ORE-OFE ADESINA (A.K.A ALHAJI) & ANOR. v. THE STATE
(2010)LCN/3711(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of April, 2010
CA/I/208/06
RATIO
CRIMINAL LAW: INGREDIENTS OF PROVING ROBBERY
The Supreme Court in the case of Bozin Vs The State (1985) 2 NWLR (8) 465 set out the ingredients necessary to prove the offence of armed robbery. The prosecution must prove the following facts beyond reasonable doubt:
- That there was a robbery or a series of robberies.
- That each robbery was an armed robbery.
- That the accused was one of those who took part in the armed robberies. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J. C.A.
EVIDENCE: WHETHER AN ACCUSED PERSON CAN BE CONVICTED BASED ON CIRCUMSTANTIAL EVIDENCE
There is however a plethora of authorities to the effect that the conviction of an accused person could be based on circumstantial evidence where such evidence is cogent, complete and unequivocal and where the evidence is incompatible with innocence. The circumstantial evidence must lead irresistibly to the accused. See: Ikomi Vs The State (1986) 5 SC 313 at 359: Ogidi Vs The State (2005) 1 SC (Pt.1) 110: The State Vs Muhtari Kura (1975) 2 SC 83: (1975) 2 SC (Reprint) 76; R V. Taylor & 2 Ors. 21 Cr. App. Rep. 20. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J. C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER RETRACTION OF CONFESSIONAL STATEMENT VITIATES ITS ADMISSIBILITY
The retraction of a confessional statement by an accused person in the course of his evidence on oath at the trial does not automatically vitiate its admission as a voluntary statement. Before the court can base a conviction on it, it is desirable that there should be independent corroboration, no matter how slight. See: Nwachukwu Vs The State (2007) 17 NWLR (1062) 31 at 69 H; Itule Vs Queen (1961) 2 SCNLR 183; Salawu Vs The State (1971) NMLR 249; Onyejekwe Vs State (1992) 3 NWLR (230) 444; Akpan Vs The State (2001) 15 NWLR (737) 745. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J. C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. ORE-OFE ADESINA (A.K.A ALHAJI)
2. RASHEED OLAWALE (A.K.A. EMEKA) Appellant(s)
AND
THE STATE Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J. C.A. (Delivering the Leading Judgment).: This is an appeal against the conviction and death sentence passed on the appellants for conspiracy to commit armed robbery and armed robbery by the High Court of Ogun State sitting at Ijebu-Ode in its judgment delivered on 6th July, 2004.
The appellants were charged before the High Court of Ogun State sitting at Ijebu-Ode on the following two-count charge:
Count 1
“That you Ore-Ofe Adesina (Alias Alhaji), Rasheed Olawale (Alias Emeka) and others now at large on or about 28th day of February, 2002, at Gateway Bank Plc, Ijebu-Ode Branch in the Ijebu-Ode Judicial Division did conspire to commit a felony to wit: Armed robbery and thereby committed an offence contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments) Etc. Act 1999.
Count 2
That you Ore-Ofe Adesina (Alias Alhaji), Rasheed Olawale (Alias Emeka) and others now at large on or about 28th day of February, 2002, at Gateway Bank Plc, Ijebu-Ode Branch in the Ijebu-Ode Judicial Division did rob the Gateway Bank Plc, Ijebu-Ode Branch of the sum of N14 Million, and during the said robbery were armed with firearms to wit: gun and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments) Etc. Act 1999.”
They pleaded “not guilty” to each count.
The prosecution’s case before the lower court was that on 28/2/2002 between 7.00-8.00 pm a gang of armed robbers forcefully broke into the Gateway Bank, Ijebu-Ode branch, Ogun State. They shot into the air and demanded the keys to the strong room and stole the sum of N14 Million in different denominations. After the operation the matter was reported to the Police. On the same day at about 11.00 pm a patrol team (which included PW3) saw an Opel Omega car involved in an accident behind Federal Government College, Odogbolu. It was unoccupied at the time. Upon conducting a search of the vehicle 356 bullet cartridges and a pistol were found. The vehicle was repaired and taken to the Police Station. According to PW3, a policeman and a guard attached to a nearby filling station informed the team that the car had three occupants who were carrying “Ghana Must Go” bags. The following morning the same patrol team saw three men, two of whom were carrying “Ghana Must Go” bags. Two of them (the appellants) were arrested while the third escaped into the bush.
It was the prosecution’s case that upon searching the bags they were found to contain money in different denominations wrapped in Gateway Bank currency wrappers amounting to N3, 777, 900:00. The appellants claimed it belonged to them. They were arrested and taken to the Police Station for further investigation. They were alleged to have volunteered confessional statements. At the conclusion of the investigation, they were charged to court on the aforementioned two-count charge.
In their defence the appellants denied involvement in the robbery and said they were arrested at a restaurant beside a petrol station at Odogbolu. They also denied making the confessional statements. At the conclusion of the trial the lower Court on 6th July, 2004 found that the Prosecution had proved both counts of the charge against the appellants beyond reasonable doubt. The appellants were convicted accordingly and sentenced to death.
The appellants were dissatisfied with the decision and filed separate notices of appeal dated 14th July, 2006 containing the omnibus ground of appeal, to wit: that the decision is unreasonable and cannot be supported having regard to the evidence. Pursuant to a motion on notice dated and filed on 23/5/07 the appellants jointly sought leave to argue four additional grounds of appeal. The application was granted on 24/11/07. The additional grounds of appeal are as follows:
1. The learned trial Judge erred in law and thereby came to a wrong decision when he held that an identification parade was not necessary notwithstanding the materiality of the identity of the appellants to the case of the prosecution.
2. The learned trial Judge erred in law in relying and convicting the appellants on the basis of circumstantial evidence when the circumstantial evidence were weak and lacked any probative value.
3. The learned trial Judge erred in law by convicting the appellants on the basis of the purported confessional statements in the absence of other outside corroborative or supportive evidence.
4. The learned trial Judge erred in law when he convicted the appellants for the offence of conspiracy in the absence of any evidence whatsoever.
The parties duly filed and exchanged briefs of argument.
At the hearing of the appeal on 15th February, 2010, Dr. Joseph Nwobike leading Miss B.T. Ogundipe for the appellants adopted and relied on the appellants’ brief dated and filed on 4/10/07. In adumbration of the first issue argued therein he submitted that the failure to call material witnesses who saw the alleged robbers and who could have identified them was fatal to the prosecution’s case. He urged the court to allow the appeal. J.K. Omotosho, Assistant Director of Public Prosecutions, Ministry of Justice, Ogun State leading Miss E.K. Oji, State Counsel and Miss E.O. Omemu, State Counsel adopted and relied on the respondent’s brief dated 12/6/08 and filed on 13/1/09 but deemed filed on 7/4/09. He urged the court to hold that in the circumstances of this case identification of the appellants was not necessary. He urged us to dismiss the appeal.
In their brief of argument, the appellants formulated two issues for determination:
1. Whether considering that there was no identification of the appellants as the persons who robbed the bank and or that they were men involved in the accident, the trial court was justified in convicting the appellants on circumstantial evidence.
2. Whether the conviction of the appellants on the basis of Exhibits A and M was justified in law.
The respondent formulated a single issue for determination:
“Whether, considering the confessional statements of the Appellants and the circumstantial evidence before the trial, the trial Judge was right in convicting the Appellants in absence of identification of the Appellants by the victims of the robbery incident.”
Having considered the issues formulated by the parties am of the respectful view that the sole issue for determination in this appeal is “whether the prosecution established the charges against the appellants beyond reasonable doubt”. The appeal shall be determined on this issue, which covers the issues formulated by both the appellants and the respondent.
Dr. Nwobike submitted that the appellants’ conviction was based on circumstantial evidence. He submitted that in order to ground a conviction, circumstantial evidence must be conclusive enough to lead to the irresistible conclusion that the accused person and no one else is guilty. He referred to: Ikomi Vs The State (1986) 5 SC 313 at 359; Igboji Abieke Vs The State (1975) 9 – 11 SC 97 at 104. He argued that PW1 and PW2 who from their testimonies saw the robbers, did not identify the appellants as the robbers who went to the bank on the fateful day. He noted that the two custodians of the strong room who were taken there by the robbers were material witnesses who ought to have been called by the prosecution to testify. He submitted that failure to call them cast doubt on the prosecution’s case. He referred to: Ikemson Vs The State (1989) 6 SC (Pt.1) 114 at 129. He submitted that the policeman and guard who allegedly informed PW3 and his patrol team that they saw the occupants of the broken down vehicle carrying “Ghana Must Go” bags were also not called to testify. He argued that the finding of the learned trial Judge at page 58 of the record that “the circumstances under which the accused persons were arrested, the fact of the money recovered from them and the time i.e. less than twelve hours after the incident point irresistibly to their guilt” was unjustified. He contended that there was no evidence linking the appellants to the accidented car. He argued that in the time between the accident and the arrest of the appellants, the real culprits could have fled. On the resolution of doubt in favour of the accused, he relied on: Okpulor Vs The State (1990) 7 NWLR (164) 581 at 593; Ubani Vs The State (1975) 9 – 11 SC 97 at 104.
Learned counsel submitted that the evidence amounted to mere suspicion, which does not meet the requirement to ground a conviction for a capital offence. He referred to: State Vs Ogbubunjo (2001) 1 SC (Pt.1) 90 at 98 – 99; Onoh Vs The State (1985) 12 SC59; Valentine Adie Vs The State (1980) 1 – 2 SC 116 at 122; Emine Vs The State (1992) 7 NWLR (204) 480 at 495 – 496; Tepper Vs The Queen (1952) AC 480 at 489.
The other issue raised by the appellants is that in relying on Exhibits A and M, the learned trial Judge failed to test the confessional statements to determine whether there were facts outside them showing that the statements were true or consistent with other facts proved or ascertained. On the need to conduct such test he relied on: Sule Iyanda Salawu Vs The State (1971) NWLR 249; Akinfe Vs The State (1988) SCNJ 226 at 237 – 238; R Vs Eguabor (1962) 1 All NLR 287 at 289. He submitted that the appellants denied the voluntariness of their confessional statements at the earliest opportunity. He argued that their evidence at the trial was consistent as to the circumstances of their arrest and the investigation carried out by the police and that the prosecution did not discredit the evidence. He submitted that the fact that the statements were admitted after a trial within trial is not sufficient to make the appellants’ conviction inevitable. He submitted that the prosecution’s duty to prove the guilt of the accused is mandatory. He urged the court to allow the appeal.
In reply to Dr. Nwobike’s submissions, J.K. Omotosho Esq. submitted that the circumstantial evidence before the court was cogent, direct and strong enough to warrant the conviction of the appellants. On the definition of circumstantial evidence he relied on the case of: Mohammed Vs The State (2007) 13 NWLR (1050) 186 at 204. He referred to the evidence of PW3 and submitted that his evidence in conjunction with Exhibits A and M show that the appellants were arrested with the stolen money in Gateway Bank wrappers about twelve hours after the robbery. He submitted that when there is evidence that stolen property is found in a person’s possession soon after it was stolen, the presumption is that the person in whose possession the property was found was either the thief or the receiver. He referred to: Aremu Vs The State (1991) 7 NWLR (201) 1 at 16 where the Supreme Court applied the provisions of Section 149 (a) of the Evidence Act to the facts of that case. He contended that in the present case the appellants were the actual robbers who stole the money from the bank.
Learned counsel submitted that the law is that the appellants could be convicted on their confessional statements alone notwithstanding the fact that they subsequently retracted them at the trial. He submitted, without conceding, that even if the circumstantial evidence were insufficient to warrant the conviction of the appellants, it amounts to good corroboration of Exhibits A and M. He relied on: Uche Vs The State (2007) 5 NWLR (1027) 214 at 201 E – G. He submitted that it is desirable to have evidence outside the confession, no matter how slight, which makes it probable that the confession is possible and that the corroborative evidence may be direct or circumstantial. He relied on: Dagaya Vs The State (2006) 2 SCM 33 @ 67. He argued that the fact that the appellants were found with the money wrapped still wrapped in Gateway Bank wrappers and claimed that it belonged to them is sufficient to make their confessions possible. He submitted that the evidence of PW3 corroborates the contents of the appellant’s confessional statements.
On the argument of learned counsel for the appellants that failure of the victims of the robbery (PW1 and PW2) to identify the appellants and the failure to call the custodians of the keys to the strong room to testify was fatal to the prosecution’s case, he submitted that in Exhibits A and M the appellants stated that they remained in the vehicle while other members of the gang went into the bank to carry out the robbery. He argued that in the circumstances it was neither necessary nor possible for PW1 and PW2 to have identified them. He noted that the victims did not at any time state that they could identify the robbers. On when an identification parade would be necessary he referred to: Ikemson Vs The State (1989) 3 NWLR (110) 455 at 475.
He submitted further that the failure to call the policeman and security guard who said they saw two people carrying “Ghana Must Go” bags after the accident was not fatal to the prosecution’s case because PW3 and his team later saw them and arrested them with the bags containing N3, 777, 900:00 wrapped in Gateway Bank wrappers. He submitted that conspiracy had been proved against the appellants having regard to the fact that part of the stolen money was recovered from them within twelve hours after the incident, the evidence of PW1 and the appellant’s confessional statements as to how the robbery was carried out. He observed that the appellants in their statements said that they were waiting outside in the vehicle while other members of the gang went into the bank to carry out the robbery operation and that the stolen money was loaded into the vehicle they went with. He submitted that this shows a meeting of the minds of the appellants and other members of the gang. He referred to: Garba Vs C.O.P. (2007) 16 NWLR (1060) 370 at 405 A-B.
He submitted that a free and voluntary confession of guilt is regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that someone has committed a criminal act. He noted that the statements were admitted in evidence after the court held a trial within trial. He also referred to the observation of the learned trial Judge to the effect that the appellants did not strike him as witnesses of truth. He submitted that this statement was borne out of the court’s observation of the appellant’s demeanour at the trial. He urged the court to dismiss the appeal.
The Supreme Court in the case of Bozin Vs The State (1985) 2 NWLR (8) 465 set out the ingredients necessary to prove the offence of armed robbery. The prosecution must prove the following facts beyond reasonable doubt:
1. That there was a robbery or a series of robberies.
2. That each robbery was an armed robbery.
3. That the accused was one of those who took part in the armed robberies.
In the instant case, there is no dispute as to the fact that the prosecution established beyond reasonable doubt that there was a robbery and that it was an armed robbery. PW1 and PW2 testified that they were at work at Gateway Bank, Ijebu-Ode Branch on 28/2/2002 around 7.00 – 8.00 pm when a gang or armed robbers forced their way into the bank, fired gun shots into the air and forced the custodians of the keys to the strong room to lead them to the strong room where they carted away money totaling N14 Million. This evidence was not contradicted and remained unchallenged under cross-examination. PW5, Corporal Paul Okotie attached to the Robbery Section, State C.I.D. at the Ogun State Police Headquarters, Eleweran, Abeokuta was a member of the team detailed to investigate the case after it was transferred from Ijebu-Ode Police Station. He testified at page 25 of the record that on receipt of the accused persons and the exhibits, the team visited the bank where they saw signs of gunshots on the wall of the manager’s office. PW1 was the branch manager at the time of the incident. PW5 tendered a spent cartridge recovered from the scene. It was admitted in evidence as Exhibit K1. PW5 was not cross examined on any of these facts. From the unchallenged evidence before the court the prosecution had discharged the burden of proving beyond reasonable doubt that there was a robbery on 28/2/2002 at Gateway Bank, Ijebu-Ode Branch and that it was an armed robbery. The issue in contention at the trial was whether the prosecution was able to prove that the appellants were among those who took part in the armed robbery.
From the evidence adduced at the trial, it is evident that there was no evidence before the court directly linking the appellants to the commission of the offence. PW1 and PW2 who were in the bank during the incident did not identify them as being among the armed robbers who attacked them on the fateful day.
There is however a plethora of authorities to the effect that the conviction of an accused person could be based on circumstantial evidence where such evidence is cogent, complete and unequivocal and where the evidence is incompatible with innocence. The circumstantial evidence must lead irresistibly to the accused. See: Ikomi Vs The State (1986) 5 SC 313 at 359: Ogidi Vs The State (2005) 1 SC (Pt.1) 110: The State Vs Muhtari Kura (1975) 2 SC 83: (1975) 2 SC (Reprint) 76; R V. Taylor & 2 Ors. 21 Cr. App. Rep. 20.
PW1 and PW2, by their evidence at pages 12 – 15 of the record established the fact that there was an armed robbery incident at Gateway Bank, Ijebu-Ode Branch, Ogun State on 28/2/2002 between 7.00 – 8.00 pm. PW1 was the branch manager while PW2 was a member of staff. They were both at work when the incident happened. They described in detail how the operation was carried out with the robbers firing shots into the air to scare them into compliance with their demands. At the end of the operation, a sum of N14 Million in several denominations was stolen.
PW3, Wahabi Fasasi testified thus at page 15 of the record:
“PW3: I know the accused persons. On 28/2/02 myself; one Inspector Audu Jaji, Jimoh John and Mohammed, a police driver in charge of patrol vehicle were on night vehicle patrol. We commenced our patrol at about 6.00 pm. At about 11.15 pm along Benin/Lagos Express Road, behind Federal Government College, Odogbolu, very close to Honey Well Petrol Station we met an accident vehicle on the express road facing Sagamu involving an Opel Omega with Reg. No. AV 800 EPE then we stopped to find out the cause of the accident. We discovered that there was nobody in or around the vehicle. We decided to conduct a search on the accident vehicle. When we opened the booth we discovered a carton containing 356 live cartridges and one Italian made pistol.
During the search a police man attached to Honey Well Petrol Station and a civilian guard noticed our presence and came to us. He told us that when they heard the sound of the accident they moved towards the area, they saw three men, two of them carrying “Ghana Must Go” bags on their head and told them that they were rushing one person who got injured as a result of the accident to a hospital in Sagamu.
We then changed the burst tyre of the vehicle … and took the vehicle to the police station, where we handed over the vehicle and its contents to the police at the station and we continued at out patrol till the following morning, 1/3/02. At about 6.15 am on our way to the station to report off duty along the same expressway on the lane facing Benin towards Honey Well Petrol Station, we saw two men carrying a “Ghana Must Go” bag on his head (sic). We stopped out vehicle, jumped down and crossed the road to meet the two men while the one on our side ran into the bush. We challenged the two people as to where they were coming from and the contents of the bag. They answered that it contained money that belongs to them. The accused persons in the dock are the two people. We moved them to our vehicle, detailed a guard to guard them while we moved to the bush to trace the man that ran into the bush. In the bush we discovered the bag he carried but did not see the man. We carried the bag to the vehicle and went to the station”
He went on to testify as to how the contents of the bags were counted in the presence of the appellants and found to contain various denominations of Nigerian currency, with some bundles in Gateway Bank wrappers, totaling N3, 777, 900:00.
The evidence of this witness was not in any way discredited during the brief cross-examination by the appellants’ counsel. From the evidence reproduced above, it is evident that the curiosity of PW3 and his team was aroused with the discovery of the vehicle and its contents on the night of 28/2/02 with the passengers nowhere to be found. It is also clear that they had no knowledge of the armed robbery incident that had occurred a few hours earlier at the Gateway Bank. PW3 stated that they were informed by a policeman and a guard on duty at the nearby Honey Well Petrol Station that there were three occupants in the car and that two of them were carrying “Ghana Must Go” bags on their heads. Interestingly enough, as they were rounding up their patrol at about 6.15 am the following morning, they saw three men, with one carrying a “Ghana Must Go” bag on his head. Having regard to the observation of the policeman and guard the night before, two of the men were accosted. The third suspect ran into the bush and dropped the bag he was carrying. As reproduced earlier, PW3 stated that the bags contained Nigerian currency of different denominations, with some of it bound with Gateway Bank wrappers.
PWS testified that the money, recovered was released on bond to the management of Gateway Bank. The bond was admitted in evidence as Exhibit B. He also testified that the vehicle was found to belong to one Oladeinde Bankole. It was also released to him on bond. The bond was admitted in evidence as Exhibit C. PWS was not cross-examined with regard to the money released to the bank on bond. Other items admitted in evidence included a carton of cartridges and an Italian made pistol found in the abandoned vehicle.
The prosecution was able to establish through its witnesses that the appellants were found in possession of money stolen from the bank soon after the robbery.
The law is that if a person is found in possession of property recently reported stolen, with or without violence from another person, the presumption is that the person in whose possession the property was found is either the thief or received the property knowing that it was stolen. It is open to the court to convict him of the theft. This is known as the doctrine of recent possession. See: Isibor Vs The State (2002) 2 SC (Pt. II) 110; R V. Loughlin 35 Cr. App. Rep. 69; Isiaka Ayinde Oseni Vs The State (1984) 11 SC 44; and Section 149 (a) of the Evidence Act.
PW1 testified that they were arrested at a restaurant beside a petrol station at Odogbolu while PW2 stated that they were arrested when they branched at a petrol station at Odogbolu on their way back to Lagos.
They both denied knowledge of the bags and their contents.
However in their statements to the police they both admitted committing the offence. The appellants’ statements were admitted in evidence as Exhibits A (1st Appellant) and M (2nd Appellant) respectively. The 1st appellant, Ore-Ofe Adesina in his statement at pages 5 – 6 of the record stated inter alia:
“So as we arrived the bank we position (sic) ourselves, Gana Bode, Ejire and Folarin overpowered the gateman at gun point while myself, Rashidi remained inside the vehicle while Gani manned the back gate with his gun. As the rest entered into the bank they started shouting and they began to bring out money from the bank, myself and Rashidi started to transfer the money with the vehicle into “Ghana Must Go” bag.”
He went on to describe how they went to a hotel in Ijebu- Ode after the operation to share the money. He stated that he and Rashidi were given N1 Million each. He stated that the others know how they shared the rest of the money. He continued:
“Since me and Rashidi did not know road-they instructed Folarin to take me and Rashidi to Lagos in the snatched car. … We were driving along the expressway towards Lagos all of a sudden the (sic) skidded off the road and hit the pavement thereby causing Folarin to lost (sic) control of it until it eventually stopped at a distance. The vehicle would not move again. The time then was about 10 p.m. and we three had to sleep in the bush. Early morning by 6 a.m. of 1/3/2002 myself and Rashidi had to come to the road with a view to board vehicle to Lagos. Meanwhile we could not find Folarin since immediately after the accident. But he hid himself in the bush too. All of a sudden a police patrol team just drove by and asked me and Rashidi to stop or guns (sic) to search both of us. It was then they found our share of the money, a “Ghana Must Go” bag that we were carrying, one pistol, the accidented car roller i.e. Opel car.
Meanwhile Folarin was coming at a distance behind us with his own share of the money he was carrying. On sighting what was happening he quickly ran into the bush and escaped but some of the policemen went after him and recovered his own share of the money which they said he threw
away when he was escaping. They subsequently took both of us to the accident scene to see the vehicle and on searching it they recovered the custom cartoon of cartridges which we used for the robbery operation.”
The 2nd appellant’s account of the events of 28/2/2002 and 1/3/2002 in Exhibit M corroborates in all material particulars the facts as stated by the 1st appellant in Exhibit A. Learned counsel for the appellants has argued that the confessional statements of the appellants were not tested to determine whether there was anything outside them that showed that they were true or consistent with other facts proved or ascertained.
The questions the court must be able to answer before it can rely on a confessional statement to convict an accused person are as follows:
(a) Is there anything outside it to show that it is true?
(b) Is it corroborated?
(c) Are the factors stated in it true as far as can be tested?
(d) Was the accused the man who had the opportunity of committing the offence?
(e) Is the confession possible?
(f) Is it consistent with other facts which have been ascertained and proved?
See: Udofia Vs The State (1984) 12 SC 139; Ojegele Vs The State (1988) 1 NWLR (71) 414; Akpan Vs The State (2007) 2 NWLR (1019) 500.
A careful study of the judgment shows that although the learned trial Judge did not set out the questions and answer them serially, from his finding and conclusion it is evident that he was satisfied that the statements were true. At page 57 lines 14 – 32 of the record the learned trial Judge held:
”It is trite that an accused person can be convicted on his confessional statement, if it is tested and in the circumstances found to be true; and once admitted as exhibits/there can be no retraction.
I listened to the evidence adduced by both parties and watched their demeanour. The accused persons do not strike me as witnesses of truth. Their evidence in court is an afterthought, they tried to hide and falsify a lot of glaring facts. For instance they claimed not to understand English language at all but sometimes lost their guard and answered questions put to them by learned Counsel even before the court registrar interpreted them. They tried to pretend not to understand English language in their bid to deny making Exhibits A and M.
Furthermore/ the circumstances under which the accused persons were arrested, the fact of the money recovered from them and the time i.e. less than twelve hours after the incident point irresistibly to their guilt.”
The evidence of all the prosecution witnesses confirm the fact that an armed robbery took place on 28/2/2002 at the Gateway Bank, Ijebu-Ode Branch, Ogun State and that a large sum of money was stolen in the process. PW3 testified that when the appellants were arrested they were carrying “Ghana Must Go” bags containing various denominations of Nigerian currency, some of which were bound in Gateway Bank wrappers. The bond with which the money recovered was handed over to management of the bank was admitted in evidence as Exhibit B. The 1st appellant in Exhibit A (at page 5 of the record) and the 2nd appellant in Exhibit M (at page 9 of the record) stated that as part of the robbery operation some members of the gang went to Epe to steal another car to be used in the robbery. Both appellants referred to an Opel car in their statements. PW3 testified that the broken down vehicle they found along the expressway at about 11.15 p.m. on the day of the incident was an Opel Omega with registration no. AV 800 EPE. PW5 testified that the vehicle was released to its owner on bond. The bond was admitted in evidence as Exhibit C. In Exhibit M (at page 9 of the record) the 2nd appellant stated that when the vehicle broke down, they went into the bush with the “Ghana Must Go” bags containing the stolen money but left a carton of cartridges and a pistol in the car.
PW3 testified that upon searching the car, they found an Italian made pistol and a carton containing 356 live cartridges. The pistol and carton of cartridges were admitted in evidence through PW5 as Exhibits D and K respectively.
From the evidence led by the prosecution witnesses and the exhibits tendered, and the fact that the appellants were found in possession of the stolen money soon after the robbery, there was cogent and corroborative evidence outside the confessional statements that made the confessions probable. It is also clear that the learned trial Judge did not rely solely on the confessional statements of the appellants. He considered evidence outside the statements in reaching his conclusions. The finding of the learned trial Judge in this regard is unassailable.
It is true that the appellants retracted their statements at the trial.
The retraction of a confessional statement by an accused person in the course of his evidence on oath at the trial does not automatically vitiate its admission as a voluntary statement. Before the court can base a conviction on it, it is desirable that there should be independent corroboration, no matter how slight. See: Nwachukwu Vs The State (2007) 17 NWLR (1062) 31 at 69 H; Itule Vs Queen (1961) 2 SCNLR 183; Salawu Vs The State (1971) NMLR 249; Onyejekwe Vs State (1992) 3 NWLR (230) 444; Akpan Vs The State (2001) 15 NWLR (737) 745.
Having admitted the statements in evidence after a trial within trial, they became part of the case for the prosecution and the court was bound to consider their probative value. The court properly did so in this case. See: Nwachukwu Vs The State (supra); Egboghoname Vs The State (1993) 7 NWLR (306) 383; Nwangboma Vs The State (1994) 2 NWLR (327) 380; Ekpe Vs The State (1994) 9 NWLR (368) 263.
Learned counsel for the appellants argued strenuously that there was no identification of the robbers by the witnesses who saw them. With due respect to learned counsel, it is not in every case that identification of the suspects by the victims of the crime must take place, such as where a suspect is caught at the scene of crime or at a place closely connected with the scene of crime. It would also not be necessary where by his confession, an accused person identified himself or where there is circumstantial evidence showing the involvement of the accused in the commission of the offence. See: Ikemson Vs The State (supra); Ebenehi Vs The State (2008) 10 NWLR (1096) 596 at 607 G – H. As submitted by learned counsel for the respondent, PW1 and PW2 who witnessed the robbery did not at any time state that they knew the robbers or that they could identify them. Furthermore, in their statements, Exhibits A and M, both appellants stated that they remained in the vehicle outside while the robbery took place but helped to convey the loot after the operation. It would therefore have been impossible for PW1 or PW2 to identify them. Dr. Nwobike also argued that the custodians of the keys to the strong room ought to have been called to testify. From the state of the evidence, they would also not have been in a position to identify the appellants who did not enter the bank.
Furthermore, the circumstantial evidence in this case was direct, consistent and cogent enough to admit of no other conclusion than that the appellants were among the robbers who robbed the Gateway Bank, Ijebu-Ode on 28/2/2002. I therefore hold that the prosecution proved the charge of armed robbery against the appellants beyond reasonable doubt.
With regard to the offence of conspiracy to commit armed robbery, the essential ingredient of the offence of conspiracy lies in the bare agreement and association to an unlawful thing, which is contrary to or forbidden by law, whether that thing be criminal or not and whether or not the accused persons had knowledge of its unlawfulness. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial court may infer conspiracy from the fact of doing things towards a common purpose. See: Clark Vs The State (1986) 4 NWLR (35) 381; Gbadamosi Vs The State (1991) 6 NWLR (196) 182; Aje Vs The State (2006) 8 NWLR (982) 345 at 363 A-C.
In the instant case there was credible evidence before the court, particularly from Exhibits A and M, the confessional statements of the appellants as to the role they played, that they acted in concert, with others at large, after agreement to commit the offence of robbery with fire-arms. I hold that the prosecution also proved the charge of conspiracy to commit armed robbery beyond reasonable doubt. The sole issue for determination in this appeal is accordingly resolved against the appellants.
In conclusion therefore, I find no reason to disturb the findings of the learned trial Judge. I hold that the appeal lacks merit. It is accordingly dismissed. The conviction and sentence of the appellants as contained in the judgment of the High Court of Ogun State sitting at Ijebu-Ode in charge no. HCJ/16C/2002 delivered on 6th July, 2004 per M.A. Dipeolu, J. is hereby affirmed.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the lead judgment just delivered by my brother Kudirat Motonmori Olatokunbo Kekere-Ekun (JCA) just delivered and I am also of the view that the appeal lacks merit and should be dismissed. I also dismiss same and affirm the conviction and sentence of the lower court delivered on the 6th July 2004.
CHIDI NWAOMA UWA, J.C.A. I had the privilege of reading before now the judgment delivered by my learned brother K. M. O. Kekere-Ekun, J.C.A.
I agree entirely with the detailed analysis and conclusion reached in holding that the Appeal lacks merit and the order dismissing same. As analysed in the lead judgment, the circumstantial evidence in this case was cogent and direct that the Appellants were part of the gang that robbed the Gateway Bank, Ijebu-Ode on 28/2/02. My learned brother reviewed the evidence of the witnesses on both sides in detail. Where, as in this case, the evidence of the prosecution is positive, cogent, unequivocal and points irresistibly to no other conclusion than the guilt of the accused person, the court can properly convict upon it, which the lower court rightly did. This court would not interfere with it. See MBENU V. THE STATE (1988) 7 S.C. (Pt. III) 71; (1988) 3 NWLR (Pt.84.) PAGE 615; ADEPETU V. THE STATE (1998) 7 S.C. (PART III); (1998) NWLR (Pt.565) 185 and ESAI V. STATE (1976) 11 S.C. 39.
There is no room for other explanations to explain away the “Ghana must go” bags of money seen with the Appellants at that particular time.
The Appellants did not even attempt to do so, apart from saying the money belonged to them. The Appellants were unable to explain the circumstances surrounding this case, the coincidences of the three people in the Opel car, the three people on the road in the early hours of the morning, with the “Ghana must go” bags of money less than twelve hours after the robbery, the wrappings of Gateway bank on the money recovered from the Appellants, and Exhibit ‘B’ the bond.
In agreement with the lead judgment, the judgment of the lower court cannot be disturbed. I also affirm the conviction and sentence of the Appellants on 6/7/04 by Dipeolu, J. of Ogun State High Court.
Appearances
DR. JOSEPH NWOBIKE with MRS. B.T. OGUNJIDEFor Appellant
AND
J.K. OMOTOSHO, Assistant Director of Public Prosecutions,
Ministry of Justice, Ogun State with MISS E.K. OJI, State
Counsel and MISS E.O. OMEMU, State Counsel:-For Respondent
