OLOWOYO OLADIPUPO v. THE STATE
(2012)LCN/5355(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of May, 2012
CA/I/98/2005
RATIO
EVIDENCE: TESTS TO VERIFY THE TRUTH OF A CONFESSIONAL STATEMENT
In the recent case of DEMO OSENI V. THE STATE (supra) at 387 paras. C – E, the Supreme Court, per ADEKEYE, J.S.C., reiterated the law as follows:
“There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court by inquiry into whether:
(i) There is anything outside it to show that it is true.
(ii) It is corroborated.
(iii) The facts stated in it are true as far as can be tested.
(iv) The accused person had the opportunity of committing the offence.
(v) The accused person’s confession is possible.
(vi) The confession is consistent with the other facts ascertained and proved.” PER MOORE A.A. ADUMEIN, J.C.A
EVIDENCE: WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
I think that it is a settled principle of law that an accused person can be convicted solely on his confessional statement. See EGBOGHONOME V. THE STATE (1993) 7 NWLR (Pt. 306) 385. This position of the law was recently confirmed by the Supreme Court in DEMO OSENI V. THE STATE (2012) 5 NWLR (Pt. 1293) 351 at 374, where NGWUTA, JSC stated thus:
“As for the issue of corroboration stressed by learned counsel for the appellant, the law is settled and
“it is the law that even without corroboration a confession is sufficient to support a conviction so long as the court is satisfied of its truth. “
See Mohammed J. Yahaya V. The State (1986) 12 SC 282 at 290; R. V. Omokaro (1941) 7 WACA 146; Isaac Stephen V. The State (1986) 12 SC 45; (1986) 5 NWLR (Pt.46) 978.”
The learned trial Judge was satisfied with the truth of the appellant’s confession contained in exhibit “P1” and accordingly, held at page 41 of the record thus:
“The said Confessional Statement, Exhibit “P1″ is direct positive true and unequivocal about the commission of the offence. See GBADAMOSI VS. STATE (1991) 6 NWLR Part 196 page 186 ….” PER MOORE A.A. ADUMEIN, J.C.A
CRIMINAL LAW: INGREDIENTS OF PROVING THE CASE OF ARMED ROBBERY
In a case of armed, the prosecution must prove the following ingredients, which must co-exist: –
(i) that there was a robbery;
(ii) that the robbery was an armed robbery;
(iii) that the accused person participated in the robbery.
See DEMO OSENI V. THE STATE (2012) 5 NWLR (Pt. 1293) 351; OLAYINKA v. THE STATE (2007) 9 NWLR (Pt. 1040); BELLO V. THE STATE (2007) 10 NWLR (Pt. 1043) 564; ALABI V. THE STATE (1993) 7 NWLR (Pt. 307) 511; IJISU V. A – G; BENDEL STATE (1989) 1 NWLR (Pt, 100) 564 and BOZIN V. THE STATE (1985) 2 NWLR (Pt.8) 465. PER MOORE A.A. ADUMEIN, J.C.A
CRIMINAL LAW: MEANING OF CONSPIRACY
Conspiracy means “An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and …. action or conduct that furthers the agreement; a combination for an unlawful purpose” and it is a separate offence from the offence or crime that is the object of the conspiracy Black’s Law Dictionary, Eighth Edition, page 329. See also DEMO OSENI V. THE STATE (supra); SULE v. THE STATE (2009) 17 NWLR (Pt. 1169) 33 and BALOGUN V. A-G; OGUN STATE (2002) 6 NWLR (Pt. 763) 512.
In OBIAKOR V. THE STATE (2002) 10 NWLR (Pt.776) 612 at 628, the Supreme Court defined conspiracy thus:
“Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means.”
See also the case of DAVID OMOTOLA & ORS. V. THE STATE (2009) 7 NWLR (Pt. 1139) 148. PER MOORE A.A. ADUMEIN, J.C.A
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OLOWOYO OLADIPUPO Appellant(s)
AND
THE STATE Respondent(s)
MOORE A.A. ADUMEIN, J.C.A (Delivering the Leading Judgment): The appellant Olowoyo Oladipupo was charged in Charge No. HOS/BC/2000 in the High Court of Osun State, Osogbo Judicial Division with the following offences:
”STATEMENT OF OFFENCE
CONSPIRACY, contrary to section 5(b) of the Robbery and firearms (special provision) Act, Cap, 398 Vol. XXII Laws of Federation of Nigeria 1990.
PARTICULARS OF OFFICE
Olowoyo Oladipupo ‘M’ with others still at large on or about the 8th day of July, 1990 at Osogbo in the Osogbo Judicial Division did conspire together to commit felony to wit Armed Robbery.
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to section 1 (2) (a) of the Robbery and Firearms (special Provision) Act Cap, 398 Laws of Federation of Nigeria, 1990.
PARTICUIARS OF OFFENCE
Olowoyo Oladipupo ‘M’ with others now at large on the 8th day of July, 1999 at about 12:30a.m. at plot 26 GM, Osogbo in the Osogbo Judicial Division while armed with offensive weapons to wit guns, cutlasses e.t.c. robbery Rev, Sister Mary Collins of a wristwatch, a Ring and N6,000.00 each (Six Thousand Naira) and in the process killed one Amusat Mosobalaje ‘M’
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to section 1(2) (a) of the Robbery and Firearms (Special Provision) Act Cap, 398 Laws of Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE
Olowoyo Oladipupo ‘M’ with others now at large on the 8th day of July, 1999 at about 12:30a.m. at plot 26 GRA, Osogbo in the Osogbo Judicial Division while armed with offensive weapons to wit guns, cutlasses etc. robbed Rev. Sister Teresa Buckley of N20,000,00 (Twenty thousand Naira) cash, video recorder, portable Telephone box and other valuable materials and in the process killed one Amusat Mosobalaje ‘M’.”
The appellant, as accused in the trial court, pleaded not guilty and the case was tried. The State (prosecution) called two witnesses: PW1 Sister Theresa Buckley and PW2 Sergeant Johnson Ogunlusi. The appellant testified in his defence. At the close of evidence, learned counsel for the appellant and the State, respectively, addressed the trial court and in a reserved judgment delivered on the 27th day of January, 2005, the learned trial Judge, HON. JUSTICE JIMI BADA, J, (as he then was, now JCA) the appellant was convicted and sentenced to death by hanging.
The appellant was dissatisfied with the judgment of the trial court and filed a notice of appeal dated the 4th day of February, 2005. With leave of court, the appellant filed an amended notice of appeal on the 15th day of October, 2009 containing the following grounds:-
“1. The judgment of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence before the trial Court,
2. The learned trial Judge erred in law and misdirected himself when he placed the burden of proof of the allegation on the accused person.
(i) The prosecution failed to prove the essential ingredients of the offence against the accused person.
(ii) The burden of proving that the accused person was innocent of the offence was placed on him by the trial judge without first proving the case against the accused person beyond reasonable by the prosecution.
3. The learned trial judge erred in law in convicting the Appellant on the strength of the confessional statement exhibit P1 without determining whether there exist other pieces of evidence before the trial Court which made the confessional statement true and consistent with the guilt of the Appellant and thereby came to a wrong decision occasioning miscarriage of justice.
PARTICULARS OF ERROR
(i) The Appellant denied having made the confessional statement exhibit Pl written in English Language a language the Appellant does not understand and objected to the statement being admitted in evidence by the trial court.
(ii) The trial Judge admitted the confessional statement in evidence as exhibit P1.
(iii) The trial Judge failed to determine whether the confessional statement is true having regard to the other evidence outside the confessional statement before convicting the Appellant on the strength of the confessional statement.
(iv) The learned trial Judge is enjoined in law to subject the retracted confessional statement of the Appellant to the tests stipulated by law so as to determine whether the confessional statement is true having regard to other evidence outside the confession before relying on it to convict the Appellant.”
In accordance with the Rules of this court, the parties filed and exchanged briefs of argument.
The appellant’s brief is dated the 12th day of September 2006 and filed on the 13th day of September, 2006 but deemed properly filed and served on the 22nd day of January, 2007. The learned counsel for
appellant adopted the said brief, relied on it and urged the Court to allow the appeal, set aside the judgment of the trial convicting the appellant and sentencing him to death. Mr. Olalekan Ojo, learned counsel for the appellant further relied on the recent Supreme Court decision in OGUDO V. THE STATE (2011) 12 SC. (Pt. 1) 71 at 96 – 99 to strength his argument on Issue 1.
Mr. Biodun Badiora (PSC, Ministry of Justice, Osun State) learned counsel for the respondent adopted the respondent’s brief dated 27/12/2007, filed on 28/12/2007 but deemed properly filed on 15/01/2008. The respondent relied on the said brief in urging the court to dismiss the appeal and to affirm the judgment of the trial court.
The appellant formulated the following issues for determination:
”ISSUE ONE
Whether or not the learned trial Judge acted rightly in convicting the Appellant of armed robbery on the strength of the contents of exhibit ”P1″ when he failed to subject the contents of exhibit ”P1” to the six tests stipulated by law so as to determine whether there exists other evidence before the trial Court making the confessional statement true and consistent with the guilt of the Appellant.
ISSUE TWO
Did the Prosecution establish the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt having regard to the totality of the evidence before the trial court.”
Mrs. K.M. Akano (Solicitor-General of Osun State) who settled the respondent’s brief also framed two issues, namely:
”ISSUE ONE
Whether the learned trial Judge was right in convicting the Appellant of armed robbery on the strength of the contents of Exhibits ”P1” having found that the contents of Exhibit ”P1” was corroborated by the evidence of the 1st Prosecution witness.
ISSUE 2
Whether the case of conspiracy and armed robbery is established against the appellant considering the totality of the evidence before the trial court.”
In substance, the issues framed by the appellant and respondent, respectively, are the same, I adopt Issue 2 as formulated by the appellant and Issue 1 is hereby reframed to read thus:
Whether the learned trial Judge was right in convicting the appellant of armed robbery on the strength of the evidence before him.
ISSUE NO.1
The appellant argued that the lower court convicted him solely on the basis of the contents of exhibit “P1” – a confessional statement. Learned counsel for the appellant said that the appellant denied making exhibit “P1” written in English Language while the appellant “neither speaks nor writes English Language”. Counsel submitted that since exhibit “P1” was provisionally admitted in evidence, the trial court ought to have decided in its judgment “whether or not the accused actually made the statement and further whether the statement is true having regard to the other evidence outside the confession”. In support of his argument, learned counsel relied on the case of IKPASA V. BENDEL STATE (1981) 9 S.C. 7 at 29.
On the tests which a retracted confessional statement must pass before it can be relied upon, learned counsel for the appellant referred to DAWA V. THE STATE (1980) 8-11 S.C. 236 at 267 – 268 where the Supreme Court, per OBASEKI, JSC stated the six questions which a learned trial Judge must ask himself. Counsel also referred to the cases of ANTHONY EJINIMA V. THE STATE (1991) 6 NWLR (pt. 200) 627, DANIEL V. THE STATE (1991) 6 NWLR (Pt. 212) 715; OBISI V CHIEF OF NAVAL STAFF (2002) 2 NWLR (Pt.751) 400 at 418 – 419; NWACHUKWU V. STATE (2002) 2 NWLR (Pt. 751) 366 at 390; NSOFOR V. STATE (2004) 18 NWLR (Pt. 905) 292 at 310 – 311 to fortify his argument in respect of the tests to be applied by the court before convicting an accused person on his confessional statement. It was contended that the learned trial Judge failed to subject exhibit “P1” to the six tests and that the failure occasioned a serious miscarriage of justice.
Learned counsel argued that the evidence of PW1 (Rev. Sister Theresa Buckley), which the learned trial Judge held to have corroborated the contents of exhibit “P1”, was completely bereft of any corroborative quality. It was argued that corroborative evidence must implicate the accused person, On the nature of corroborative evidence, learned counsel referred the Court to the cases of OKABICHI V. STATE (1972) 2 S.C. 135 and IKO V. STATE (2003) A.C.L.R. 49 at 65. The learned counsel also complained that in its judgment the trial court did not decide the following issues:
“(i) Whether it was the Appellant who could not express himself in English Language either orally or in writing that wrote the statement admitted as exhibit “P1”.
(ii) Whether exhibit “P1” was true.
(iii) Whether exhibit “P1″ was the English translation of the statement made by the Appellant in Yoruba Language.”
Relying on the case of SAIDU V. STATE (1982) 4 S.C. 41, learned counsel submitted that “the failure of the learned trial Judge to pronounce on whether or not it (sic) the Appellant made exhibit “P1″ in spite of the evidence of the Appellant that he did not make it amounts a denied (sic) of fair trial …”
Learned counsel argued that there was nothing outside exhibit “P1” “which support exhibit “P1″or make it consistent with the guilt of the Appellant”.
Mrs. K.M. Akano, learned Solicitor-General of Osun State who settled the respondent’s brief, however disagreed with the submissions of learned counsel for the appellant. She contended that an accused person could be convicted on his confession alone, whether such confession is retracted or not – HASSAN V. STATE (2001) 11 SCM 100 at 108.
Learned counsel argued that the requirements laid down in DAWA V. THE STATE (supra) were complied with by the learned trial Judge as His Lordship placed exhibit “P1” “alongside the testimony of PW1 and by hofding that exhibit “Pl” is corroborated by the said testimony”. Counsel submitted that the trial court having held that exhibit Pl is direct, positive, true and unequivocal about the commission of the crime, “the conviction is good and has basis in law.” The learned counsel then submitted thus:
“The law is that the court can still admit and convict on a confessional statement which the accused person retracted from if satisfied that: –
(a) the accused person made the statement, and
(b) there are circumstances which give credence to the contents of the confession.
It is also desirable if the confession is subsequently retracted, as in this case, that there should be some corroboration, even if slight. See In RE. OSAKWE (1994) 2 NWLR (Pt, 326) 273 at 286 para. B-C.”
Counsel contended that once a court has found corroborating evidence, it would not be necessary to outline the six tests and test each against the available evidence OBISI V. CHIEF OF NAVAL STAFF (2002) 2 NWLR (Pt. 751) 400 at 416 – 418.
The respondent argued that “the principle of the law that it is desirable that the contents of a confessional statement should be tested by facts outside the statements (sic) is not an absolute one and cannot therefore be enough vitiating factor upon which to rest the quashing of the Appellant’s conviction since the lower court held at page 41 line 6 that the said confessional statement Exhibit “Pf is direct positive, true and unequivocal about the commission of the office (sic)”. On this point, the respondent referred to the case of NWAEBONYI V. THE STATE (1994) 5 NWLR (Pt. 343) 138 at 150 – 151, paragraphs H – B.
It was contended by the respondent that “corroboration required need not be by direct evidence, but can be sustained by any material in the proceedings which even could come from the maker of the confessional statement himself or by way of conduct or demeanor” (sic) on the authority of OBISI V. CHIEF OF NAVAL STAFF (supra) at 416.
Learned Solicitor-General of Osun State argued that the cases cited by the appellant, in respect of the nature of corroborative evidence required, were not relevant to this case because those cases dealt with complaints in sexual offences, treason or where accomplices or children gave evidence on oath in cases where “corroboration is a matter of statutory prescription or utmost necessity’. The respondent finally submitted a follows:
“Similarly, the question raised that the learned trial Judge failed to pronounce on whether the Appellant made Exhibit “P1” is, it is submitted, of no moment in this case, the trial Judge having held at page 41 of the record that the Confessional Statement, Exhibit “P1″ is direct, positive, true and unequivocal about the commission of the offence. The case of SAIDU V. THE STATE (1982) 4 S.C. 41 cited by the Appellant, it is submitted, is not also applicable. This is so because the issue in that case has to do with whether the Court should rely on confessional statement received only for identification purpose and denied by the accused person. The Supreme Court held that the statement has no value as it was never received in evidence.”
The facts of this case, as presented by the respondent through PW1 Sister Theresa Buckley and PW2 Sgt, Johnson Ogunlusi, can be summarized as follows: On 8/7/99 the complainant heard “glass breaking” and she saw through her window about 6 boys with guns; at gun point they said that if the complainant and her fellow sister (Sister Mary) did not give them dollars they would kill them; the complainant had no dollars but handed over the sum of N20,000.00 to them through the window; the boys asked her (PW1) to open the door but because she could not select the key to door as she was not wearing her glasses, she threw the key to them through the window; they opened the door and threatened to kill her unless they got one hundred dollars; at gun point they took her ring, watch, portable telephone, video recorder and Sister Mary’s chain; the complainant’s driver went to the police to report; she heard the shout of the watchman; and when the police arrived there was an exchange of
gunfire and the boys ran into the bush; the police found the corpse of the watchman outside the complainant’s premises; the corpse was later removed to State Hospital for autopsy; in the course of investigation information got to PW2 that same boys were hiding in an uncompleted building at Oke-Oniti gambling; a team of detectives led by PW2 went to the scene where the appellant and one other person were arrested while others ran away on 13/7/99; the appellant was rearrested at the Police Station and he was charged and cautioned in English Language and he made a confessional statement which was admitted as exhibit “P1” after an objection to its admissibility was overruled. (See pages 15 – 22 of the record).
The appellant’s case was that he was a bricklayer before his incarceration and that, on the day he was arrested, he went to old garage in front of Dugbe Police Station, Osogbo to look for employment as a bricklayer but could not get any and he went to his brother’s farm on the way to Oke Oniti; Osogbo. On his way, in the company of two of his friends, Policemen suddenly appeared and arrested them while they tried to run away. The police accused them of being the thieves who broke into a house in that area. The appellant said he was beaten by the police who threatened to kill him and that he was forced to “admit the statement at SARS Osogbo.” The appellant, who testified in Yoruba Language said that he did not sign exhibit “P1” and that he did not understand English Language and could not “read and write either in English or Yoruba”. He denied making any statement that he and Kunle Kolawole and others went to rob the complainant. He said also that the contents of exhibit “P1” were not correct. (See pages 23 – 26 of the record of appeal).
In his brief, learned counsel for the appellant contended, inter alia, thus:
“It is submitted that when a retracted confessional statement is provisionally admitted like the present case, the trial court is enjoined to decide in his judgment whether or not the accused actually made the statement and further whether the statement is true having regard to the other evidence outside the confession before the court can safely rely on it to convict the accused.”
On the alleged confessional statement – exhibit “P1” the learned trial Judge, after reproducing some parts thereof, held at page 40 of the record thus:
“The extract from Exhibit “P1” above was corroborated by the evidence of PW1, Rev. Sister Theresa Buckley when she testified that about 6 people came to attack them on the day of the incident.
In view of Exhibit “P1″ and the evidence of PW1, I have no difficulty in coming to the conclusion that the accused person in this case conspired with others at large to commit the offence.”
His Lordship, the learned trial Judge then proceeded to state as follows:
“On the issue of Armed Robbery, the accused person raised alibi for the 1st time in the witness box.
He testified that he was on his way to his brother’s farm with his friends when Police arrested him.
He also stated that he did not understand English Language used in writing, the statement.
I do not believe the story of the accused. The defence of Alibi raised by the accused has been rebutted by his Confessional Statement i.e. Exhibit “P1″.
Apart from the above evidence, the accused mentioned Kunle in his Statement dated 13/7/99. And in the Alibi while giving evidence in Court on 10/5/2004, he mentioned that Kunle and Saidi Yusuf were
with him on the day he was arrested by the Police. My conclusion from the above is that Kunle and the accused are partners in crime.”
As can be seen from the portions of the judgment of the trial court reproduced above, the learned trial Judge found the appellant to be the maker of exhibit “P1” although without using the words “I hereby find that the accused person made exhibit P1, which is a confessional statements” or words that conveying the same thing or meaning. The failure to specifically use the said words, or like words, which are no magical words, in my view would not by that reason alone derail the judgment of the trial court. It is clear from the judgment of the lower court, that the learned trial Judge, without specifically saying so, applied the tests laid down in R.V. SIKES (1913) 8 CR. App. R. 233 and adopted and applied in the case of KANU V. THE KING (1952) 14 W.A.C.A. 30 and host of other cases including DAWA V. THE STATE (1980) 8 – 11 SC 236; AKPA V. THE STATE (2007) 2 NWLR (Pt. 1019) 500; OJEGELE V. THE STATE (1988) 1 NWLR (Pt. 71) 414; UDOFIA v. THE STATE (1984) 12 SC 139; UWAGBOE V. THE STATE (2007) 6 NWLR (Pt. 1031) 606 and DEMO OSENI V. THE STATE (2012) 5 NWLR (pt.1293) 351.
In the recent case of DEMO OSENI V. THE STATE (supra) at 387 paras. C – E, the Supreme Court, per ADEKEYE, J.S.C., reiterated the law as follows:
“There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court by inquiry into whether:
(i) There is anything outside it to show that it is true.
(ii) It is corroborated.
(iii) The facts stated in it are true as far as can be tested.
(iv) The accused person had the opportunity of committing the offence.
(v) The accused person’s confession is possible.
(vi) The confession is consistent with the other facts ascertained and proved.”
In the instant case, can be said that exhibit P1, the confessional statement passed the well-known six tests? Exhibit “P1” copied at pages 10 – 11 of the record is hereby reproduced for a proper appreciation of my reasoning: –
“I am a native of Ijebu-Jesa, Osun State, I attended Christ Apostolic Primary School, Ijebu-Jesa. On the 717 199 at about 12.00p.m. myself and eight others i.e, Kunle, Saidi ‘M’, Jire ‘M’, Mukaila ‘M’, Sunday ‘M’, Taiye ‘M’, Femi ‘M’ and Samuel met at One Primary School at Oke-Onitea where we deliberated on place to go and work that night, Kunle ‘M’ is the ring leader said that we should go to G.R.A. very close to ring road, Osogbo where the Rev, Sisters living. Some minutes after 12.00p.m. of 8/7/99 we arrived at Rev. Sisters’ house. We climbed the fence and entered the premises where we met the night guard sleeping inside the small room at gate. Then Kunle ‘M’ who was holding gun killed the night guard, while others entered the room, The rooms inside the building was ransacked and twenty thousand naira was given to us by Rev. Sisters, I don’t know other things that was stolen from the house. The money given to us was N20,000.00 naira denomination. When we finished we left there to the house of Kunle. At his house the twenty thousand naira N20,000.00 we stole was shared and three thousand naira was given to me. The share is equal as some people was shared two thousand. Kunle shared three thousand naira also. I have spent the money I was shared. The operation was first one I will go with this boys, and we have not go to any other operation after this one. Femi and Jire ‘M’ lives at Olugun and I lead police to their houses. As of others I don’t know their houses but Jire and Femi may know their houses.
(sgd.)
OLOWOYO OLADIPUPO”.
Outside exhibit P1, the unchallenged evidence of PW1 (Rev. Sister Theresa Buckley) that she saw about 6 persons armed with guns, that at gun point N20,000.00 was given to them, that “They disorganized our homes at gun point”, that she heard the shout of their watchman and that when the Police arrived, they found the corpse of the watchman are matters which confirm the contents of exhibit P1 to be true. Furthermore, they also corroborated the confessional statement in issue
In exhibit “P1”, it is indicated that it was made at Dugbe Police Station, Osogbo and that the appellant is a bricklayer and a Christian. In his evidence, the appellant stated that he was a Christian and bricklayer and that he made a statement at Dugbe Police Station but that he did not sign the statement, and that “the statement I made at Dugbe was read to me at “SARS Office” (pages 23 – 25 of the record), It is also obvious from the statement of facts in exhibit “P1” that they are true. Having regard to the facts of this case, the confession in exhibit “P1” is probable and it is consistent with the unchallenged evidence of PW1 and PW2, particularly the unchallenged evidence of PW1 as highlighted hereinbefore.
The appellant’s alibi was raised for the first time in the witness box.
Where an alibi is raised by an accused person for the first time while in the witness-box, such an alibi may be ignored – see SAMSON EBENEHI v. THE STATE (2009) 6 NWLR (pt. 1138) 431.
Alibi means “elsewhere” and it is a defence open to an accused person based on the physical impossibility of the accused person’s guilt “by placing the defendant (accused) in a location other than the scene of crime at the relevant time” – Black’s Law Dictionary, Eighth Edition, page 79. See also the case of NDUKWE V. THE STATE (2009) 7 NWLR (Pt.1139) 43 at 80. Therefore, a person accused of having committed a crime is duty bound to promptly raise this defence by furnishing necessary information on his whereabouts at the time the offence was allegedly committed. See AKPAN V. THE STATE (1991) 5 SCNJ 1 and IKEMSON V. THE STATE (1989) 3 NWLR (Pt. 110) 455; Where the defence of alibi has been promptly and properly raised, the law is that the burden is on the prosecution to investigate the accused person’s claim and rebut same by cogent and credible evidence in order to prove the offence preferred against the accused beyond reasonable doubt. See ADEDEJI V. THE STATE (1971) 1 All NLR 75; SAMUEL ATTAH V. THE STATE (2010) 10 NWLR (Pt. 1201) 190; SUNDAY OKODUWA & ORS. V. THE STATE (1988) 2 NWLR (Pt. 76) 333; 1 NSCC 718 and KAMARA ALIMI V. THE STATE (1986) 6 S.C. 119.
In any case, even where no investigation of the alibi was carried out, a trial Judge still has a duty to consider the credibility of the evidence adduced vis-a-vis the alibi so raised. See OZAKI V. THE STATE (1990) 1 NWLR (Pt. 124) 92.
In the present case, the learned trial judge who saw the appellant testify and physically watched his demeanour disbelieved the story of the appellant. The decision of the learned trial Judge cannot be faulted. Apart from the reasons given by the trial court, the appellant, by his own evidence portrayed himself as somebody who should not be believed. For example, the appellant testified at page 24, lines 20-21 of the record thus:
“I do not understand English Language I cannot read and write either in English or Yoruba”.
Under cross examination, the appellant said that he attended two different primary schools, namely: Emmanuel School, Ado Ekiti and then St. Mary’s Anglican School, Oluode, Osogbo. The question that begs for an answer is: In what language was the appellant taught in the two primary schools which he attended?
In any case, as rightly held by the trial court the appellants’ defence of alibi has been rebutted by his confessional statement – exhibit P1. See OGOALA v. THE STATE (1991) 2 NWLR (pt. 175) 509.
Having regard to the facts and circumstances of this case, the appellant had the opportunity of committing the offence of armed robbery with which he was charged.
Exhibit “P1”, therefore, successfully passed the six tests for a confessional statement.
The learned counsel for the appellant argued profusely that the contents of exhibit “P1” were not corroborated. I think that it is a settled principle of law that an accused person can be convicted solely on his confessional statement. See EGBOGHONOME V. THE STATE (1993) 7 NWLR (Pt. 306) 385. This position of the law was recently confirmed by the Supreme Court in DEMO OSENI V. THE STATE (2012) 5 NWLR (Pt. 1293) 351 at 374, where NGWUTA, JSC stated thus:
“As for the issue of corroboration stressed by learned counsel for the appellant, the law is settled and
“it is the law that even without corroboration a confession is sufficient to support a conviction so long as the court is satisfied of its truth. ”
See Mohammed J. Yahaya V. The State (1986) 12 SC 282 at 290; R. V. Omokaro (1941) 7 WACA 146; Isaac Stephen V. The State (1986) 12 SC 45; (1986) 5 NWLR (Pt.46) 978.”
The learned trial Judge was satisfied with the truth of the appellant’s confession contained in exhibit “P1” and accordingly, held at page 41 of the record thus:
“The said Confessional Statement, Exhibit “P1″ is direct positive true and unequivocal about the commission of the offence. See GBADAMOSI VS. STATE (1991) 6 NWLR Part 196 page 186 ….”
In this case, the appellant retracted or denied making exhibit “P1”.
These days, confessions are often retracted or denied, However, such retraction or denial, although a matter that should be considered when deciding on the weight to attach to a confession, as held in the cases of DEMO OSENI V. THE STATE (supra); IDOWU V. THE STATE (1998) 11 NWLR (Pt.574) 354; DIBIE V. THE STATE (2007) 9 NWLR (Pt. 1038) 30; does not affect the admissibility of the confessional statement. Confession is regarded as the best means by which an offence can be proved beyond reasonable doubt. See DEMO OSENI V. THE STATE (supra) at 387 where the Supreme Court, per ADEKEYE, JSC stated thus:
“There is no evidence stronger than a person’s own admission or confession. Such confession is admissible. A confession made in judicial proceedings is of greater force or value than all other proofs.”
In view of all that I said in this judgment, I hold the view that the learned trial Judge rightly relied on exhibit “P1” (the confessional statement of the appellant) and the evidence of PW1 and PW2 in convicting the appellant of the offence of armed robbery. In a case of armed, the prosecution must prove the following ingredients, which must co-exist: –
(i) that there was a robbery;
(ii) that the robbery was an armed robbery;
(iii) that the accused person participated in the robbery.
See DEMO OSENI V. THE STATE (2012) 5 NWLR (Pt. 1293) 351; OLAYINKA v. THE STATE (2007) 9 NWLR (Pt. 1040); BELLO V. THE STATE (2007) 10 NWLR (Pt. 1043) 564; ALABI V. THE STATE (1993) 7 NWLR (Pt. 307) 511; IJISU V. A – G; BENDEL STATE (1989) 1 NWLR (Pt, 100) 564 and BOZIN V. THE STATE (1985) 2 NWLR (Pt.8) 465.
The unchallenged evidence of PW1 (Rev. Sister Theresa Buckley) proved conclusively that there was a robbery which was an armed robbery, By exhibit “P1”, the confessional statement of the appellant which he denied or retracted, it is clear that the appellant participated in the robbery, Therefore, the prosecution proved the offence of robbery in this case.
This issue is hereby resolved against the appellant and in favour of the respondent.
ISSUE 2
“Did the Prosecution establish the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt having regard to the totality of the evidence before the trial court.”
The appellant’s argument on this issue is from paragraphs 5.01 to 5.04 spanning pages 17 – 25 of his brief.
The appellant submitted that before it could be said that the prosecution proved its case beyond reasonable doubt, every constituent ingredient of the offence must be established and once there had been failure to establish one element of the offence, then the prosecution had failed to prove the case beyond reasonable doubt-ALABI V. STATE (1993) 7 NWLR (Pt. 307) 511; OKEKE v. THE STATE (1995) 5 NWLR (Pt. 392) 676; SHANDE V. STATE (2005) 1 NWLR (Pt. 907) 218 and IBRAHIM V. STATE (1995) 3 NWLR (Pt. 318) 35.
Where the trial court is left in doubt as to the guilt of an accused person, the appellant contended, such doubt must be resolved in favour of the accused and the accused acquitted – OBIADE V. THE STATE (1970) 1 All NLR 35; ONAFOWOKAN V. THE STATE (1987) 3 NWLR (Pt.61) 531 and STATE V. DANJUMA (1997) NWLR (Pt. 506) 512.
Learned counsel for the appellant argued that for conspiracy to be established, the evidence must be conclusive – EMEKA V. STATE (1998) 7 NWLR (Pt. 559) 556. In the present case, learned counsel contended that “outside exhibit “P1″, the Prosecution did not adduce any evidence to link the Appellant with the crime” of conspiracy and that the learned Judge did not consider the appellant’s defence except the defence of alibi which was rejected. Learned counsel argued that the facts that the appellant was not caught at the scene of crime, that he was not identified by PW1 or any other witness and that no incriminating material was found on the appellant or in his house were “exculpatory evidence” in favour of the appellant.
Learned counsel for the respondent, on the other hand, referred to the meaning or definition of conspiracy, the evidence adduced by the prosecution, especially the contents of exhibit “P1” and contended that the offence of conspiracy was proved beyond reasonable doubt.
Conspiracy means “An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and …. action or conduct that furthers the agreement; a combination for an unlawful purpose” and it is a separate offence from the offence or crime that is the object of the conspiracy Black’s Law Dictionary, Eighth Edition, page 329. See also DEMO OSENI V. THE STATE (supra); SULE v. THE STATE (2009) 17 NWLR (Pt. 1169) 33 and BALOGUN V. A-G; OGUN STATE (2002) 6 NWLR (Pt. 763) 512.
In OBIAKOR V. THE STATE (2002) 10 NWLR (Pt.776) 612 at 628, the Supreme Court defined conspiracy thus:
“Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means.”
See also the case of DAVID OMOTOLA & ORS. V. THE STATE (2009) 7 NWLR (Pt. 1139) 148.
Under Issue 1, I confirmed the finding of the trial court that exhibit “P1” is a confession by the appellant that he and other persons committed the offence of murder. It is clear from exhibit “P1” reproduced earlier in this judgment that the appellant and eight (8) other persons, namely:
Kunle, Saidi, Jire, Mukaila, Sunday, Taiye, Femi and Samuel “met at one Primary School at Oke-Onitea,” Osogbo, Osun State and agreed to carry out an unlawful act, to wit: armed robbery at G.R.A., Osogbo where reverend sisters (Rev. Sisters Theresa Buckley and Mary Collins) were living.
I am unable to fault the decision of the learned trial Judge that the prosecution proved the offence of conspiracy against the appellant. It makes no difference that only the appellant was charged and arraigned before the trial court.
I hereby resolve this issue against the appellant.
Having resolved the two issues against the appellant, I hold that this appeal lacks merits and it is hereby dismissed. The judgment of the trial court is hereby affirmed and, for the avoidance of any doubt, I uphold the conviction and sentence of the appellant by BADA, J, (as he then was).
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, Adumein, JCA.
The main issue in contention in this appeal is whether it was appropriate in the circumstances of this case for the learned trial Judge to convict the appellant of the offences of armed robbery and conspiracy to commit armed robbery solely on his retracted confessional statement.
The law is settled that where a confessional statement is direct, positive and unequivocal as to the admission of guilt by an accused person, the statement is enough to ground the conviction of the accused so long as the court is satisfied with the truth of the confession. See: Olalekan v. The State (2001) 18 NWLR (746) 793; Salawa vs. The State (1971) NMLR 735; Yusufu vs. The State (1976) 6 SC 163 at 173; Nwachukwu vs. State (2007) 17 NWLR (1062) 31 at 65 G -H; 69 D-G.
It is also settled law that the retraction of a confessional statement by an accused person during his evidence on oath at the trial is of no moment and does not adversely affect the situation once the court is satisfied as to its truth. See: Nwachukwu v. State (supra) at 69 – 70 G-B; Ore-Ofe Adesina & Anor. vs. The State (2010) 35 WRN 49.
The statement of the accused (Exhibit Pt) found at pages 10 and 11 of the record states clearly and unequivocally that the appellant and B others whom he named robbed a house at G.R.A. Osogbo where some Reverend Sisters were living. That they ransacked the building, dispossessed them of the sum of N20,000.00 and killed the night guard.
The evidence of PW1, Reverend Sister Theresa Buckley fully corroborated the facts as stated in Exhibit P1 in every material particular. The only issue put to her under cross-examination was whether she could identify the robbers, which she admitted she could not.
Where an accused person makes a confessional statement, it is desirable that before the court can base a conviction on it there should be some independent corroboration no matter how slight. See: Nwachukwu vs. The State (supra) at 69 H; Salawa v. The State (supra); Ore-Ofe Adesina & Anor v. The State (supra).
In the instant case the evidence of PW1 which was not discredited was sufficient independent corroboration of the contents of Exhibit P1.
I also agree with my learned brother in the lead judgment that although the learned trial Judge did not specifically state that he had applied the test in R.V. Sykes (1913) 8 CR-App. R. 233 (also applied in Demo Oseni Vs. the State (2012) 5 NWLR (1293) 351) to exhibit P1, it was clear from his evaluation of the said statement and the evidence before him that he was guided by the test in that case and concluded, rightly in my view that the appellant along with others at large committed the offence as charged.
For these and the fuller reasons well articulated in the lead judgment, I also find no merit in the appeal and dismiss it accordingly. I also uphold the conviction and sentence of the appellant by the lower court.
CHINWE EUGENIA IYIZOBA, J.C.A.: The appellant herein was charged and convicted of conspiracy to commit armed robbery and armed robbery and sentenced to death by hanging. The robbery was committed by the appellant and others at large in a house occupied by Rev. Sisters, during which their night-watchman was killed. The learned trial judge based the conviction on a retracted confessional statement (Exhibit P 1) made by the appellant when he was arrested 5 days after the commission of the offence.
One of the two issues canvassed by learned counsel for the appellant in his brief of argument is that the learned trial judge failed to subject the contents of the confessional statement exhibit P1 to the six steps laid down in R v. Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. The King (1925/55) 14 W.A.C.A. 30: and further confirmed and restated in many decided cases as set out in the lead judgment.
Although the learned trial judge did not take each of the six steps one at a time in testing the veracity of the confessional statement, all put together the trial judge weighed the contents of the statement and was satisfied that in spite of the retraction, the confession was direct, positive and unequivocal as to the guilt of the accused. He also found corroboration in the evidence of PW1, one of the Rev Sisters that N20, 000.00 was taken from them and that all their rooms were ransacked. Taking into consideration the circumstances of this particular case, I agree with the view of my learned brother Adumein JCA in the lead judgment that the learned trial judge rightly relied on exhibit P1, the confessional statement and the evidence of PW1 and PW2 in convicting the appellant of the offences as charged.
I am constrained to point out however that the Police appear to have fallen behind in the practice of applying the Judges’ Rules in the investigation of criminal offences especially in obtaining statements from accused persons. While the Rules are not rules of law but rules of practice made by English Judges for the guidance of English Police officers, the consensus of judicial opinion in Nigeria is that the rules accord with prudence and ought to be applied where practicable especially in serious offences where the only material evidence against the accused person is his confession contained in his statement to a junior police officer. See Ojegele v. The State (1988) 1 NWLR (Pt. 71) 414. It is advisable that accused persons be properly cautioned in the language they understand and their statements taken in same language. The practice of taking them to a superior police officer for confirmation is also a good one. For all the reasons lucidly set out in the lead judgment I also dismiss this appeal and affirm the judgment and sentence of the lower court.
Appearances
OLALEKAN OJO, ESQFor Appellant
AND
BIODUN BADIORA, ESQ. (Principal State Counsel, Ministry of Justice, Osun State)For Respondent
