SUNDAY ADEYEMO v. THE STATE
(2010)LCN/4069(CA)
RATIO
OFFENCE OF ARMED ROBBERY : WHAT ARE THE NECESSARY INGREDIENTS TO PROVE THE OFFENCE OF ARMED ROBBERY
The Supreme Court in the case of Bozin v. 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. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
FIREARMS : WHAT ARE “FIREARMS”
“firearms” means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, and includes a prohibited firearm, a personal firearm and a muzzle-loading firearm of any of the categories referred to in Parts I, II and III respectively of the schedule hereto, and any component part of any such firearm.” PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
BURDEN PLACED ON THE PROSECUTION IN ORDER TO SECURE A CONVICTION FOR ARMED ROBBERY
In order to secure a conviction for armed robbery, the prosecution must prove that the accused person was armed with an offensive weapon. The weapon may be a gun or any other object likely to induce fear of bodily harm in the victim such as a cutlass or machete. Even where a gun or other offensive weapon is used in the commission of the offence, it is not essential to tender the weapon to secure a conviction, provided there is cogent eye witness evidence or in the absence of eye witness evidence, there is enough unequivocal circumstantial evidence that points to the guilt of the accused. see: Alor vs the state (1996) 4 NWLR (445) 726 @ 742 -743 H – A. In the case of Dibie Vs the State (2004) 14 NWLR (893) 257 @ 280 – 281 H – A. this Court held that whether it was a real pistol or something that looked like a pistol that was pointed at the witness was immaterial. What was material was that either an actual pistol or what looked like a pistol was used to threaten the witness and induced fear in her. The case of Sele Vs State (1993) 1 NWLR (269) 276 was cited with approval. The point being made here is that the evidence of PW4 that a gun was pointed at him during the robbery incident was not controverted. When it was tendered at the trial, no issue was raised as to whether or not Exhibit C was a firearm within the meaning of the Firearms Act. Furthermore, whether Exhibit C was a single or double barrel gun is immaterial in determining whether the robbery was an armed robbery or not. see: Alor vs The state (supra). PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
CONTRADICTION IN EVIDENCE: WHAT IS THE NATURE OF CONTRADICTION THAT WILL BE FATAL TO THE PROSECUTION’S CASE
The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecutions case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibie v. The State (supra) at 280 A – D; Ikemson v. The State (1989) 2 NSCC (Vol.20) 471; Onubogu v. The State (1974) 1 NWLR (52) 659. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
IDENTIFICATION PARADE: CIRCUMSTANCES WHERE AN IDENTIFICATION PARADE OUGHT TO BE CONDUCTED
…where an accused person is not arrested at the scene of crime and the prosecution witnesses do not name him at the earliest opportunity, an identification parade ought to be conducted. See: Usufu v. The State (2007) 3 NWLR (1020) 94 @ 121 – 122 G – A. Although PW4 testified that the lights were on during the incident he did not give any description of the appellant or any distinguishing features by which he could identify him if seen again. It has been held that to ascribe any value to the evidence of an eyewitness regarding the identification of a criminal, the courts in guarding against mistaken identity must consider the following issues meticulously: a. circumstances in which the eye witness saw the suspect or defendant; b. the length of time the witness saw the subject or defendant; c. the lighting conditions; d. the opportunity of close observation; e. the previous contact between the two parties. See: Ndidi vs The State (2007) 13 NWLR (1052) 633 @ 651 – 652 F – G; R v. Turnbull & Ors. (1976) 3 A.E.R. 549; Ikemson Vs The State (supra). PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
CONFESSIONAL STATEMENT : NATURE OF A CONFESSIONAL STATEMENT OF AN ACCUSED THAT WILL BE SUFFICIENT ALONE TO SUSTAIN A CONVICTION AGAINST HIM
The law is settled that the free and voluntary confessional statement of an accused alone is sufficient to sustain a conviction. See: Kanu vs The State (1952) 14 WACA 30; Ekpenyong vs State (1991) 6 NWLR (200) 683. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
STATUTORY PROVISION: PROVISION OF THE STATUTE AS TO THE MEANING OF A CONFESSION AND THE EFFECT OF A CONFESSION THAT WAS VOLUNTARILY MADE
Section 27 (1) & (2) of the Evidence Act provides: 27. (1) “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. (2) Confessions, if voluntary’ are deemed to be relevant facts as against the persons who make them only.” PER KUDIRAT M. O. KEKERE-EKUN, J.C.A.
In The Court of Appeal of Nigeria
On Monday, the 29th day of November, 2010
CA/I/210A/2008
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
SUNDAY ADEYEMO – Appellant(s)
AND
THE STATE – Respondent(s)
KUDIRAT M. O. KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): The appellant along with two others was arraigned before the Oyo State High court, Ibadan Judicial Division on a two count charge as follows:
Statement of Offence
Conspiracy to commit felony to wit: Armed robbery contrary to section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act Cap 398 VoL. XXII Laws of the Federation of Nigeria 1990 as amended.
Particulars of Offence
Sunday Adeyemo (m), Ade Obasanmi (m), Akeem Yekinni (m) on or about the 4th day of July, 2003 at Aguloke Estate, Bembow, Apata, Ibadan in the Ibadan Judicial Division did conspire together to rob one Olabisi Bolaji Stephen of his valuable property.
Statement of Offence
Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 as amended.
Particulars of Offence
Sunday Adeyemo (m), Ade Obasanmi (m), Akeem Yekinni (m) on or about the 4h day of July, 2003 at Aguloke Estate, Bembow, Apata, Ibadan in the Ibadan ludicial Division whilst armed with firearms and offensive weapons to wit: gun, robbed Olabisi Bolaji Stephen of his Ericson G.S.M. handset and the sum of Fourteen Thousand, Five Hundred Naira (N14,500,00) cash.
They all pleaded not guilty to the charge. At a stage in the proceedings the charges were withdrawn against the 2nd accused, Ade obasanmi, who eventually testified for the prosecution as PW1. The prosecution called five witnesses and tendered exhibits. The appellant and the remaining accused, Akeem Yekinni testified on their own behalf and did not call any other witnesses. At the conclusion of the trial and after considering written addresses filed on behalf of the parties, the lower court, in a considered judgment delivered on 31/3/08 found them guilty on both counts. They were convicted and sentenced to death.
Being dissatisfied with the judgment the appellant filed a notice of appeal dated 16/4/08 containing five grounds of appeal. Pursuant to a motion on notice dated 25/5/09 the appellant sought and obtained leave to file an amended notice of appeal. The amended notice of appeal dated 25/5/09, which was deemed properly filed and served on 27/5/09 contains two grounds of appeal. In compliance with the rules of this court the appellant filed a brief of argument dated 25/5/09, which was deemed filed on 27/5/09. The respondent although duly served with the said brief failed or neglected to file a respondent’s brief within the time prescribed by the rules of this court. By a motion on notice dated 15/7/09 and filed on 24/7/09 the appellant sought and obtained leave of this court for the appeal to be set down for hearing on his brief alone.
At the hearing of the appeal on 3/11/2010, Olakunle Agbebi Esq., learned counsel for the appellant adopted and relied on the appellant’s brief and urged the court to allow the appeal. The following two issues were distilled from the two grounds of appeal contained in the Amended Notice of Appeal:
1. Whether the learned trial court was right in holding that the prosecution proved a case of armed robbery against the appellant beyond reasonable doubt?
2. Whether the prosecution properly established the identity of the appellant in this case?
It seems to me that the first issue above would adequately dispose of this appeal. Issue 2 is a factor to be considered in determining issue 1. The appeal shall therefore be determined on issue 1. The arguments in respect of issue 2 shall be considered under issue 1.
In arguing the appeal, learned counsel for the appellant, submitted that by virtue of Section 138 (1) of the Evidence Act Cap. E I4 Laws of the Federation of Nigeria (LFN) 2004, the standard of proof in a criminal trial is beyond reasonable doubt and by virtue of Section 138 (2) & (3) the burden of proof remains on the prosecution throughout and never shifts. He submitted that to prove a charge of armed robbery the prosecution must establish the following:
a. That there was a robbery;
b. That the robbery was an armed robbery; and
c. That the accused person was the robber.
He referred to: Alabi vs state (1993) 7 NWLR (307) 511 @ 523 F – H; Bozin vs. State (1985) 2 NWLR (8) 465 @ 469.
As to whether or not there was a robbery, he referred to the evidence of PW4, the victim of the offence at pages 45 and 46 of the record where he testified thus:
“On the second day I informed the Landlords Association what happened not knowing they had also attacked the house of one police officer, Mr. Folaranmi. I was advised to go to the police station but I refused because of fear of the unknown. That same year in December I had a similar experience not knowing that this time it was the O.P.C. men. The incident happened at midnight. The people knocked the door and I opened and recognized some O.P.C men among them. The group now said that they have brought those who robbed me before. I was then advised to go to Apata police station the following morning.”
Learned counsel submitted that the Landlords Association and the Police officer that was also allegedly robbed the same night were material witnesses who ought to have been called by the prosecution to corroborate the evidence of PW4 that there was a robbery on 9th July, 2003 particularly as the incident allegedly occurred in July but was not reported until December. He also observed that the report was at the instance of O.P.C. men who were not witnesses to the incident. On the need to call material witnesses he referred to: Usufu vs. State (2007) 1 NWLR (1020) 94 @ 118. He contended that the prosecution failed to show how the O.P.C. men came to know about the incident o; the identity of the appellant since PW4 did not report the matter to them and admitted under cross-examination that they do not reside in his house.
Learned counsel observed that while PW5 the Investigating Police Officer (IPO) testified that it was the report lodged by PW1 (Ade Obasanmi former co-accused) that led to the appellant’s arrest, PW1 himself testified that after his report to the police he was invited to identify some people but he only knew one of those presented to him. He noted further that PW1 testified that he saw the appellant for the first time at the police station. He urged that these facts constitute material contradictions in the prosecution’s case. He submitted that the alleged receiver of the stolen handset (Exhibit A) was not called to testify and no evidence was led as to when the appellant allegedly sold Exhibit A to him – before on or after 9/7/03. He submitted that failure to call the receiver who was on police bail and therefore available to the prosecution was fatal to proof of the allegation that the appellant stole Exhibit A. He referred to Usufu v. State (supra) at 118 C – E.
He submitted that the evidence of PW2 and PW3 was irrelevant because they merely testified as to the loss of a gun by the security man employed by the Landlords Association. He submitted that they did not testify that the gun recovered (Exhibit C) was found in the possession or control of the appellant or the co-accused or that they were aware of the report of the robbery subject of the charge before the court. He submitted that their evidence was hearsay in any event as the night guard from whom Exhibit C was allegedly stolen was not called to testify. He argued further that the prosecution failed to establish through any of its witnesses that Exhibit C was a firearm within the meaning of Section 2 of the Firearms Act Cap. F28 LFN 2004. He submitted that PW2 and PW3, retired military personnel, gave conflicting descriptions of Exhibit C. He noted that PW3 in his statement to the Police (which evidence was corroborated by PW5) stated that a double barrel gun was missing whereas Exhibit C is a single barrel gun cut to size.
With regard to the confessional statements of the Appellant and the co-accused, Exhibits D and E, he submitted that the learned trial Judge failed to subject them to the test in R Vs Sykes (1913) 18 Cr. App. Rep. 233 to establish their voluntariness. He also relied on: Dawa Vs State (1980) 8 – 11 SC 236; Kanu Vs R 14 WACA 30. He submitted that the confessional statements are completely at variance with the oral evidence given by the appellant and the co-accused at the trial. He submitted that the appellant should not be punished for the omission of his counsel in failing to object to the admissibility of the statements at the time they were tendered and electing to address the court on them at the address stage. On the possibility that Exhibit D is true, he observed that the appellant testified that he is not literate in English and that he made his statement in Yoruba. He submitted that PW5 corroborated this evidence, having testified that he wrote the statements of the appellant and the co-accused but the prosecution failed to tender his earlier statement whose contents could have been compared with Exhibit D.
As to whether the appellant had the opportunity of committing the offence, he submitted that there was no credible evidence before the court outside Exhibit D locating the appellant at the scene of the crime. He submitted that PW4 never identified the appellant as one of those who committed the offence. That he stated that the appellant was brought to him by O.P.C. members five months after the incident and he was told that he wad one of those who committed the offence. He submitted that having regard to the passage of time an identity parade ought to have been conducted, particularly as PW4 did not state that the appellant had any distinguishing features by which he could recognise him. He contended that failure to conduct an identity parade is fatal to the prosecution’s case. He submitted that none of the requirements in R Vs Sykes (supra) were met with regard to Exhibit D.
Still on the issue of identity, he submitted that where the evidence of identity is poor, the court should return a verdict of not guilty, unless there is other evidence that goes to support the correctness of the identification. He relied on: Otti vs. State (1993) 4 NWLR (290) 675; Adamu v. State (1991) 4 NWLR (187) 530. On the circumstances in which an identification parade is necessary he relied on: Archibong Ikemson vs State (1989) 3 NWLR (110) 455. He submitted that in the instant case the identification of the appellant as one of the persons who committed the offence was essential to discharging the burden of proof  by the prosecution beyond reasonable doubt. He submitted that failure to properly identify the appellant as the robber or one of the robbers created reasonable doubt that ought to have been resolved in his favour.
On the charge of conspiracy, he submitted that there was no evidence as to any meeting between the appellant and the co-accused or anyone else to carry out the unlawful purpose of armed robbery. He submitted that Exhibit D is unreliable and there is therefore no evidence upon which the charge of conspiracy could be established or proved. He urged the court to allow the appeal.
The prosecution’s case as can be gathered from the record of proceedings and the evidence led at the court below is that on 7th July, 2003 at about 2 a.m. at Aguloke Estate, Bembow Apata, Ibadan, the appellant and two others whilst armed with a gun, robbed Olabisi Bolaji Stephen of his Ericsson 2826 handset and money totalling N14,500.00. Olabisi Stephen who testified as PW4 stated as follows:
“sometime in July 2003 around 2 a.m., I heard a very strange voice saying I should open the door otherwise I would be killed. They pointed a gun through the window. I was in my house when this incident happened. I opened the door, the 1st accused and one other person came in and demanded for money, handset and gun’ I told them I had no gun but handset and some money that they can go away with.
They came in and ransacked my bedroom and went away with my handset and money totaling N14,500.00. My handset type is Erickson 2826 model. After collecting these items they went away. I was able to identify them because there was light. When we were going to bed there was no light and my son forgot to switch off before we went to sleep but by the time the robbers came light had been restored. On the second day I informed the Landlord’s Association what happened not knowing that they also attacked the house of one police officer, Mr. Folaranmi, I was advised to go to the police station but I refused because of fear of the unknown. That same year in December, I had a similar experience not knowing that this time it was the O.P.C. men. The incident happened at midnight. The people knocked the door and I opened and recognised some O.P.C. men among them. The group now said they have brought those who robbed me before. I was then advised to go to Apata police station the following morning.
I was there and some men were brought out including the 1st accused person. I then wrote my first statement where I narrated what was taken away from me. The police brought out some handsets and I identified my own. I can identify the handset if seen because it is black with golden tape and an antenna. … Sometime in January 2004 while I was not around policemen came to my house inviting me to come to Anti Robbery Section Iyaganku. I visited the police and made my second statement.”
PW1, Ade Obasanmi who was initially a co-accused testified that he had sometime in 2003 made a report to the police station about some acquaintances of his who were trying to lure him into criminal activities. As a result of his report two of them, named Segun and Tunde were arrested but later released. He was also arrested and released. He stated that Segun and Tunde confessed to being goat and fowl thieves. Sometime in January 2004, he was rearrested. He was asked whether certain suspects who had been arrested were members of the gang he had reported earlier. He stated that of the three suspects shown to him he could only identify one Babaaro. He said he did not know how the appellant was arrested and that he only met him at the police station. Under cross-examination he admitted that he did not lodge any complaint against the appellant. He was also not aware of the handset allegedly recovered from one Idris Ibrahim.
PW2 and PW3 were members of the Agbajopo Landlords Association. They testified that sometime in April 2003 the security guard employed by the Association reported that the gun given to him was missing. PW2 stated that in January 2004 some policemen brought some suspects to his house including the appellant and the 3rd accused. He stated that one of them confessed to being a fowl thief in the area and to having snatched the gun from the security man. He did not identify which of the accused persons made the confession. PW3 also testified that the police came with some persons in a bus on 26/1/04 and asked if he knew about the missing gun. He told them what he knew. Both witnesses said they made statements to the police.
PW5, the IPO testified that the case was referred from the Apata Police Station to the C.I.D. Anti Robbery Section now at Ayete Division where he was formerly attached on 27/12/03. PW5 testified as follows:
“The police detectives at Apata police station received information that Sunday Adeyemo the 1st accused person and his gang are members of armed robbery gang. Sunday Adeyemo was arrested at Apata police station where he confessed to be an armed robber and mentioned his remaining gang members. But at Apata police station only one Rasaki Olagunju was arrested who confessed to have received one Ericson handset from Sunday Adeyemo. Sunday Adeyemo and Rasaki Olagunju transferred to State C.I.D. Anti Robbery section with the following items recovered from the (sic) (1) Ericson handset, Jewellery and one locally made single barrel gun cut to size. Immediately the case was brought to our department on 5/1/04 I was detailed to investigate.”
He stated that the two suspects volunteered statements wherein the appellant, Sunday Adeyemo confessed to being an armed robber and mentioned the names of Ade Obasanmi and Yekinni Akeem. He stated that Rasaki Olagunju confessed to receiving the Ericson handset from the appellant at the rate of N9,000.00. He stated that the appellant led the investigating team to arrest Ade Obasanmi (pw1) and Akeem Yekinni. He stated that they both confessed to being armed robbers working with the appellant. He testified that they led the team to all the places where they had robbed at Apata area and that the victims confirmed that robberies took place in their residences. Thereafter the victims were advised to come to the station to write their statements, which they did. He stated that the owner of the Ericson handset identified it and one of the victims identified a locally made single barrel gun to be the one snatched from one of their security guards during a robbery operation. The gun was admitted in evidence as Exhibit C. He stated that Rasaki Olagunju was subsequently released on bail. The appellant’s statement was admitted as Exhibit D while the statement of the 3rd accused, Akeem Yekinni was admitted as Exhibit E.
The appellant and his co-accused, Akeem Yekinni denied the charges.
The Supreme Court in the case of Bozin v. 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.
From the evidence of pw4, the victim of the offence, there is no doubt that there was a robbery on the night of 9/7/03. The narration of the events of that night by the witness was not contradicted under cross-examination. Although cross-examined on other aspects of his testimony such as the identity of the robbers, the happening of the incident was not challenged. PW4 testified that he was robbed of an Ericson handset and some money during the operation and that his handset, which he described vividly was subsequently recovered by the police and identified by him. His evidence that a gun was pointed at him through his window was also not challenged under cross-examination. Learned counsel for the appellant has argued that the prosecution failed to prove that Exhibit C was a firearm within the meaning of Section 2 of the Firearms Act Cap. F28 Laws of the Federation of Nigeria 2004.
The section provides:
“firearms” means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, and includes a prohibited firearm, a personal firearm and a muzzle-loading firearm of any of the categories referred to in Parts I, II and III respectively of the schedule hereto, and any component part of any such firearm.”
In order to secure a conviction for armed robbery, the prosecution must prove that the accused person was armed with an offensive weapon. The weapon may be a gun or any other object likely to induce fear of bodily harm in the victim such as a cutlass or machete. Even where a gun or other offensive weapon is used in the commission of the offence, it is not essential to tender the weapon to secure a conviction, provided there is cogent eye witness evidence or in the absence of eye witness evidence, there is enough unequivocal circumstantial evidence that points to the guilt of the accused. see: Alor vs the state (1996) 4 NWLR (445) 726 @ 742 -743 H – A. In the case of Dibie Vs the State (2004) 14 NWLR (893) 257 @ 280 – 281 H – A. this Court held that whether it was a real pistol or something that looked like a pistol that was pointed at the witness was immaterial. What was material was that either an actual pistol or what looked like a pistol was used to threaten the witness and induced fear in her. The case of Sele Vs State (1993) 1 NWLR (269) 276 was cited with approval. The point being made here is that the evidence of PW4 that a gun was pointed at him during the robbery incident was not controverted. When it was tendered at the trial, no issue was raised as to whether or not Exhibit C was a firearm within the meaning of the Firearms Act. Furthermore, whether Exhibit C was a single or double barrel gun is immaterial in determining whether the robbery was an armed robbery or not. see: Alor vs The state (supra). I am therefore satisfied that the prosecution proved beyond reasonable doubt that there was a robbery on 9/7/03 and that it was an armed robbery.
The next issue to consider is whether the appellant was one of those who took part in the armed robbery. The first poser is how was the appellant arrested? Learned counsel for the appellant has argued that there are material contradictions in the evidence of the prosecution witnesses regarding the arrest of the appellant. PW5, who was the only police officer to testify stated in his evidence in chief, earlier reproduced, that the accused was arrested by Apata Police Station and the case was referred to the State C.I.D. Anti Robbery Section for further investigation. The appellant was handed over to him along with some exhibits. He also testified under cross-examination at page 54 of the record that it was the information given to the police by PW1 that led to the arrests in the case. PW1 on the other hand testified that he did not know the appellant and he was not one of those he reported to the police. He also stated that he met him for the first time at the police station. PW5 also testified that it was the appellant who led the team to arrest PW1 yet PW1 said he first saw the Appellant at the police station.
The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecutions case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice.
See: Dibie v. The State (supra) at 280 A – D; Ikemson v. The State (1989) 2 NSCC (Vol.20) 471; Onubogu v. The State (1974) 1 NWLR (52) 659. For reasons that will become clear in the course of this judgment, I am of the view that the contradiction between the evidence of PW1 and PW5 as to what led to the arrest of the appellant is material.
Another important factor is that the persons who arrested the appellant and took him to Apata police station were not called to testify as to the circumstances that led to his arrest, bearing in mind the fact that the incident occurred in July 2003 while the appellant was apprehended in December, five months later.
PW2 and PW3 did not testify with regard to the robbery incident. Their testimony was only in relation to a gun allegedly stolen from the Landlords Association’s security guard. There was no evidence before the court as to how Exhibit C was recovered or whether it was found in the appellant’s possession. PW5 merely stated that “one of the victims identified one locally made single barrel gun to be the one snatched, from one of their watchnights during one of such robbery operations. The items recovered from the suspects were brought from Apata police station.” (page 53 lines 27 – 31). The security guard from whom it was allegedly stolen was not called to testify. PW2 and PW3 did not identify Exhibit C during their testimony before the court. The police officer from Apata police station who recovered Exhibit C did not testify. His evidence would have shed light on the circumstances in which Exhibit C was recovered.
We now come to the Identification of the appellant. As observed earlier there was no evidence before the court as to how, when or where the appellant was arrested. PW4 however testified that around midnight on 27/12/03 there was a knock on his door. He said he was afraid it was another robbery operation. However upon opening the door he recognised some O.P.C. men who informed him that they had brought those who robbed him earlier. They advised him to go and make a report at the Apata police station. It was at this time, after the accused persons had been shown to him, that he first made a report of the robbery incident to the police. He testified that at the police station some men were brought out including the appellant. He did not testify that any identification parade was held or that he picked the appellant out of a line up. The O.P.C. men who allegedly brought the people who robbed him to his house at midnight on 27/12/03 were not called to testify. There was no evidence before the court as to how these men knew that the persons they took to PW4’s house that night were those who had robbed him five months earlier. PW4 in his evidence stated that he only reported the incident to the Landlords Association. He did not make a report to the police until December and he admitted under cross-examination that the O.P.C. men do not reside in his house. How did they know of the robbery that took place in July? Or who participated in it?
In the instant case, there is no direct evidence of the circumstances that led to the arrest of the appellant. He was not arrested at the scene of crime. He was presented to PW4 five months after the incident by the O.P.C. men as one of the robbers who attacked him on the fateful day. It was after he was shown to PW4 that he (PW4) went to make a statement to the police, where an accused person is not arrested at the scene of crime and the prosecution witnesses do not name him at the earliest opportunity, an identification parade ought to be conducted. See: Usufu v. The State (2007) 3 NWLR (1020) 94 @ 121 – 122 G – A. Although PW4 testified that the lights were on during the incident he did not give any description of the appellant or any distinguishing features by which he could identify him if seen again. It has been held that to ascribe any value to the evidence of an eyewitness regarding the identification of a criminal, the courts in guarding against mistaken identity must consider the following issues meticulously:
a. circumstances in which the eye witness saw the suspect or defendant;
b. the length of time the witness saw the subject or defendant;
c. the lighting conditions;
d. the opportunity of close observation;
e. the previous contact between the two parties.
See: Ndidi vs The State (2007) 13 NWLR (1052) 633 @ 651 – 652 F – G; R v. Turnbull & Ors. (1976) 3 A.E.R. 549; Ikemson Vs The State (supra).
In the instant case, the only evidence given by PW4 regarding the circumstances in which the incident took place was the fact that the lights were on. He did not give any evidence as to how long the operation lasted, whether he had the opportunity to observe the robbers closely or whether he knew any of them before the incident. He did not make a report to the police immediately after the incident and he did not inform the Landlords Association that he could identify any of the robbers. The appellant was apprehended five months after the incident. I am of the view that this is a clear case where an identification parade ought to have been held. The fact that PW4 identified the appellant after he had been brought to his house in the middle of the night and after he was told that he was one of the robbers by people who did not witness the robbery, casts doubt on the subsequent identification.
In reviewing the evidence of the prosecution, the learned trial Judge held that the appellant’s statement Exhibit D was confessional, that it was voluntarily made and that there were other facts established by the prosecution outside the statement that made it probable that the statement was true.
The law is settled that the free and voluntary confessional statement of an accused alone is sufficient to sustain a conviction. See: Kanu vs The State (1952) 14 WACA 30; Ekpenyong vs State (1991) 6 NWLR (200) 683. Exhibit D is the statement made by the appellant on 5/1/04 (See pages 9 – 10 of the record).
Section 27 (1) & (2) of the Evidence Act provides:
27. (1) “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
(2) Confessions, if voluntary’ are deemed to be relevant facts as against the persons who make them only.”
I shall consider Exhibit D in light of the definition referred to above. The learned trial judge held at pages 147 – 149 of the record as follows:
“In his confessional statement the 1st accused confessed to series of robberies including one where one Ericson handset was carted away. The 2nd accused maintained in his statement that he was stationed outside to keep watch. He admitted being given the sum of N5,000.00 as his own share. He also confirmed that one handset was robbed in the operation. The issue of whether Exhibit C was a single or double barrel gun to me is immaterial. The important issue is that the owners of the gun were able to identify it as the gun handed to their local guard who reported it missing. The 1st accused in his statement admitted that the gun was taken from a night guard in the area who was sleeping on duty during one of their robbery operations. I have found the evidence led by the prosecution particularly Exhibits D and E overwhelming and conclusively proving beyond reasonable doubt the guilt of the 2 accused Persons…”
I have carefully examined Exhibit D. It is correct as observed by the learned trial judge that the appellant admitted being a member of an armed robbery gang and gave instances of various robbery operations carried out where he allegedly stole handsets, jewellery and money’ The vital consideration in this case however, is whether the appellant admitted committing the offence that took place on 9th July 2003. There is nowhere in Exhibit D that the appellant admitted committing the offence that took place on 9/7/2003. He stated that one Rasaki Olagunju bought an Ericson handset from him “nine months ago”. Exhibit D is dated 5/1/04. Nine months prior to that date is April 2003. He admitted stealing a gun from a night guard. However, as observed earlier and as submitted by learned counsel for the appellant, the night guard from whom it was stolen did not testify. PW2 and pw3 did not identify Exhibit C as the gun stolen from the night guard. It was tendered through PW5 and was not shown to PW2 and PW3 when they testified. Furthermore the prosecution failed to link Exhibit C with the incident that occurred on 9/7/03. Rasaki Olagunju who allegedly bought the Ericson handset did not testify’ How and where was the handset recovered? when did he buy it? He was initially arrested by the police but released on bail. The prosecution did not give any explanation for failing to call him as a witness. I agree with learned counsel for the appellant that the failure to call vital witnesses in this case was fatal to the prosecution’s case. The O.P.C. men who went to PW4’s house on 27/12/03 were also not called to testify. In my respectful view, Exhibit D did not pass the test in R vs Sykes (supra). There was insufficient evidence outside Exhibit D linking the appellant with the commission of the offence. As earlier observed, PW5 testified that the appellant was arrested as a result of the report made by PW1. PW1 in his testimony before the court stated that PW4 was not one of those he reported to the police. He said the met him for the first time at the police station. The contradiction ought to have been explained through the witnesses or one of them ought to have been declared a hostile witness, in which case no weight would have been attached to his evidence. See: Udosen v. State (2007) 4 NWLR (1023) 125 @ 147 C – F. Having regard to the fact that there was no clear evidence before the court as to what led to the appellant’s arrest, there is no doubt that the contradiction between the evidence of these two witnesses is material. There are many unexplained gaps in the evidence of the prosecution, which ought to have raised doubt in the mind of the learned trial Judge as to the guilt of the appellant.
Suspicion, no matter how strong can never ground a conviction. I therefore hold that the prosecution failed to prove the charge of armed robbery against the appellant beyond reasonable doubt.
With regard to the charge of conspiracy, the essential ingredient of the offence of conspiracy lies in the bare agreement and association to do 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.
For the prosecution to succeed in the charge of conspiracy to commit armed robbery, it must prove the following facts beyond reasonable doubt:
a. That there was an agreement or confederacy between the convict and others to commit the offence.
b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies.
c. That the robbery or each robbery was an armed robbery.
See: Usufu v. The State (supra) at 113 – 114 H – A.
In the instant case the prosecution relied on the evidence in support of the substantive offence of armed robbery to prove conspiracy to commit the offence. The learned trial judge inferred conspiracy on the basis of the confessional statements of the two accused persons. In view of my finding with regard to Exhibit D and the unsatisfactory identification of the appellant as one of those who took part in the armed robbery that took place on 9/7/03, I hold that the prosecution failed to prove the charge of conspiracy to commit armed robbery beyond reasonable doubt.
Accordingly the appeal succeeds. The judgment of the High court of Oyo State, Ibadan Judicial Division delivered on 31/3/08 is hereby set aside. The conviction and sentence of the appellant for conspiracy to commit armed robbery and armed robbery are hereby set aside. The appellant is accordingly discharged and acquitted.
STANLEY SHENKO ALAGOA, J.C.A.: I agree
MODUPE FASANMI, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother K. M. O. Kekere-Ekun, J.C.A.
The issues have been exhaustively dealt with. I agree with the reasoning and conclusion which I adopt as mine.
The appeal succeeds and the judgment of the lower Court is also affirmed by me. I also agree with the consequential order made.
Appearances
Olakunle Agbebi For Appellant
AND
Respondent’s counsel absent although duly served with hearing notice. For Respondent
