Inferential Proof of the Offence of Conspiracy

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 12th day of December, 2025 Before their Lordships Mohammed Lawal Garba Tijjani Abubakar Chioma Egondu Nwosu-Iheme Haruna Simon Tsammani Jamilu Yammama Tukur Justices, Supreme Court SC/617C/2019 Between Kayode Adeyoju Appellant And The State Respondent (Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC) Facts The Appellant and one Olasunkanmi Bakare were arraigned before the High Court of Ogun State, on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions), Cap 11, Laws of the Federation, 2004. It was alleged that they, alongside other persons at large, on or about 4th April, 2009 at Akute within the Ota Judicial Division, robbed one Ayo Banjo of his property including a Hyundai Sonata Elegance 2009 model car, while armed with guns and other offensive weapons. At the trial, the Respondent called six witnesses and tendered documentary exhibits, including the Appellant’s confessional statement marked as Exhibits PE2 and PE3. The Appellant testified for himself, denied committing the offences and essentially, retracted Exhibits PE2 and PE 3. After considering the evidence adduced by the parties, the trial court delivered its judgement in which it convicted the Appellant for the offences, and sentenced him to death. The Appellant’s subsequent appeal to the Court of Appeal was dismissed and the decision of the trial court was affirmed. Dissatisfied, the Appellant lodged a further appeal at the Supreme Court. Issue for Determination The Supreme Court adopted the issues formulated by the Appellant as follows: 1. Whether the learned Justices of the Court of Appeal were right in holding that the Respondent, on the totality of evidence adduced, proved the offence of armed robbery against the Appellant beyond reasonable doubt. 2. Whether the learned Justices of the Court of Appeal were right, in holding that the Respondent proved the offence of conspiracy against the Appellant. Arguments Arguing the 1st issue, Counsel for the Appellant submitted that although the potency of a retracted confessional statement by an accused person is not affected by the retraction, the law requires some other evidence outside in order to make the probability of the accused committing the offence to be true. Counsel submitted that the trial court was wrong to have used the evidence of the prosecution’s witnesses – PW1, PW2 and PW3 to corroborate the retracted confessional statement, because their testimonies contained doubts which rendered the truth of the said statements and the commission of the offences by the Appellant improbable. Counsel also argued that the circumstances of the Appellant’s arrest by PW5 necessitated the conduct of an identification parade to link him to the offences he was charged with, and the Respondent’s failure to tender the arms used in the commission of the robbery was fatal to the Respondent’s case. On the 2nd issue, the Appellant’s Counsel argued that the Respondent did not prove agreement between the Appellant and others, to commit the offence he was charged with. Counsel cited ABDULLAHI v STATE (2008) 8 SCM 1 in support of his argument. Responding on the 1st issue, Counsel for the Respondent submitted that the evidence of PW1, PW3, the victim of the robbery who testified as PW4, and PW5, as well as the Appellant’s confessional statements in Exhibit PE2 and PE3 proved the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. Counsel contended that the evidence of PW4 and PW1 who positively identified the Appellant, rendered an identification parade unnecessary. The Respondent’s Counsel also argued that the evidence of PW1 and PW4 provided the required corroboration, to make the truth of Exhibits PE2 and PE3 probable and sufficient to prove the guilt of the Appellant. Counsel pointed out that Exhibits PE2 and PE3 were admitted in evidence without objection, and passed the desirable test set out in OGUDU v STATE (2012) 12 ALL FWLR (PT. 629) 1115. The Respondent’s Counsel argued further that it was not mandatory for the prosecution to tender the gun(s) used by the Appellant in the commission of the robbery, in view of the uncontroverted evidence of PW4 who was the victim. Finally, Counsel submitted that the evidence adduced by the parties before the trial court were well evaluated, before the trial court arrived at its finding that the charge was proved against the Appellant beyond reasonable doubt. Counsel urged the Apex Court to dismiss the Appeal, for lacking in merit. Responding on the 2nd issue, Counsel for the Respondent submitted that Exhibits PE2 and PE3 as well as the testimonies of PW1, PW3, PW4 and PW5 show facts from which the inference of agreement and meeting of minds between the Appellant and the other accused persons to commit the robbery in question, can be deduced, Counsel contended that the prosecution witnesses were not cross-examined on the material facts, and so the lower courts were right to have made an inference of conspiracy between the Appellants and the others to commit armed robbery. Court’s Judgement and Rationale Deciding the 2nd issue on conspiracy first, the Apex Court relying on its earlier decision in OBIAKOR v STATE (2002) 10 NWLR (PT. 774 – 776) AT 628-629 held that the offence of conspiracy is initiated in secrecy such that it can, very rarely if at all, be proved by direct evidence, and usually the offence arises and is proved by inferences from compelling acts or circumstances that occur in furtherance of the agreement by the conspirators to do what is illegal or unlawful. The Supreme Court held that due to the nature of the offence, it can be satisfactorily proved beyond reasonable doubt by necessary inferences to be drawn by subsequent statements and/or action by the conspirators, which would reveal their common intention and mutual agreement constituting the offence. The Court held that by and large, the essential elements of the offence of conspiracy which must be proved are that: (i) there was an agreement between two or more persons to or cause to be done, an illegal/unlawful act or a lawful act by unlawful means; (ii) all or each of the conspirators were parties or part of the agreement; and (iii) where the agreement was to do an illegal or unlawful act, that each of the conspirators had done some acts in pursuit or furtherance of the agreement. The Apex Court held that it was evident that the finding by the trial court that the essential elements of the offence were established against the Appellant, was primarily based on the inference drawn from the evidence of PW1, PW3 and PW4, of the incident of the armed robbery which the Appellant was charged with, which finding was affirmed by the Court of Appeal. The Court held that the only argument proffered by the Appellant’s Counsel against this concurrent finding of the two lower courts, was that the prosecution failed to show specifically through the evidence of its witnesses the proof of agreement between the Appellants and others, without the Appellant demonstrating specifically which evidence and how the inference of an agreement between the Appellant and the others who were indisputably shown by the evidence of the victim (PW4) and PW1 to have robbed PW4 at gunpoint, was not reasonable and cogent in the circumstances of the case. The Supreme Court thus, endorsed the concurrent finding by the trial court and the Court of Appeal, that the offence of conspiracy was proved against the Appellant. On issue 1 on the offence of armed robbery, the Supreme Court held that it is now elementary and thus, common knowledge in our criminal jurisprudence that the essential ingredients of the offence of armed robbery which must be proved conjunctively beyond reasonable doubt in order to secure a conviction for the offence are: (i) that there was an armed robbery or a series of armed robberies; (ii) that each of the robberies was an armed robbery as defined by law; and (iii) that the accused person was one of the persons who committed the armed robbery or participated in the robbery. The Apex Court held that the first ingredient of the offence was established beyond reasonable doubt by the evidence of PW4 – the victim of the armed robbery, who was in law an eye witness and thus, in the best possible position to recount the actual facts of the incident, and the confessional statement of the Appellant admitted as Exhibit PE2. The Court held that even without more, the unchallenged evidence of PW4 is credible and sufficient to satisfactorily prove the first ingredient of the offence beyond reasonable doubt, to support the finding of the trial court to that effect. On the 2nd ingredient, the Apex Court held that the evidence of PW4 remains direct, unchallenged, unassailable, cogent and credible that the robbers who robbed him were indeed, armed with, among other weapons, a “pistol” held to his head by one of them whom he identified as the Appellant. The Supreme Court held that this evidence was not challenged during cross-examination or disputed by the Appellant, and so worthy of credibility to prove beyond reasonable doubt that the robbery was an armed robbery as correctly held by the trial court, and rightly affirmed by the Court of Appeal. On the last ingredient that the Appellant was one of the robbers, the Apex Court held that the testimonies of PW4, and PW1 who was present when the Appellant and others drove the car they stole at gun point from PW4 into the premises where they parked it and where it was eventually recovered, as well as the testimony of PW5 who led the Police investigation to recover the PW4’s car at the church premises and gave unchallenged evidence that the Appellant had in his possession, the ignition key of the car which was used to open it and start the engine so it could be driven to the Police station for further investigation, which established the Appellant’s participation in the armed robbery were not controverted or discredited by the Appellant’s counsel during cross-examination. The Apex Court held that this position was further strengthened by the Appellant himself in Exhibit PE2, which was admitted in evidence without any objection from him, wherein he expressly admitted that he participated in the said robbery, providing specific details of specific acts he did which could only be given by a person who actually participated in the robbery in question. The Court held that as rightly stated by the trial court, Exhibit PE2 having passed the recognised test for its truth and credibility by being corroborated with some cogent evidence outside it, is alone sufficient to warrant his conviction. The Court held that the commission of any offence including armed robbery can be proved through direct evidence of eye witness(es), or the voluntary and proved confessional statement of an accused person, or strong and compelling circumstantial evidence. The Court found that the Respondent had satisfactorily proved the offence of armed robbery against the Appellant beyond reasonable doubt through the direct, unequivocal and credible evidence of the victim –PW4 and eye witness; the tested, verified and voluntary confessional statement of the Appellant in Exhibit PE2; and the strong, compelling and irresistible circumstantial evidence of PW1 and PW5, which together, presented a consistent and conclusive factual picture of the armed robbery committed by the Appellant and the others against PW4. Appeal Dismissed. Representation Peter Ilogogie with O. T, Nwenyi for the Appellant. Adesina Ayodele Olaniyan with the fiat of the Hon. Attorney-General of Ogun State for the Respondent. Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)