ADENIYI ADEKOYA V. THE STATE
(2010)LCN/4043(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of November, 2010
CA/I/22/07
RATIO
WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT; WHAT ARE THE TESTS FOR DETERMINING THE VERACITY OF CONFESSIONAL STATEMENTS OF ACCUSED PERSONS
It is undoubtedly the law as agreed upon by both Counsel for the Appellant and Respondent that an accused can be convicted solely on his confessional statement. Perhaps as a safeguard, the Supreme Court in a number of cases has fashioned out further tests for the verification of the veracity of confessional statements of accused persons. See DAWA V. THE STATE (1980) 8-11 SC 236; R. V. OBIASA (1962) 2 SCNLR 402; (1962) 1 All NLR 651 where these tests were highlighted as follows – 1. Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are the relevant statements made in it of facts true as can be tested? 4. Was the prisoner one who had the opportunity of committing the crime? 5. Is his confession possible? 6. Is it consistent with other facts which have been ascertained and have been proved? PER STANLEY SHENKO ALAGOA, JCA
WHETHER THE PROSECUTION ,IN A CRIMINAL CASE, HAS A DUTY TO PROVE ITS CASE BEYOND REASONABLE DOUBT AND THE EFFECT OF ITS FAILURE TO DISCHARGE THIS BURDEN
In a criminal case the prosecution must prove its case beyond reasonable doubt as distinguishable from a civil case where proof is on a balance of probability. In such a criminal trial the onus on the prosecution does not shift’ Section 138 of the Evidence Act provides as follows – (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding 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 act is or is not directly in issue in the action, there is a plethora of case law on this subject matter. See for example the following cases – CHIA V. THE STATE (1996) 6 NWLR (PART 455) 465; ONUBOGU V. THE STATE (1974) 9 SC 1; (1974) 1 All NLR (PART 11) 5; MORKA V. THE STATE (1998) 2 NWLR (PART 537) 294 at 307 and NWOSU V. THE STATE (1998) 8 NWLR (PART 562) 433 at 444 where it was held that “In all criminal trials the burden 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 person. The burden never changes.” Proof beyond reasonable doubt by the prosecution is thus a sine qua non to the conviction and sentence of an accused person in all criminal trials. PER STANLEY SHENKO ALAGOA, JCA
OFFENCE OF ARMED ROBBERY: INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
There are three ingredients that go to make up the offence of armed robbery and they are as follows – (g) That there was a robbery or series of robberies; (b) That the robberies were armed robberies; (c) That the accused persons were, or some of the people who committed the armed robbery. See BOZIN V. THE STATE (1985) 2 NWLR (PART 8); OKOSI v. ATT. GEN. OF BENDEL STATE (1989) 1 NWLR (PART 100) 642. PER STANLEY SHENKO ALAGOA, JCA
DEFINITION OF THE WORD “ARMS”
On what constitutes “arms” section 15(1) of the Robbery and Firearms (Special Provisions) Act highlighted above defines “arms” as any offensive weapon which includes inter alia cutlass, axe and machete (in which category knife belongs) used by the robbers. PER STANLEY SHENKO ALAGOA, JCA
CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL ONLY SET ASIDE THE FINDING OF A LOWER COURT ON ALLEGED CONTRADICTIONS IN THE EVIDENCE OF THE PROSECUTION
It is trite that an appellate court will only set aside the finding of a lower court on alleged contradictions in the evidence of the prosecution if such contradictions are material. See ARCHIBONG V. THE STATE (2006) 5 SCNJ 2022 at 2035; (2006) 14 NWLR (PART 1000) 349. PER STANLEY SHENKO ALAGOA, JCA
OFFENCE OF CONSPIRACY: MEANING OF THE OFFENCE OF CONSPIRACY
Conspiracy has been held in a number of judicial authorities to mean the meeting of the minds of the conspirators. It consists of the intention of two or more persons to do an unlawful act or a lawful act by unlawful means and conviction is usually based on circumstantial evidence. See PATRICK NJOVENS V. THE STATE (1973) 5 SC 17; UPAHAR V. THE STATE (2003) 6 NWLR (PART 816) 230 at 239. PER STANLEY SHENKO ALAGOA, JCA
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
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ADENIYI ADEKOYA – Appellant(s)
AND
THE STATE – Respondent(s)
STANLEY SHENKO ALAGOA, JCA (Delivering the lead Judgment): At the High Court Ota in the Ijebu Ode Ogun State, the Appellant as accused was following offences-
COUNT 1 – That you ADENIYI ADEKOYA and one other now at large on or about the 8th day of November 1999 at Erunwon Junction Ijebu Ode in the Ijebu-Ode Division conspired together to commit the offence of 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 Tribunal (Certain Consequential Amendments etc.) Act 1999,
COUNT 2 – That you ADENIYI ADEKOYA and one other now at large on or about the 8th day of November 1999 at about 7.30 p.m. at Erunwon Junction Ijebu Ode in the Ijebu Ode Judicial Division while armed with firearms to wit: Knife robbed one Tajudeen Amuda of a Suzuki motorcycle with Registration No. OG 1305Z valued N47,000 (Forty seven thousand Naira) and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as Amended by the Tribunal (Certain Consequential Amendments etc.) Act 1999.
The Appellant pleaded not guilty to the two count charge and the case proceeded to trial with the prosecution calling five witnesses while the Appellant called two witnesses. A number of Exhibits\were admitted. At the close of evidence for the prosecution and defence, Counsel on both sides addressed Court and in a considered judgment delivered on the 8th April 2003, the learned trial Judge A. O. Ogundepo J, found the Appellant guilty on each of the two count charge and accordingly sentenced him to death. It is this judgment that is the subject of appeal.
The facts of the case as presented by the prosecution are that on the 8th November 1999, PW1 who was a commercial motorcyclist carried the accused person (now Appellant) and another person now at large as passengers from Talbot road towards Erunwon Ijebu-Ode, in the course of the ride, PW1 was robbed of his motorcycle, clothes and some money by his passengers who were then armed with a knife. The Motorcycle was recovered the next day being the 9th November 1999 at Ilese without its two side mirrors. The two side mirrors of the motorcycle were same day 9th November 1999 recovered from the Accused/Appellant in company of two others now at large while the three persons were trying to sell the said side mirrors to PW3 a vulcanizer. The accused person denied the charge hence the trial, conviction and sentence.
The Appellant’s Notice of Appeal dated the 15th April 2003 is contained at page 92 of the Record of Appeal and consists of a sole ground which is that the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence. The Appellant subsequently by his motion on Notice dated the 20th February 2009 and filed on the 23rd February 2009 and brought pursuant to Order 4 Rule 1, Order 7 Rule 10, Order 16 Rule 3(3), Order 17 Rule 11 of the Court of Appeal Rules 2007 Section 16 of the Court of Appeal Act and under the inherent jurisdiction of this Court, sought for the following orders which were granted on the 28th April 2009.
The said orders are –
1. An order granting leave to the Appellant to file and argue Additional Grounds of Appeal.
2. An order deeming the Additional Grounds of Appeal already filed as properly filed.
3. An order extending time within which the Appellant would file his Brief of Argument.
4. An order deeming the Appellant’s Brief of Argument already filed as properly filed,
The Additional Grounds of Appeal deemed properly filed by this order of Court are reproduced hereunder viz –
GROUND 2
The learned trial judge erred in law by holding that the confessional statement of the Appellant, Exhibit “E” are direct, unequivocal and positive to ground the conviction and sentence of the Appellant.
PARTICULARS OF ERROR
(i) Exhibit “E” is contradictory in its content. Thus, in one breath the Appellant confessed to have committed the offence whilst in another breath he denied committing the offence.
(ii) The content of Exhibit “E” is inconsistent in itself and therefore doubtful.
(iii) Exhibit “E” is valueless, worthless and ought not to have been relied upon at all by the trial judge.
GROUND 3
The learned trial judge erred in law by placing heavy reliance on Exhibit “E” in convicting and sentencing the Appellant to death for the offence of conspiracy to commit armed robbery and armed robbery, which occasioned miscarriage of justice.
PARTICUALRS OF ERROR
(i) Exhibit “E” is extra-judicial statement made to the police.
(ii) The content of Exhibit “E” is inconsistent in itself and therefore doubtful.
(iii) Exhibit “E” is valueless, worthless and ought not to have been relied upon at all by the trial judge.
GROUND 4
The learned trial judge erred in law by finding the Appellant guilty of the offences of conspiracy to commit armed robbery and armed robbery.
PARTICULARS OF ERROR
(i) From the evidence before the trial court, it is doubtful if there was actually armed robbery.
(ii) The Appellant was not properly linked with the offence as charged.
(iii) The prosecution failed woefully to prove its case beyond reasonable doubt as there were lapses in the evidence of the prosecution witnesses.
GROUND 5
The learned trial judge erred in law by holding that the inconsistencies in the venue where the crime was committed does not affect the proof of the offence charged.
PARTICUALRS OF ERROR
(i) The prosecution’s witnesses gave three different places where the crime was said to have been committed.
(ii) It is doubtful as to which offence the Appellant was charged with.
From the five Grounds of Appeal contained in the original notice of Appeal and the Additional Grounds of Appeal the following issues were distilled at page 5 of the Appellant’s Brief of Argument earlier referred to as having been deemed filed and served on the 28th April 2009 viz –
ISSUE 1 – Whether the Confessional Statement of the Appellant Exhibit “E” was of any probative value to be relied upon by the learned trial Judge in convicting and sentencing the Appellant to death for the offences as charged.
ISSUE 2 – Whether the learned trial Judge was right in holding that the prosecution proved the charge against the Appellant beyond reasonable doubt.
The Respondent (the State) in paragraph 3 at page 3 of the Respondent’s Brief of Argument dated the 14th July 2009 and filed on the 15th July 2009 pursuant to an order of this Court made on the 13th July 2009 has adopted in its totality the issues formulated by the Appellant.
I have no reasons to discard the issues formulated by the Appellant and adopted by the Respondent as they are indeed proper issues to effectually determine this appeal one way or the other and I also accordingly adopt the same issues as mine.
It is instructive to state that Counsel for both parties adopted and relied on their respective Briefs of Argument when this appeal came up for hearing on the 4th October 2010. In addition to the Appellant’s Brief of Argument earlier referred to, Appellant’s Counsel Adewunmi Ogunsanya, with him M. K. Adesina also adopted and relied on the Appellant’s Reply Brief of Argument dated the 29th July 2009 and filed same day and urged this Court to allow the appeal.
Mrs. P. F, Odunniyi, Director of Public Prosecutions Ogun State Ministry of Justice with her F. Sodipo (Miss) State Counsel also adopted and relied on the Respondent’s Brief of Argument earlier referred to and urged this Court to dismiss the appeal and uphold the conviction and sentence of the lower court. The issues will now be discussed seriatim.
ISSUE 1 – Whether the confessional statement of the Appellant Exhibit “E” was of any probative value to be relied upon by the learned trial judge in convicting and sentencing the Appellant to death for the offences as charged.
On this issue Appellant has submitted in his Brief of Argument that the appellate courts have established in a plethora of cases that for a confession to ground conviction of an accused person the confession must be direct, positive and unequivocal and that in the instant case it is important to determine whether the confessional statement Exhibit “E” is direct, positive and unequivocal. Counsel submitted that Exhibit “E” contains inconsistencies which make it unreliable as a confessional statement to ground the conviction of an accused person. Counsel submitted that by the combined effects of section 27 of the Evidence Act and Judicial authorities an accused can be convicted and sentenced based on his confession alone but such confession must be direct, positive and unequivocal which was not the case here. Reliance was placed on the following cases – BASSEY V. THE STATE (1992) 7 NWLR (PART 255) 525 AT 540-541; AGENU V. STATE (1992) 7 NWLR (PART 256) 749; EGBOCHONOME V. STATE (1993) 7 NWLR (PART 306) 383; SAM V. THE STATE (1991) 2 NWLR (PART 176) 699.
Respondent’s Counsel on her part has agreed with this legal postulation that an accused can be convicted solely on his confessional statement relying on the Supreme Court cases of AKPA V. STATE (2008) 8 SCM page 68 at 70; 447 at 454. Counsel submitted that the accused/Appellant did not raise any objection to the tendering and admissibility of Exhibit “E” after the court had expunged Exhibit “B” which the Court did not rely on. Counsel further submitted that the trial court found as a fact that Exhibit “E” is consistent with the facts of this case as testified by the prosecution witnesses.
It is undoubtedly the law as agreed upon by both Counsel for the Appellant and Respondent that an accused can be convicted solely on his confessional statement. Perhaps as a safeguard, the Supreme Court in a number of cases has fashioned out further tests for the verification of the veracity of confessional statements of accused persons. See DAWA V. THE STATE (1980) 8-11 SC 236; R. V. OBIASA (1962) 2 SCNLR 402; (1962) 1 All NLR 651 where these tests were highlighted as follows –
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts true as can be tested?
4. Was the prisoner one who had the opportunity of committing the crime?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
We shall examine these tests later but for now we should concern ourselves with what Appellant said in his statement – Exhibit “E” which was tendered and admitted without objection by the trial court. The Appellant stated in Exhibit “E” that he planned with one Titus to snatch PW1’s motorcycle from him. He even admitted that the knife used in carrying out the robbery operation Exhibit “D” belongs to him. He went on to give graphic details of how and what part he prayed in the attempt to sell the two mirrors from PW1’s snatched motorcycle to pW3. What confessional statement can be more direct, positive and unequivocal than that? This confessional statement tallies with the evidence of PW1, PW2 and PW3.
PW1’s evidence is at page 18 of the Record of Appeal. His name is Tajudeen Amuda and his evidence is that on the 8th November 1999, he went to his master’s (PW2) house to take the motorcycle (subject of the robbery incident) to commence work for the day as a commercial motorcyclist, The Appellant and another person boarded his motorcycle at Talbot road asking to be taken to Erunwon. On their way the Appellant and the other passenger asked him to stop and began to beat him. The Appellant drew out a knife intending to stab PW1 while the other passenger brought out a piece of cloth with which he sought to blindfold him. They took the motorcycle from him with some money and clothes. PW1 then left for his master’s house to report the incident. They both went to the scene of the incident where they saw one knife and some money after which they went to the Erunwon police Station. When the motorcycle, was recovered the next day, it was without the two mirrors. Someone by name Ahmed came to inform them that some mirrors were brought to his shop for him to buy. When they (PW1 and P12) got to Ahmed’s (PW3) shop they saw those who robbed PW1 of the motorcycle including the Appellant. They were able to arrest two out of the three persons they met in Ahmed’s (PW3) shop while the third person ran away. This piece of evidence by PW1 was not discredited by cross examination.
PW2 is one Olusegun Ogunshe. His evidence is that on the 8th November 1999, PW1 came to his house to take the motorcycle for use for commercial purposes at about 8.30 a.m. He came back to him at about 8.30 p.m. to say that the motorcycle had been snatched from him. He and PW1 then proceeded to the scene of crime where they saw a knife and some money. They then proceeded to the police station after which they went in search of the missing motorcycle which they found the following morning with the two side mirrors missing. PW3 (Ahmed) showed them (PW1 and PW2) two mirrors which he said were brought to him by two boys who wanted to sell them. They followed PW3 to his workshop where they saw three men one of whom is the accused/Appellant. Of the three people they saw, two were arrested one of whom is the Appellant while the third fled. It can thus be seen that the evidence of PW2 corroborates that of PW1. PW2’s evidence like PW1’s evidence was not discredited by cross-examination.
PW3 is Ahmed Alimi and he is a vulcanizer. His evidence is that in the morning of the 9th November 1999 at about 6 a.m. when he was about to go to work, a customer of his came to tell him that PW1’s motorcycle which was snatched the day before had been recovered but with the two side mirrors missing. Later that morning he saw the accused/Appellant and two other men in his workshop. They had with them two mirrors which they offered to sell to him. He took the mirrors from them and asked them to hold on for him. While he was discussing with the Appellant and the others he saw one of the people searching for the missing motorcycle pass by, He saw PW2 and PW1 and showed them the two mirrors and he told them that the two mirrors were brought to him by three people for sale. They then followed him to his workshop. At the workshop one of them an Ibo boy ran away while the other two were arrested. Again this piece of evidence was not discredited by cross-examination and corroborates the evidence of PW1 and PW2. The three pieces of evidence of PW1, PW2 and PW3 are also in harmony with Exhibit “E” the confessional statement of the accused/Appellant which was tendered and admitted without objection by the defence. The paramount question at this stage is whether the confessional statement of the accused/Appellant – Exhibit “E” and the pieces of evidence of PW1, PW2 and PW3 stand up to the six tests earlier highlighted? Outside the confessional statement of the accused/Appellant – Exhibit “E” the corroborated pieces of evidence of PW1, PW2 and PW3 inter se show that the confessional statement is true, That the said pieces of evidence corroborate one another is not in doubt and the relevant statements made in them are factual and true as they can be tested. That the Appellant had the opportunity of committing the crime is not in doubt, That he had prepared for it is not in doubt as the weapon used for the armed robbery, a curved knife (Exhibit “D”) was by his admission his and he had the opportunity to use it when an unsuspecting commercial motorcyclist – PW1 gave him and his partner in crime a ride. The Appellant’s confession is also possible given the overwhelming evidence against him especially that of PW3 the vulcanizer to whom he had taken the two mirrors for sale. Appellant’s confession is consistent with other facts which have been ascertained and proved. For example the missing motorcycle ridden by PW1 was recovered the next day after the incident without its two side mirrors. The two side mirrors had been identified by PW1 and PW2 as the very ones that had been on the missing and now recovered motorcycle. The evidence of all the dramatis personae PW1, PW2 and PW3 tallies with the confessional statement – Exhibit “E” of the Appellant. The Appellant by his own very confession admitted taking part in the armed robbery and that the curved knife used in that operation which was recovered by PW1 and PW2 was his. I therefore have no doubt in resolving Issue 1 in favour of the Respondent and against the Appellant.
Issue 2 as contained in both briefs and which I have adopted is – Whether the learned trial Judge was right in holding that the prosecution proved the charge against the Appellant beyond reasonable doubt.
Appellant has stated the three ingredients that constitute the offence of armed robbery as –
(i) That there was armed robbery,
(ii) That the robbery was an armed robbery.
(iii) That the accused was the robber or one of the robbers.
Appellant referred to the following cases to state that the duty of proof lies with the prosecution and that proof must be beyond reasonable doubt and never changes from the prosecution – ALABI V. THE STATE (1993) 7 NWLR (PART 307) 511; SOLOLA v. STATE (2005) 11 NWLR (PART 937) 4660 and ALEPAN V. STATE (1990) 7 NWLR (PART 160) 101.
Appellant has submitted in paragraph 4,45 at page 12 of the Appellant’s Brief of Argument that it is not in dispute that PW1’s motorcycle was snatched from him on the day of the incident. However what is in doubt is whether those that attacked PW1 were actually armed as there is nowhere in the evidence of PW1 and PW2 where it was alleged that Exhibit “D” was the knife used in the robbery. In paragraph 4.47 at page 13 of the Appellant’s Brief of Argument he had asked, “If PW1 and PW2 actually visited the scene of the crime, why did they not see or recover the pullover and the identification mark which is alleged to belong to PW1. It could be said that PW1 and PW2 were only, interested in fishing for evidence that would incriminate the Appellant.” Counsel went on to say that if they did visit the scene, they did not recover any knife at the scene of crime and as such it is doubtful if the robbery was an armed robbery. Counsel went on to say that if Exhibit “E” is jettisoned, the prosecution would have failed in proving the essential ingredients of the offence beyond reasonable doubt. Appellant also found fault with the alleged inconsistency in the evidence of the prosecution as to the actual venue of the alleged armed robbery and concluded that the prosecution had not proved’ its case beyond reasonable doubt. Counsel leaned for support on the following authorities – OJIAKO V. STATE (1991) 2 NWLR (PART 175) 578 at 586 paras. E-F; NWOSU V. STATE (1986) 4 NWLR (PART 35) 348 at 359 and ALABI V. STATE (1993) 7 NWLR (PART 307) 511 at 523 paras. E-F.
On Conspiracy to commit armed robbery, Appellant’s Counsel referred to the evidence of the Appellant to the effect that he (Appellant) did not know how the Ibo boy came by the two side mirrors which he said was uncontradicted and therefore the prosecution had failed to prove the offence of conspiracy beyond reasonable doubt.
In a criminal case the prosecution must prove its case beyond reasonable doubt as distinguishable from a civil case where proof is on a balance of probability. In such a criminal trial the onus on the prosecution does not shift’ Section 138 of the Evidence Act provides as follows – (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding 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 act is or is not directly in issue in the action, there is a plethora of case law on this subject matter. See for example the following cases – CHIA V. THE STATE (1996) 6 NWLR (PART 455) 465; ONUBOGU V. THE STATE (1974) 9 SC 1; (1974) 1 All NLR (PART 11) 5; MORKA V. THE STATE (1998) 2 NWLR (PART 537) 294 at 307 and NWOSU V. THE STATE (1998) 8 NWLR (PART 562) 433 at 444 where it was held that “In all criminal trials the burden 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 person. The burden never changes.” Proof beyond reasonable doubt by the prosecution is thus a sine qua non to the conviction and sentence of an accused person in all criminal trials. With this criterion constantly in mind, I now propose to deal with the ingredients of the offence with which the accused/Appellant is charged. The Appellant is charged with the offences of Conspiracy to commit armed robbery and armed robbery. I shall firstly deal with the issue of armed robbery. There are three ingredients that go to make up the offence of armed robbery and they are as follows –
(g) That there was a robbery or series of robberies;
(b) That the robberies were armed robberies;
(c) That the accused persons were, or some of the people who committed the armed robbery.
See BOZIN V. THE STATE (1985) 2 NWLR (PART 8); OKOSI v. ATT. GEN. OF BENDEL STATE (1989) 1 NWLR (PART 100) 642.
With respect to (a) above there is no doubt from the totality of the evidence of the prosecution witnesses more especially PW1, PW2 and PW3; the Confessional statement of the accused/Appellant – Exhibit “E” that there was a robbery on the 8th November 1999. It is instructive at this stage to say that under section 15(1) of the Robbery and Fire Arms (Special Provisions) Act Cap 398, robbery is 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 resistance to its being stolen or retained.
Ingredient (b) would also have been satisfied given the fact that the robbers were armed. On what constitutes “arms” section 15(1) of the Robbery and Firearms (Special Provisions) Act highlighted above defines “arms” as any offensive weapon which includes inter alia cutlass, axe and machete (in which category knife belongs) used by the robbers. It is in evidence that a knife (Exhibit “D”) which the accused/Appellant admitted to belong to him in his statement – Exhibit “E” was the offensive weapon used in snatching PW1’s motorcycle on the day of the incident.
Ingredient (c) would also have been satisfied given the fact that the accused/Appellant was arrested and he made a confessional statement – Exhibit “E” the facts therein having been corroborated by the evidence of all the prosecution witnesses especially PW1 who positively identified him as one of the two people who robbed him of his motorcycle. The evidence of PW2 and PW3 are also in harmony with that of PW1 and the confessional statement – Exhibit “E” which as has earlier been seen satisfied each of the six tests for the verification of the confessional statements of accused persons.
Appellant’s counsel has drawn the attention of this Court to contradictions in the prosecution’s evidence as to the actual scene of the robbery operation. The paramount issue here is whether the contradictions are material’ It is trite that an appellate court will only set aside the finding of a lower court on alleged contradictions in the evidence of the prosecution if such contradictions are material. See ARCHIBONG V. THE STATE (2006) 5 SCNJ 2022 at 2035; (2006) 14 NWLR (PART 1000) 349. I do not think any inconsistency as to the actual scene of the robbery operation is material enough to disturb the finding of the learned trial Judge who upon proper evaluation of the rest of the material evidence adduced has come to the finding that an armed robbery had been committed and that the accused/Appellant was the robber or one of the robbers.
As to Conspiracy, there is ample uncontradicted evidence that the accused/Appellant in company with other persons had approached PW3, a vulcanizer in an attempt to get him to buy the two missing mirrors which had been traced as belonging to the motorcycle ridden by PW1 which was snatched by the accused/Appellant and his co-passenger who had both boarded PW1’s commercial cycle on the day of the incident. PW3 gave graphic details of how some persons had approached him to buy the said mirrors. Unknown to the accused/Appellant and his partners in crime, PW3’s customer had informed him earlier that PW1’s motorcycle which had been snatched the day before had been recovered without the two side mirrors of the motorcycle.
Later that day the accused/Appellant had in company with others approached PW3 to buy the two mirrors. PW3 had thereupon contacted PW2 who owns the motorcycle. PW2 had gone with PW1 to PW3’s shop and identified not just the two mirrors as belonging to the motorcycle but also the accused/Appellant and another who were perpetrators of the armed robbery attack on PW1. Conspiracy has been held in a number of judicial authorities to mean the meeting of the minds of the conspirators. It consists of the intention of two or more persons to do an unlawful act or a lawful act by unlawful means and conviction is usually based on circumstantial evidence. See PATRICK NJOVENS V. THE STATE (1973) 5 SC 17; UPAHAR V. THE STATE (2003) 6 NWLR (PART 816) 230 at 239. In the present case the evidence is far more direct than circumstantial as the evidence of PW1, PW2, PW3 and the confessional statement of the accused/Appellant point to the fact that the accused/Appellant had conspired with others to snatch PW1’s motorcycle on the day of the incident but luck was to run out on them. I find the charges of conspiracy to commit armed robbery and armed robbery proved and as such have no reason to disturb the finding of the learned trial Judge convicting the Appellant to death.
The Appeal therefore lacks merit and is dismissed and the judgment of the lower court
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA: I have had the benefit of reading in draft the judgment of my learned brother, ALAGOA, JCA just delivered. His Lordship has painstakingly considered and resolved the issues in controversy in this appeal. I agree entirely with his reasoning and conclusion that the appeal lacks merit.
I dismiss the appeal accordingly and affirm the judgment of the lower court.
MODUPE FASANMI, J.C.A: I have had the advantage of reading in advance the lead judgment of my learned brother S. S. Alagoa J.C.A.
The issues have been comprehensively and adequately dealt with. I agree with the reasonings and conclusions reached therein. The appeal lacks merit and it is accordingly dismissed by me.
Appearances
Adewunmi Ogunsanya Esq
M. K. Adesina Esq. For Appellant
AND
Mrs. P. F. Odunniyi, (DPP Ogun State Ministry of Justice)
with her F. Sodipo (Miss) State Counsel For Respondent
