OKE UTUYORUME v. THE STATE (2010)

OKE UTUYORUME v. THE STATE

(2010)LCN/3724(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 21st day of April, 2010

CA/I/252/06

RATIO

EVIDENCE: BURDEN OF PROOF IN ARMED ROBBERY OFFENCE

It is thus clear that armed robbery being a crime, proof of its commission is on the shoulders of the prosecution and such proof must be beyond reasonable doubt. This legal principle is amply exemplified in the case of NWOSU V. THE STATE (1998) 8 NWLR (Pt.562) 433 at 444 where it was held that:

“In all criminal trials, the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused. Failure to do so will automatically lead to the discharge of the accused. The burden never changes.”

This burden is so heavy that the Supreme Court has held that even where an accused person in his statement to the police admitted committing the offence, the prosecution is still not relieved of the burden of proving the commission of the alleged offence or crime beyond reasonable doubt. See AIGBANGBON V. THE STATE (2000) 7 NWLR (Pt.666) 686 at 704. The requirement by the prosecution as to proof of a crime beyond reasonable doubt having been made; PER STANLEY SHENKO ALAGOA, J.C.A.

CRIMINAL LAW: OFFENCE OF ARMED ROBBERY; INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

what are the ingredients of the offence of armed robbery for which the Appellant stood charged, tried, convicted and sentenced to death? These are:

That there was a robbery or series of robberies.
That the robbers were armed robbers.
That the accused persons were or some of the people who took part in the robberies.

There is a plethora of case law on this subject matter.

See however the following cases – BOZIN V. THE STATE (1985) 2 NWLR (Pt.8) 465; OKOSI V. A.G. BENDEL STATE (1989) 1 NWLR (Pt.100) 642; ALABI V. THE STATE (1993) 7 NWLR PART … PAGE 511 at 523. PER STANLEY SHENKO ALAGOA, J.C.A.

CRIMINAL LAW: MEANING OF ROBBERY

What in any case is “Robbery”? Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap 398, defines “Robbery” as follows:

“Robbery means stealing anything and at or immediately before or after the time of stealing it using or threatening to use actual-violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained”. PER STANLEY SHENKO ALAGOA, J.C.A.

EVIDENCE: WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

The position of the law is that an accused person can be convicted solely on his confessional statement. There is a plethora on case law on this subject matter. See IKEMSON V. THE STATE (1989) 3 NWLR (Pt.110) 455 at 468-469; NWACHUKWU V. THE STATE (2007) 12 SCM P12 page 447 at 455. Nevertheless, the Supreme Court in DAWA V. THE STATE (1980) 8-11 5C 236 in reliance on the English decision in R. V. SYKES (1913) 18 CR. APP. Reports and cited in KANU V. R. 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them. The six tests are itemized hereunder –

Is there anything outside the confessional statement to show that it is true?
Is it corroborated?
Are the statements made in it of fact true as they can be tested?
Was the prisoner one who had the opportunity of committing the offence?
Is his confession possible?
Is it consistent with other facts which have been ascertained and which have been proved? PER STANLEY SHENKO ALAGOA, J.C.A.

CRIMINAL LAW: MEANING OF CONSPIRACY

Conspiracy has been held in a number of cases to mean the meeting of the minds of the Conspirators. It consists of the intention of two or more persons manifested by some overt act to do an unlawful act or a lawful act by unlawful means and conviction for conspiracy is usually based on circumstantial evidence. See ODENYE V. THE STATE (2001) 2 NWLR (Pt.697) 311 at 324; PATRICK NJOVENS V. THE STATE (1973) 5 SC 17; UPLAR V. THE STATE (2003) CNWL 30 at 293. Black’s Law Dictionary 8th Edition at page 329 defines Conspiracy as:

“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective.” PER STANLEY SHENKO ALAGOA, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

OKE UTUYORUME – Appellant(s)

AND

THE STATE – Respondent(s)

STANLEY SHENKO ALAGOA, J.C.A.(Delivering the Leading Judgment).: This is an appeal against the judgment of Lokulo-Sodipe J. of the High Court of Justice Abeokuta, Ogun State in Charge No. AB/9R/2001 – THE STATE V. OLUWASEYI SOWEMIMO & ANOR delivered on the 28th March 2006 wherein the Appellant Oke Utuyorume and one Oluwaseyi Sowemimo, were arraigned, tried, convicted and sentenced to death on a two count charge of conspiracy to commit the offence of armed robbery and armed robbery. The charge against the accused persons at the court below reads as follows:-

COUNT 1:

That you Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th day of January, 2001 at Abeokuta in Ogun State conspired 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 1990 as amended by the Tribunals (Certain Consequential Amendment, etc) Decree 1999.

COUNT 2:

That you Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th day of January, 2001 at Abeokuta in Ogun State, while armed with gun robbed one Omowunmi Bakare of the sum of N418, 000:00 and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Cap 398 Laws of the Federation of Nigeria Act 1990 as amended by the Tribunals (Certain Consequential Amendments etc.) Decree 1999.

They pleaded not guilty to the two count charge and the case went on to be tried in the course of which the prosecution called 4 witnesses and tendered a number of exhibits which will be dealt with at greater length later in this write up. The 1st accused person Oluwaseyi Sowemimo neither adduced any evidence in his defence nor called any witnesses. The 2nd accused Oke Utuyorume who is the Appellant in the present appeal testified in his own defence but called no witness. At the end of addresses for the prosecution and the defence, the learned trial Judge in a considered judgment delivered on the 28th March, 2006 already referred to, found the accused persons guilty of the two count charge and sentenced them to death by hanging. It is this judgment that is the subject of appeal by the convicted 2nd accused Oke Utuyorume.

The case for the prosecution in the court below was that on the 4th January, 2001, the Appellant Oko Utuyorume and Oluwaseyi Sowemimo (who was convicted with the Appellant) as well as Segun Ojo (now at large) went to the shop of one Omowunmi Bakare (who testified at the court below as PW1) who sells commodities at No. 33 Kuto Road pretending to be customers who wanted to purchase rice and as soon as they entered the Complainant’s Shop, they pulled out guns and demanded for money whereupon the Shop owner Omowunmi Bakare opened the drawer where she usually kept money and the accused persons made away with N418,000:00. When the Shop Keeper Omowunmi Bakare noticed that the Appellant and his two Comrades were no longer in site, she raised an alarm which attracted sympathizers who gave chase and caught up with two out of the three robbers who were arrested at the back of M.K.O. Abiola Stadium. A search of the persons of the accused resulted in the recovery of some of the money allegedly robbed and a toy pistol, spent cartridges and a locally made gun. The accused persons were taken to Ibara Police Station and later transferred to SARS Adatan. The Appellant and Oluwaseyi Sowemimo were arraigned on a charge of conspiracy to commit armed robbery and armed robbery which they both denied committing. The learned trial Judge after going through the facts and evaluation of the evidence led found the Appellant and Oluwaseyi Sowemimo guilty of the two count charge and sentenced them to death by hanging.

The convicted 2nd accused turned Appellant Oke Utuyorume filed a Notice of Appeal dated the 25th April, 2006 and filed same day which consists of seven grounds and is contained at pages 109 – 117 of the Record of Appeal. The said Grounds of Appeal are itemized hereunder shorn of particulars –

1. The learned trial judge erred in law in finding the Appellant guilty on the two counts, when the prosecution failed woefully to prove its case, that there was any armed robbery incident.

2. The learned trial judge erred in law in concluding that, the Appellant was part of the gang that robbed one Omowunmi Bakare of the sum of N418, 000:00 when there was no evidence to justify that conclusion.

3. The learned trial judge misdirected himself in law when he held that Appellant never testified to deny the claim of PW1 about robbery incident in her shop when on the record, there were pieces of evidence to the contrary which misdirection has occasioned a miscarriage of justice.

4. The learned trial Judge misdirected himself in law when he held that the 2nd Accused Person was arrested or caught when trying to escape during the commission of an offence and that the victim of the crime was present and positively identified him, and as such, there is no need for the formality of holding an identification parade.

5. The learned trial Judge erred in law when he held that the discrepancies in the testimonies of PW1 was not material.

6. The learned trial Judge erred in law when he held that it is the defence that ought to call certain material witnesses not called by the prosecution.

7. Judgment of the trial Judge is unreasonable and cannot be supported having regard to the evidence.

Out of the seven grounds of appeal contained in the Notice of Appeal, the Appellant has in his Brief of Argument dated the 3rd March, 2008, filed on the 6th March, 2008 but deemed filed on the 30th June, 2008 following the grant by this Court of a motion on Notice dated the 6th March, 2008 and filed same day brought pursuant to Order 7 Rule 10(1) of the Court of Appeal Rules 2007 for extension of time to file Appellant’s Brief of Argument and to deem the Appellant’s Brief of Argument already filed on the 6th March, 2008, as properly filed and served, formulated the following four Issues for the determination of this Court –

1. Whether the prosecution proved the case of armed robbery against the Appellant beyond reasonable doubt.

2. Whether the identity of the Appellant as one of the perpetrators of the crime charged was proved beyond reasonable doubt.

3. Whether the prosecution proved the offence of conspiracy against the Appellant beyond reasonable doubt.

4. Whether the supposed confessional statement made by the Appellant was probable having regard to the circumstances of the case.

These Issues are contained in paragraph 3.00 at page 3 of the Appellant’s Brief of Argument.

The respondent for its part has also distilled four Issues from the same Notice and Grounds of Appeal in the Respondent’s Brief of Argument dated the 16th April, 2009, filed on the 17th April, 2009 but deemed properly filed on the 12th January, 2010. In paragraph 3.00 at page 2 of the Respondent’s Brief of Argument, the Respondent stated as follows:

“Having regard to the grounds of appeal filed by the Appellant the Respondent adopts the four Issues formulated by the Appellant in his Brief of Argument with slight modifications: –

(i) Whether from the totality of the evidence adduced at the trial, the prosecution has proved the charge of armed robbery against the Appellant beyond reasonable doubt.

(ii) Whether having regard to the totality of the evidence adduced during trial, the prosecution had sufficiently proved beyond reasonable doubt that the Appellant was one of the armed robbers.

(iii) Whether having proved the offence of armed robbery against the Appellant it can be inferred that the prosecution had proved the offence of conspiracy.

(iv) Whether having regard to the totality of the evidence adduced at the trial, there was corroborating evidence to show that the confession of the Appellant is true.”

When this appeal came up for hearing on the 25th February, 2010, S. O. Ajayi appeared for the Appellant. With him were R. Isamotu and O. Ayandipo. Mr. Ajayi adopted and relied on the Appellant’s Brief and all the arguments canvassed therein and urged this Court to allow the appeal. Mrs. Y. Oresanya, Director of Commercial Services Ogun State Ministry of Justice appeared for the Respondent. With her was A. Akintayo. Mrs. Oresanya urged this Court to dismiss the appeal.

The Issues formulated by the parties though differently couched are essentially the same and cover the grounds canvassed in the Notice of Appeal. Issues 3 and 4 of the Appellant’s Brief of Argument should in my view swap places.

That done I intend to determine this appeal based on the Appellant’s Brief of Argument. Issues 1 and 2 of the said Appellant’s Brief of Argument will be considered together just as the Appellant has done, both Issues being somewhat interrelated. They are:-

ISSUE 1 – Whether the prosecution proved the case of armed robbery against the Appellant beyond reasonable doubt.

ISSUE 2 – Whether the identity of the Appellant as one of the perpetrators of the crime charged was proved beyond reasonable doubt.

On these two issues Appellant’s Counsel submitted that to prove the offence of armed robbery the prosecution must prove that there was a robbery, accused took part in the robbery and that accused and others were armed during the robbery.

Reliance was placed on BOZIN V. THE STATE (1985)-2 NWLR (Pt.8) 465 at 469. Counsel submitted that aside from PW1, the prosecution failed to call other necessary and material witnesses who purportedly witnessed the robbery such as PW1’s Shop Assistant, Occupants of the third Shop who were purportedly locked up in the toilet by the Appellant and a host of other witnesses, and that failure to call these witnesses is fatal to the prosecution’s case. Reliance was placed on IKEMSON V. STATE (1989) 3 NWLR (Pt.110) 45. It was the Appellant’s contention that the learned trial Judge shifted the onus of disproving the claim of PW1 concerning the armed robbery incident on the accused persons as against the settled principle of law that the prosecution has a bound duty to prove its case beyond reasonable doubt. Section 138(1) of the Evidence Act was relied upon. Counsel went on to say that any doubt which arises must be resolved in favour of the accused person. UBANI V. THE STATE (2003) 16 NWLR (Pt.851) 224 at 241 was relied upon. Appellant’s Counsel went on to refer to the evidence of PW1 which ran thus:

“When the three persons entered, I approached them to find out what they wanted to buy. Surprisingly they pulled out their guns. Immediately, my Shop girl ran to the 3rd Shop.”

It is clear from this evidence he said that P.W. 1 was not the only eye witness to the robbery incident. It is the further contention of the Appellant’s Counsel that PW1 could not have sufficiently identified the Appellant as part of the gang that robbed her given the fact that she was in a state of shock and fear and covered herself with a mat. Counsel referred to the evidence of PW1 at page 22 of the record where she said as follows:

“At the time of making Exhibit 1, I was not myself. I only told the police what occurred to me then. That is all.”

In that state of mind, Counsel submitted, the evidence of PW1 was not only unstable but exaggerated and untrue and would have been discountenanced by the learned trial Judge.

Reliance was placed on SOWEMIMO V. THE STATE (2004) 11 NWLR (Pt.885) 515 at 532; C & C CONSTRUCTION CO. LTO. V. OKHAI (2003) 18 NWLR (Pt.851) 79 at 100.

Appellant went on to submit that calling other witnesses who allegedly came in contact with the robbers would have settled the issue of robbery one way or the other. OPEYEMI V. STATE (1985) 2 NWLR (Pt.5) 101 was relied upon.

Appellant’s Counsel submitted that though the accused persons were reportedly arrested later, there is no scintilla of evidence to show that the fleeing robbers were the accused persons that were subsequently arrested. Counsel again submitted that the Appellant could not have been sufficiently identified as to make an identification parade unnecessary. He contended that the police would have carried out an identification parade to identify the actual robbers. According to Counsel, it is settled law that where an identification evidence is poor, the trial court should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. Reliance was placed on ARCHIBONG V. STATE (2004) 1 NWLR (Pt.855) 488 at 509. Appellant submitted that there were inconsistencies in the evidence adduced by the prosecution which the court ought not to have overlooked as for example while PW1 who claimed to have followed the police to the point of arrest of the accused persons stated that the accused were arrested in the bush behind M.K.O. Abiola Stadium, PW2 the policeman who supposedly led the team that arrested the accused persons claimed in his evidence that the accused persons were arrested inside a steam. Counsel said that it was surprising that while the trial Judge admitted the conflict in evidence he did not see the materiality of it. This contradiction on the point of arrest Appellant’s Counsel noted is sufficient to undermine the credibility of the evidence of both PW1 and PW2. He went on to submit that it is illogical to accept and believe the evidence of two witnesses who gave two different and irreconcilable accounts of the same situation. Similarly, it is equally wrong for a trial Judge to attempt to rationalize the evidence of a witness as done in the instant case for the purpose of arriving at a preconceived conclusion. Reliance was placed on NWOSU V. STATE (1986) 4 NWLR (Pt.35) 348. Counsel further submitted that the Supreme Court has restated over time that a Judge who believes the evidence of two witnesses that are in sharp conflict has not shown that he has made good use of the advantage of seeing and hearing the witnesses testify from the witness box and has therefore failed to exercise his adjudicative power to chose which of the two witnesses to believe. Reference was made to ATANDA V. AJANI (1989) 2 NWLR (Pt.111) 511 at 539. Counsel asked this Court to interfere with the findings of the trial court as same is perverse and return a verdict of not guilty on the Appellant.

Respondent’s issues (i) and (ii) are the same as the issues formulated by the Appellant and the two issues have, just as the Appellant has done been argued together. The Respondent submitted that in proof of the three ingredients of armed robbery which she agrees with, the prosecution adduced strong and overwhelming evidence through witnesses and tendered exhibits. Reference was made to the evidence of PW1, PW2, PW3, PW4 and also to exhibits 1, 2, 3, 4, 5, 6, 7 and 9 which the Respondent says reveal clearly that all the three ingredients i.e. that there was a robbery, accused took part in the robbery and that the accused and others took part in the robbery were proved by the prosecution beyond reasonable doubt. Respondent’s Counsel went on to submit that the evidence adduced by the prosecution through PW1 no doubt shows that on the 4th January, 2001, PW1 Omowunmi Bakare while in her shop at No. 33 Kuto road parted with the sum of N418, 000 to three persons under the threat of guns which the said three persons brought out on getting to her shop. Respondent’s Counsel submitted there was nothing in the cross-examination of PW1 which shook the veracity of her evidence.

Respondent’s Counsel went on to contend that it is not the number of witnesses the prosecution calls in substantiation of its case that matters but the quality of the witnesses and that is what proof beyond reasonable doubt is all about. Reliance was placed on MICHAEL V. STATE (2008) 34.2 NSCQR 700 at 728. It was further submitted for the Respondent that where two or more persons are witnesses to an event the law does not impose a duty on the prosecution to call all the persons as witnesses. Rather, the prosecution is required to call only those it considers material in order to establish its case. It needs not call all the witnesses listed in the proof of evidence. Reliance was placed on the following cases- OGBODU V.THE STATE (1987) 2 NWLR (Pt.54) 20 at 27; ADAJE V. THE STATE (1979) 6-9 SC 18 at 28; IJIOFOR V. THE STATE (2006) 6 NSCQR (Pt.1) 209 at 237. Counsel submitted that where the evidence of one witness cogently and satisfactorily establishes a point in issue, in the absence of any law requiring that such point should be established by two or more witnesses, it is not desirable to proliferate the number of witnesses in proof of the same point. Counsel relied on IBRAHIM V. STATE (1993) 2 NWLR PART 278, 735 at 748. It was further submitted that the duty of the prosecution is to establish the guilt of the accused beyond reasonable doubt and this could be established on the evidence of only one witness. With respect to the identity of the Appellant vis-a-vis PW1’s confused state of mind as alleged by the Appellant, Respondent’s Counsel submitted that PW1’s account of what transpired on the day of the incident is very vivid and clear as she not only stated the number of armed robbers that approached her in her Shop on the day of incident, she also recounted the role played by each of the armed robbers. From the evidence of PW1 it is obvious that she had a close encounter with the people that robbed her on the 4th January, 2001 one of whom is the Appellant and so she was able to identify them and the role that each of them played. According to the Respondent, what is more is that PW1 stated in her evidence that she followed the police to the back of M.K.O. Abiola Stadium where the Appellant and the 1st accused person were caught in a bush with money and guns.

As I had stated earlier I intend to deal with issues 1 and 2 together just as the Appellant and Respondent have done in their respective briefs of argument. For the avoidance of doubt and by way of refreshment of memory the issues are:

“1. Whether the prosecution proved the case of armed robbery against the Appellant beyond reasonable doubt; and

2. Whether the identity of the Appellant as one of the perpetrators of the crime charged was proved beyond reasonable doubt.

Section 138(1) of the Evidence Act provides as follows:

(1)”If the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt”

(2)”The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 141 of this act on the person who asserts it whether the commission of such is or is not directly in issue in the action.”

1. That there was a robbery or series of robberies.

2. That the robbers were armed robbers.

3. That the accused persons were or some of the people who took part in the robberies.

There is a plethora of case law on this subject matter.

See however the following cases – BOZIN V. THE STATE (1985) 2 NWLR (Pt.8) 465; OKOSI V. A.G. BENDEL STATE (1989) 1 NWLR (Pt.100) 642; ALABI V. THE STATE (1993) 7 NWLR PART … PAGE 511 at 523.

What in any case is “Robbery”? Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap 398, defines “Robbery” as follows:

Is there sufficient evidence which the prosecution can fall back on as proof beyond reasonable doubt that there was a robbery in the first place? The evidence of PW1 Omowunmi Bakare is that on or about the 4th January, 2001 three men visited her shop at No. 33, Kuto road where she sells commodities posing as customers. She then approached them demanding from them what commodities they wanted to purchase. They then produced guns demanding money from her. While one of the men kept guard outside the Shop the other two helped themselves to her money totaling N418,000:00 from a drawer which she had opened for them where the money was kept. When the men were no longer in sight, she (PW1) raised an alarm. It is instructive to also say that PW1’s evidence is that her shop girl upon noticing that the men brought out guns fled to another shop. This account of what happened in PW1’s shop if proven would without more satisfy the requirement for robbery given the definition of Robbery already highlighted. This evidence by PW1 was neither contradicted nor tainted or destroyed by cross examination.

That the men had guns would satisfy the second requirement that they were not only robbers but armed robbers. This piece of evidence is also unshaken by cross examination of PW1. The Scenario is that whoever the men who visited PW1’s Shop were, faceless as they may be for now were not just mere robbers but armed robbers. This is because “arms” under the law with which the accused persons were charged includes guns just as it includes comparatively less dangerous and offensive instruments as axes and knives.

The third requirement that the prosecution has got to prove beyond reasonable doubt is whether the Appellant was one of or among the armed robbers that visited and robbed PW1 Omowunmi Bakare in her shop on the 4th January, 2001.

Here again, there is the dire need to revisit the evidence of P.W.1 Omowunmi Bakare as to what happened on the day in question. The account is lucid and clear. She said as follows:

“I know the accused persons. On the 4th January, 2001 the accused persons came to my shop. I thought they were prospective customers. I approached them to find out what they wanted to buy. Surprisingly they pulled out their guns. Immediately my shop girl ran to the 3rd shop. These persons who entered my shop including the accused persons say they were interested in my money or did I want to die. They asked me to hand over the money I had. I opened the drawer in which I kept money for them … the short one (PW1 pointed at the 1st accused) and the third person that escaped were the ones that offloaded the money from the drawer and another carton in which they found money. The tall one (PW1 pointed at the 2nd accused now Appellant) was outside parading the front of the shop and calling to others that everything was alright.

When the shop was silent I looked up and noticed that the 1st accused and the 3rd person that escaped had left the shop. I however saw the 2nd accused (he is now the Appellant) across the road entering into one footpath leading to Kuto market.

I remained on the floor as I did not want to attract his attention and cause him to come back. I looked a second time and when the 2nd accused was no more visible to me I rushed out and raised an alarm that I had been robbed.”

It is clear from this piece of evidence that PW1 recounted not only the number of armed robbers who robbed her in her shop on the day in question, but was able to say what role each of them played. She was also able to describe them even by their height. This piece of evidence was not impaired during cross-examination. There is also the evidence of PW1 that she followed the police (PW2) to the back of M.K.O. Abiola Stadium where the Appellant and the 1st accused person were caught with money and guns between 1.30 – 2 p.m. shortly after the incident on the day in question. PW2 had stated in his evidence how he had subjected the 1st accused and the Appellant to a search and had found a toy gun and expired cartridges on the 1st accused person and a locally made gun on the Appellant. Some money was also found on them during the search. These pieces of evidence were not destroyed by cross-examination. P.W.1 had said in evidence that even if the Appellant and the others who took part to rob her were jostled among numerous other persons she would still be able to recognise them. The argument by the Appellant’s Counsel that PW1 could not have been in a position to recognise or identify those who visited her shop firstly because of her confused state of mind at the time of the robbery and the fact that she had covered herself up with a mat on the floor does not appear to me to be tenable because:

1. When the robbers entered her shop, she approached them demanding to know what they wanted to buy. There was thus a direct visual contact between her and the robbers.

2. The incident took place in broad daylight and there is no suggestion nor is their evidence that the robbers were hooded which could have made recognition or identification difficult.

3. From a vantage position after the robbers had fled but unknown to the Appellant, PW1 had a second and this time a more relaxed look at the Appellant as he entered into a footpath leading to Kuto market.

4. The same Appellant along with the 1st accused person were arrested with guns by PW2 soon after the incident and PW1 was on hand at the point of arrest to identify them as the ones who shortly before had visited her shop and robbed her.

All these pieces of evidence were not destroyed during cross examination.

Further with respect to identification of the Appellant as one of the robbers on the day of the incident, Appellant’s Counsel in paragraphs 4.32 and 4.33 at pages 12 and 13 of the Appellant’s Brief of Argument, argued quite strenuously that there would have been the necessity for the police to conduct a formal identification parade to determine whether the Appellant was one of the robbers who robbed PW1 on the day of the incident in view of the fact that prior to the day of the incident, PW1 in her evidence admitted not to have seen any of the accused persons. Secondly, that the meeting between PW1 and the Appellant was for a brief period and thirdly PW1 never said that he recognised or could identify the Appellant by any feature or what he wore at the time of the robbery. Undoubtedly, judicial authorities have stressed the need for courts to be cautious when considering evidence of identity. See CHRISTOPHER OKOSI & ANOR V. THE STATE (1989) 1 NWLR PART 100 page 642; ZEKERI ABUDU V. THE STATE (1985) 1 NWLR (Pt.1) 55 at 62; R. V. TURNBULL (1976) 3 WLR 455.

But the Supreme Court has also said that it is not in every instance when persons suspected of having committed a crime are paraded for identification. In UKPABI V. THE STATE (2004) 7 SCM 189 at 199-200, the Supreme Court had this to say:

“Where a trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Identification parade is not a sine qua non to conviction. IKEMSON V. STATE (19891 NWLR (Pt.110) 455. In the instant case, where the identification of the Appellant was informal and spontaneous shortly after the robbery and having regard to the surrounding circumstances incriminating the Appellant… ”

The facts in the present appeal are clear. PW1’s evidence is to the effect that when the 1st accused person, the Appellant and a third person now at large came to her shop, she approached them to demand what commodity they wanted to purchase. There was eye contact if you will between Appellant and the PW1. Such eye contact need not last for more than a few seconds for recognition and subsequent identification of the Appellant by PW1 to take place. Before PW1 covered herself with a mat the visual contact had taken place. PW1 was able to recognise the role the Appellant played in the robbery and also the fact that he is tall. She could still identify him even when he had left her shop and was on in a footpath leading to Kuto Market. Later she accompanied PW2 who effected his arrest after a search had been carried out on his person where a gun and some money was found. PW1 had said under cross-examination that, “Even if they (Appellant and 1st accused) are paraded amongst two hundred persons that look like them I will recognise them”

PW2’s evidence fitted the account given by PW1. In ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129 the Supreme Court held as follows:

“The law, I believe is sufficiently settled that where an accused is arrested or caught when trying to escape during the commission of an offence and the victim of the crime was present and positively identified the accused person, there is no need for the formality of holding an identification parade.”

From the totality of the evidence adduced and more especially those of PW1 and PW2, there can be no doubt that the Appellant was identified beyond reasonable doubt as one of the armed robbers that robbed PW1 In her shop on the 4th January, 2001.

Heavy weather has been made by the Appellant about the failure of the prosecution to call the shop girl who sells for PW1 and who escaped to the 3rd shop when the armed robbers came as well as other witnesses. This simple point has been made in a number of decided cases and will now be made again for the umpteenth time, that the prosecution is not bound to call every witness to prove its case neither can the defence dictate to the prosecution which witnesses it ought to call. Achike JSC of blessed memory in IJIOFOR V. THE STATE (2006) 6 NSCQR (Pt.1) 209 at 237 aptly put the position in proper perspective when he stated as follows:

“The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they field as witnesses.”

This point could not have been better made. Whatever evidence could have been elicited from PW1’s shop girl could not have been better than that of PW2 who upon information caught, searched and recovered guns, expired cartridges and some money from the 1st accused person and the Appellant with PW1 accompanying him to identify the robbers soon after the armed robbery at the back of M.K.O. Abiola Stadium.

Heavy weather appears also to have been made by the Appellant pertaining to perceived inconsistencies and discrepancies in the evidence packaged by the prosecution to secure conviction of the Appellant as for example whether the arrest of the Appellant was in the bush or a stream. Again the point has been made in several judicial authorities that for a contradiction or discrepancy in evidence to affect the credibility of the prosecution it must be of a material nature. The case packaged by the prosecution is that pointers had been made by persons who saw that the accused persons had fled behind M.K.O. Abiola Stadium and when PW2 – the policeman and PW1 went behind M.K.O. Abiola Stadium, the Appellant and 1st accused persons were there and a search on their persons resulted in the recovery of guns, expired cartridges and some money. PW1 was able to identify the Appellant and the 1st accused among the gang of three who robbed her, the third person having made good his escape. Only material contradictions will make an appellate court set aside the decision of the lower court. See ARCHBONG V. THE STATE (2006) 5 SCNJ 2022 at 2035. Issues 1 and 2 are accordingly resolved in favour of the Respondent against the Appellant.

I had said earlier in this write up that it was necessary for Issues 3 and 4 to swap places.

Issue 3 (which is Issue 4 in the Appellant’s Brief of Argument) reads as follows –

“Whether the supposed confessional statement made by the Appellant was probable having regard to the circumstances of the case.”

Interestingly, the Appellant while listing this Issue at paragraph 3.00 at page 3 of his Brief of argument as Issue 4 has argued it at page 14 paragraph 5.1 of his Brief as Issue 3 in conformity with the position I chose to adopt. Appellant has submitted in his brief of argument that he retracted his confessional statement in his oral testimony in Court and gave evidence contrary to the confessional statement. It was submitted by the Appellant’s Counsel that the law is settled that though the Court can convict on a retracted confession, nonetheless the Court is under a duty to test the truth of the confessional statement by examining the facts therein contained along with the rest of the evidence and find corroborative evidence of the said confession. In other words, before a court can rely on a confessional statement to convict, it has to test the veracity of the confessional statement.

Reliance was placed on NSOFOR V. STATE (2004) 18 NWLR (Pt.905) 292 at 310-311 where the following were given consideration to-

(a) Is there anything outside the confession to show that it is true?

(b) Is it corroborated?

(d) Was the prisoner one who had the opportunity of committing the crime?

(e) Is his confession possible?

(f) Is it consistent with other facts which have been ascertained and have been proved?

Appellant’s Counsel submitted that the prosecution failed in its duty to lead any corroborative evidence to confirm the truth of the supposed confessional statement which failed to meet the requirement stated in NSOFOR V. THE STATE (supra). Respondent’ Counsel agreed with learned Counsel for the Appellant that before a court can rely on a confessional statement to convict it has to test the veracity of the confessional statement. Respondent’s Counsel then went on to address the Issues raised in NSOFOR’s case (supra). As to the question whether there is something outside the confession of the Appellant to show that it is true, Counsel referred to the gun recovered from the Appellant and to the evidence of PW1- PW4. Counsel sent on to say that the Appellant’s statement is corroborated by the evidence of PW1 and Exhibit 4. It was also submitted that the Appellant’s confessional statement as in exhibit 7 is true as far as it can be tested, because the Appellant was in Kuto, Abeokuta around the time the robbery was committed and the gun (exhibit 4) was recovered from him. As to whether the Appellant had the opportunity of committing the crime, Respondent’s answer was in the affirmative as the Appellant had admitted in his confessional statement to have been in Kuto, Abeokuta around the time the robbery was committed and the evidence of all the prosecution witnesses makes the confession possible. As to the question whether the confession of the Appellant is consistent with other facts which have been ascertained and have been proved, Respondent answered in the affirmative stating that the Appellant’s confessional statement is consistent with the fact that PW1 was robbed and she identified the Appellant as one of the robbers while PW1 and PW2 arrested the Appellant with the gun- exhibit 4.

1. Is there anything outside the confessional statement to show that it is true?

2. Is it corroborated?

3. Are the statements made in it of fact true as they can be tested?

4. Was the prisoner one who had the opportunity of committing the offence?

5. Is his confession possible?

6. Is it consistent with other facts which have been ascertained and which have been proved?

These tests would very much appear to be in complete harmony and in conformity with the six tests highlighted in NSOFOR V. THE STATE (supra) and referred to and relied upon by the Appellant in paragraph 5.3 at page 15 of the Appellant’s Brief of Argument. Regrettably Appellant instead of proffering arguments with respect to each of these laid down tests chose to concern himself with matters that are alien to the case at hand. How relevant to this case is the Appellant’s confession that he robbed Precious Pharmacy Omida for instance? Respondent’s Counsel has quite extensively and I must say admirably dealt with each of the tests highlighted in the two cases just cited above and I cannot agree more with her. I do not want to overflog the Issue, arguments having been considered while dealing with Issues 1 and 2. Issue 3 is therefore resolved in favour of the Respondent against the Appellant.

Issue 4 is as to whether the prosecution proved the offence of conspiracy against the Appellant beyond reasonable doubt. Appellant’91s submission in this Issue is that the prosecution having failed to prove the offence of armed robbery has equally failed to prove that there was conspiracy to commit armed robbery. It was submitted by Appellant’s Counsel that it has been settled in a plethora of judicial authorities that the prosecution always has a primary duty to have distinct evidence of the evidence of the existence of conspiracy and what part each of the Conspirators played.

Reliance was placed on NWOSU V. THE STATE (2004) NWLR (Pt.897) 466 at 487. Reference was also made to R. V. ORTON (1922) Victoria Law Reports 474 where Cursen J. said as follows,

“Each accused is entitled at the onset to have the evidence properly admissible against him considered alone, and it is only when such evidence so considered you find him to be a party to the conspiracy, if any, that the acts of the other Conspirators can be used against him.

Counsel also referred to MUMINI V. THE STATE (1975) 1 ALL NLR (Pt.1) 294 where the Supreme Court threw more light on this Issue. Counsel submitted that the prosecution in the instant case has led no distinct evidence to prove the existence of conspiracy or the role played by the Appellant other than the discredited and unreliable evidence of PW1, an eye witness, PW2 and the supposed confessional statement of the Appellant. In the circumstance the offence of conspiracy has no foundation to stand upon and the learned trial Judge ought to have discharged and acquitted the Appellant.

Respondent for its part has submitted that for the offence of conspiracy to be established there must be or exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. Reliance was placed on SEGUN ODENEYE V. STATE 2001 Supreme Court Monthly 81 at 8. Counsel went on to submit that it follows therefore that the prosecution must have evidence of the existence of the conspiracy and the part that each of the conspirators played. The actual agreement alone, Counsel said, constitutes the offence of conspiracy and it is often inferred from circumstantial evidence. In the instant case there is ample evidence that the Appellant and his gang agreed to rob PW1 and they actually carried out the plan. According to Counsel, the agreement to rob can be inferred from exhibit 7 while the actualization of the robbery is obvious from the evidence adduced by PW1 and PW2. The role played by the Appellant is also obvious from the evidence of PW1 and exhibit 7 and the offence of conspiracy is complete the moment the Appellant and his gang agreed to rob PW1. Respondent’s Counsel finally submitted that the prosecution had proved the charge of conspiracy against the Appellant beyond reasonable doubt.

“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective.”

In the instant case from the totality of the evidence adduced by the prosecution one is left in no doubt that the offence of conspiracy has been established against the Appellant. There was a meeting of the minds of the 1st accused person, the Appellant and a third person now at large to rob PW1 in her shop of some money on the day in question while pretending to be customers who wanted to purchase some items or commodities from her shop. When PW1 approached them to demand what items or commodities they intended to buy from her shop they brought out guns and demanded money. The Appellant served as a lookout while the others helped themselves to the money in PW1’s drawer and elsewhere in her shop that money could be found. That they acted with a common design is not in doubt because 1st accused person and the Appellant fled to and were caught in the same place after the robbery. A search of their persons revealed that they had guns, expired cartridges and part of the money stolen from PW1. That Appellant made a confessional statement of the robbery was also established by the prosecution. In the present case, the evidence adduced by the prosecution was not merely evidence that one might refer to as circumstantial but real. Prosecution proved its case of conspiracy against the Appellant beyond reasonable doubt and I so hold. I also hold that Issue 4 be and is hereby resolved in favour of the Respondent against the Appellant.

The appeal fails as lacking in merit and is hereby dismissed and the judgment of Lokulo-Sodipo J. of the High Court of Justice, Abeokuta, Ogun State delivered on the 28th March, 2006 is hereby affirmed.

CHIDI NWAOMA UWA, J.C.A. I had a preview of the Judgment delivered by my learned brother S. S. Alagoa, J.C.A.

I agree with his reasoning and conclusion reached in holding that the appeal lacks merit. I also dismiss same, and affirm the Judgment of Lokulo-Sodipe, J. (as he then was) of the High Court of Justice, Abeokuta, Ogun State delivered on the 28th day of March, 2006.

MODUPE FASANMI, J.C.A : I had the privilege of reading in advance the judgment delivered by my learned brother S. S. Alagoa J.C.A . I entirely agree with the decision arrived at in holding that the appeal lacks merit and the dismissal order made therein. I adopt same as mine. The judgment of the lower court is also affirmed by me.

Appearances

S. O. Ajayi Esq. with him R. Isamotu Esq. and O. Ayandipo Esq.For Appellant

AND

Mrs. Y. Oresanya, Director of Commercial Services Ogun State Ministry of Justice with her A, Akintayo Esq.For Respondent