In The High Court Of Lagos State In The Ikeja Judicial Division Holden At High Court No 29, Family And Probate Division Ikeja Before Hon Justice Joseph Oyewole on Thursday November 1, 2012.
Suit No: ID/124c/2004
Between
The State………………….Complainant
And
1. Bestman Dennar
2. Musa Mohammed
3. Peter Enidiok
4. Godwin Williams
5. Emmanuel Ajogbor……….Defendants
The image of the police cannot be allowed to be dented to the extent that citizens would see the next police checkpoint as an armed robbery location.
Furthermore, proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability.
So held by a Judge of a Lagos High Court in Ikeja, Justice Joseph Oyewole, in a judgment he delivered while sentencing each of the convicts to a total of 50 years? imprisonment without fines.
The fact of the case is that the defendants were arraigned before the court on March 3, 2005 on a two -count charge to which each one of them pleaded not guilty. According to the state , the offence is? contrary to Section 403A of the Criminal Code Law, Vol. 2 Cap C17, Laws of Lagos State, 2003 and contrary to Section 402 (2) (a) of the Criminal Code Law, Vol. 2 Cap C17, Laws of Lagos State, 2003.
The convicts – Bestman Dennar (m), Musa Mohammed (m), Peter Enidiok (m), Godwin Williams (m) and Emmanuel Ajogbor (m) on or about the November 17, 2002 along Ikorodu and Ijebu-Ode Express Way, Ikorodu, in the Ikeja Judicial Division, conspired together to commit a felony to wit: robbed a lorry load of George Wrappers and Lace material the property of Ogundare Sodco Co. Ltd and at or immediately after the time of the such robbery did use personal violence.
At the trial, the prosecution called 4 witnesses while on their no case submission being rejected, each of the defendants testified from the witness box.
PW1 was Alhaji Sadiru Ogundare a transporter and clearing and forwarding agent based at NAHCO Shed, Murtala Mohammed Airport, Lagos carrying on business as Ogundare Sadco Company Ltd.
Led in evidence by Mrs. Oke of the prosecution, his evidence in chief was that on 16th November, 2002 he sent a consignment of 60 cartons of gorges textile materials and head ties loaded in a truck marked No XE 527 BDG to deliver in Benin. The said vehicle was accompanied by his manager Peter, the driver, Lekan and Ismaila, the motor boy. They left a bit late and were to sleep over.
The next day 17th he got a call from Peter’s mother that Peter and his two other colleagues were detained at Ikorodu Police Station. He got there to learn that the lorry and its consignment had been stolen by armed robbers and that they were detained when they reported the incident to the police. He then drove with the police to the scene but the vehicle and consignment could not be located. He made a statement and strangely was detained by the police.
He complained to higher authorities in the police who then transferred the case to the State C.I.D. Panti where he was promptly released.
Eventually the said vehicle was located at Acme Road, Ikeja, Lagos State without its contents.????
Under cross-examination from Mr. Jiakpona, the learned counsel for the 1st defendant, he stated that he is a licensed and registered clearing agent.
He said that the goods were meant to be delivered to the various owners in Benin and that for security reasons the delivery itinerary is never published. He listed the names of the various owners and stated that some quantities of the consignment were recovered by the police and released to the respective owners but did not know those they were recovered from. He had never seen the 1st defendant before.
Finally cross-examined by Mrs. Ajanaku learned counsel for the 5th defendant, he stated that he did not know him and never complained against him.
He stated that his initial suspicion of his staff was cleared by police investigation and that out of the goods worth about N40 million, the recovered ones were worth between N800, 000.00 and N1million. He was not re-examined.
PW2 was Mr. Olalekan Ogunnusi , the driver of PW1’s vehicle on the fateful day.
Led in evidence by Mrs Oke, his evidence- in -chief was that he was on assignment to Benin along with his motor boy, Ismaila Mohammed and Peter Akpovoka, the delivery manager to deliver a consignment of textile materials and head ties as narrated by PW1.
At the insistence of Peter, the delivery manager, he took the Ikorodu- Ijebu-Ode route and after passing several police checkpoints without incidence, they got along the highway and came upon a checkpoint mounted by 1st, 2nd , 3rd and 5th defendants along with a 5th person. They stopped his vehicle and 1st and 3rd defendants came to the vehicle with the 3rd defendant coming to his side to interrogate him upon which he offered the usual bribe of N100.00 they normally gave policemen when stopped at checkpoints.
However, on sighting the contents of the vehicle, the said policemen wanted more and in their bid to scare them,?? shot into the air, took the truck keys from him and moved them into their vehicle, saying they were being taking to the station.
He requested to drive his truck along but the said four policemen along with a fifth who was not charged refused and then drove them away from the scene.
In the vehicle, the said policemen could not extort more money from them upon which they dropped them several kilometers away in the middle of the highway and drove off.
They trekked back to the spot where they were arrested but the truck was no longer there. All efforts at tracing the vehicle at the various police stations in the area proved abortive and they were eventually detained at one of the police stations as possible suspects.
The said truck was later discovered at Acme area of Ikeja, Lagos State where it was abandoned with the ignition key but without the textile materials it was carrying.
I have duly considered the cases presented by the prosecution and all the defendants as well as the legal submissions of all counsel.
The sole issue for determination here is whether the prosecution has proved beyond reasonable doubt that the defendants are guilty of the offences alleged herein against them.
Taking all these pieces of evidence together, I hold that the prosecution has proved beyond reasonable doubt that the 1st defendant was part of the robbery alleged herein.
I hold that the prosecution has proved beyond reasonable doubt that the 2nd defendant participated in the robbery herein.
The 3rd defendant was also positively identified by PW2 and PW3 and located at the scene of the robbery with his roles specifically outlined.
I hold that the prosecution has proved beyond reasonable doubt that the 3rd defendant took active part in the robbery in issue.
I now proceed to the 4th defendant.? PW2 and PW3 were clear that they never saw the 4th defendant at the scene of the incident and only met him in Court.
His alleged involvement was provided by PW4 who stated that his investigation extended to him through the testimonies of the earlier arrested defendants and on being arrested made exhibit P16 wherein he elaborated on his role in the criminal transaction and even took him to where the robbery was planned.
The 4th defendant was arrested in his hometown Eket in Akwa Ibom State, the authorization for which is shown in exhibit P15. In his explanation on oath, he distanced himself from the extra judicial statement and the alleged crime.
Although the 4th defendant was not physically at the scene of crime, it is clear from his admitted confession relating to the planning, execution and disposal of the proceeds of the said robbery that he had a common intention with the other defendants who were physically present.
By virtue of Section 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.
In the circumstances I hold that the prosecution has proved beyond reasonable doubt that the 4th defendant was part of the robbery as well.???
The 5th defendant was positively identified by PW2 and PW3 and also ascribed roles during the incident.
The evidence of PW4 of how the 5th defendant was handed over to his team was corroborated by exhibit P7.
His allegation of frame up by PW4 holds no water and I reject it as total fabrication meant to obscure issues here. The legal issues raised by learned counsel on his behalf had been dealt with earlier.?
I therefore hold that the 5th defendant played active role in the robbery in issue and is therefore culpable.
The remaining count is for conspiracy to commit robbery contrary to Section 403A of the Criminal Code Law of Lagos State.
The said section provides as follows: “Any person who conspires with any person to commit an offence under Section 402 of this Law whether or not he is present when the offence is committed shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly.”
For the prosecution to succeed in proving the offence of conspiracy it must prove the conspiracy as described in the charge and that the defendants were engaged in it or prove the circumstances from which the judge may presume or infer it. It may not always be proved by direct evidence as it is generally a matter of inference deduced from certain criminal acts and conducts of the parties accused, done or carried out in pursuance of an apparent criminal purpose in common between them.
Having earlier pointed out that the count of conspiracy is based on the same facts as the substantive offence and considering the accepted evidence herein especially the testimonies of PW1, PW2, PW3 and PW4 and exhibits P8, P11, P13, P14, P16 and P17, I hold that sufficient facts exist beyond reasonable doubt upon which the Court could infer conspiracy in the present circumstances and hold all the defendants guilty accordingly.
I therefore find each of the defendants guilty of conspiracy as charged in Count 1.
In conclusion, I hold in respect of Count 1that the prosecution has proved beyond reasonable doubt that the defendants are guilty of the offence of conspiracy to commit robbery contrary to Section 403 (A) of the Criminal Code and I hereby convict each of them accordingly.
I further hold that the prosecution has proved beyond reasonable doubt that the defendants are guilty of the offence of robbery simpliciter, contrary to Section 402 (1) of the Criminal Code and I hereby convict each of them accordingly.
I have duly considered the allocutus? (plea for leniency)? of the defence counsel and the entire circumstances of this case. I must also consider the fact that four of the five defendants are policemen trained and paid to protect the public. The defendants exploited police uniforms and functions to perpetrate the robbery, thereby disrespecting the honest and diligent service of thousands of officers and members of the Nigeria Police force. This is an aggravating factor which must be considered in this sentence.
In the entire circumstances therefore considering that the minimum sentence prescribed by law is 21 years the defendants are hereby sentenced as follows:
1.???? Each of the defendants is sentenced to 25 years imprisonment on count1.
2.???? Each of the defendants is sentenced to 25 years imprisonment on count 2.
3.???? Sentences shall run concurrently without option of fine and shall be reckoned from 3/3/005 when the defendants were remanded in prison custody by this Court pending trial.
Lawyers: Mr. L. A. Sanusi, Mr. O.G. Osoala, Mrs. S.T. Oke, Mrs. B.A. Idowu-Koya, Mr. O.A. Adamson, Miss S.T. Taiwo, Mrs. R.I. Salami and Mrs. P.C.O. Kalu for the State.
Mr. C.J. Jiakpona with Miss E.O. Okemezie and Miss P. Chijioke for the First and Fourth? Defendants.
Mr. Y.N. Yakubu with Mr. M.A. Okandeji for the Second Defendant.
Mrs. F. Ajanaku for the Third and Fifth Defendants.?