AKINLO IFEDAYO v. THE STATE (2014)

AKINLO IFEDAYO v. THE STATE

(2014)LCN/7607(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of December, 2014

CA/AK/219CA/2013

RATIO

EVIDENCE; IDENTIFICATION EVIDENCE; WHEN SHOULD AN IDENTIFICATION PARADE BE CONDUCTED

In most cases of robbery, proper identification of the real culprit is very vital.
Identification evidence is that which tends to show that the person charged is the same person seen at the locus criminis. There must be real doubt as to who was seen in connection with the offence to require an identification parade. See Nwaturuocha V State (2011) 16 NWLR (Pt 1242) 170; Ndidi V State (2007) 13 NWLR (Pt.1052) 633 and Archibong V State (2006) 14 NWLR (Pt. 1000) 349.
An identification parade should never be conducted for purely cosmetic reason, it should be limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged. To insist that it must be conducted as in the instant case, in which the identity is clear and corroborated by other uncontroverted evidence and the accused person confesses to his complicity in the crime, is to make a mockery of criminal justice.
In any particular case, to link an accused person with the commission of an offence charged must depend on the circumstances of each case. A formal identification parade becomes necessary only when the identity of the accused person is in dispute. per. MOHAMMED A. DANJUMA, J.C.A.

EVIDENCE: IDENTIFICATION EVIDENCE; SITUATIONS WHERE AN IDENTIFICATION PARADE IS NOT NECESSARY

Having regard to the facts and circumstances of this case, no issue as to the identification of the Appellant was raised to warrant an identification parade. Put differently, an identification parade is not a sine qua non to conviction of an accused for an alleged crime. In the case of Samuel Attah V The State (2010) 10 NWLR (Pt.1201) 190 at 225 – 226, para G – B Adekeye JSC had this to say:
“An identification parade is not necessary under the following situations:
1. ……………….
2. ……………….
3. Where the accused is linked to the offence by convincing, cogent and compelling evidence, an identification parade is not a relevant fact.
Ugwumba V. The State (1993) 6 SCNJ (Pt. 11) pg 217; (1993) 5 NWLR (Pt. 296) 660.” per. MOHAMMED A. DANJUMA, J.C.A.

CRIMINAL LAW: CONSPIRACY; THE MEANING OF CONSPIRACY AND HOW TO PROVE CONSPIRACY

Conspiracy means an agreement by two or more persons to commit an unlawful act, coupled with an intention to achieve the agreement’s objective, an action or conduct that furthers the agreement, a combination for an unlawful purpose and it is a separate offence from the offence or crime that is the object of the conspiracy. The offence of conspiracy is hardly capable of direct proof but can be inferred from the acts of the parties tailored towards the accomplishments of their mutual or criminal purpose. The court therefore is duty bound to consider the totality of the evidence led by the witnesses in order to determine or draw the necessary inference from the acts of omission or commission attributed to the accused persons as in the instant case. See David Omotola & Ors v The State (2009) 7 NWLR (Pt. 1139) 148; Obiakor v The State (2002) 10 NWLR (Pt. 776) 612 at 628; Sule v The State (2009) 17 NWLR (Pt. 1169) 33 and Demo Oseni v The State (2012) 5 NWLR (Pt.1293) 351.
From the above statutory and judicial definitions, it is clear that for the offence of conspiracy to be proved, there must exist a common or to be consensus of criminal design or agreement between two or more persons to do or omit to do an act which is criminal in nature. per. MOHAMMED A. DANJUMA, J.C.A.

EVIDENCE: ADMISSION AND CONFESSION; WHETHER AN ACCUSED PERSON CAN BE CONVICTED AND SENTENCED SOLELY ON HIS OWN ADMISSION OR CONFESSIONAL STATEMENT AND WHAT THE COURT WILL INQUIRE INTO WHEN AN ACCUSED RETRACT HIS CONFESSIONAL STATEMENT

It is settled that an accused person can be convicted and sentenced solely on his own admission or confessional statement. See Egboghonome V The State (1993) 7 NWLR (Pt. 306) 385 and Demo Oseni V The State (2012) 5 NWLR (Pt. 1293).

The law is also settled that the fact that an accused person retracts his confessional statement does not preclude the court from acting upon it. However, in determining the weight to be attached to a retracted confession and indeed all confession, the court is duty bound to test the truth and veracity of the confession by examining it in the light of the other available credible evidence before the court by inquiring as to whether:
1. There is anything outside it to show that it is true.
2. It is corroborated.
3. The facts stated in it are true as far as they can be tested.
4. Was the accused one who had the opportunity of committing the offence.
5. Is his confession possible.
6. Is it consistent with other facts which have been ascertained and have been proved. See Adisa V State (2013) 14 NWLR (pt. 1375) 567.
However, where the accused person resiles from his statement, he must explain the inconsistency. The court is however cautioned to look for evidence no matter how slight, outside the confessional statement that makes the confession probable. per. MOHAMMED A. DANJUMA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE INGREDIENT WHICH MUST BE PROVED IN A CASE OF ARMED ROBBERY AND THE STANDARD OF PROVING THE OFFENCE OF ARMED ROBBERY

I agree with both Learned Counsel that it is now well settled that the ingredients which must be proved in a case of armed robbery are:
a. That there was a robbery or series of robberies.
b. That the robbers were armed with offensive weapon, and
c. That the accused person was among the robbers.
These three ingredients must co-exist and they must be proved beyond reasonable doubt. See Alabi V The State (1993) 7 NWLR (Pt. 307) 511; Okeke V The State (1995) 4 NWLR (Pt.392) 676 and Demo Oseni V The State (supra).
The offence of armed robbery will succeed if the prosecutor establishes beyond reasonable doubt that the accused stole anything capable of being stolen and that at the time of stealing the accused threatened to use violence or used violence before or immediately after the time of stealing, which violence could either be on a person or a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. See FRN V Usman (2012) 8 NWLR (Pt.1301) 141.
Proof beyond reasonable doubt is not proof beyond shadow of doubt, it is not therefore, a proof beyond all possible or imaginary doubt that it is such proof as precludes every reasonable hypotheses except that which it tends to support. The burden of such proof which lies on the prosecution never shifts. If on the entire evidence, the court is left with no doubt that the offence was committed by the accused, that burden is discharged and the conviction of the accused person will be upheld, even on the evidence of a single witness. per. MOHAMMED A. DANJUMA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

AKINLO IFEDAYO Appellant(s)

AND

THE STATE Respondent(s)

MOHAMMED A. DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of his Lordship O. O. Akeredolu J. of the High Court of Ondo State sitting at Akure Judicial Division, delivered on the 20th day of March, 2013.

The Appellant and three others were arraigned before the Ondo State High Court sitting at Akure for conspiracy to commit armed robbery, armed robbery and receiving stolen property contrary to and punishable under Sections 6 (b), 1 (2) (a) and 5 of the Robbery and Firearms (Special Provisions) Act, cap, R 11, Vol. 14, Law of the Federation of Nigeria, 2004.

The Appellant and other accused persons pleaded not guilty to the charge and the case proceeded to hearing. The prosecution called three (3) witnesses and tendered various Exhibits. The accused persons testified in defence and called no other witness.

The case of the prosecution was that the Appellant and two others on 12th November, 2011, while armed with guns, axes and other dangerous weapons, robbed one Dr. Ademola Obanoyen at his residence situated at No. 53 Irugbe Street, Ijebu-Owo of cash and other valuable items which include laptops, phones. Including one Nokia customized multilinks phone.

PW1. Corporal Edu Owolabi attached to ‘A’ Division Owo, testified that he was on duty on 12th December, 2011, the Divisional Traffic Officer called the charge room to report an ongoing robbery at No. 53 Irugbe Street, Ijebu Owo. Immediately, he left for the scene with some patrol team. On getting to the scene, they met a man at the gate, the man was not armed suddenly the man pulled out a pistol and shot at them, the man entered the scene of crime, he was unable to catch him as he jumped the fence and ran away, though he could identify the man in the moonlight as it was very bright. When they entered into the house they met the victim with bruises; they took him to the hospital.

In the course of their investigation, the complainant gave them numbers of the stolen phones but that only the one with number 07027000750 rang and was not picked. He told the court that the person he saw at the scene is the 2nd accused person. He later transferred the case to state Anti Robbery Squad Akure, for being lacking in jurisdiction to handle armed robbery cases.

PW2 Corporal Omege Iriemi testified that a case of armed robbery was transferred from ‘A’ Division Owo to SARS and assigned to his team for investigation. In the course of investigation, the 1st accused person was arrested, he asked her for the phone to which credit had been sent. She Informed them that it was in her house; a search warrant was executed in her house and a customized Nokia multilink phone property of Dr. Obanoyen Ademola was recovered from her; it was admitted as Exhibit A1 and A2. He said he was also in the team that investigated the Diamond Bank armed robbery which occurred in December, 2011 and for which 2nd – 4th accused person were arrested. During the interrogation they confessed to series of robberies within and outside Ondo State including that of Dr. Obanoyen. They volunteered a confessional statement which he recorded. The statement of the 1st accused person was admitted in evidence as Exhibit A3 without objection. The confessional statement of the 2nd accused person was admitted in evidence as Exhibit A4 after conducting trial within trial. After overruling the objection of the defence Counsel for the admissibility of the confessional statement of 2nd and 4th accused persons on ground of being retracted the trial court admitted it as Exhibit A5 and A6 respectively, while the confessional attestation forms of the 2nd – 4th accused person was admitted as Exhibit A7, A8 and A9 respectively.

PW3 Dr. Ademola Obanoyen, the victim of the armed robbery, testified that he lives at No. 53 Irugbe Street, Ijebu-Owo. On the 12th November, 2011 at about 1:00a.m. He was woken up by the barking of his dogs. He heard some men beside the window of his bedroom, one of them shouted his name and asked him to open the door and threatened him of what they would do to him and it would be useless for him to call the police, and with the bright moon light he recognized one of them as his neighbour popularly known as ‘Better-Life’, and he called the police. Before the police came, about 5 of them entered the house with cutlasses, guns, axes and other dangerous weapons, through the wall they broke in. They started beating him and smashed a bottle on his head, he was asked for money and phones which he gave to them. Some searched wardrobes and packed what they wanted. They asked of key to his vehicle and attempted to start the vehicle but the alarm started. He heard gun shots from outside. The men whispered to themselves that police must be around and they left. When the police came in, including Corporal Edu, he discovered that the armed robbers entered the house by breaking the wall to the living room. He discovered that one of the phones that were carted away is a Nokia brand customized for Multilinks and gave the number to the policemen. A few days later the neighbor whom he sighted among the robbers re-surfaced and was arrested and taken to (SARS). Two days later, he was invited to identify his phone which he did and the phone was truly his. The lady with whom the phone was found was charged to Magistrate Court Owo and her father came to beg him to discontinue with the case promising him that he will produce Mukaila once his daughter is released. He explained that Mukaila was his daughter’s friend who must have given her the phone. He was later called from (SARS) that the armed robbers that robbed him had been arrested in connection of Diamond Bank robbery. He was surprised that they told the police in his presence that he is the Doctor they robbed in November 2011, but he could not recognize any of them as it was the second time he would be seeing them.

At the close of the prosecution’s case, the Appellant testified in his defence and denied his involvement in the armed robbery. He maintained that he was never at the scene of the armed robbery incident but that he was in his residence. That on the 27th January, 2012 some boys fought, including the son of his landlord. On the next day policemen knocked at his door, when he opened they arrested him and realized that they have arrested some boys in his street and were taken to the station. He was asked concerning the fight, he denied knowing anything about it, and he was detained, he called his wife to bail him out and she was asked to bring N60,000.00 for bail which she was unable to raise. “On the 30th January, I was called out and met these two boys in the Hilux and we were taken to SARS at Akure. They asked me at the SARS whether I know them and I said no. They also asked me series of questions about robbery incident; I said I don’t know. About a month and some days later, they brought me out again and brought a man named Dr. Obanoyen, I did not know him before, whether he knows any one of us, he said no he did not know us, and they locked us back to cell. I was surprised they took us to court, but to my own surprise we were in court with a girl again.”

At the close of evidence and addresses from both sides, the learned trial judge delivered judgment on the 20th March, 2013 and found the Appellant and other three accused persons guilty of the offence of conspiracy, armed robbery and receiving stolen property and sentenced 2nd – 4th accused persons to death and the 1st accused person to life imprisonment accordingly.

Dissatisfied with the conviction and sentence, the Appellant who was the 3rd accused person at the trial in the court below filed a notice of appeal dated 4th April, 2013 and filed on 7th May, 2013. By leave of court the Appellant filed an Amended Notice of Appeal dated 21st March, 2014 and filed on the 24th day of March, 2014 but deemed filed and granted on the 19/3/2014 containing three grounds of appeal.

Appellant’s Brief of Argument dated 28th April, 2014 was filed on 29th April, 2014.

Respondent’s Brief of Argument dated 27th May, 2014 was filed on 28th May, 2014.

Learned Counsel for the Appellant distilled two issues for determination of the appeal.

The issues are:-

1- Whether the identification evidence in this case properly linked the Appellant to the two count charge of conspiracy and armed robbery preferred against him. (Ground 1 of the notice of appeal).
2 – Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the two – count charge of conspiracy and armed robbery preferred against him and two others. (Ground 2 and 3).

Learned Counsel for the Respondent on his part formulated a sole issue for determination of this court as follows:-

1 – Whether the prosecution proved the offence of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt against the Appellant.

I have considered the issues as distilled by both Counsel, the appeal will be decided on the two issues formulated by the Appellant for being quite encompassing.

ARGUMENT ON ISSUE NUMBER ONE (1)

Whether the identification evidence in this case properly linked the Appellant to the two count charge of conspiracy and armed robbery preferred against him.

Learned Counsel for the Appellant in arguing this issue started by enumerating some instances of identification inherent in this case which said Counsel are poor identification as that:-

1. The Appellant was not arrested at the scene of the incident;
2. The incident took place in the night around 12:00a.m;
3. PW1 one CPL Edu Owolabi did not say he saw the Appellant on the night of the incident;
4. PW3 Dr. Obanoyen Ademola said he could not recognize any of his assailants either at the scene or even at the police station; and
5. The Appellant testifying (sic) as DW3 said that Dr. Obanoyen Ademola confirmed that he could not recognize any of his attackers on the fateful night, and referred the court to pages 27 – 29, 44 – 46 and 54 – 56 of the record of appeal.

Learned Counsel submitted that the identification evidence was abysmally poor and it failed to link the Appellant to the armed robbery incident he was charged with along with other co-accused. He argued that it is settled that where identification evidence is poor, as in the instant case, the court should return a verdict of not guilty unless there is other evidence which goes to show the correctness of such identification. He referred to the case of Abdullahi V The State (2005) All FWLR (Pt. 263) 698 at 715. Para E – F.

Learned Counsel contended that if the alleged attack of 12/11/2011 had taken place in broad day light and the Appellant had been properly described and linked with the incident, there would not have been any fuss about the Appellant’s identification. On this, Learned Counsel referred the court to the case of Bashaya V The State (1998) 58 LRCN 3596 at 3611 para E where the Supreme Court, per Wali, JSC, held as follows:-

“It is not correct as argued by the Learned Senior Advocate that the Appellants were identified in the dock by the witnesses. The incident happened in broad day light with no obstruction of the view between the witnesses and their assailants, the Appellants inclusive. The question of mistaken identity or non-recognition of the Appellants in their participation in the criminal act is completely ruled out”.

Also The State V Aibangbee (1988) 7 SC (Pt.1) 96 at 146; Ndidi V The State (2007) 41 WRN 1 at 15.

Learned Counsel contended that the circumstances under which the robbery incident took place were (sic) dark (12:00a.m) there was no light capable of aiding identification at all, no opportunity of close observation as it was on the spur and that there was no previous contact between the Appellant and the victim (PW3). He submitted that where an accused person was not caught red-handed and there elapsed a length of time between the time of the incident and the time of the arrest, an identification parade is a sine qua non in order to link him with the incident and referred the court to the case of The State V Isiaka (2013) 4 – 5 SC (Pt.11) 89 at 120, 122 – 123.

Learned Counsel argued that where the stolen property is not found on the accused person, and he was not caught red-handed, an identification parade ought to be conducted in order to link the accused person with the offence(s) alleged against him, Counsel referred to Afolabi V The State (2013) 6 – 7 SC (Pt.11) at 24 where the Supreme Court, per Mohammed, JSC stated:-

“In the circumstances of this case, therefore, where the Appellant was virtually caught red-handed immediately after the commission of an act of robbery and in possession of the stolen property taken away from the owner thereof, the court below was indeed right in holding that the holding of identification parade to identify the Appellant was unnecessary”.

And, submitted that there was the need to conduct an identification parade in the present case in order to link the Appellant to the incident and that the Appellant was not linked with the armed robbery incident of 12th November, 2011 and urged us to so hold.

Learned Counsel for the Respondent submitted that the essential ingredient of the offence of conspiracy lies in the bare engagement and association to do an unlawful thing which is forbidden by law whether or not the accused had knowledge of its unlawfulness. He referred to Clark V State (2007) 5 ACLR 100 at 118. He contended that by the evidence of PW1, PW2, PW3, Exhibit A4 – A6 and the totality of the evidence adduced by the prosecution, the element of the offence of conspiracy has been proved beyond reasonable doubt against the Appellant.

Learned Counsel submitted that the evidence of PW2 that he investigated the case when it was transferred to his office and also investigated the Diamond Bank robbery and that it was in the process of investigating Diamond Bank case the Appellant “3rd accused” and the 2nd and 4th co-accused confessed that they were responsible for armed robbery at the house of PW3 among other robberies.

Learned Counsel submitted that by Exhibit A5, the Appellant stated that the 4th accused person introduced him to robbery in 2011 and that his gang is made up of the 2nd and 4th accused. One Mukaila, Waidi, Philips and Monday. And that the 2nd and 4th accused persons were among his gang that robbed PW3 of different handset, laptops and money and that they were armed with guns. He argued that Exhibit A5 is consistent with the evidence of PW3.

Learned Counsel submitted that in Exhibit A4 and A6 the extra judicial statement of the two other accused persons stated that they broke the wall of the house of PW3, gained entrance and robbed him of his laptops, phones and money on the 12th November, 2011 at his resident in Owo and, that the Appellant was among their armed gang and the others at large. This, said Counsel, is also consistent with the evidence of the Appellant. The prosecution it was submitted that has adduced evidence and established that the Appellant conspired with the 2nd and 4th accused and the others at large to commit armed robbery.

It was submitted that the evidence adduced by the prosecution that the Appellant conspired with 2nd, 4th and others at large to commit armed robbery was established when the trial court held at page 112 of the record thus:-

“I am satisfied that the prosecution has established beyond reasonable doubt by the evidence of PW1, PW2, PW3, Exhibit A4, A5 and A6 that the accused persons had a common purpose which is to rob PW3 by violence. The prosecution has therefore proved conspiracy to commit armed robbery against the 2nd – 4th accused persons.”

He urged the court to so hold.

Learned Counsel contended that to establish the offence of armed robbery, the prosecution is required to prove:

1. That there was a robbery or series of robbery.
2. That the robbery was an armed robbery.
3. That the accused person participated in the robbery.

He referred to the case of Ogudo V The State (2011) 18 NWLR (Pt. 1278) 1 at 32.

Learned Counsel argued that on the 1st and 2nd ingredients, the evidence of PW1 – PW3 revealed that there was a robbery operation at PW3’s house on the 12th November, 2011 and that the robbery was an armed robbery. He argued that it is the evidence of PW3 that on 12th November, 2011 at about 1a.m, his house was invaded by about 5 armed robbers and robbed him of his money, laptops, handsets among other things and that the robbers were armed with guns, cutlasses, axes and other dangerous weapons and the evidence of PW1 that he was on duty at the station when he was alerted with the robbery at PW3’s house, he moved to the scene with some patrol officers and that at the scene the 2nd accused pulled out a gun and shot at them he investigated and confirmed the robbery and later transferred the case to Special Anti-Robbery Squad (SARS) where PW2 took over the case.

Learned Counsel argued that the evidence of the prosecution establishing the 1st and 2nd ingredient of the offence of armed robbery was not challenged by the defence. And that, the fact adduced by the prosecution was established by the trial court when it held that “The evidence of the 3 witnesses that there was a robbery in the house of PW3 was not challenged by cross examination. Learned Counsel for the 2nd – 4th accused acknowledged that robbery was proved? He referred to page 113 of the record.

And went further on same page:

“The evidence of prosecution witnesses confirmed that the robbery at the house of PW3 was an armed robbery.”

He submitted that the prosecution has proved beyond reasonable doubt that there was a robbery attack on PW3 and that the robbery was an armed robbery. And urged the court to so hold.

Learned Counsel argued that on the third ingredients, PW2 gave evidence that the case of armed robbery attack on PW3 was transferred from ‘A’ Division and assigned to him for further investigation and that during the cause of investigation, he arrested the 1st accused (Adijat Ayefigbo) and he was also in the team that investigated the Diamond Bank Robbery of December, 2011. In the cause of the investigation of the Diamond Bank case, the 2nd, 3rd (Appellant) and 4th accused persons were arrested in connection with the robbery among other series of robberies within and outside Ondo State and that of PW3 inclusive as confessed by 2nd, 3rd (Appellant) and 4th accused persons after he cautioned them.

Leaned Counsel contended that Exhibit A4, A6 and the retracted confessional statement of the Appellant confessing his participation in the robbery of 12th November, 2011 at the house of PW3 were rightly admitted in evidence and is consistent with the evidence of PW3. And, that too was established from the evidence before the court… Waidi is a brother of Adijat (1st accused) from whom Exhibit A1 was recovered. He referred the court to page 116 lines 15 – 18 and page 117 line 1-2 of the record.

Learned Counsel contended that the totality of the evidence adduced by the prosecution linked the Appellant with the commission of the armed robbery at PW3’s house. He contends that the trial court after properly evaluating the evidence before the court rightly held at page 120 of the record thus:

“In summary the prosecution has proved beyond reasonable doubt that the 2nd, 3rd, and 4th accused conspired to commit armed robbery and that they committed armed robbery contrary to Section 1 (2) (a) and Section 6 (b) of the Robbery and Firearms (Special Provision) Act, Cap R11, Vol. 14, Law of the Federation of Nigeria, 2004. I find the 2nd – 4th accused guilty as charged.”

He urged the court to hold that the prosecution proved its case against the Appellant beyond reasonable doubt.

Counsel further contended that the argument of the learned counsel for the Appellant that the identification evidence was poor and that an identification parade ought to have be (sic) conducted to ascertain the correctness of the identification of the Appellant is misplaced. He submitted that it is not in all cases that an identification parade is required. The PW1 gave Evidence that he recognized the 2nd accused under the moonlight that was very bright as the robber that shot at his patrol team and that PW3 also gave evidence that the accused persons told the police in his presence at (SARS) that he was the one they robbed, though he could not recognize them.

Counsel contended that from the evidence adduced by the prosecution, the Appellant and the 2nd and 4th accused persons were properly identified as those who participated in the robbery of PW3. Hence, identification parade need not be conducted. On this, he urged the court to so hold.

RESOLUTION OF ISSUE NUMBER ONE (1)

Learned Counsel for the Appellant made two fuss in one breath or rather approbated and reprobated. Firstly, he argued that the identification evidence was poor and secondly, that an identification parade ought to have been conducted.

In the present case, the confessional statement of Exhibit A5 is an admission by the Appellant that he was one of the persons who robbed PW3. PW3, the victim of the offence charged gave an uncontroverted evidence as to how he was robbed, so also PW1 who came to rescue the victim stated how he encountered with the culprits.

The Appellant identified himself in his confessional statement Exhibit A5, therefore there is no need for further identification parade as the Appellant by himself identified himself thereby removing any doubt of his involvement in the commission of the offence. In the case of Ikemson V State (1989) 6 SC (Pt.5) 114 the Supreme Court per Oputa JSC stated that:
“… the 3rd accused. The 2nd Appellant in this court need no further identification by his confession, he identified himself. In his case there was no need for any further identification parade. The 2nd accused was identified by his brother thief. The 3rd accused…”

In the instant case, the evidence of the prosecution coupled with the Appellant’s confessional statement, Exhibit A5 constitute convincing, cogent and compelling evidence which made an identification or identification parade irrelevant in this case. The identity of the Appellant as one of the persons who robbed PW3 was proved beyond reasonable doubt. The finding of the trial court on this cannot be faulted.

Issue 1 is resolved against the Appellant in favour of the Respondent.

ARGUMENT OF ISSUE NUMBER TWO (2)

Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of the two-count charge of conspiracy and armed robbery proferred against him and two others.

Learned Counsel for the Appellant in arguing this issue referred and defined Section 1 (2) (a) & (b) and Section 6 of the Robbery and Firearms (Special Provisions) Act Cap R. 11, Volume 14, Laws of the Federation of Nigeria, 2004. He submitted that the prosecution is required to prove beyond reasonable doubt the offence charged. Counsel asked whether the prosecution was able to prove the conspiracy count in view of the retracted confessional statement of the Appellant.

Learned Counsel further defined conspiracy and referred the court on this to the case of Ojo V Federal Republic of Nigeria (2009) All FWLR (pt. 494) 1461 at 1500 para. A – B, where the court stated thus:
“In conspiracy, the actual agreement alone constitutes the offence and it is again not necessary to prove that the act has infact been committed.”

And also Obiakor V The State (2002) NSCQR 927 at 938, where it was held that the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences which inferences must have an un-impeachable factual basis.

Learned Counsel submitted that the prosecution is squarely shouldered with the static burden of proving the essential ingredients of the offence of armed robbery against the Appellant thus:

1. That there was robbery.
2. That the robbery was an armed robbery and
3. That the accused person is the robber or one of the robbers.

He contended that neither PW1, nor PW2 saw the Appellant in company of those that purportedly robbed the PW3 and that PW3 Dr. Obanoyen Ademola, the victim never saw or mentioned the Appellant as one of his assailants. Yet the trial court relied on the evidence of PW3 in convicting the Appellant.

Learned Counsel contended that the Law is trite that a victim of a crime must at the earliest opportunity mention or describe his assailant. He referred to Ani V The State (2009) All FWLR (Pt.482) 1044 at 1062, par. E – H. He submits that Exhibit A5, the purported confessional statement of the Appellant, has greatly depreciated in value due to active retraction by the Appellant. On this he referred to Lasisi V The State (2013) 3 – 4 SC (Pt.1) 58 at 85; Adeleke V The State (2013) 7 SC (Pt.111) 119 at 149 – 150.

Learned Counsel submitted that there is no credible and independent evidence outside the retracted confessional statement of the Appellant and that the confessional statement of the Appellant’s co-accused said counsel cannot in law corroborate the retracted confession of the Appellant as he has not adopted it. He referred to Section 29 (1) & (4) of the Evidence Act, 2011.

Learned Counsel argued that the prosecution ought to have led evidence in respect of the Diamond Bank robbery case. He contends that the finding of the trial court at page 112 of the record to the effect that “None of the accused persons explained to the court why his oral evidence is inconsistent with this Extra-judicial statement” runs contrary to the position of the Law as laid down in Egboghonome V The State (1993) 7 NWLR (Pt. 306) 383 to the effect that it is not the duty of an accused person to explain the inconsistency between his evidence in court and his extra-judicial statement as the court is duty bound to consider the whole case of an accused person. He urged the court to resolve this issue in favour of the Appellant.

Learned Counsel for the Respondent submitted that a court can convict on the retracted confessional statement of an accused person, but it is desirable to have outside the confession evidence be it slight of circumstances which made it probable that the confession was true. He referred to Edhigere v State (1996) 8 NWLR (Pt. 464) 1.

Learned Counsel submitted that the evidence of PW3 that a gang of armed robbers invaded his house, broke the wall before gaining entrance into his living room and robbed him of his handsets, 2 laptops and money is consistent with Exhibit A5 and submitted that the prosecution had adduced other evidence outside the confessional statement which made it probable that the confession was true.

It was submitted that under cross-examination, PW3 testified that when the case of receiving stolen property against the 1st accused was pending at Magistrate Court Owo, the 1st accused person told the court that Waidi is her brother and friend to 2nd accused person. This, said Counsel, was not challenged therefore, the court was right to so hold. He referred to page 116 of the record and urged the court to so hold.

Learned Counsel argued that contrary to the submission of the Learned Counsel for the Appellant, the prosecution need not adduce evidence of the witnesses or complainants in the Diamond Bank robbery case which is not before the court to establish the guilt of armed robbery against the Appellant in this case. He contend that the evidence of PW2 that he was in the team, that investigated the armed robbery case of Diamond Bank was not controverted by the Appellant and that no gap was left in the prosecution’s case as the case, said Counsel, was proved beyond reasonable doubt without the witnesses or complaints of Diamond Bank case.

Counsel argued that the contention of the Appellant that the finding of the trial court at page 112 of the record runs contrary to the position of law laid down in Egboghonome V State (supra) to the effect that it is not the duty of an accused person to explain the inconsistency between his evidence in court and his extra judicial statement is misconstrued. In that, said Counsel, the decision is to the effect that the inconsistency rules does not apply to an accused person who testifies contrary to his earlier statement and that the confession and testimony of an accused should be evaluated and access by the trial judge together with the totality of the evidence in order to reach a just decision.

Counsel submitted that the accused has a duty to explain to the court the inconsistency between his evidence in court and his extra judicial statement. On this Counsel referred to the case of Onwumere V State (1991) 4 NWLR (pt. 185) 482 at 440. He submitted that the trial court was right when it held that none of the accused persons explained to the court why his oral evidence is inconsistent with his extra judicial statement. He urged the court to so hold, and resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER TWO (2)

Learned Counsel for the Appellant submitted that the prosecution is required to prove beyond reasonable doubt the offences of conspiracy to commit armed robbery and armed robbery, and asked whether the prosecution was able to prove the conspiracy count in view of the retracted confessional statement of the Appellant.

Exhibit A5 was admitted as a voluntary confessional statement of the Appellant by the trial judge. The relevant portions of Exhibit A5 which I feel necessary for the avoidance of doubt is hereby reproduced:

“That I am a native of Irele Local Govt. of Ondo State. I was born in 1981 into the family of Mr. and Mrs. Akinlo Samuel. I attended Adeolu Nursery & Primary School Owo. I later proceeded (sic) Unity Secondary School Ode-Aye between 1993 – 1999. I later gained admission into Owo Polytechnic to study Accounting and finished 2004, I work with Pikolo Construction Company at Ore in the month of February 2011 I stop working. I know Kayode through Mukaila in (sic) sometime in the month of August 2011. Kayode introduced me into robbery our gang is made up of six men which including myself (2) Mukaila ‘M’ (3) Kayode ‘M’ (4) Waidi ‘M’ (5) Philip ‘M’ and Tayo ‘M’, I have follow them robbed from difference (sic) places, like Ondo town, Oshovo area Ore, Owo, Bread bakery (sic) at Owo, Ofosu and so on. On the 12th/11/2011 in the night, we have four guns, which cut to seized, (sic) I follow them to robbed Chief Dr. Obaoyan at Owo, when we got there two people stand outside while four went in through the fence, we brake the wall and gained entrance into the parlour, we robbed him with differences handset, two laptops and money which I did not know the amount but after the operation I was shared the sum of N25,000, Waidi left with phone and laptops, purposely to sell and return money for us. I did not know Bosede Ojo at Owo, I know all of us that went for the operation of that day. I did not know Adijat. I did not (sic) if Waidi gave one of the phone to her which later led to her arrest by the police, we also collected Obanoyen barrel gun on that day we have cut it to shot seized, we once killed one man at Ore before during (sic) the operation, Philip used to keep the gun, Philip is still at large. (that) I know I have been committing the offence of robbery that is all.”

The foregoing voluntary confessional statement which is direct and unequivocal is, on its own, enough evidence to warrant the conviction of the Appellant as it clearly proves the agreement between the Appellant and others to do an illegal act, to wit armed robbery.

The confessional statement Exhibit A5, is very revealing by its contents and one is left in no doubt that the Appellant and others conspired to rob, and indeed, robbed as alleged by the prosecution. A confession by an accused is one of the most potent means of establishing his guilt beyond reasonable doubt. However, there cannot be such conviction unless the trial court is satisfied that the case has been proved beyond reasonable doubt.
In determining the veracity of a confessional statement the test is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true. Apart from the Exhibit A5 being confession of the offence, the evidence of one Dr. Obanoyen Ademola, the victim of the robbery at page 42 – 46 who testified as PW3, gave unchallenged and uncontroverted evidence among others that on the 12th November, 2011:

“… at about 1:00am, some men came beside my bedroom, just by the window of my bedroom. One of them shouted my names and instructed that I should open the door, they further treating that they were prepared for me. That even if I call police it would not help me… They started hitting the wall, unfortunately for me they entered the house before the police came. About 5 of them entered the house with cutlasses, gun, axes and some other dangerous weapons. Immediately they started beating me some asked for money which I gave to them. Some of them asked for phones, I volunteered them… Some were searching the wardrobes packing all they could park… I had gun shot from outside so they now whispered to themselves that police must have been around.
…Policemen now come inside including Corporal Edu. It was at this point I could (sic) come out and saw that they had broken the wall to the livingroom through where they entered the house…”

Also the evidence of PW1 is to the effect that there was an armed robbery at the house of PW3. PW1 said he saw the 2nd accused at the scene of the crime with the aid of moonlight. In support PW2 said he investigated the case. He also investigated Diamond Bank robbery that the 2nd – 4th accused confessed that they were responsible for armed robbery at the house of PW3 among other robberies. He recorded the confessional statements of the 2nd – 4th accused persons.

The foregoing pieces of evidence as led by the PW3, PW1 and PW2 are corroborative enough of the confession in Exhibit A5. The Appellant’s statements admitted in evidence as Exhibit A5 are clearly confessional and stated in comprehensive detail how the robbery was planned and executed, the evidence of PW1, PW2 and PW3 corroborated the confessional statements as to how the robbery was carried out. I have no doubt that the confession is true.

I confirm the finding of the trial court that Exhibit A5 is a confession by the Appellant that he and other persons had a common purpose which is to rob PW3 by violence. The prosecution has therefore proved beyond reasonable doubt the offence of conspiracy to commit armed robbery against the 2nd – 4th accused persons and I so hold.

In Exhibit A5, the confessional statement of the Appellant, the Appellant gave a summary of his background and proceeded to narrate how he and some named persons conspired to rob and indeed robbed PW3. He stated that he and his gang went to the house of one Dr. Ademola Obanoyen at Owo on the 12/11/2011 in the night; armed with guns, broke the wall and gained entrance into the parlour and robbed him of different handsets, two laptops and money. He said that his own share of the proceeds of the armed robbery was N25,000.00. The confession of the Appellant in the Exhibit is very detailed and one cannot be left in doubt as to its truth.

PW3 in his evidence at the trial court testified thus:

“… About 5 of them entered the house with cutlasses, guns, axes and some other dangerous weapons. Immediately they started beating me. Some asked me for money which I gave to them. Some of them asked for phones I volunteered them … some were searching the wardrobes … I heard gun shot from outside so they now whispered to themselves that police must have been around… Policemen now come inside including Corporal Edu… and saw that they had broken the wall to the living room through where they entered the house”.

On the side of PW1 he testified that:

“I was on duty at the station when the Divisional Traffic Officer called us at the charge room that there was a robbery going on at No. 53 Irugbe Street, Ijebu Owo. On getting to the gate of the scene, I saw a man but I did not know his mission and he was not armed. All of a sudden the person pulled out a pistol and shot at us. I pursued him and he entered in the scene he jumped the fence… The man ran when we entered into the house we met that the victim had sustained some injuries…”

Also PW2 in his uncontroverted evidence before the court testified that, a case of armed robbery was transferred from ‘A’ Division, Owo to SARS and assigned to his team for investigation. He investigated the case, he also investigated Diamond Bank armed robbery case. It was in the process of the investigation of the Diamond bank robbery that the 2nd – 4th accused person confessed that they were responsible for armed robbery at the house of PW3 among other robberies.

He recorded the confessional statements of the 2nd – 4th accused and tendered them in evidence as Exhibit A4, A5 and A6 respectively. It is clear from his statement reproduced above and the uncontroverted evidence of PW3, PW1 and PW2, that there was a robbery which was an armed robbery and that the Appellant was one who took part in the armed robbery. Having regard to the facts and circumstances of this case, the Appellant had the opportunity of committing the offence of armed robbery with which he was charged along with other co-accused.

In sum, I hold that the learned trial judge properly and rightly placed evidential weight on Exhibit A5 in holding that the offence of armed robbery against the Appellant and other co-accused was proved beyond reasonable doubt.

Issue No. 2 is resolved against the Appellant in favour of the Respondent.

Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed. The conviction and sentence of the Appellant by the Hon. Justice O.O. Akeredolu on 20th March, 2013 is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: The Appellant herein was charged and convicted of conspiracy to commit armed robbery and sentenced to death by hanging or firing squad. The robbery was committed by the Appellant, 2nd and 4th accused person and others at large in a house occupied by Dr. Ademola Obanoyan, (PW3) during which they robbed him of his handsets, laptops and money with dangerous arms. The learned trial judge based the conviction on a retracted confessional statement (Exhibit A5) made by the Appellant.

Where an accused person makes a confessional statement, it is desirable that before the court can base a conviction on it there should be some independent corroboration no matter how slight. See Ore-Ofe Adesina & Or V. The State (2010) 35 WRN 49.

The law is settled that the retraction of a confessional statement by an accused person during his evidence on oath at the trial is of no moment and does not adversely affect the situation. Once the court is satisfied as to its truth, it can safely convict on the basis of the confessional statement. See Okon Osung V. The State (2012) 18 NWLR (Pt. 1332) 256.

All put together, in the instant case, the trial judge weighed the contents of the statement and was satisfied that in spite of the retraction, the confession was direct, positive and unequivocal as to the guilt of the Accused/Appellant. He also found corroboration in the evidence of the PW3 the victim of the robbery, that laptops, handsets and money was carted away from him by the robbers who were armed with dangerous weapons which also corroborated the testimonies of the PW1 and PW2.

Taking into consideration the circumstances of this case, I agree with the view of my learned brother, Mohammed Ambi-Usi Danjuma JCA, in the lead judgment that the learned trial judge rightly relied on Exhibit A5, the confessional statement and the evidence of the prosecution witnesses in convicting the Appellant of the offence charged.

For all the reasons lucidly set out in the lead judgment, I also dismiss this appeal and affirm the judgment of the lower court and upheld the conviction and sentence of the Appellant

JAMES SHEHU ABIRIYI, J.C.A.: I read before now the draft of the Judgment just delivered by my learned brother MOHAMMED AMBI – USI DANJUMA, JCA.

A man may be convicted on his own confession. There is no law against it.

The Appellant made a confessional statement which turned out to be his Waterloo in this case.

I agree with my Lord DANJUMA, JCA that this appeal lacks merit and should be dismissed.

I too dismiss it and affirm the conviction and sentence of the Appellant.

Appearances

Abiola Olagunju, Esq appearing with Suraj Ali Musa, ESQFor Appellant

AND

B. V. Falodun, ESQ, Principal Legal Officer, Ondo State, Ministry of Justice Akure,For Respondent

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