SHERIFF OGUNLEYE v. THE STATE
(2016)LCN/8147(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of February, 2016
CA/AK/158CB/2014
RATIO
CRIMINAL LAW: CONSPIRACY; THE MEANING OF CONSPIRACY AND WHAT THE PROSECUTION MUST ESTABLISH TO PROVE THE CHARGE OF CONSPIRACY
Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do. See Ayo v. State (2015) 16 NWLR (Pt. 1486) 531 at 549. In order to prove a charge of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. Conspiracy is usually inferred from facts and evidence led. See State v. Gwangwan (2015) 13 NWLR (Pt 1477) 600 at 622. per. JAMES SHEHU ABIRIYI, J.C.A.
CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; WHAT THE PROSECUTION MUST ESTABLISH TO PROVE THE OFFENCE OF CONSPIRACY
To prove the offence of armed robbery the prosecution must prove the following:
a) That there was robbery
b) That the accused person committed the robbery and was armed with offensive weapon; and
c) That at or immediately before or after the robbery, the accused person wounded or used personal violence to any person.
See Sani v. State (2015) 15 NWLR (Pt 1483) 522 at 540. per. JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: STANDARD OF PROOF; THE STANDARD OF PROVING CONSPIRACY TO COMMIT ARMED ROBBERY AND ARMED ROBBERY
Conspiracy to commit armed robbery and armed robbery must be proved beyond reasonable doubt before there can be conviction. Proof beyond reasonable doubt however does not mean proof beyond any shadow of doubt. The law would fail to protect the society if it admits of fanciful possibilities to defeat the course of justice. See Sani v. State (supra) at 547. per. JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
Surely an accused person can be convicted solely on his confessional statement. However, the Court has a duty to test the truth of the confession by examining it in the light of other credible evidence before the Court. See Solola v. State (2005) 11 NWLR (Pt 937) 460 and Dibie v. State (2007) 9 NWLR (Pt 1038) 30. per. JAMES SHEHU ABIRIYI, J.C.A.
PRACTICE AND PROCEDURE; WHETHER THE CONVICTION OF ONE ACCUSED PERSON JOINTLY TRIED WITH AN ANOTHER ACCUSED PERSON CAN STAND WHERE THE LATTER WAS DISCHARGED
Where an accused person is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused was discharged. See Alo v. State (2015) 2 SCNJ 405 at 450. Where the evidence against two or more accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial Court in favour of one of the accused persons, the same doubt should also be resolved in favour of the others. Consequently if one is discharged and acquitted the others should also be discharged and acquitted. See Ebri v. State (2004) 11 NWLR (Pt 885) 589, Akpan v. State (2002) 12 NWLR (Pt. 780) 189 and Adele v. State (1995) 2 NWLR (Pt 377) 269. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
SHERIFF OGUNLEYE Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State holden at Akure delivered on 28th May 2014 convicting the Appellant, Pastor Adeniyi Matthew, Akeem Benjamin and Cosmos Obi for conspiracy to commit armed robbery and armed robbery contrary to Sections 5(b) and 1(2)(b) of the Robbery And Firearms (Special Provisions) Act Cap 398 Laws of the Federal Republic of Nigeria 1990. Three were discharged and acquitted.
The facts of the case in brief are as follows: According to Pw1 the only prosecution witness, a branch of N.B.M. Bank here in Akure was raided by armed robbers. The bank reported to the police that a sum of N26 million was taken away by the robbers. The robbery incident occurred between the night of 2nd July 2005 and 3rd July 2005. The accused persons were arrested during the course of investigation. The police received information that the police in Ibadan arrested one Evangelist in possession of a sum of N825,000 in N.B.M Bank wrappers.
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Through the Evangelist, the police was able to arrest five suspects linked to the robbery. They were
arrested between Ibadan and Ikire.
The accused persons were brought to Akure to the N.B.M Bank based on their confessions. The police made them go through the roles they played during the robbery and the whole thing was recorded in video after they had left the bank premises where the accused persons demonstrated their roles in the robbery. They left for Ibadan where two Dane guns and two live cartridges were recovered from one Aderemi who was released by the Chief Judge during a prison visit.
The two Dane guns and two live cartridges were admitted in evidence and marked Exhibits B, B1 and C.
According to the Pw1, the original case diary was lost and so certified true copies of statements of the accused persons which all the accused persons denied making were tendered in evidence, admitted and marked Exhibits H, J, K, L and M. The one made by the Appellant was marked Exhibit K. According to the Pw1 the statements were confessional.
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The Appellant denied taking part in the robbery. According to him in early May, 2005 he left Ikirun for Ibadan to take part in the naming ceremony of his brother’s child. He stayed back for some days after the
naming ceremony. At about 8pm one day when he was still in the house of his brother at Ibadan some people came. They said they were looking for his brother. His brother was not at home. Those people said they would take his brother’s wife. He told them that it would be unjust to take a woman who had a baby that was only a few days old. Those people decided to take him instead of the woman.
He was first taken to Agugu Police Station. Later he was taken to Iyaganku Police Station and later still he was taken to Alagbon, Lagos.
While he was at Alagbon Lagos his brother was brought in soaked in blood. The brother later died.
He was brought to the N.B.M Bank but he denied any knowledge of the robbery at the bank.
He was later charged to Court. No tipper lorry was recovered from him.
He did not make any statement anywhere to the police.
It is true that he acted some roles in the video recording played in Court on 14/11/2013. He was forced by the police to act as he acted.
On the evidence of the sole witness called by the prosecution particularly Exhibit K which the Appellant denied making in Court the lower Court convicted and
sentenced the Appellant with three others for conspiracy to commit armed robbery and armed robbery. 1st, 6th and 7th accused persons were discharged and acquitted.
The Appellant filed an initial notice of appeal dated 5th June 2014 containing one ground of appeal. On 16th June 2015 this Court granted him leave to amend the notice of appeal. The Amended Notice of Appeal dated 7th February 2015, filed 9th February 2015 but deemed duly filed on 16th June 2015 contains six grounds of appeal. From the six grounds of appeal the Appellant presented the following issues for determination:
i) Whether the failure by the prosecution to prove the essential ingredients of the offence of armed robbery was fatal to the prosecution’s case.
ii) Whether by the evidence adduced before the lower Court, the prosecution could be said to have proved its case beyond reasonable doubt.
iii) Whether the discharge and acquittal of the 1st, 6th and 7th co-accused persons based on the benefit of the doubt in their favour ought not have equally extended to the Appellant in view of the similarity in the evidence against all the accused persons.
On its part the Respondent formulated the following two issues for determination:
1. Whether the prosecution would be said to have proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the Learned Trial Judge.
2. Whether the discharge and acquittal of the 1st, 6th and 7th accused persons (who are co-accused persons) based on the benefit of doubt in their favour, ought not to have equally extended to the Appellant in view of the similarity in the evidence against all the accused persons.
I think the Appellant’s issue 2 is the same with his issue 1. The two issues are encapsulated in Respondent’s issue 1. In the circumstances, I am of the view that the appeal can be determined on the issues formulated by the Respondent.
On issue 1, learned counsel for the Appellant submitted that the offence of armed robbery must be proved beyond reasonable doubt. That the prosecution must prove beyond reasonable doubt the following:
a) That there was a robbery or series of robberies.
b) That the robbery or each robbery was an armed robbery; and
c) That the accused was one of those who took part in the armed robbery.
The Appellant and others, it was submitted, were alleged to have stolen N25,953,000 belonging to N.B.M Bank, Akure but no one testified on behalf of the bank.
It was submitted that there was no evidence of any personal violence on any one before the lower Court.
The lower Court, it was submitted, erred in relying on Exhibit K. The original of Exhibit K, it was submitted ought to have been tendered in evidence. That the only witness called by the Respondent testified to the effect that when the original was lost, they relied on copies made and certified the statements made by the accused persons. In effect therefore the certification was done after the original case file was lost. That there was no original available with which these copies were compared to confirm that they were indeed true copies. Moreover, by the provision of Section 104 of the Evidence Act there shall be inscribed on the certified true copy a certificate at the foot, the officer with his name and official title. However, Exhibit K does not bear such
certification and was therefore inadmissible.
The video recording, it was pointed out, was alleged by the Appellant to be involuntary.
On Exhibit K, it was submitted, before it could be relied upon, the Court must look for evidence outside it to test its truthfulness.
It was submitted that an extra-judicial statement binds the maker only. It was submitted that the lower Court relied on statements made by other accused persons as corroborative evidence.
On issue 2, it was submitted that evidence of Pw1 was similar against all the accused persons. That the Pw1 was emphatic that all the accused persons participated in the robbery and all accused persons confessed to the crime.
It was submitted that the doubt expressed by the lower Court about the prosecution’s case against the 1st, 6th and 7th accused persons should have been extended to the Appellant.
On issue 1, learned counsel for the Respondent submitted that the video shown before the trial Court without more is reliable evidence that there was a robbery on 2nd July 2005 at N.B.M. Bank.
It was submitted that the photocopies of the statements of the accused persons were
properly admitted.
It was submitted that by the time Exhibit K is placed side by side with all the facts of the case the only conclusion would be that it is consistent with other facts established in the case.
On issue 2, it was submitted that where two or more persons are charged with commission of an offence and the evidence against all the accused persons is the same or similar, the discharge of one must as a matter of law affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convincing evidence that must automatically affect all the others in the light of the fact that the evidence against all the accused persons is tied together. We were referred to Okoro v. The State (2012) LPELR – 7846 at page 36.
It was submitted that this principle of law cannot be applied to the instant case. In the instant case, it was submitted, Pw1 was not discredited.
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It was submitted that the principle of law relating to reciprocal acquittal of joint accused persons is not an absolute one. It was submitted that before the principle of law can apply the evidence against the two or more
accused?persons in a criminal case must be in all material respects and quality the same. We were referred to Akpan v. State (2002) 12 NWLR (Pt 780) 189 at 204.
It was submitted that the Appellant misdirected himself in law and in fact when he contended that the doubt resolved in favour of the 1st, 6th and 7th accused persons should be extended to the Appellant because from the totality of the evidence before the lower Court the volume, value, quality and quantity of the evidence against the 1st, 6th and 7th accused persons is not the same with the one against the Appellant. That while the statements of the 1st, 6th and 7th accused persons were not corroborated by either the video recording or any of the bonds releasing the money or properties bought from the money stolen to the owner, the statement of the Appellant was positively corroborated by other evidence placed before the Court. That there was evidence to prove the case against the Appellant beyond reasonable doubt, it was submitted.
It was submitted that a Court will be right in discharging and acquitting a co-accused person if the evidence in exculpation of the two accused persons is the same and
not merely nearly the same. Therefore where the Court finds that a case has not been made against an accused person he can be discharged and acquitted. That the Court can convict the co-accused persons on the basis of the inculpatory evidence against him if any. We were referred to Idiok v. The State (2008) 13 NWLR (Pt 1104) 225.
It was submitted that the contention of the Appellant that he was supposed to benefit from the doubt found in favour of the 1st, 6th and 7th defendants is unfounded in law.
Learned counsel for the Appellant re-argued the appeal in his reply brief of argument. That is not the purpose of a reply brief which should deal with new points arising from the Respondent’s brief. As the reply brief was not dealing with new points arising from respondent’s brief, I will discountenance it.
Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do. See Ayo v. State (2015) 16 NWLR (Pt. 1486) 531 at 549.
?In order to prove a charge of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means.
Conspiracy is usually inferred from facts and evidence led. See State v. Gwangwan (2015) 13 NWLR (Pt 1477) 600 at 622.
To prove the offence of armed robbery the prosecution must prove the following:
a) That there was robbery
b) That the accused person committed the robbery and was armed with offensive weapon; and
c) That at or immediately before or after the robbery, the accused person wounded or used personal violence to any person.
See Sani v. State (2015) 15 NWLR (Pt 1483) 522 at 540.
Conspiracy to commit armed robbery and armed robbery must be proved beyond reasonable doubt before there can be conviction.
?Proof beyond reasonable doubt however does not mean proof beyond any shadow of doubt. The law would fail to protect the society if it admits of fanciful possibilities to defeat the course of justice. See Sani v. State (supra) at 547.
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At page 131 of the record of appeal the lower Court stated as follows:
“The statements contained damning admissions by all the defendants. The defendants all retracted from their statements and it became incumbent to find corroborative evidence to justify the use of the statements. At
the end of the exercise, I found sufficient evidence outside the statements to find the 2nd, 3rd, 4th and 5th defendants guilty. The corroborative evidence came mainly from the investigation conducted by the police that included the recovery of money, vehicles and the admission contained in the video recording of the visit to the locus criminis by the police and the defendants.”
The Appellant was the 5th defendant.
Surely an accused person can be convicted solely on his confessional statement. However, the Court has a duty to test the truth of the confession by examining it in the light of other credible evidence before the Court. See Solola v. State (2005) 11 NWLR (Pt 937) 460 and Dibie v. State (2007) 9 NWLR (Pt 1038) 30.
The lower Court found corroborative evidence in respect of the Appellant’s statement from the statements of 1st – 4th defendants. The lower Court was wrong when it sought corroborative evidence from the statements of the 1st-4th accused persons. The statements of the other co-accused persons which implicated the Appellant would be deemed relevant against the Appellant if they were made in his presence and he adopted the said
statements by words or conduct. See Alo v. State (2015) 2 SCNJ 405 at 449. It is not shown that the appellant adopted the statements of the 1st – 4th accused persons.
The lower Court also found corroborative evidence from the testimony of Pw1. And what is that evidence. The evidence is at page 49 of the record of appeal and it is merely this:
“We recovered a Tipper Lorry from Sheriff Ogunleye.”
The witness did not say that part of the stolen money from the bank was used in buying the tipper lorry. Even if he did, he ought to have gone further to prove this for example by leading evidence to show probably that the tipper lorry was bought after the alleged robbery incident. This the witness failed to do. I cannot see how the lower Court would use the above piece of evidence as corroborative of the statement of the Appellant. In my view the lower Court wrongly found that evidence of Pw1 reproduced above corroborated appellant’s statement Exhibit K.
The lower Court also found corroborative evidence in the video recording played before it. At page 40 of the record of appeal the Pw1 stated as follows:
“We brought all the Suspects to the N.B.M
Bank in Akure based on their confessions. We made them to go through the roles they played during the robbery. The whole thing was recorded in a video after we left the bank premises where the accused demonstrated their roles in the robbery.”
There is evidence that the Appellant and the other accused persons protested against the video recording. According to them they were forced to play, the various roles played in the video recording. No trial within trial was conducted to determine the voluntariness of the recorded material. It was therefore inadmissible. See Section 29(2)(a) of the Evidence Act. Even if the video recording was admissible, it too needed corroboration before it could be relied upon. Evidence which needed to be corroborated by other evidence, in this case, the video recording could not corroborate the statement of the Appellant as the lower Court did use the recorded video material to corroborate the statement of the Appellant.
Furthermore, it should be noted that when the video recording was first played in Court, it was discovered that it contained two demonstrations, plays or dramas. What happened was that the same accused
persons had participated in an earlier drama or play in respect of a Union Bank Akure robbery for which the accused persons had been discharged and acquitted. A recorded video of that robbery drama was contained in the video recording tendered in this trial. When the earlier drama was found in the video recording, the recording was withdrawn and the video edited. In my view this alone made the video recording unreliable piece of evidence.
Apart from this, I am at a loss as to what the prosecution wanted to achieve by accused persons mimicking a robbery operation that had earlier been carried out. I would have thought that what the prosecution will tender in Court is a recording of the robbery while it was being committed and not a recorded drama made long after the event. I am surprise that the lower Court was impressed by this drama. One would have thought that the police only sought to entertain themselves with the above drama. But surprisingly they were taken seriously not only by the prosecution but also by the lower Court which relied heavily on the video recording.
If the Courts will rely on this type of evidence, then we may say goodbye to
criminal investigation. For how else would this be explained where accused persons are on trial in Court for offences that carry the death penalty and no evidence is produced in Court other than purported confessional statements of the accused persons in hard and soft copies (video recording) where the accused persons are recorded dramatizing the alleged offence for which they are being tried while the alleged victims of the crime are not even called (to testify) as witnesses. In the instant case, although the Appellant and the other accused persons were tried for conspiracy to commit armed robbery and armed robbery of a bank no witness was called from the bank to come and even confirm that truly there was such robbery in the bank. No evidence was led to show that money used in buying certain property was part of the money stolen from the bank for example by showing that the said property was bought after the robbery. There is no evidence that any money was returned to the bank as nobody came to Court from the bank to confirm such returns. There is also no evidence to show that any property bought with stolen money was returned to the bank as nobody came from
the bank to confirm return of such property. Exhibits E and E1 relied upon by the prosecution as evidence of such return of money and property to the bank cannot be such evidence. In addition to Exhibits E and E1, the person who released the money and property to the bank ought to have been called as a witness. The person to whom the money and property were released should have been called to give evidence. Pw1 who claimed that money had been released to the bank did not say how much. He equally did not say what property was released to the bank.
In my view, the prosecution merely led beer parlour evidence before the lower Court. On such evidence the Appellant was entitled to a discharge and acquittal.
Apart from this, the prosecution tendered “certified true copies” of the statements of the Appellant and the other accused persons because the original case file was lost. It is common ground between both parties that the statements are public documents as defined in Section 102 of the Evidence Act. ?By Section 90 of the Evidence Act the only secondary evidence of a public document admissible in evidence is a certified true copy of the document and no
other secondary evidence is admissible. Exhibit K is the photocopy of the Appellant’s statement. At the foot of it is a stamp of Federal Anti Robbery Squad Force CID Annex, Adeniji Adele Road Lagos. It is not signed. It is not dated. There is no name of the officer and his title against the stamp. It does not even pretend to be a certified true copy. In my view, the photocopy of the statement of the Appellant was wrongly admitted in evidence. It ought to have been rejected in evidence by the lower Court. Having wrongly admitted it, the lower Court ought to have disregarded it rather than placing heavy reliance on it to convict the Appellant.
From all that I have stated above, I do not hesitate to say that the prosecution failed to prove beyond reasonable doubt any of the two offences for which the Appellant was convicted.
Issue 1 is resolved in favour of the Appellant.
Where an accused person is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused was discharged. See Alo v. State (2015) 2 SCNJ 405 at 450.
Where the evidence against two or more accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial Court in favour of one of the accused persons, the same doubt should also be resolved in favour of the others. Consequently if one is discharged and acquitted the others should also be discharged and acquitted. See Ebri v. State (2004) 11 NWLR (Pt 885) 589, Akpan v. State (2002) 12 NWLR (Pt. 780) 189 and Adele v. State (1995) 2 NWLR (Pt 377) 269.
The evidence against the Appellant and the 1st, 6th and 7th accused persons who were discharged by the lower Court is not the same. Therefore their discharge did not entitle the Appellant to a discharge as well.
Therefore issue 2 is resolved in favour of the Respondent and against the Appellant.
However, issue 1 having been resolved in favour of the Appellant this appeal should be allowed. It is allowed by me.
The conviction and sentence of the Appellant by the lower Court are hereby quashed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I AGREE
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the
appeal be allowed as the evidence led at the trial Court was not subjected to merciless scrutiny inspite of the absence of cogent and compelling proof. The victim i.e. the Bank, led no evidence through anybody on the alleged robbery thereat. They withheld material evidence. The character and nature of evidence led, have been shown to be so malnourished that the efficacy of the charge was deafened of all life.
My brother, Justice Abiriyi, JCA has applied the injunction of the apex Court in subjecting evidence led to merciless scrutiny on the authority of Shande V. State (2005) 131 LRCN 2489 and in allowing the appeal. I need not recount the lapses in the prosecution’s evidence, as led. It has been done at the lead already.
Appeal is allowed by me, in concurrence to the reasons in the Lead Judgment.
Appearances
Rotimi Adesanmi, Esq.For Appellant
AND
Stella Adegoke (Mrs) Deputy Director Law Research, Planning and Library Service Ministry of Justice Ondo State with, O.F. Akeredolu Principal Legal Officer.For Respondent
