SUNDAY OLOYEDE v. THE STATE
(2013)LCN/6595(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of December, 2013
CA/I/185D/2006
RATIO
EVIDENCE: WHETHER AN ACCUSED PERSON MAY BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
Now, it is settled law that, an accused person can be convicted solely on his confessional statement, because, a confessional statement which is an admission, may be likened to an admission against interest, and is generally considered as true. It therefore means that, a voluntary confession of guilt by an accused person is sufficient to warrant a conviction thereon, without any need for corroboration, if such statement is found to be direct,, positive, duly made and satisfactorily proved before the court. See Ikemson v. State (1989) 3 NWLR (Pt.110) P.455; Alarape v. State (supra); Ubierho v. State (supra) and Shurumo v. State (2010) 19 NWLR (Pt.1226) P.73. Thus, in the case of Adio & Anor v. State (2005) 4 A.C.L.R. p.296 at P.309 lines 39 – 310 line 14, Oputa, JSC stated the position clearly as follows:
How is a case proved beyond reasonable doubt? A case can be proved by direct oral evidence. If the testimony of a witness who saw and heard are believed, there will be proof beyond reasonable doubt. Circumstantial evidence can prove a case beyond reasonable doubt….. But far and above these two methods of proof is the voluntary confession of the accused himself. A free and voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to prove beyond reasonable doubt.. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such a conviction unless the trial court is satisfied that the case has been proved beyond reasonable doubt.”
However, before convicting on such confessional statement, it has now been considered desirable that the trial court should verify the statement together with other facts proved outside the confession, which makes it probable that the confession is true. In determining the issue, the trial court should ask:
“(a) Whether there is anything outside the confession-to show that it is true?
(b) Whether the statement is corroborated?
(c) Whether the statements made therein, as far as can be tested, true?
(d) Whether the accused person had the opportunity of committing the offence?
(e) Whether the confession is possible?
(f) Whether it is consistent with other facts which have been ascertained and which have been proved?” PER HARUNA SIMON TSAMMANI, J.C.A
WORDS AND PHRASES: CONFESSION
Now, Section 28 of the Evidence Act, Cap. E.14, Laws of the Federation (Evidence Act), 2011, defines confession as:
“an admission made at anytime by a person charged with a crime, stating or suggesting inference that he committed that crime.”
A confession is therefore, first of all an admission, and an admission is defined in Section 20 of the Evidence Act, 2011 as a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue, by any of the persons, and in the circumstances, mentioned in the Act. It therefore means that, an admission which suggests or may lead to the inference that a person has committed a crime, need not be in writing. It may be oral or by conduct, but for such admission to amount to a confession in a criminal trial, must be made by a person charged with a crime. In real sense the statement is usually made before such a person is “charged”. In most cases, such statements amounting to confessions are made in writing at the time the persons is “accused” of commission of the offence, and before he is “charged.” The bottom line however, at least for the purposes of this case, is that, a free and voluntary confession of guilt by an accused person, if direct and positive, and is duly made and satisfactorily proved, it is sufficient to warrant a conviction without any corroborative evidence, so long as the trial court is satisfied of the truth of the confession. See cases of Salawu v. The State (1971) N.M.L.R. P.249 at 626 – 627; Obosi v. The State (1965) N.M.L.R. P.119; Appolo v. The State (1976) 11 S.C. P.135 at 141 and Alarape & 3 Ors. v. The State (2001) 84 L.R.C.N. P.600 at 623. PER HARUNA SIMON TSAMMANI, J.C.A
CRIMINAL PROCEEDING: BURDEN OF PROOF
It is now settled law in our jurisprudence, that need no citing of any authority that, the burden of proof of an allegation of crime rests squarely on the person or body making the accusation, which in legal parlance is known as the prosecutor.
This legal principle has now been given constitutional and statutory stamp by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and 135(1) and (2) of the Evidence Act, 2011. Thus, against the background of presumption of innocence guaranteed to a person accused of having committed an offence, and the rule that he who asserts must prove, the general burden of proving the guilt of the accused rests permanently on, the prosecution. That general or legal burden required of the prosecution never shifts and must be discharged beyond reasonable doubt. See also Woolmington v. D.P.P. (1935 A-C P.462; Onafowokan v. State (1987) 3 NWLR (Pt.16) P.538 and State v. Ajie (2000) 7 S.C. (Pt.1) P.24. See also Cyril Areh v. C.O.P. (1959) W.R.N.C.R. P.230 at 231. PER HARUNA SIMON TSAMMANI, J.C.A
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
SUNDAY OLOYEDE Appellant(s)
AND
THE STATE Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court, Abeokuta Judicial Division, delivered by Ayobode Lokulo-Sodipe, J (as he then was) on the 14th day of January, 2003. Therein, the Appellant and three others were convicted for the offences of conspiracy and armed robbery, which are offences under Sections 5(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990 (as amended). The Appellant was consequently sentenced to death.
The Appellant was said to have conspired with three others to rob the Elf Filling Station, along Abeokuta/Lagos Road of a Lister Electricity Generator on the 23/10/2000. In the process of committing the robbery, one of the security men guarding the Filling station was hit on the head with an iron rod, which resulted in his death. The other security man was also hit with the iron rod which broke his femur. The Appellant and his co-accused all pleaded not guilty to the charge.
At the trial, the prosecution called eleven (11) witnesses and tendered thirteen (13) Exhibits, which included the extra-judicial statement of the Appellant, which the learned trial judge adjudged to be confessional. At the close of the prosecution’s case, the Appellant, and indeed the other accused persons, rested their case on the prosecution’s case. After very brief addresses of counsel, the learned trial judge, in a considered judgment found the charges proved against them and sentenced each of them to death. The Appellant, not unexpectedly filed this appeal against the said conviction. :
The original Notice of Appeal contained in page 78 of the Record of Appeal was dated the 20/1/2003. However, the Appellant was granted an extension of time to file the Notice of Appeal out of time, vide motion on Notice dated 30/4/2010 and filed 04/5/2010, as the date of filing of the first Notice of Appeal dated 20/1/2003 could not be established from the court records. The said motion was taken and granted on the 4/10/2010. This appeal was consequently heard on the Notice of Appeal dated and filed the 04/10/2010 but deemed filed 04/10/2010. The said Notice of Appeal is comprised of ten (10) Grounds of Appeal. For ease of reference, I endeavour to reproduce them (but without their particulars) below:- “Ground One
The learned trial judge misdirected himself when he found that Exhibits “E” and “H”, the statements of the Appellant, (as the 4th accused person at the trial) were confessional statements, and proceeded to convict him based on those statements.
Ground Two
The learned trial judge erred in law when he convicted the Appellant whereas the prosecution did not prove the necessary mens rea of the offence upon which the Appellant was charged.
Ground Three
The learned trial judge misdirected himself when he found the Appellant guilty of the offence of armed robbery when the prosecution did not prove the charge beyond reasonable doubt against the Appellant.
Ground Four
The learned trial judge erred in law in convicting the Appellant for armed robbery when the facts proved in the case did not disclose a case of armed robbery against the Appellant.
Ground Five
The learned trial judge erred in law when he held that “each of the accused persons in the statements not only fixed himself to the scene of the crime at the Elf Filling Station but each of them also disclosed in detail the role he played at the scene” and proceeded to convict the Appellant on his statement, which he found to be confessional, when indeed, Appellant’s statements, as well as those of his co-accused exculpated him of guilt in the offence.
Ground Six
The learned trial judge misdirected himself when he proceeded to convict the Appellant of the capital offence of armed robbery when the Appellant was not provided with quality legal defence in his trial.
Ground Seven
The learned trial judge erred in law in convicting the Appellant despite the contradictions in the testimony of the prosecution witnesses resulting in the prosecution not proving the case against the Appellant beyond reasonable doubt.
Ground Eight
The learned trial judge erred in law in assuming jurisdiction to try and convict the Appellant on information laid by the Attorney-General of Ogun State for an offence created by an Act of the National Assembly, which charge or information is ultra vires, null and void.
Ground Nine
The learned trial judge erred in law in convicting the Appellant despite the contradictions in the testimony of the prosecution witnesses, resulting in the prosecution not proving the case against the Appellant beyond reasonable doubt.
Ground Ten
That the decision of the lower court is unreasonable and cannot be supported by any evidence adduced before the court.”
As required by the Rules of this Court, parties filed and exchanged briefs of Arguments. The Appellant’s Brief of Arguments is dated the 01/11/2010 and fifed the same day. It was deemed fifed on the 09/4/2013. Four issues were formulated therein for determination, as follows:
1. Whether the Attorney General of Ogun State can prosecute the Appellant for an offence of armed robbery under the Robbery and Firearms (Special Provisions) Act, Cap. 398, LFN, 1990 without express delegation or a fiat from the Attorney-General of the Federation?
2. Whether the prosecution has proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt?
3. Whether the prosecution has proved the offence of armed robbery against the Appellant beyond reasonable doubt?
4. Whether the court can safely convict the Appellant based on the contradictory evidence of PW1 whose statement was not tendered in court?
The Respondent’s Brief of Arguments is dated the 09/4/2012 and filed the 21/5/2012 but refilled the 9/4/2013. Four issues were also nominated for determination by the Respondents as follows:
(i) Whether the Attorney-General of Ogun State can prosecute the Appellant for the offences of armed robbery under the Robbery and Firearms (Special Provisions) Act, Cap. 398, LFN 1990, without the fiat of the Attorney-General of the Federation.
(ii) Whether the learned trial judge rightly convicted the Appellant of the offences of conspiracy to commit armed robbery.
(iii) Whether the prosecution proved the offence of armed robbery against the appellant beyond reasonable doubt.
(iv) Whether there were any material contradictions in the evidence of the prosecution witnesses which are fatal to the prosecution’s case.
It would be seen that issues 1, 2 and 3 formulated by the Respondent are substantially the same as issues 1, 2 and 3 formulated by the Appellant, word for word. Issue 4 formulated by the Respondent, though differently couched is the same in substance with issue 4 formulated by the Appellant. In that respect, I shall determine this appeal on the issues as formulated by the Appellant.
Arguing issue one (1), which is formulated from Ground Eight (8) of the Notice of Appeal, learned counsel for the Appellant contended that, the arraignment and prosecution by the Attorney-General of Ogun State for the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation, a Federal Legislation without express delegation or specific fiat from the Attorney-General of the Federation is ultra vires, unconstitutional and a nullity. The cases of Amadi vs. FRN (2008) 7 WRN 37, Anyebe v. State (1986) 1 NWLR (Pt.14) P.483; A-G Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) P.483 and Section 1(1), 174 and 211 of the 1999 Constitution of the Federal Re4public of Nigeria were cited in support. That by the combined effects of Sections 174 and 211 of the 1999 Constitution (supra), only the Attorney-General of the Federation can prosecute a person in respect of an offence created by Federal legislation, while similar power is granted the Attorney-General of a state with respect to offences created by any Law of the House of Assembly of a state, save where there is express delegation of authority from one to another. Learned counsel then quoted and relied on Sections 174, 211 of the 1999 Constitution and 315 of the 1999 Constitution (supra) to further submit that, Robbery and Firearms Act (supra) has been preserved as an existing Law of the Federation and therefore only the Attorney-General of the Federation has the power to prosecute a person under the Act.
It was also submitted by learned counsel for the Appellant that, there is nothing to indicate on the records that, the Respondent had the fiat of the Attorney-General of the Federation to file the Information upon which the Appellant was tried and convicted. That it was indicated in the letter forwarding the Information that, the Information was forwarded pursuant to Section 4 of the Tribunals (Certain Consequential Amendments, etc.) Decree, 1999 and Section 277(B) of the Criminal Procedure Law of Ogun State. Learned counsel accordingly submitted that, the said Tribunals (Certain Consequential Amendment, etc.) Act, 1999 is an Act of the National Assembly and therefore cannot displace Constitutional Provisions as cited by him. That in the absence of a fiat, the Information proffered against the Appellant upon which he was tried and convicted is ultra vires, incompetent, null and void. We were accordingly urged to hold that the arraignment, trial and conviction of the Appellant by the Attorney-General of Ogun State are a nullity.
Learned counsel for Respondent submitted that, the case of Anyebe v. State (1986) 1 NWLR (Pt.141) P.39 heavily relied upon by the Appellant and the other cases are not on all fours with the instant case, though he did not try to distinguish those cases. Rather learned counsel for the Respondent relied heavily on the case of Tanko v. State (2008) 16 NWLR (Pt.597) at 645 paragraphs D – F, to submit that, the argument of learned counsel for the Appellant in this appeal is the same as the arguments canvassed by the Appellant in Tanko v. State (supra). That the arguments of the Appellant were dismissed in that case. We were accordingly urged to adopt the decision of the Supreme Court in Tanko v. State (supra) and to resolve this issue in favour of the Respondent.
In resolving this issue, I have reminded myself that, the Constitution is the Supreme Law of Nigeria. It is the organic or fundamental Law from which other Laws or actions of government, either executive, legislative or judicial derive their legitimacy. It is the grund norm, consequently its provisions are supreme, and any action taken either by the executive, legislative or judiciary which infringes or runs contrary to any of its provisions will be deemed void or a nullity as it will be inconsistent to the Constitution. See Section 1(1) and (3) of the 1999 Constitution (as amended). See also A-G Ogun State v. A-G. Federation (2002) 18 NWLR (Pt. 798) P.232; Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) P.251 and Fasakin Foods (Nig.) Ltd. v. Shosanya (2006) 10 NWLR (Pt. 987) p.126
The 1999 Constitution (supra) has provided separately, for legislative powers of the Federal and State Governments. Thus, Section 4(1), (2), (3) and (4) of the Constitution (supra) has expressly provided for the scope of the legislative powers of the National Assembly, while that of the House of Assembly of a State has been stipulated in the said Section 4(6) and (7) of the Constitution (supra). It should however be noted that before the coming into force of the 1999 Constitution on the 29/5/1999, certain laws had been made by both the Federal and State Governments. Thus, Section 315 of the Constitution has saved such Federal or State Laws made by either the National Assembly or the House of Assembly of a state, save those which are found or considered as being inconsistent with other provisions of the constitution. such existing Laws are defined in Section 315(4)(b) as meaning, dry law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date. Such existing law as defined above could be deemed either a Federal or State Law. The deciding factor is whether the subject matter lies within the exclusive competence of the National Assembly or a State House of Assembly; or whether it is within the concurrent powers of both the National and state Assemblies.
Before I finally resolve this issue I find it pertinent to reflect on the cases cited and relied on by the Appellant. I shall do that before I tie the principles stated above to the facts of this case and arguments of counsel. In the case of Amadi v. F.R.N (supra), the appellant therein was arraigned before the Lagos state High Court on a five count charge of attempt to obtain money by false pretenses, forgery and uttering forged documents which are offences contrary to various provisions of the Advance Fee Fraud and other Related Offences Act, Cap. 46, Vol.1, Laws of the Federation of Nigeria, 2004 and under the Criminal Code Law, Laws of Lagos State of Nigeria, 2003. On appeal to this court, it was argued, inter alia, whether the Lagos State High Court was competent to assume jurisdiction to try the offences charged under the Advance Fee Fraud and other Related Offences Act (supra); and whether the Attorney-General of the Federation or any other Federal Agency (in that case EFCC) can validly file and undertake any Information in respect of offences created by the House of Assembly without the fiat of the Attorney-General of the state having been given. Galinje, JCA restated the powers of Attorney-General of the Federation and of a State under Sections 174(1)(a) and 211(1)(a) of the Constitution.
His Lordship accordingly held that, in respect of offences created by or under the Laws of the House of Assembly of a State, for the Attorney-General of Lagos State and/or the E.F.C.C. to institute and undertake Criminal Proceedings against the Appellant in that case, the fiat of the Attorney-General of Lagos State must be sought and obtained by the Federal Agency concerned with the prosecution of such an offence. In other words, that the Attorney-General of the Federation and the Chairman of E.F.C.C. as a Federal Agency could not validly file any Information in respect of the offences created by the House of Assembly of Lagos State unless that power has been delegated to them by the Attorney-General of Lagos State. In that case, it was found that such fiat had been given. It should be noted here that the case did not decide on the powers of the Attorney-General of a state to prosecute the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act (supra). The case is however relevant to the extent that, it illuminated on the general principles applicable to the powers of the Attorney-General of the Federation or of State to prosecute offences created under a Federal or State Legislation.
The case of Attorney-General of Kaduna State v. Hassan (supra) dwelled on whether or not the Solicitor-General of a state can validly exercise the powers of the Attorney-General to enter a nolle prosequi; and whether the father of a victim of an unlawful killing has the locus standi to institute an action challenging the competence of a Solicitor-General to discontinue a Criminal trial or persons charged with the killing of his son. The case had nothing to do with nor did it pronounce on the power of the Attorney-General of a state to prosecute for the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act (supra).
In the case of Anyebe v. State (supra), the Appellant was charged before the Benue State High Court, by the Attorney-General of Benue State for the offence of unlawful possession of Firearms contrary to Section 4 and punishable under Section 28 of the Firearms Act as amended by the Firearms Act (Amendment) Act, No. 31 of 1966. It was found by the Supreme Court that, the offence for which the Appellant was charged arose under a Federal Law and therefore a Federal offence, consequently, the Attorney-General of Benue State had no competence to prosecute him under that Law, until and unless his prosecution was expressly authorized by the Federal Attorney-General. Here again, the dichotomy between the powers of the Attorney-General of the Federation and the Attorney-General of a state with respect to prosecution of Federal and state offences was spelt out by the Supreme Court.
The above cited cases by learned counsel for the Appellant clearly brought out the powers of instituting charges in respect of Federal and state offences. The issue that now agitates my mind is whether the offence of armed robbery is an offence created in the exercise of the exclusive powers of the National Assembly. This is in view of the provision of Section 4(2) and (3) of the 1999 Constitution (supra) which stipulates that:
“4(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative list shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly States.”
It is trite law that where the subject matter of the legislation is listed in the exclusive legislative list to the Constitution, no problem arises. See also Section 4(7) of the 1999 Constitution (supra).
Section 4(4) and (7)(b) give both the Federal and State Assemblies powers to legislate with respect to any matter in the concurrent legislative list as set out in the first column of part I of the 2nd Schedule to the Constitution. The only difference is that the Law made by the State House of Assembly should not be inconsistent with that validly made by the National Assembly on the same subject matter, otherwise that made by the State Assembly shall be void for inconsistency with that validly made by the National Assembly. See Section 4(5) of the Constitution. In the instant case, the offence of armed robbery or indeed Criminal Law generally is not listed either in the Exclusive or in the Concurrent Legislative Lists. Thus, in the case of Ikechukwu Okoh v. The State (2008) LPELR – 8352, Lokulo- Sodipe, JCA stated that:
“The 1999 Constitution has corresponding provisions to those of Section 274(1)(b) and 4(b) of the 1979 Constitution. The provisions in this regard are contained in Section 315(1)(b) and (4)(b) of the said 1999 Constitution. Applying the authority of Emelogu v. The State (supra) to the case on appeal (particularly as “Robbery” per se remains a residuary matter under the 1999 Constitution; I accordingly and comfortably too, hold that Decree No. 5 of 1984, Cap. 398, became a State Law upon the coming into operation of the
1999 Constitution on 29th May, 1999. This being the case, the question that the Attorney-General of Niger State or officers of his department had no locus standi to have instituted the case on appeal against the Appellant as the offences with which he was charged are Federal offences has no basis. The 1999 constitution in Section 211 eminently vests the Attorney-General of Niger State with power ,to institute and undertake criminal proceedings against any person before any court of law in Nigeria (other than a Court-Martial) in respect of any offence created by or under any law of the House of Assembly such as Decree No. 5 of 1984, Cap. 398, now is.”
It would appear that the locus classicus on the matter is the case of Tanko v. State (2009) 4 NWLR (Pt. 1131) p.430. In that case, the Supreme Court was called upon to determine whether this Court was right to have held that the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act, Cap. 398, not being in the exclusive and concurrent legislative list is a state offence and can be prosecuted by the Attorney-General of the state. Delivering the lead judgment, Aderemi, JSC held that, by virtue of Section 14(2)(b) or the Constitution of the Federal Republic of Nigeria, 1999, the Federal and State Governments can legislate in respect of robbery. The Law Lord of the Supreme Court also referred to the Rules of Procedure, and power to institute proceedings under Section 9 of the Robbery and Firearms (Special Provisions) (as amended) and Section 2(1) and (2) of the Tribunals (Certain Consequential Amendment etc.) Decree No. 62 of 1999, to hold that, the High Court of a state has jurisdiction to try the offences of armed robbery. He accordingly concluded thereon as follows:-
“From the provisions quoted supra, the only conclusion which must be reached and which I now reach is that not only does a state High Court have jurisdiction to try cases relating to armed robbery, the officials of the Ministry of Justice of a State are eminently qualified to prosecute the offence of armed robbery in any High Court of a state. Let me also add that it will even be incongruous to the concept of federalism, which we practice, to contend otherwise.”
In his contribution, His Lordship Tobi, JSC quoted the dicta of Eso, Nnamani, Karibi-Whyte and Nnaemeka-Agu, JJSC in Emelogu v. The State (1988) 2 NWLR (Pt.78) P.524, and finally held that:
“It is my view that Section 9(2) is clearly against the appellant, as there is no trace of the Federal Attorney-General in the subsection. By the subsection, it is exclusively an affair of the state Attorney-General. I am of the view that the Federal Attorney-General is not competent to prosecute the appellant.”
Finally on this issue, Onnoghen, JSC in the case of Amoshima v. State (2011) 14 NWLR (Pt.1268) P.530 at 556 – 559, referred to the case of Tanko v. The State (supra) in coming to a conclusion that, a state high court had jurisdiction to try cases relating to armed robbery, and that invariably, the state Attorney-General and his officials have power to prosecute the offences of armed robbery in the High Court of a state. It was further held that by Parts 1 and II of the Second Schedule to the Constitution, the offence of armed robbery is neither in the exclusive or concurrent lists, but under the residual matters, and therefore, within the legislative competence of a State House of Assembly.
From the authorities cited above, it would appear that the matter has been settled to finality by the Supreme Court to the effect that, the offence of armed robbery being a residual matter in the Legislative Lists contained in the Constitution, the Robbery and Firearms (Special Provisions) Act (supra), is deemed an existing of Law of a State by virtue of Section 315 of the 1999 Constitution. Consequently, an Attorney-General of a State or officials under his office have the power to institute and undertake the prosecution of the offence of armed robbery under Robbery and Firearms Act (supra).
Accordingly, this issue is resolved against the Appellant.
The 2nd issue is whether the prosecution has proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt. This issue has been distilled from Ground 5 of the Notice of Appeal. Arguing the issue, learned counsel for the Appellant cited the cases of Shadiya v. State (1992) 3 NWLR (Pt.230) P.457; Gbadamosi v. State (1991) 6 NWLR (Pt.196) P.182; and Ikemson v. State (1989) 3 NWLR (Pt.110) P.455, to submit that, the offence of conspiracy consists in the agreement between two or more persons to commit a specific crime. That to prove the offence of conspiracy, the prosecution must prove that accused and others agreed to commit an offence. The material contents of Exhibit E were reproduced to contend that the learned trial judge relied heavily on the said statement as confession of the crime, to convict the Appellant of armed robbery.
It was further contended by learned counsel for the Appellant that the statement of the Appellant and those of the other accused persons disclosed that the other accused persons merely conspired the theft of an Electrical Generator but did not agree or plan to use offensive weapons or violence in their bid to steal the said generator as they did not envisage any opposition having earlier secured the cooperation of the Security guards manning the Filling Station in advance. That the Appellant was only a commercial driver hired to convey them to the place of theft. That in any case, in the ordinary course of events, tools such as spanners, wrench and other iron fabricated tools are required to remove a generator from its installed site. That all the other accused persons charged with the Appellant testified that the Appellant stayed back in the vehicle while the rest went into the Elf Filing Station on the night of the robbery. It was also contended that the Appellant was not part of the decision to intimidate or use offensive weapon and to inflict violence on the guards manning the Filling Station, but that violence was a spontaneous act of the other accused persons. That there was therefore no mens rea on the part of the Appellant for the conspiracy to commit armed robbery.
It was therefore submitted by learned counsel for the Appellant that the conviction and sentence of the Appellant for the offence of conspiracy to commit armed robbery is not supported by the evidence before the trial court. That Exhibit E relied on by the prosecution did not admit the offence charged. That at worst it merely contains facts admitting conspiracy to commit theft and not a direct, positive and unequivocal admission of conspiracy to commit robbery as charged. The cases of Okeke v. State (1999) 2 NWLR (Pt.590) P.246 at 271 and R v. Barnard Vol. 70 Cr. App. Reports P.28, were cited to submit that once an appellant does not positively admit the essential elements or facts of the offence charged, a conviction cannot be based on such a confession. We were then urged to resolve this issue in favour of the Appellant.
The Respondent’s learned counsel contended that it has been held that the offence of conspiracy is the agreement by two or more persons to do or cause to be done illegal act or a legal act by illegal means. That it is the agreement alone that constitutes the offence and it is not necessary to prove that the act has infact been committed. See Obiakor & Anor v. State (2002) 6 S.C. (Pt.II) P.33 at 39 and Abacha v. State (2002) 7 S.C. (Pt.1) P.50. Learned counsel then submitted that, a perusal of the statement of the Appellant (Exhibit A) shows that the Appellant admitted that he was part of the four man gang that robbed the Elf Petrol Station on the 23/10/2000 wherein one of the night guards was killed. That the said statement was admitted without objection and therefore deemed to have been voluntarily made. Furthermore, that the 1st accused, one Segun Ajibade admitted in his own statement (Exhibit A) that he had hit the guard with an iron rod on the head and that it was the iron rod the said Segun took into the bus. It was therefore submitted that, the Appellant being aware of the presence of the iron rod, which is a dangerous weapon, cannot be heard to say that he did not anticipate any violence or that he was not part of the conspiracy to injure or kill anyone who disturbed them. The case of Tanko v. State (supra) at P.638 paragraphs G-H was cited to further submit that the trial court was entitled to infer conspiracy and to convict on it if he was satisfied from the evidence that the accused persons pursued, by their acts, their objective, by performing acts so as to complete their unlawful design.
Learned counsel for the Respondent went on to submit that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for the outcome of their acts, in the same manner as if it was done by him alone and that it does not matter which of them did what. That it cannot be denied that beating or hitting anybody that interfered with their operation of stealing the generator was not a probable consequence of their act. That an act of simply “robbery” can be transformed into “armed robbery” if violence is used at or immediately after the robbery or if the offender is armed with an offensive weapon or is in the company of a person armed. That the Appellant did not give evidence at the trial but rested his case on that of the prosecution and therefore the trial court was free to accept the uncontradicted evidence of the prosecution that all the accused persons, including the Appellant, acted in concert towards an unlawful purpose. The case of Igbo v. State (1978) 3 S.C. P.87 was cited in support. We were then urged to resolve this issue against the Appellant but in favour of the Respondent.
It is now settled law in our jurisprudence, that need no citing of any authority that, the burden of proof of an allegation of crime rests squarely on the person or body making the accusation, which in legal parlance is known as the prosecutor.
This legal principle has now been given constitutional and statutory stamp by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and 135(1) and (2) of the Evidence Act, 2011. Thus, against the background of presumption of innocence guaranteed to a person accused of having committed an offence, and the rule that he who asserts must prove, the general burden of proving the guilt of the accused rests permanently on, the prosecution. That general or legal burden required of the prosecution never shifts and must be discharged beyond reasonable doubt. See also Woolmington v. D.P.P. (1935 A-C P.462; Onafowokan v. State (1987) 3 NWLR (Pt.16) P.538 and State v. Ajie (2000) 7 S.C. (Pt.1) P.24. See also Cyril Areh v. C.O.P. (1959) W.R.N.C.R. P.230 at 231.
Now, the offence of conspiracy to commit armed robbery has been legislated against or provided for under Section 5(b) of the Robbery and Firearms (Special Provisions) Act (supra). It provides as follows:
“5. Any person who –
(a)………. :
(b) conspires with any person to commit such an offence, whether or not he is present where the offence is committed… shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”
It would be seen that the Act does not define what .conspiracy is. That being so, the Courts in this country have had to have recourse to the definition as espoused from our case law. In most cases such definition have been adopted from that applied in the interpretation of the Penal Code and the Criminal Code. Thus, in the case of Ubierho v. State (2005) NWLR (Pt.919) P.644 at 658, Katsina-Alu, JSC (as he then was) defined conspiracy in these words:
“This court has held that where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
His Lordship, Iguh, JSC on his part in the case of Alarape & Ors. v. The State (2001) 5 NWR (Pt.705) P.79 at 102 – 103 said that:
“The point needs he emphasized in these sorts of cases is that, once its firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose and in the prosecution of such purpose, an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose is committed, each of them is deemed to have committed the offence. In such circumstances the courts, once the execution of the common intention or design is established, would be right in asserting that it did not matter on such facts which of the accused persons did what. That is for the simple reason that under such circumstances, a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the taw to have been given by the rest of his co-accused persons. The person actually delivering the blow is said to be no more than the hand by which the others strike.”
Based on definitions such as stated above the Supreme Court and indeed this Court, have held in a plethora of cases that, to prove conspiracy, the prosecution must lead credible and cogent evidence showing that there was an agreement between two or more persons to do or course to be done an illegal act or an act which, though not illegal, by unlawful means; and that each of the conspirators participated in the conspiracy. Thus to prove the offence of conspiracy to commit armed robbery, it must be proved beyond reasonable doubt, by credible evidence that:-
(a) There was an agreement between the accused, in this case, the appellant and others to commit the offence of robbery or armed robbery;
(b) In furtherance of the agreement, the accused took part in the commission of the robbery or series of robberies; and
(c) The robbery or each of the robbery was an armed robbery.
It would be seen therefore that, the gist of the offence of conspiracy lies not in the doing of the act or the purpose for which the conspiracy has been hatched, but in the forming of the agreement between the parties.
The overt acts of the conspiracy is the evidence by which the mutual consent of the common agreement may be proved. See Nwankwo v. F.R.N. (2003) 4 NWLR (Pt.808) P.1. The agreement to commit the unlawful act is therefore the dominant factor in the offence of conspiracy, as once it is proved, the fact that the actual offence has not been committed is of no moment, as the actual commission of the offence may be aborted at the last moment. See Kaza v. State (2008) 7 NWLR (Pt.1085) P.125; Usufu v. State (2007) 1 NWLR (Pt.1020) P.94, Ojo v. F.R.N. (2008) 11 NWLR (Pt.1099) P.467; Gabriel v. State (2010) 6 NWLR ([Pt.1190) P.280 and Sule v. State (2009) 17 NWLR (Pt.1169) P.33. See also Garba v. C.O.P. (2007) 16 NWLR (Pt.1060) P.378 and Abdullahi v. State (2008) 17 NWLR (Pt.1115) P.203. Thus, Omoleye, JCA put the matter succinctly in the case of Ojo v. F.R.N. (supra) at P.515 – 516 paragraphs in these words:
“The offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties; but before the doing of the act for which the conspiracy is formed. The proof of conspiracy is generally a matter of plausible inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose between them. This is because, it is generally recognized in law that in a charge of conspiracy, proof of the actual agreement which is an essential ingredient of the crime is not always easy to come by. Thus, the fact that there was no positive evidence of any agreement between the accused persons to commit the offence is not enough to hold that the purpose cannot reasonably be inferred from the said visits of the appellants.”
The totality of what has been shown from the law on conspiracy as found above is that, conspiracy is a matter which can be inferred from the facts of doing things towards a common purpose, as in most cases, there is no direct evidence in support of the agreement between the accused persons. The essential thing a court of law should look for in a trial for conspiracy to commit an offence is the bare agreement and association amongst the conspirators to do an unlawful thing or act which is forbidden by law, whether or not the accused persons had knowledge of its unlawfulness. Indeed, the conspirators need not know each other and need not have met together to agree to commit the offence. What the law requires is evidence of unbroken chain of events linking the conspirators in the agreement to commit the offence. All the law requires of a trial court is to make inferences from the proved facts, so as to see whether the accused persons had a common intention and a common purpose. This is because; in most cases, the conspiracy is shrouded in utmost secrecy, and the law has in that respect, recognized that direct evidence of the conspiracy is hard to come by. In other words, since the mens rea of the offence of conspiracy is not easy to locate, it is the actus reus of the offence, which are mostly overt, that inferences can be drawn from to locate the mens rea of a participant in the act of conspiracy. See Aituma v. State (2006) 10 NWLR (Pt.989) P.452; Kaza v. State (supra) at P.176 and Shurumo v. State (2010) 16 NWLR (Pt.1218) P.65.
The case against the Appellant in this case is that, he conspired together with Segun Ajibade, Ogbonna Ogbojionu, Kolawole Oladeji to commit the offence of armed robbery which is an offence contrary to Section 5(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (supra). In the determination of the offence the prosecution called eleven (11) witnesses and tendered a plethora of Exhibits most of which were the statements of the Appellant and his co-accused. In the resolution of the issue, the learned trial judge began by a consideration of the count which charged the Appellant and his fellow prisoners with the actual offence of armed robbery. Though the learned trial judge recognized that, proof of the actual offence of conspiracy does not depend on prove of commission for which the conspiracy is hatched, he was perfectly in law entitled to rely on the overt acts of the conspirators and infer the conspiracy. However, it would appear from the records, that the learned trial judge relied substantially on the confessional statements of the accused persons, including that of the Appellant in this case, to reach a conclusion that the charge of conspiracy was proved. I think it would be helpful if the relevant portion of the judgment is reproduced. The learned trial judge held at pages 75 line 31 – 76 line 30 as follows:
“In this case the 1st accused person in his confessional statements (i.e. Exhibits “k” and “A” respectively) disclosed that he was the one who went to inform Ogbonna about a business introduced to him by one Jide. The business he further disclosed tos (sic) to steal a generator at abandoned Filling Station at Abeokuta. He further disclosed that on 23/10/2010 himself, Ogbonna, Kolawole and Oloyede all left thlys (sic) for Abeokuta and that at Elf Filling Station along Abeokuta/Lagos Road they removed a generator. He disclosed in the Exhibit A that he was at least armed with an iron rod (sic) and that he used the same to hit one of the guards at the station. In Exhibit ‘J’ the 2nd accused person admitted that he accompanied the 1st accused to see a generator which he had earlier been requested to buy. In Exhibit ‘B’ he admitted this which further revealed that he had been sponsoring people to scout around for places where generator were been (sic) used. The 3rd and 4th accused persons too disclosed in their statements how they were recruited into the team of persons that went to the Elf Filing Station to remove a generator therefrom. The accused persons in their respective statements disclosed that they entered into the station by stealth. In particular they disclosed that the vehicle in which they travelled to the station where the generator was, was parked some distance therefrom and that it was not until they had loosened and secured the generator that the driver was summoned into the station with his vehicle and the generator placed on it. They also disclosed how they bought pure water for the purpose of concealing the generator.
Given the objectives of the accused persons which was to remove from the Elf Filling Station the generator thereat and the clandestine manner adopted by them for the purpose. I find the element or conspiracy that is agreement to commit an unlawful act, to wit: Steal the generator at the Elf petrol station established. As one of the accused persons pursuant to their agreement to steal the generator in question was not only armed with an iron rod but actually used the same on at least one of the guards at the station in the process of executing the objective of their agreement and which objective, I have earlier found they successfully accomplished…”
Now, Section 28 of the Evidence Act, Cap. E.14, Laws of the Federation (Evidence Act), 2011, defines confession as:
“an admission made at anytime by a person charged with a crime, stating or suggesting inference that he committed that crime.”
A confession is therefore, first of all an admission, and an admission is defined in Section 20 of the Evidence Act, 2011 as a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue, by any of the persons, and in the circumstances, mentioned in the Act. It therefore means that, an admission which suggests or may lead to the inference that a person has committed a crime, need not be in writing. It may be oral or by conduct, but for such admission to amount to a confession in a criminal trial, must be made by a person charged with a crime. In real sense the statement is usually made before such a person is “charged”. In most cases, such statements amounting to confessions are made in writing at the time the persons is “accused” of commission of the offence, and before he is “charged.” The bottom line however, at least for the purposes of this case, is that, a free and voluntary confession of guilt by an accused person, if direct and positive, and is duly made and satisfactorily proved, it is sufficient to warrant a conviction without any corroborative evidence, so long as the trial court is satisfied of the truth of the confession. See cases of Salawu v. The State (1971) N.M.L.R. P.249 at 626 – 627; Obosi v. The State (1965) N.M.L.R. P.119; Appolo v. The State (1976) 11 S.C. P.135 at 141 and Alarape & 3 Ors. v. The State (2001) 84 L.R.C.N. P.600 at 623.
The Appellant has contended that, even if his statement is to be regarded as a confession, it would not amount to confessing to armed robbery, but to stealing. Now, the offence of robbery is defined in Section
15(1) of the Robbery and Firearms (special provisions) Act, as:
“Stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
It therefore means that robbery per se is stealing through the actual use of or threat to use actual violence. Thus, even if violence is not preplanned n the actual act of stealing, it would still be robbery if in the actual execution of the theft, violence” is threatened or actually used. The term to “steal” is also defined in Section 15(1) of the Act, and for our purposes, the definition is not necessary. It suffices however to state that, the foundation of the offence of robbery is the existence of an act which amounts to stealing as defined in the said Section 15(1) of the Robbery and Firearms Act (supra). In robbery the act of stealing is not done stealthily, but under threat of or actual application of violence. If the violence used or threatened to be used is not with use of arms, it is “robbery” simpliciter, but where arms or other offensive weapon is used, it would be armed robbery. See Tanko v. State (2009) 4 NWLR (Pt.1131) p.430 at 459.
The learned trial judge had found that the statements of the accused persons, which included that of the Appellant were properly proved and he accordingly admitted them in evidence. Having admitted those statements in evidence, the learned trial judge was entitled to, as he rightly did, make use of them in determining the guilt of the Appellant. This is more so, as the statements were found to have been voluntarily made, since there was no objection when they were tendered. The learned trial judge was also entitled to utilize anything said or done by each of the conspirators in reference to the common intention of them all. By Section 8 of the Evidence Act, such thing said or done by a conspirator is a relevant fact as against each of the persons believed to be conspiring, for the purpose of proving the existence of the conspiracy as well as for the purpose of showing that any such person was a party to the conspiracy. See Aminu v. State (2005) 2 NWLR (Pt.909) P.180 at 196.
The learned trial judge had aptly utilized the statements of the Appellant’s co-conspirators, as well as that of the Appellant to find that the fact of conspiracy had been established. The Appellant himself gave a graphic picture of how he was recruited into the whole scheme and the role he played in the execution of the whole plot. He stated that he was recruited by Kolawole and Segun (3rd and 1st accused) into the circle or gang of robbers. He also admitted that he knew about the business of the gang and that he was part of them. As would be shown later in the course of this judgment, one of the conspirators was armed with an iron rod in the course of execution of the common purpose, to steal the generator at the Elf Filling Station, which he used on one of the guards, leading to his death. It cannot therefore be argued, as done by the Appellant that, he joined the gang to steal only, but not to rob. Surely, having joined the gang whose common purpose was to steal, but actual violence resulted from the act of one of his co-conspirators, the act of such a person is, in law, applicable to or ascribable to him as if he had struck the blow. That is the law and the Appellant cannot extricate himself from culpability. The end result is that the learned trial judge, at least in my view, rightly found the Appellant culpable of the crime of conspiracy. I accordingly resolve this issue, also against the Appellant.
Having read issues three (3) and four (4) as formulated by the Appellant, I am of the view that the issues dove-tail into each other. Accordingly, I shall resolve them together. Arguing the issues, learned counsel for the Appellant referred to Section 1(1) and 1(2)(a) of the Robbery and Firearms Act (supra) and the case of Adeosun v. State (2007) 46 W.R.N. P.1 at 27, to list the ingredients required to prove the offence of armed robbery as:
“1. That there was robbery or series of robberies;
2. That the accused person was armed with offensive weapon during the course of the robbery; and
3. That the accused person took part in the said robbery.”
On the first ingredient, it is the contention of learned counsel for the Appellant that, the prosecution failed to establish that there was a robbery at Elf Filling Station. That no report of the robbery was placed before the court and that no evidence was led by Elf Filling Station as to the ownership of the Lister Generator purportedly recovered by the Police. That no receipt or other form of ownership was tendered and that the person to whom the generator was released was one Olukoya Adedolapo, and not Elf Filling Station nor was there nexus shown between Olukoya Adedolapo and Elf Filling Station. He then referred to the definition of robbery in Section 15(1) of the Robbery and Firearms Act (supra) and the case of Onagoruwa v. State (1993) 7 NWLR (Pt.303) P.61, to submit that the prosecution failed to prove beyond reasonable doubt that the Lister Generator was in existence before it was allegedly stolen.
It was also submitted that, the prosecution failed to prove beyond reasonable doubt that the Appellant or any person with him was armed at the time of commission of the offence, and that the Appellant formed an intention or was in agreement with other co-accused persons to be armed or to use offensive weapon in stealing the said Electricity Generator at Elf Filling Station. That the evidence led by the prosecution is that the crime the Appellant agreed to commit or contemplated by him was stealing of a generator, for which the Appellant drove with the other co-accused to Abeokuta. That at the scene, he stayed in his bus which was packed away from the scene and so the Appellant was not with the other co-accused at the moment of stealing the generator. It was therefore submitted that the accused was not a party to the decision to use threat or offensive weapon to inflict violence or wound the guards on duty. That the use of violence with an offensive weapon was a spontaneous act of the other accused persons who were present at the moment of the alleged robbery. The case of Akinkunmi v. State (1987) 1 NWLR (Pt.52) P.608 and a number of English cases were cited in support.
It was contended on the 3rd element by the Appellant that, the prosecution failed to prove that he participated in the robbery charged. That the prosecution retied on the statements of the Appellant to the police admitted in evidence as Exhibits “E” and “F’, which the learned trial judge relied on to make a finding of guilt against the Appellant. That the said exhibit is not a confession by the Appellant that he committed the offence of armed robbery as charged. That in any case, there was nothing in those statements showing that the Appellant admitted participating in the alleged robbery. It was accordingly submitted that, for Exhibit ‘E’ to constitute a confession, the facts contained therein must show positively, directly and unequivocally that the Appellant admitted all the essential facts that constitute the offence charged. In other words, said the Appellant, the statement must contain admission that he conspired with others to steal the generator at Elf Filling Station; that he approved of the use of force or intimidation in the act of stealing; and that he knew that his confederates were armed and intended to use the arms when necessary. We were urged to resolve that the prosecution failed in that regard and to resolve the issue in favour of the Appellant.
It was also the case of the Appellant that the testimonies of PW1 and PW2 contradict each other. He quoted from the testimonies of those two witnesses to contend that, while PW1 said he witnessed the robbery incident, PW2 stated that PW1 made a statement to him, in which he denied having knowledge of the robbery incident. That the contradiction is material as to render the evidence unsafe as a ground for conviction of the Appellant, because it is an essential element which must be proved that, there must have been a robbery. The cases of Obade v. State (1991) 6 NWLR (Pt.198) P.435; Agbo v. State (2006) 6 NWLR (Pt.997) P.545; Edogbo v. State (2004) 5 NWLR (Pt.865) P.17 and State v. Danjuma (1997) 5 NWLR (Pt.506) P.512 were cited in support. It was therefore contended that, the contradiction in the evidence of PW1 before the court and that of his statement to the police is so substantial and fundamental to the issue of whether or not there was robbery at Elf Filling Station on the night in issue. That it strikes at the basis of this case, and which doubt should be resolved in favour of the Appellant. We were then urged to resolve the doubt the contradiction has created in favour of the Appellant.
Arguing on this issue, learned counsel for the Respondent cited the case of Bozin v. State (1985) 2 NWLR (Pt.8) P.465 on the essential elements that needs be proved in a charge of armed robbery. It was then contended that, in order to see whether the essential elements of armed robbery were proved or not, recourse must be had to the evidence adduced before the lower court. He then referred to the testimony of PW7, PW1, Exhibits C & C1 (bonds to produce) and the statement of the Appellant; Exhibits “E” and “H”, to submit that there was ample evidence on record to show that there was robbery as charged. That the Appellant admitted being one of the gang of robbers that robbed Elf Filling Station of a generator and subsequently sold same to a white man; and the proceeds of sale shared amongst them. It was also contended that the argument of the Appellant that the prosecution has not proved the existence of the Lister Generator or that it belonged to Elf Filling Station is not based on the uncontroverted evidence on record.
Reference was also made to the testimonies of PW7, PW8 and the statement of the Appellant made to the police and admitted as Exhibit “H”, to submit that a case of armed robbery was proved against the Appellant beyond reasonable doubt. That despite the overwhelming evidence against them, the Appellant and his confederates chose not to give evidence, but rested their defence on the case as presented by the prosecution. He then cited the case of Ali v. State (1988) 7 NSCC P.14 at 22 and Igbo v. State (1979) 3 $.C. P.87 to submit that, the trial court was therefore free to accept the uncontradicted evidence of the prosecution witnesses, and to convict therein for armed robbery.
On the issue of contradiction raised, learned counsel for the Respondent contended that what the Appellant considers as contradiction is no contradiction at all because, what PW2 merely meant was that PW1 denied his knowledge of or participation of the crime. That in any case, it is only material contradictions that would tilt the scale of justice, and that if at all there were contradictions in this case, they were not material contradictions. The cases of Segun Ajibade v. State (unreported) Appeal No. CA/I/185A/2006 delivered on the 25/7/2011 per Alagoa; JCA (as he then was); Okere v. State (2002) 2 NWLR (Pt.697) P.397 at 414 paragraphs B – F; Ndidi v. State (2006) 17 NWLR (Pt.953) P.17 at 32 paragraphs D – F and Agbo v. State (2006) 2 S.C.M. P.1 at 10 – 11a 29 were cited in support. We were also urged to resolve this issue against the Appellant.
In the resolution of this issue, I find it pertinent to remind myself that, in every criminal trial, “the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. Proof beyond reasonable doubt however does not mean proof “beyond any shadow of doubt”. Thus in Bolanle v. State (2005) 7 NWLR (Pt.925) P.431 at 456 paragraphs E – G; Adekeye, JCA (as he then was) stated the position in the following words:
“By virtue of Section 138 of the Evidence Act Cap. 112, Laws of the Federation, 1990, the commission of a crime by a person must be proved beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond shadow of doubt. The burden of such proof lies on the prosecution and it never shifts. If on the entire evidence the court is left with no doubt that the offence was committed by the accused person, that burden is discharged and the conviction of the accused person will be upheld even on the evidence of a single witness. If on the totality of the evidence a reasonable doubt is created, the prosecution would have failed to discharge the onus of proof which the law vests upon it and the prisoner is entitled to an acquittal.”
Indeed, proof beyond reasonable doubt is one which permits of some minute possibilities against the prosecution’s case. Those minute possibilities are such that can be waived away, as mere trifling which do not affect the weight of evidence adduced against the accused person.
Proof beyond reasonable doubt is one which does not allow of fanciful possibilities to affect the quality of evidence adduced at the trial.
Accordingly for the prosecution to succeed in discharging the burden cast on it by law to proof the guilt of the Appellant in this case, the charge being that of armed robbery, they have to prove the following ingredients of the offence beyond reasonable doubt:
“(a) That there was a robbery or series of robberies;
(b) That the robbers were armed with firearms or any offensive weapon;
(c) That the Appellant was one of those who took part in the armed robbery.”
See Bolanle v. State (supra) at P.451, Idemudia v. State (1999) 7 NWLR (Pt.610) P.202; Esangbedo v. State (1989) 4 NWLR (Pt.133) P.57; Attah v. State (2010) 10 NWLR (Pt.1201) P.190 and Awosika v. State (2010) 9 NWLR (Pt.1198) P.49 at 71 – 73. See also John v. State (2011) 18 NWLR (Pt.1278) P.353; Okudo v. State (2011) 3 NWLR (Pt.1234) P.209 and Eke v. State (2011) 3 NWLR (Pt.1235) P.589.
It therefore means that, by Section 1(2) of the Robbery and Firearms Act (supra), any person who commits the offence of robbery while armed with a firearm or any offensive weapon; or injures or uses violence to any person in the process of executing the robbery, or is in company of any person so armed, shall be guilty of armed robbery and liable upon conviction to a sentence of death. The prosecution may prove the guilt of an accused by any of the below stated means:-
“(a) by evidence of an eye witness;
(b) by circumstantial evidence or
(c) by confessional statement of the accused.”
I have carefully read the judgment of the trial court, which is contained at pages 52 – 77 of the record of appeal. It is obvious to me, that the learned trial judge relied heavily on the confessional statements of the accused persons before him, which included the Appellant, in convicting them of the offence of armed robbery. That was after he had considered and determined on the status of the various statements made by the accused persons which were tendered and admitted in evidence without objection. He therefore found those statements to be confessional in nature. The learned trial judge then concluded on those statements as follows:
“Having found each of the two statements made by each of the accused persons at the investigatory stage of the case that led to the preferment of the charges before the court against them to be confessional statements, it follows that the said statements namely Exhibits A, B, E, F, H, J, K and L are part of the evidence adduced by the prosecution and form part of the case of the prosecution which the court has to consider in determining whether or not the charges preferred against the accused persons have been established beyond reasonable doubt.”
Specifically on the statements made to the police by the Appellant, the learned trial judge held at page 69 lines 10 – 14 as follows:-
“Given the disclosure in Exhibit “H” as highlighted above, I am in no doubt that it is a confessional statement. This is more so as the 4th accused never objected to its admissibility on any ground thereby confirming its voluntariness.”
Having found that the statement of the accused persons, the Appellant inclusive, was confessional, the learned trial judge found as follows:
“Given this, all that is open to the court is to rely on the evidence adduced by the prosecution witnesses and the confessional statements of the accused persons which form part of the prosecution’s case.”
The learned trial judge then held that, given the evidence of the prosecution’s witnesses and the admissions in the confessional statement of the accused persons, it was obvious to him that each of the accused persons was at the Elf Filling Station in question and each of them participated in the removal of the generator. He also found as proved beyond reasonable doubt that all the accused persons, including the Appellant, acted in concert to and did invade the Elf Filling State on 22/23 October, 2000, while armed with iron rod, and stole the generator installed at the Filling Station. :
Now, it is settled law that, an accused person can be convicted solely on his confessional statement, because, a confessional statement which is an admission, may be likened to an admission against interest, and is generally considered as true. It therefore means that, a voluntary confession of guilt by an accused person is sufficient to warrant a conviction thereon, without any need for corroboration, if such statement is found to be direct,, positive, duly made and satisfactorily proved before the court. See Ikemson v. State (1989) 3 NWLR (Pt.110) P.455; Alarape v. State (supra); Ubierho v. State (supra) and Shurumo v. State (2010) 19 NWLR (Pt.1226) P.73. Thus, in the case of Adio & Anor v. State (2005) 4 A.C.L.R. p.296 at P.309 lines 39 – 310 line 14, Oputa, JSC stated the position clearly as follows:
How is a case proved beyond reasonable doubt? A case can be proved by direct oral evidence. If the testimony of a witness who saw and heard are believed, there will be proof beyond reasonable doubt. Circumstantial evidence can prove a case beyond reasonable doubt….. But far and above these two methods of proof is the voluntary confession of the accused himself. A free and voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to prove beyond reasonable doubt.. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such a conviction unless the trial court is satisfied that the case has been proved beyond reasonable doubt.”
However, before convicting on such confessional statement, it has now been considered desirable that the trial court should verify the statement together with other facts proved outside the confession, which makes it probable that the confession is true. In determining the issue, the trial court should ask:
“(a) Whether there is anything outside the confession-to show that it is true?
(b) Whether the statement is corroborated?
(c) Whether the statements made therein, as far as can be tested, true?
(d) Whether the accused person had the opportunity of committing the offence?
(e) Whether the confession is possible?
(f) Whether it is consistent with other facts which have been ascertained and which have been proved?”
The requirement to verify such confession is lessened, in a situation such as this, where the Appellant elected to exercise his constitutional right not to say anything, and therefore did not lead any evidence at all, at the trial, but rested his case on the evidence adduced by the prosecution. By this observation, I do not mean to say that the general burden required to be discharged by the prosecution beyond reasonable doubt has been lowered. All I mean to say is that, since the legal effect of an accused person resting his case on that of the prosecution is that, the prosecution having led evidence which prima facie establishes the guilt of the accused, and which require some evidence in rebuttal from the accused, and such evidence is not proffered at all, the need to require other evidence outside the confessional statement is lessened. This is more so, where the said statement was tendered and admitted without objection from the accused. Upon a careful reading of the judgment of the court below, it is clear to me that, the learned trial judge was not oblivious of the need to observe the rules on the application of confessional statement, before he proceeded to convict on the statement of the Appellant. Before concluding on the guilt of the Appellant, the learned trial judge observed in respect of the Appellant who was the 4th accused during the trial, as follows:
“The accused person made a statement on 6/11/2000. PW8 testified as to how the accused person came to make the statement and as to what he did prior to his recording the statement. PW8 tendered the statement as Exhibit “H” without objection. In Exhibit “H” the accused disclosed that he was the driver of the vehicle with Registration No. XR 973 KJA as at 23/10/2000 and that Segun and Kola on the said day told him that his vehicle was needed to convey a generator from Abeokuta. He further disclosed that on the said day at about 8p.m. himself, Segun, Kola and Ogbonna left Lagos for Abeokuta. That he stopped some distance from Elf Filling Station and remained with the vehicle while the others went into the Station with spanners. He disclosed that he was later summoned into the Station and a generator was loaded into his vehicle. He narrated all that happened to them at the Sango-Ota Toll Gate and how he escaped arrest. He stated that he was given his share of the money realized from the sale of the generator. Given the disclosure above, I am in no doubt that it is a confessional statement.”
The Appellant’s contention now, is that, even if his statement is considered as confessional, it is not a confession that he had agreed to commit armed robbery. I have noted that the statement of the Appellant as to how he was recruited into the entire scheme and the role he played in the execution of the scheme tallies substantially with the statements of the other accused persons who were charged along with him. It is apparent from the statement of the Appellant that, Ogbonna had in his possession an iron rod when they left Lagos for the operation. Even if we are to consider that the iron rod was meant to be used for loading the generator into the bus, it is not unreasonable to suggest that such an implement can be easily converted to weapon of offence. Even an ordinary spanner, though depending on its size, can be turned into an offensive weapon, within the contemplation of Section 15(1) of the Robbery and Firearms Act (supra). Where an accused person is found to belong to a gang of robbers that operated on the date, time and place stated in the charge, he cannot be heard to complain that he did not consent or even know that such an implement would be used as an offensive weapon or that he was not at the exact spot where the implement was used. I believe that the Appellant was asked to pack the bus some distance away from the Elf Filling station for “strategic” reason, which was to avoid alerting the guards of their arrival from the sound that could be produced by the bus. In any case, the Appellant knew of their mission and the activities of the other accused persons prior to the day of the incident. I am satisfied from the evidence on record that, the Appellant was an active participant in the robbery charged. Even if the Appellant and his co-accused persons “merely meant to steal” the generator, as it is, it turned violent, leading to the death of a guard at the Filling Station in question, and therefore caught by Section 1(2) of the Robbery and Firearms Act (supra).
I had stated earlier on that the learned trial judge gave prominence to the confessional statements of the accused persons. It is however obvious from the record that, the learned trial judge considered other evidence in the case apart from the confessional statements, before he arrived at the decision to convict them. Thus, at page 71 lines 8 – 72 line 13, the learned trial judge held that:-
“It is obvious from the evidence adduced through the prosecution witnesses that none of them fixed any of the accused persons to the scene of the crime at Elf Filling Station. The prosecution however linked the 2nd and 4th accused persons with the generator carted away from Elf Filling Station having regard to the evidence of PW7, PW8 and PW11. PW7 it should be noted testified as to how a vehicle with Registration No. XR 973 KJA stopped at Sango-Ota Toll Gate at about 2.30a.m on 23/10/2000. He narrated how none of the persons in the vehicle could produce a receipt in respect of the generator which was concealed with pure water containers and firewood. He stated that the driver of the vehicle escaped in the vehicle when efforts to start it were being made but that the 2nd accused person was arrested, kept in a cell at the Toll Gate but that he later escaped through the roof. Under cross-examination PW7 identified the 4th accused as the driver of the vehicle with Registration No. XR 973 KJA that he encountered on 23/10/2000. PW8 disclosed how the 2nd accused came to be arrested. He stated that after his arrest the 2nd accused requested for an amicable settlement of the matter as he had sold the generator. That after he informed the 2nd accused that the generator must first be found the 2nd accused took him to one Ali Rihan to whom he sold the generator. PW8 further stated that Ali Rihan confirmed to him that the 2nd accused sold a generator to him and released the generator to the police as it was the subject of investigation. Ali Rihan who testified as PW11 testified to the fact that the 2nd accused person in the year 2000 brought a 10KV Lister generator to him and that he bought it after testing and finding it satisfactory. He stated that he confirmed this to the police in the presence of the 2nd accused when he was brought some days after the transaction. He disclosed that the police later took the generator away. Apart from the evidence of the prosecution witnesses highlighted above, the prosecution tendered the various statements made by the accused persons (and all of which I have earlier found to be confessional statements) as part of its case. Each of the accused persons in the statements not only fixed himself to the scene of the crime at the Elf Fishing Station but each of them also disclosed in detail the role he played at the scene.”
I had earlier adverted to the specific findings of the trial court on the Appellant, who was the 4th accused person at the trial. Despite those glaring evidence as found by the trial court, as is evident also from the record, there was nothing, even a whimper from the Appellant to rebut, contradict or otherwise controvert the evidence led by the prosecution against him. The Appellant chose to rely or rest his defence on the case as put before the court by the prosecution. He had therefore shut himself out, despite the evidence which showed positively that he was an active participant in the invasion of the said Elf Filling Station along Lagos/Abeokuta road on the 23/10/2000.
The Appellant rather chose to rely on flimsy arguments in this appeal. On the issue whether or not there was an armed robbery on the date, place and time stated, in the charge, he contended that the evidence of the prosecution thereon was contradictory. Considering the arguments of counsel for the Appellant, and the arguments on record, it is patently clear that there was no iota of contradiction between the testimony of the PW1 and PW2 on the issue. As rightly pointed out by learned counsel for the Respondent, a wholistic reading of the testimony of PW2 would not lead to the interpretation given to it by the Appellant. The Appellant was only clutching at straw, and I dare say was mischievous when he chose a sentence out of the testimony of PW2, to give the testimony of the PW2, an interpretation that suited him. The testimonies of the PW1 and PW2, and indeed of any other witness, should be given a wholistic appraisal, so as to see what the witness sought to tell the court. The conclusion I have arrived at is that, there is no contradiction or conflict at all, between the testimony of PW1 and PW2, and that the fact that there was robbery has been proved beyond reasonable doubt.
It was further contended by the Appellant that, the prosecution failed to prove beyond reasonable doubt that there was a robbery at Elf Filling Station because, the prosecution has not placed before the trial court any evidence of report made by Elf Filing Station in respect of the alleged robbery. That no evidence has been adduced to show that a Lister generating plant was stolen from the Elf Filling Station on the 23/10/2000. I think this agreement of the Appellant is very shallow, hallow and without substance whatsoever. The learned trial judge had made a finding at page 74 lines 5 – 20 of the record of appeal that:
“The learned counsel for the accused persons has however submitted amongst others that Count II must fail as it has not been proved. This according to him is because Exhibit “C” shows the owner of the Lister Generator as Olukoya Adelopa and not Elf Filling Station. This submission in my view must have been made by learned counsel without taking into consideration the unchallenged evidence of PW8 to the effect that on 7/11/2000 an official of Elf Filling Station came to the Sango-Ota Police Station and that the official identified the generator which was retrieved from Ali Rihan as the one carted away from the Elf Filing Station by armed robbers. Accordingly, I am in no doubt that the generator carted away by the persons who invaded the Elf Filing Station was the Lister Generator at the said station and which belonged to the station. Nobody having regard to the evidence adduced by the prosecution ever identified the generator recovered from PW11 as personal property…”
The Appellant has not been able to demonstrate through his argument before us that the findings of the trial court as cited above is perverse or not supported by the evidence. The Appellant who contests the above finding of the trial court has the burden to demonstrate from the evidence on record that the finding of the trial court is perverse or otherwise erroneous. He failed woefully to do that. The logical conclusion is that the finding of the trial court is correct; and that the Lister Generator was proven to be the property of Elf Filing Station, carted away by the Appellant and his fellow prisoners, in an armed robbery operation on the 23rd of October, 2000. Consequently, issues 3 and 4 are hereby also resolved against the Appellant.
On the whole therefore, it is my finding that this appeal is totally lacking in substance. It has no merit, and is accordingly dismissed. The judgment of the Ogun State High Court delivered on the 14th day of January, 2003 in Charge No. AB/8R/2001 is hereby affirmed.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment delivered by my learned brother HARUNA SIMON TSAMMANI, JCA.
I agree that the appeal has no merit and dismiss same. The judgment of the Ogun State High Court delivered on the 14th day of January, 2013 in charge No. AB/8R/2001 is hereby affirmed.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother Haruna Simon Tsammani J.C.A. My lord has comprehensively treated all the issues in this appeal.
I am in agreement with his reasoning and the conclusion reached.
Appearances
E.C. Obiagwu; Esq. with A. Ogunleye (Miss)For Appellant
AND
J.K. Omotosho Esq., (D.D.P.P. M.O.J. Ogun StateFor Respondent
