Appeals in Criminal Cases from the
Court of Appeal], the Supreme Court may exercise any power that could have been exercised by
the Court of Appeal………"
[Parenthesis supplied]
As I said, notwithstanding that there is no appeal against the sentences, this court has the
power to correct suo motu what was wrongly done by the court below. In R v. Gbenu Jhunu (1943)
9 WACA 61, the appeal was simply against conviction in a case of burglary by a gang of men who
descended by night upon a certain house and burgled it by force. The appeal was dismissed and
the court increased the sentence from three years' I.H.L. to five years'
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I.H.L. on the ground, in the view of the court, that the public must be protected against burglary
of that nature carried out by gangs. A fortiori, in the present case, the statute recognises the
seriousness of the offence of attempted armed robbery and the conspiracy relating thereto. It has
accordingly imposed a mandatory sentence of life imprisonment. Any reduction in the sentence
cannot be justified under whatever circumstances. This appeal is dismissed and accordingly, I alter
the sentences imposed by the court below on the appellant to imprisonment in respect of the two
convictions.

WALI, J.S.C.: I have been privileged to read before now, the lead judgment of my learned brother
Uwaifo, JSC and I entirely agree with his reasoning and conclusion for dismissing the appeal. I
adopt them as mine.

OGWUEGBU, J.S.C .: I had the privilege of reading in draft the judgment just delivered by my
learned brother, Uwaifo, JSC and I agree with his reasoning and conclusions.
The practice of including a count for conspiracy to commit an offence in an information as
well as a count for actually committing it, where evidence to support the two counts is the same
should be discouraged and where both counts are included as in this case, the conspiracy does not
merge in the substantive offence. An acquittal on the count charging the substantive offence does
not automatically render a conviction on the other count inconsistent. See Balogun v. The State
(1953) 20 NLR 148 and Erim v. The State (1994) 5 NWLR (Pt. 346) 522.
Conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused and
done in pursuance of an apparent criminal purpose common between them. See Haruna & Ors. v.
The State (1972) 1 All NLR (Pt.11) 738 at 754. The common criminal acts short of stealing were
proved by the prosecution. In the peculiar circumstances of this case, it is incorrect to contend that
an acquittal on the count charging the substantive offence, renders the conviction on the other
count unreasonable or inconsistent unless the evidence is distinct on each charge. The court below
did not lose sight of the fact that the appellant was convicted for attempted robbery as a result of
material contradiction which it found in the oral testimony of P.W.l and his extra-judicial
statements (exhibits "A", "AI" and "B") as to whether the robbers stole anything from the
complainant.

The appeal is accordingly dismissed by me. I also alter the sentences imposed by the court
below on the appellant to that of life imprisonment.

MOHAMMED, J.S.C I agree that this appeal has failed and I dismiss it. My learned brother,
Uwaifo, J.S.C. has considered all the salient issues raised in this appeal and I agree with him that
the appeal is without merit. It is patently clear that under section 2 (1) and (2) of The Robbery and
Firearms (Special Provisions) Act, (Cap 398), Laws of the Federation, conviction for attempted
armed robbery entails a sentence of life imprisonment. The term of imprisonment is mandatory
and once an accused is convicted of attempted armed robbery the trial court has no choice, but to
impose what the statute provides. I therefore agree that the proper sentence for the appellant, after
conviction of attempted armed robbery is life imprisonment. I therefore amend the sentence
imposed by the court below from 20 years to imprisonment for life for the appellant.

KALGO, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my
learned brother Uwaifo JSC in this appeal. I entirely agree with his reasoning and conclusions
reached therein and find that there is no merit in the appeal on the conviction for the offence of
conspiracy to commit armed robbery contrary to s.5(b) and punishable under s.l(2) (a) of the
Robbery and Firearms (Special Provisions) Act. Cap. 398 Laws of the Federation of Nigeria 1990.
On the conviction for the offence of armed robbery contrary to s.l(2) (a) of the said Act, I agree
that based on the evidence available at the trial, the Court of Appeal was right to substitute the
conviction to that of attempted armed robbery.
The sentence for attempted armed robbery is life imprisonment. I therefore dismiss the appeal
and substitute a sentence of life imprisonment as done by my learned brother, Uwaifo, JSC in the
leading judgment. The appeal fails completely.

Appeal dismissed.