JOHNSON ADEYEMI V. THE STATE
(2012)LCN/5439(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of June, 2012
CA/B/290C2/2008
RATIO
“It is desirable as held in the case of Ajidahun v. State (supra) that confessional statements should be recorded in the language it was made. If the confession was made in Yoruba, even when the accused is illiterate and cannot write, it is advisable that it first be recorded in Yoruba by a police officer who is conversant with the language and able to record the confession in Yoruba. I do not think the distinction learned counsel for the respondent tried to draw between a statement made in Yoruba personally by the accused and one recorded for him is tenable. In other words, whether the statement is recorded personally by the accused in Yoruba or narrated to a police officer who does the recording, it is desirable that the recording be in the language the statement is made. Both the Yoruba statement and the translated version of it would then be tendered in evidence. The issue of tendering the Yoruba version and its translation does not however arise where there is only the English translation of the statement. The fact that the statement was not first recorded in Yoruba language before being translated into English will not ipso facto render the English translation inadmissible. The issue is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible. See Olalekan V. State (2001) 18 NWLR (Pt. 746) 793 @ 819H – 820B per Karibi-Whyte J.S.C: “…..The observation of the court in R. v. Ogbuewu (supra) that statements should be whenever practicable, recorded in the language in which it was made is a practical wisdom directed to avoid the kind of technical arguments even if unreasonable capable of being raised by learned counsel. It is not an invariable practice; but o practice to ensure correctness and accuracy of the statements made by accused persons.” Per IYIZOBA J.C.A
“On the count of robbery, the ingredients of the offence which must be proved are as stated in the cases of Okeke v. The State 91995) 4 NWLR (Pt. 392) 676 and Okpulor v. The State (1990) 2 NWLR (Pt. 164) 581 are:- i. That there was robbery or series of robbery ii. That the robbers were armed with offensive weapons; and iii. That the accused (appellant) was among the robbers. All these ingredients were duly established in this case.” Per IYIZOBA J.C.A
“If there are acts on the part of an accused person which lead the trial court to the conclusion that he and others were engaged in accomplishing a common object or objective, then conspiracy can be inferred. Kaza v. The State (2008) 7 NWLR (Pt. 1085) 125 @ 176. The fact that the appellant in his confession and from the evidence of other witnesses appeared at the scene of the crime to whisk the robbers away on his ‘okada’ is clear evidence that he and the others were engaged in accomplishing the common objective of robbing PW1. The fact that the appellant himself was not armed is immaterial as his collaborators were armed.” Per IYIZOBA J.C.A
“The learned trial Judge in his judgment at page 115 quoted the observation of Oguntade JSC in Nsofor v The State (2004) 18 NWLR (Pt. 905) 292 @ 310 as follows: “In Dawa v. State (1980) 8-11SC 236 at 267-268, this court per Obaseki JSC discussed the test to be applied in determining weight to be given to a retracted confessional statement thus: ‘On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R v Sykes (1913) 8 CAR Appeal Report 233, and approved by West African Court of Appeal in Kanu v. The King (1952/1955) 14 WACA 30. And I regard them as sound and golden. The questions a judge must ask himself are: 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 far as they can be tested? 4. Was the prisoner one who had the opportunity of committing murder? 5. Is his confession possible? 6. Is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests satisfactorily a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can be properly founded on it and if any is founded on it, on appeal, it will be hard to sustain. Since Kanu v. King (supra) authorities abound in this country where the highest court, Supreme Court decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 test (sic) enumerated above.” Per IYIZOBA J.C.A
“As regards the burden of proof in this case, it is not in doubt that the trial court based its conviction of the appellant on the confessional statement Exhibit P6. In Bature V. The State (1994) 1 NWLR (Pt. 320) it was held by the Supreme Court per Onu JSC that where an extra-judicial statement has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled there from or retracted it altogether at the trial. ” Per IYIZOBA J.C.A
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
JOHNSON ADEYEMI – Appellant(s)
AND
THE STATE – Respondent(s)
CHINWE E. IYIZOBA J.C.A (Delivering the Leading Judgment): The appellant herein and another, Godwin Pius were arraigned before the Ondo State High Court, Akure judicial division charged with conspiracy to commit robbery and robbery contrary to sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990.
The particulars of the offence for which the appellant and Godwin Pius were charged are that on the 3rd day of January 2004 at Oshinle quarters in the Akure Judicial Division, they conspired to commit a felony, to wit armed robbery and did rob one DRP Communications a GSM handset company of handsets worth over one million naira (N1, 000, 000.00) as well as the sum of fifty thousand naira (N50, 000.00) while armed with guns.
In order to prove its case, the prosecution called two witnesses and tendered in evidence the confessional statements of the two accused persons after trials within trials as Exhibits P5 and P6. The appellant and the other accused person gave evidence in their respective defence. The appellant called one other witness, his sister who testified as DW2 in the main trial. After the close of case for both parties, addresses were taken and in a considered judgment the learned trial Judge Akeredolu J convicted each of the accused persons as charged and sentenced each to death by hanging or by firing squad.
It is against the judgment and conviction that this appellant, Johnson Adeyemi has brought this appeal. The notice of appeal which is dated 16/6/08 contains six grounds of appeal which read as follows:
“1. The decision/judgment of the trial court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.
2. The trial court misdirected itself when it held thus:
“There is no doubt created in the mind of the court which could be resolved in favour of the accused person. The case of Ajidahun V. The State (supra) establishes that the statement of the accused must be recorded in the language in which it was made or as near as possible to it and that both the statement and its translation should be tendered. It is irrelevant to this case in which the defence is that the accused did not make statement to the police.”
3. The trial court was wrong when it relied on Exhibit P.6 without considering and making a finding on the issue of illiteracy of the 2nd Accused/Appellant raised on the evidence before it before convicting the 2ndAccused/Appellant.
4. The trial court’s finding that count 2 of the information filed before it is not contrary to Exhibit P.6 is perverse on the available material facts and evidence before it.
5. The trial court misdirected itself when it concluded or held thus:
“The fact that PW1 said he could not remember the make of the handset recovered from each accused person when cross-examined does not create any doubt in the mind of the court.”
6. The trial court erred in law when it held thus;
“I have accepted Exhibit P6 as the confessional statement of the 2nd Accused/Appellant. In addition to the statement, PW1 said that on a visit to SARS the 2nd Accused/Appellant was brought out. He narrated what happened in his presence. He said that the 2nd accused in his presence said that he was instructed to stay at Olukayode junction about 1/2 kilometer from his office with ‘okada’ and that he should report at the spot where he saw them after the robbery. He said that was how he knew that the 2nd Accused/Appellant person is the ‘okada man’. In the circumstance of this case there is no need for the police to conduct identification parade.”
In line with the rules of this court, briefs of argument were filed and exchanged. The appeal came up for hearing on the 27th day of March, 2012. Ekerete Udofot Esq. learned counsel for the appellant identified the appellant’s brief dated 27/4/10. He adopted and relied on the argument contained therein and urged the court to allow the appeal. Steve Adebowale Esq. Deputy Director Public Prosecutions, Ministry of Justice Ondo State adopted the respondent’s brief dated 19/11/10 and urged this court to dismiss the appeal and affirm the decision of the lower court.
From the six grounds of appeal, Mr. Udofot, learned counsel for the appellant distilled five issues for determination. They are:
“1. Whether on a proper and fair consideration of the material oral evidence on record and the authority of Ajidahun v. State (1991) 9 NWLR (Pt. 213) 332 @ 341, the trial court ought to have relied on Exhibit P.6 in convicting the 2nd accused/appellant. (Ground 1)
2. Whether the trial court was right to have convicted the 2nd accused/appellant on the basis of Exhibit P.6 without considering or making a finding on the issue of illiteracy raised by the 2nd accused/appellant on the evidence before it. (Ground 2)
3. Whether the finding of the trial court that count 2 of the information before it is not contrary to Exhibit P is perverse. (Ground 3)
4. Whether the trial court was right to have based its finding on a non-existent piece of evidence in convicting the 2nd accused. (Ground 4)
5. Whether the trial court was right to have held that there was no need for the police to conduct identification parade in the circumstances of this case. (Ground 5)
Learned Counsel appears to have abandoned ground 1 of his grounds of appeal as shown in his notice of appeal at page 132 of the record and renumbered his grounds of appeal accordingly. The said ground 1 is hereby struck out, leaving five grounds of appeal duly renumbered.
Leo Ologun Esq. Assistant Director Civil Litigation, Ondo State Ministry of Justice who prepared the respondent’s brief of argument observed that issues 1, 2 and 3 formulated by the appellant touch on Exhibit P6 and condensed the three issues into one issue. Learned counsel also condensed appellant’s issues 4 and 5 into one issue. The two issues are as follows:
1. “Whether from the circumstances of this case, the trial court was right in convicting the appellant considering the way and manner Exhibit P6 was obtained, admitted and relied upon by the court.”
2. Whether from the totality of the evidence adduced by the prosecution, the guilt of the appellant was proved and established beyond reasonable doubt to justify his conviction by the trial court.
In determining this appeal I shall adopt the two succinct issues formulated by the respondent as they capture fully the essence of the appellant’s five issues.
Issue 1
The contention of the appellant here is that the confessional statement Exhibit P6 was recorded in English when there is evidence before the court that the appellant does not understand English. Counsel argued that English. Counsel argued that this is contrary to the settled principle in Ajidahun v. State (supra) that the statement of an accused person must be recorded in the language in which it was made or as near as possible to it and that both the statement and its translation should be tendered. Counsel argued that the failure of the prosecution to tender the original version of exhibit P6 casts serious doubt on the exhibit which doubt ought to be resolved in favour of the appellant. Still on Exhibit P6, counsel submitted that there was evidence before the court that the appellant was illiterate. Counsel argued that the trial judge was wrong not to have made a specific finding on the point. The fact that the appellant is illiterate counsel submitted should have put the trial judge on the alert as to the safety of convicting him on the basis of Exhibit P.6 made in English. Counsel also submitted that there arc material contradictions between count 2 of the information and exhibit P6 which the trial judge failed to consider. While count 2 alleged an offence of armed robbery against the 1st and 2nd accused persons only, exhibit P6 mentioned three persons. Further while count 2 alleged that the appellant was armed with a gun and mentioned the place of crime as Oshinle Quarters, Akure, Exhibit P6 stated otherwise. Counsel submitted that if the trial judge had given due consideration to these contradictions, its findings would have been different and favourable to the appellant. Counsel urged the court on these grounds to hold that the trial judge erred in relying on Exhibit P6 in convicting the appellant and urged us to allow the appeal.
In response, Mr. Ologun for the respondent submitted that the appellant’s contention is misconceived. He argued that the appellant volunteered his statement in Yoruba and it was recorded by Sgt Kayode Adebayo (PW3 in the trial within trial) in English. Sgt Michael Isichei (PW2 in the main trial and PW1 in the trial within trial) and the investigating police officer (IPO) of the case took the statement from Sgt Kayode after he had recorded it and read it over to the appellant and also interpreted it to him in Yoruba. Counsel distinguished the case of Ajidahun v State (supra) on the basis that the appellant therein personally recorded his own statement in Yoruba and it was translated into English by one of the IPOs who understood Yoruba Language. It was therefore imperative that the two statements be tendered in evidence. In the instant case, the appellant volunteered his statement in Yoruba to a police officer who recorded it in English. The English version was read over to the appellant and explained to him in Yoruba. The appellant confirmed that it was true and correct before he signed it. The appellant was also taken to a superior police officer, a Yoruba man who also read over and explained the statement to him and the appellant again confirmed it before he endorsed it. Referring to the case of Akpan V. The State (2007) 5 ACLR 135 @ 161 para 35 counsel submitted that while it is desirable that a statement be recorded in the language it was made, the statement is not automatically inadmissible because the practice was not followed. See also Olalekan V. State (2001) 18 NWLR (Pt.746) 793. Counsel urged the court to reject the contention of the appellant on the application/relevance of Jidahun’s case and hold that the trial court was right in placing reliance on exhibit P6 to convict the appellant.
On the failure of the trial judge to make a specific finding on the illiteracy of the appellant, counsel submitted that the issue at stake is whether the appellant understood the contents of exhibit P6 and whether same was properly obtained, admitted and relied upon by the trial court.
Once that is shown to be the case, the issue of illiteracy of the appellant is of no moment. Counsel submitted that exhibit P6 was properly obtained and admitted in evidence in conformity with the rules and regulations governing the making and admission in evidence of such statements.
On the contention that exhibit P6 is inconsistent with the facts in count 2 of the information, counsel submitted that the contention is not well founded in law and fact. Counsel submitted that there is no conflict between the two but rather a case of one complimenting the other.
Counsel urged us to resolve the issue in favour of the respondent.
I have read carefully the arguments of the appellant and the response thereto by the respondent. I must say with all due respect that learned counsel for the appellant has not raised any compelling point of substance to warrant the exclusion of Exhibit P6 or impugn the way it was utilized by the trial judge. It is desirable as held in the case of Ajidahun v. State (supra) that confessional statements should be recorded in the language it was made. If the confession was made in Yoruba, even when the accused is illiterate and cannot write, it is advisable that it first be recorded in Yoruba by a police officer who is conversant with the language and able to record the confession in Yoruba. I do not think the distinction learned counsel for the respondent tried to draw between a statement made in Yoruba personally by the accused and one recorded for him is tenable. In other words, whether the statement is recorded personally by the accused in Yoruba or narrated to a police officer who does the recording, it is desirable that the recording be in the language the statement is made. Both the Yoruba statement and the translated version of it would then be tendered in evidence. The issue of tendering the Yoruba version and its translation does not however arise where there is only the English translation of the statement. The fact that the statement was not first recorded in Yoruba language before being translated into English will not ipso facto render the English translation inadmissible. The issue is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible. See Olalekan V. State (2001) 18 NWLR (Pt. 746) 793 @ 819H – 820B per Karibi-Whyte J.S.C:
“…..The observation of the court in R. v. Ogbuewu (supra) that statements should be whenever practicable, recorded in the language in which it was made is a practical wisdom directed to avoid the kind of technical arguments even if unreasonable capable of being raised by learned counsel. It is not an invariable practice; but o practice to ensure correctness and accuracy of the statements made by accused persons.
It is pertinent to state that in R. v. Ogbuewu, (supra) the situation which is identical as in the instant case, there was proof, as in this case, not only that appellant’s case was correctly recorded, but also that appellant agreed it was so. The police constable who wrote it down in English gave evidence that he read it over in Ibo language to the appellant. In this case also Exhibit A, recorded in English language was read over to appellant in Yoruba language Appellant admitted he had been correctly recorded. In Ogbuewu’s case appellant was taken before the District Officer who caused the statement to be read to him in the Ibo language and the interpreter did so, and gave evidence that the appellant admitted that he had made the statement. Similarly in the instant case appellant was taken before a Superior Police Officer, Mr. Stephen Tavero where Exhibit A was read over to him by PW3 and he signed that it was correct”
In the instant case, PW3 in the trial within trial, Sgt Kayode Adebayo recorded the statement and gave evidence of how it was recorded and read over to the appellant and he accepted it to be correct. PW1, Sgt Michael Isichei in the trial within trial testified that he also read over the statement to the appellant and he said it was correct. He then took him to a superior Police Officer PW2 in the trial within trial, A.S.P Sunday Awi for further confirmation and endorsement. PW2 in his own evidence confirmed the testimony of PW1 that he PW2 also read over the statement to the appellant and he accepted that he made the statement and again endorsed the statement in the presence of PW2 and PW1. I must however point out that contrary to the contention of learned counsel for the respondent, it is not clear from the record of proceedings that the statement was made in the first instance in Yoruba Language and was then translated into English. It is also not clear that the reading over of the statement to the appellant was done in Yoruba Language. Although all the prosecution witnesses in the trial within trial were cross-examined by Counsel for the 2nd accused now appellant, none of them was asked if the appellant made his statement in Yoruba Language. No question was put to challenge the fact of the statement being read over and explained by the witnesses at the different stages and the appellant confirming the correctness of the statement. In fact the appellant throughout the hearing did not allege that he made a statement in Yoruba which was not produced with its translation. On the contrary, he denied ever making the statement Exhibit P6. The issue of whether the statement was made in Yoruba or not came up for the first time in the address of appellant’s counsel. In his judgment at page 122 of the record of appeal, the trial judge observed:
“It is not the case of the 2nd accused that he made a statement to the police in Yoruba language that ought to have been produced before the court with its translation. His evidence on the statement contradicts the address of counsel. The learned counsel cannot by his address set up a case that is different from the position of the accused.”
The conclusion on this point is that the case of Ajidahun v. State is irrelevant in this case as the appellant’s stand is that he did not make any statement to the police. He never alleged that he made a statement in Yoruba and it was recorded in English. The evidence of the three prosecution witnesses that exhibit P6 was made by the appellant, that it was read over and explained to him and that he accepted the statement as correct remained unchallenged as no questions were put in cross-examination to discredit the evidence. The finding of the trial judge on the issue is unimpeachable.
On the failure of the trial judge to make a specific finding on the illiteracy of the appellant, learned counsel for the respondent is right that the issue at stake is whether the appellant understood the contents of exhibit P6 and whether same was properly obtained, admitted and relied upon by the trial court. Once that is shown to be the case, the issue of illiteracy of the appellant is of no moment. I agree. The finding of the learned trial judge is that the appellant raised the issue of his illiteracy in the course of the trial within trial, the sole purpose of which is to determine whether the confessional statement was voluntary. The trial judge having held that the confessional statement was voluntary the question of the illiteracy of the appellant fizzles out. Why would the learned judge make a special pronouncement on the point? If indeed the appellant was illiterate, it did not stop him from accepting the correctness of the statement after each point it was explained to him and from appending his signature to the statement. It should be noted as matters of interest that the “illiterate appellant” did not thumb print the statement but actually signed it.
The contention of the appellant that the finding of the trial court that count 2 of the information is not contrary to Exhibit P.6 is perverse is with all due respect misconceived. As stated by learned counsel for the respondent Exhibit P6 “is a coherent statement containing and admitting all the essential ingredients of the offence of armed robbery as replicated in the information”. The minor discrepancies in the information and exhibit P6 are absolutely nothing to hold on to in discrediting the confessional statement. For example the contention that counts two of the information alleged an offence of armed robbery against two accused persons only while exhibit P6 mentioned three persons. The evidence presented by the prosecution and Exhibit P6 disclosed that three persons were involved in the robbery. One person died while in the custody of the police, hence the filing of information against two. The fact that the information contained facts that the appellant robbed at one DRP Communication store at Oshinle Quarters Akure while in Exhibit P6 the appellant stated that they robbed at the GSM store at Falodun Oke-Aro Area is not at all misleading. This is because according to respondent’s counsel the communications store stand at contiguous position to both Oke-Aro Area and Oshinle Quarters and could be described as being in either area. These are really little matters of little relevance in this armed robbery case. What is important is whether the learned trial judge was right in admitting the confessional statement by the appellant Exhibit P6 as voluntarily made and in basing the conviction of the appellant on it. The learned trial judge after the trial within trial was satisfied that Exhibit P6 was the voluntary statement of the appellant. The appellant did not appeal against that part of the judgment.
The learned trial Judge in his judgment at page 115 quoted the observation of Oguntade JSC in Nsofor v The State (2004) 18 NWLR (Pt. 905) 292 @ 310 as follows:
“In Dawa v. State (1980) 8-11SC 236 at 267-268, this court per Obaseki JSC discussed the test to be applied in determining weight to be given to a retracted confessional statement thus:
‘On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R v Sykes (1913) 8 CAR Appeal Report 233, and approved by West African Court of Appeal in Kanu v. The King (1952/1955) 14 WACA 30.
And I regard them as sound and golden. The questions a judge must ask himself are:
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 far as they can be tested?
4. Was the prisoner one who had the opportunity of committing murder?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can be properly founded on it and if any is founded on it, on appeal, it will be hard to sustain.
Since Kanu v. King (supra) authorities abound in this country where the highest court, Supreme Court decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 test (sic) enumerated above.”
At page 122 of the record the learned trial judge applied the six tests to enable him determine whether Exhibit P6 is the confessional statement of the 2nd accused and at the end held that exhibit P6 is indeed the confessional statement of the 2nd accused and that any attempt by the 2nd accused to deny making the statement was merely an afterthought. This issue is resolved against the appellant and in favour of the respondent.
ISSUE 2
Whether from the totality of the evidence adduced by the prosecution, the guilt of the appellant was proved and established beyond reasonable doubt to justify, his conviction by the trial court.
This covers the appellant’s issues 4 and 5. Here, learned counsel for the appellant contended that the trial court based its finding on a non existent piece of evidence in convicting the appellant. Counsel referred to the judgment of the court at page 122 where the trial judge observed that “PW1 said he could not remember the make of the handsets recovered from each accused person”. The argument of counsel is that PW1 made no such statement and that what he said is that “he did not know the handsets recovered from each accused/appellant” Counsel submitted that the failure of PW1 (the complainant) to know the handsets allegedly recovered from the 2nd accused/appellant is sufficient to create doubt in the mind of the trial court especially as he did not tender the purchase receipts in evidence to prove ownership.
Learned counsel on his issue 5, submitted that the trial court ought to have conducted an identification parade in the circumstances of this case and that the trial court erred in relying on the hearsay evidence of PW1 in coming to the conclusion that the identification parade was unnecessary. Counsel finally submitted that the trial court failed or refused to consider the burden of proof placed on the prosecution in criminal trials when it relied on Exhibit P6 to convict the appellant. Counsel urged this court to allow the appeal and to discharge and acquit the appellant.
Learned counsel for the respondent in reply submitted that the fact that PWI said he did not know the handset recovered from each accused/appellant, did not detract from the fact that a Sagem 3020M, being one of the items stolen from PW1’s office was recovered from the appellant. I agree with counsel. The answer given above by PWI was during cross-examination. To throw more light on the issue, it is necessary to look at the evidence in chief of PW1 on the matter. At page 19 of the record, PWI testified:
“When the 1st accused was arrested, the officer in charge of SARS now called me. When I got there, there were about 5 or 6 people behind the ‘counter’. As soon as I got there, the O.C SARS asked me if I can recognize one of the people there as a person who came to my shop and I pointed to him. The O.C. SARS asked if he Godwin could recognize me. He said yes. I did not see the 2nd accused person at the scene of the robbery but my subsequent visit to SARS.
When he was arrested, he was brought out in my presence to narrate what happened, that was my first time of seeing him facially. I did not see him in my office but I saw him at the police station. On the occasion when he was brought to narrate what happened, he said that he was given the mandate to stay at Olukayode Road about ‘bd Kilometer from my office with ’91Okada’91 and that 5 minutes after he should report at the spot where I saw them after the robbery
He was asked what happened to his own share of the handset given to him. He said he had taken them to under the bridge in Lagos to sell and that he had only one left with him. That was how I was able to know that he was part of them. At a point the very day they arrested the one that is next in the court now, he was caught with hand set he stole from my office, and it was Samsung T300M. Another handset Sagem 3020M was recovered from the 2nd accused person…”
The appellant in Exhibit P6 confirmed that he was given one Sagem handset. This corroborated the evidence and thereby cleared any doubt. Further as learned counsel submitted there is no material difference between the statement of PW1 that “he did not know the handsets recovered from each accused/appellant” and the summary of it by the trial court that “PW1 said he could not remember the make of the handsets recovered from each accused person”. This becomes clearer taken together with the evidence-in-chief of PW1 as set out above.
On the issue of identification parade, counsel submitted that it is not in all cases that the conduct of identification parade will be necessary. Counsel argued that the parade was unnecessary as PW1 did not see the appellant when he took the robbers away on his okada and could not therefore have been able to identify him in any identification parade. The evidence of PW1 as to how the appellant in his presence at the police station narrated how he was instructed to stay at Olukayode junction about 1/2 kilometer from PW1’s office with his okada and to report 5 minutes later to the scene of the crime was not challenged by the appellant or his counsel who were both present in court. PW1 was not cross-examined on it. Failure to contradict the evidence established the fact that the statement was made at the relevant time to the hearing of PW1. The fact that PWI was present and heard the statement himself removes the statement from the realm of hearsay evidence. Pw1 had stated that it was at that point he realized that the appellant was the person that drove the robbers away on his okada. Further, the identity of the appellant as the person who took the robbers away on his okada was not in doubt. In the case of Otti v. The State (1993) 4 NWLR (Pt.290) it was held by the Supreme Court that an identification parade is only relevant when the police is confronted with the determination of whether a particular person suspected or another was the person who committed the offence. The appellant’s involvement came to light because the two suspects arrested before him mentioned his name as one of their members who participated in the robbery. It was based on the information received that the police started searching for him and he eventually came to the police station with his sister. In addition, the appellant confessed voluntarily to the offence. The learned trial judge was right that identification parade was unnecessary in the circumstances of the case.
As regards the burden of proof in this case, it is not in doubt that the trial court based its conviction of the appellant on the confessional statement Exhibit P6. In Bature V. The State (1994) 1 NWLR (Pt. 320) it was held by the Supreme Court per Onu JSC that where an extra-judicial statement has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled there from or retracted it altogether at the trial. The trial court held Exhibit P6 after a trial within a trial to be voluntary and duly admitted it in evidence. The appellant did not appeal against the decision of the trial court that the confession was voluntary. The trial court further subjected the confession to the six tests to be applied in determining the weight to be given to a retracted confessional statement. The court held:
“PW1 said that a motorcyclist whom he did not see took the robbers who attacked him away. PW2 told the court that during the investigation, one handset was recovered from the 2nd accused. His evidence was not challenged by cross-examination. Under cross-examination, 2nd accused confirmed facts in the statement showing that, he trained as a motor cycle mechanic under Niyi Owolabi in Akure, he rides motor cycle and his sister is Adeyemi Florence. He is a native of Agbado in Ekiti State. It is stated that one Sagem handset was given to him in exhibit P6, Pw2 said he recovered Sagem handset from him. The facts in the statement Exhibit P6 are plausible… The reason why accused went into crime from the contents of exhibit P6 is that Godwin enticed him with suggestion that he had possibility of getting higher income. The likelihood of higher income could constitute allurement into crime… The fact that the 2nd accused came to the station when he received message from the investigating police officers is not evidence of innocence. In my opinion the contents of exhibit P6 is direct, positive and unequivocal with regard to the role he played in the armed robbery operation…..”
On the first count of conspiracy, the learned trial judge held:
“Prosecution has established with cogent evidence that the second accused accompanied the 1st accused to perpetrate the crime. I am satisfied that the prosecution has proved the offence of conspiracy to rob PWI whilst armed with firearms against the 1st and 2nd accused persons.”
Although the appellant herein did not appeal against this aspect of the judgment, the learned trial judge is right as conspiracy can be inferred from the conduct of the parties. If there are acts on the part of an accused person which lead the trial court to the conclusion that he and others were engaged in accomplishing a common object or objective, then conspiracy can be inferred. Kaza v. The State (2008) 7 NWLR (Pt. 1085) 125 @ 176. The fact that the appellant in his confession and from the evidence of other witnesses appeared at the scene of the crime to whisk the robbers away on his ‘okada’ is clear evidence that he and the others were engaged in accomplishing the common objective of robbing PW1. The fact that the appellant himself was not armed is immaterial as his collaborators were armed.
On the count of robbery, the ingredients of the offence which must be proved are as stated in the cases of Okeke v. The State 91995) 4 NWLR (Pt. 392) 676 and Okpulor v. The State (1990) 2 NWLR (Pt. 164) 581 are:-
i. That there was robbery or series of robbery
ii. That the robbers were armed with offensive weapons; and
iii. That the accused (appellant) was among the robbers.
All these ingredients were duly established in this case. From the totality of the evidence adduced at the trial and the confessional statement exhibit P6; the learned trial judge rightly convicted the appellant as charged. I find no merit in the appeal. It is hereby dismissed and the conviction is affirmed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading before now the judgment of my learned brother, Iyizoba, JCA just delivered. His Lordship has fully considered and comprehensively dealt with the issues raised in this appeal. I agree with the reasoning and conclusion that the appeal lacks merit.
I also dismiss it and affirm the conviction and sentence of the appellant by the lower court.
MOORE A. A. ADUMEIN, J.C.A: I read before now the judgment prepared by my learned brother CHINWE EUGENIA IYIZOBA, JCA. This appeal has been elaborately dealt with by His Lordship. I agree that the appeal is unmeritorious and I also dismiss it and abide by all the orders in the lead judgment.
Appearances
EKERETE UDOFOT ESQ. For Appellant
AND
STEVE ADEBOWALE ESQ., DDPP with LEO OLOGUN ESQ., ADCL, Ministry of Justice, Ondo State For Respondent
