OYE AROWOJOLU v. THE STATE
(2016)LCN/8254(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/AK/231c/2013
RATIO
CRIMINAL LAW: CONSPIRACY; HOW A TRIAL COURT MAY INFER CONSPIRACY
Conspiracy simply put is the meeting of the minds of the conspirators to perpetrate an unlawful act by unlawful means. Conviction is usually grounded on circumstantial evidence and the trial Court may infer conspiracy from facts through which a common purpose is achieved. See Kolawole v. The State (2015) 2 SCNJ (Pt. 1) 186. per. JAMES SHEHU ABIRIYI, J.C.A.
CRIMINAL LAW: ROBBERY; THE NATURE OF THE OFFENCE OF ROBBERY AND WHAT THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT TO ESTABLISH THE OFFENCE OF ROBBERY
Robbery is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. But armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. The law is now well established that in order to establish the offence of armed robbery the prosecution must prove beyond reasonable doubt the following:
1) That there was a robbery or series of robberies.
2) That the robber/s was/were armed.
3) That the accused person was the armed robber or one of the armed robbers.
See Okanlawon v. State (2015) 17 NWLR (Pt 1489) 445, Ibrahim v. State (2015) 3 SCNJ 359 and Kolawole v. State (Supra). per. JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; THE NATURE OF CONFESSION STATEMENT AND WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
A confession has been held to be an accused person’s oral or written acknowledgement of guilt which often includes details about the crime alleged. See Okanlawon v. State (Supra). An accused person can be convicted solely on his confessional statement if made voluntarily and it is fully consistent and probable. It is however desirable to have outside the confession some evidence be it slight of circumstances which make it probable that the confession was true. See Alo v. The State (2015) 2 SCNJ (Pt 11) 405. 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
OYE AROWOJOLU Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):This appeal is against the judgment delivered on 25th January, 2012 in the High Court of Ondo State in the Ore Judicial Division holden at Ondo.
The Appellant was convicted on a two counts charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 6(b) and 1 (2)(a) of the Robbery And Firearms (Special Provisions) Act Cap R 11 Laws of the Federal Republic of Nigeria 2004.
The facts of the case on the available evidence before the Lower Court are brief and simple. According to the two prosecution witnesses Inspector James Jaiyeoba (Pw1) and Inspector Adejoh Ojogbane (Pw2) a case of robbery was transferred from Ofosu Division to the Special Anti Robbery Squad, Akure. They were directed to investigate. They took cautionary statements of the accused persons who all confessed to the offence. They took the accused persons to the scene of crime. All the Exhibits forwarded along with the accused persons were registered with the Exhibit keeper.
?According to Pw2, they arrested the Appellant along Ijoka Road Akure. It was during investigation that
they arrested the Appellant.
They got in touch with the Appellant’s wife and she led them to arrest the Appellant at Ijoka Road Akure. They arrested the wife to enable them get the husband (Appellant) as investigations revealed that the Appellant was one of the robbers.
The statement of the Appellant was obtained voluntarily on the day he was arrested at about 9.00pm in the statement room. They did not allow the Appellant to see other accused persons.
The statement which the Appellant said he was forced to sign after being tortured for three days and due to threats, to kill him was admitted in evidence after a trial within trial and marked Exhibit P5.
On his own part Appellant denied committing the offence.
Earlier in his statement to the police he denied committing the offence. In another statement purportedly made to the police as well he claimed to have participated in three different robberies.
?In Court he said he was riding a motorcycle when he was arrested in the morning on 5th July 2007. He was arrested with others. They were asked for persons they dropped earlier that day. He said he had not taken anybody. That he was
just coming from home. He was arrested around 7:00 a.m. The police did not mention the name of the person they were looking for. Two of the people arrested with him were released on bail but he was not released on bail because he had no one to take him on bail. He was told he would be released on bail in the Court.
The police did not confront him with allegation of armed robbery of 25th June 2011. It was when he was being beaten in S. A. R. S that an allegation was made against him that he took some people to the place where they committed armed robbery. He first met the co-accused persons in SARS but he was not told then that they committed the same offence.
After considering evidence led and addresses of Learned Counsel for the parties the Lower Court convicted the Appellant on both counts and sentenced him to death either by hanging or by firing squad.
?The Appellant has therefore appealed to this Court on three grounds of appeal from which the Appellant presented the following two issues for determination:
”1. Whether in the light of the evidence adduced at the trial the Respondent proved, beyond all reasonable doubt, that the Appellant
committed the offence of conspiracy to commit armed robbery, such as to justify the sentence of death imposed upon him by the trial Court. (This issue has been distilled from grounds 1 and 3 of the Notice of Appeal).
2. Whether in the light of the evidence adduced at trial, the Respondent proved, beyond all reasonable doubt that the Appellant committed the offence of armed robbery, such as to justify the sentence imposed upon him by the trial Court. (This issue has been distilled from Ground 2 of the Notice of Appeal).
The Respondent presented a lone issue for determination:
”1. Whether the learned trial Judge of the High Court premised on the totality of the evidence adduced before it during the trial of the case, was right when he convicted and accordingly sentenced the Appellant for the offences for which he was charged.”
There is no difference between issue 1 and issue 2 formulated by the Appellant. I will therefore reframe the two issues into one to read thus:
”1. Whether in the light of the evidence adduced at trial the Respondent proved, beyond reasonable doubt that the Appellant committed the offences of conspiracy to commit armed
robbery and armed robbery to justify the sentence of death imposed upon him by the Trial Court. (Distilled from grounds 1-3 of the notice of appeal).
The appeal was argued on the following briefs:
”1. Appellant’s brief of argument dated 13th October, 2014 and filed 15/10/14 deemed duly filed on 15/6/15 settled by Ayodeji Omotoso Esq.
2. Respondent’s Brief of Argument dated 6th November 2014 filed 13th November, 2014 deemed duly filed on 15th June, 2015 settled by Mrs. A. O. Adeyemi – Tuki (D. P. P.) and O. F. Akeredolu Principal Legal Officer Ondo State Ministry of Justice.”
Arguing the appeal, Learned Counsel for the Appellant submitted that the burden of proving that a crime has been committed lies on the person who asserts it and the standard required for proving the alleged crime is proof beyond reasonable doubt. We were referred to Section 135 (1) of the Evidence Act 2011, Adamu v. A. G. Bendel State (1986) 2 NWLR (Pt. 22) 284 and Akpan v. State (1990) 7 NWLR (Pt 160) 101.
?Conspiracy, it was submitted, is an agreement by two or more persons to commit an unlawful act, coupled with intent to achieve the agreement’s objective. We were
referred to Osondu v. FRN (2000) 12 NWLR (Pt 682) 483.
It was submitted that the Lower Court erroneously used only the retracted confessional statements of the Appellant (Exhibit P5) and evidence Pw1 and Pw2 who were not eye-witnesses as the basis for arriving at its decision.
The law, it was submitted, it that it is desirable to have outside of the accused person’s confession some corroborative evidence, no matter how slight of circumstances which would make it probable that the confession is true and correct. We were referred to Nwachukwu v. The State (2007) 17 NWLR (Pt 1062) 31 at 70.
Pw2, it was submitted, gave conflicting oral evidence in that he stated that the Appellant was arrested on 30th July, 2007 and he made his statement the same day. This was during the trial within trial. However in evidence in chief he said it was on the 5th July, 2007 that the Appellant made the statement. However, the date on the statement is 8th July 2007. This probably supports, it was argued, the claim by the Appellant that he was tortured for three days before he agreed to sign the statement prepared by the police.
?The Lower Court, it was submitted,
failed to apply the test laid down in a plethora of authorities beginning from R v. Sykes (1913) 8 Cr. App. Report 233 approved by the West African Court of Appeal in Kanu v. The King (1952/955) 14 WALA 30 and Shodiya v. The State (2013) 14 NWLR … Mbenu v. State (1988) 3 NWLR (Pt 84) 615 and Stephen v. State (1986) 5 NWLR (PT. 46) 978.
There was no shred of evidence, it was submitted, supporting the allegation that the Appellant conspired to commit armed robbery. That there was no evidence that anybody in fact robbed as there was no evidence from the supposed victims of the alleged robbery before the Lower Court. That none of the alleged items stolen was found with the Appellant. That the Appellant gave unchallenged evidence that he was already in custody at the time of the alleged robbery.
The Court was referred to Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 at 32 – 33.
?It was submitted that by virtue of Section 1(2) (a) of the Robbery And Firearms (Special Provisions) Act, the crucial ingredients necessary for the prosecution to establish the offence of armed robbery against an accused person are: that a robbery has taken place, that the
robbery was an armed robbery, and that the accused person participated in the armed robbery. We were referred to Oseni v. State (2012) 5 NWLR (Pt. 1293) 351 and Adekoya v. The State (2012) 9 NWLR (Pt 1306) 539.
The prosecution, it was submitted, failed to establish the crucial ingredients for the offence of armed robbery against the Appellant. That none of the victims of the alleged armed robbery was called to give evidence. No evidence was led in proof of the fact that the alleged robbery was an armed robbery as the Exhibits allegedly kept with the Exhibit keeper were not tendered in evidence.
Learned Counsel for the Respondent pointed out that the Appellant did not retract his statement but alleged that it was not voluntarily made.
It was submitted that the statement of the Appellant Exhibit P5 alone is enough to sustain the conviction of the Appellant. We were referred to Dogo v. State (2013) 6 SCM 411 at 58-59.
?It was submitted that the evidence of Pw2 that they took the accused persons to the scene of crime including the Appellant and they confessed that they committed the offence is enough corroboration as required by law.
The Lower Court, it was submitted, tested Exhibit P5 before relying on it to convict the Appellant.
It was submitted that the mention of different dates by Pw2 was a mere discrepancy and not material enough to affect the judgment of the Lower Court. For a contradiction to be regarded as material, it was submitted, it must go to the root of the charge before the Court. We were referred to Dibie v. State (2007) 9 NWLR (Pt 1038) 30.
Learned Counsel for the Respondent submitted that the argument of Appellant’s Counsel that the victims of the crime and the police officers that arrested the accused persons are vital witnesses is mischievous or misconceived. The only vital witnesses in this case, it was submitted, are the police officers at SARS who carried out investigation.
Proof beyond reasonable doubt, it was submitted, should not be stretched beyond the reasonable otherwise it will cleave. We were referred to Nasiru v. State (1999) 2 NWLR (pt 589) 87 at 98 and Nwatumacha v. The State (2011) LPELR – 8119.
Conspiracy is a separate and distinct offence from the offence of armed robbery although in most cases both offences are intricately interwoven.
Conspiracy simply put is the meeting of the minds of the conspirators to perpetrate an unlawful act by unlawful means. Conviction is usually grounded on circumstantial evidence and the trial Court may infer conspiracy from facts through which a common purpose is achieved. See Kolawole v. The State (2015) 2 SCNJ (Pt. 1) 186.
Robbery is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. But armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used.
The law is now well established that in order to establish the offence of armed robbery the prosecution must prove beyond reasonable doubt the following:
1) That there was a robbery or series of robberies.
2) That the robber/s was/were armed.
3) That the accused person was the armed robber or one of the armed robbers.
See Okanlawon v. State (2015) 17 NWLR (Pt 1489) 445, Ibrahim v. State (2015) 3 SCNJ 359 and Kolawole v. State (Supra).
The Pw2 in evidence in chief stated and I quote:
“During investigation we arrested six at Ore while the seventh
person was arrested along Ijoka Road, Akure with his two motorcycles. The two motorcycles were recovered from him. We arrested Oye Arowojolu along Ijoka Road, Akure.
…
It was during the investigation that we arrested Oye Arowojolu. We got in touch with the wife and this led us to his arrest at Ijoka Road Akure. We arrested the wife to enable us get the husband. Investigation revealed that Ayo Arowojolu was one of the robbers.”
See page 86 of the Record of Appeal. Still in evidence in chief the Pw2 said:
”I told the Court that the accused 5 accused persons were transferred to S.A.R.S. while I arrested one at Ijoka Road. The five accused persons were transferred on 30th June, 2007. During the investigation 6th accused person was arrested at Ijoka in Akure at about 8p.m. through his wife. It was the wife who recognized the voice of her husband, Oye Arowojolu through the window before we knocked the door and arrested the two of them at his hide out. It was dark by then. We handcuffed the two of them we met in the room. While passing through banana plantation the wife pointed to the husband as the person we were looking for. It was then we
released the 2nd person we handcuffed. His statement was recorded that night around 9p.m. when we knocked at the door we arrested Oye Arowojolu and another person. I don?t know the name of the other person. The banana plantation was planted behind the window of the hideout of Oye Arowojolu. There is a banana plantation behind the house. We hid the wife of Oye Arowojolu at the plantation. Oye Arowojolu was arrested on the 5th of July, 2007 in the evening. It was that night we obtained his statement.”
Under cross-examination the Pw2 maintained that they arrested the Appellant in a hideout inside a room. This is what he said:
“I arrested him in his hideout inside a room.”
?From the evidence of the witness reproduced above who was arrested along Ijoka Road Akure with two motorcycles? As all others appear on the evidence contained at page 86 of the record to have been arrested at Ore, the only conclusion is that it was the Appellant who was purportedly arrested along Ijoka Road Akure with two motorcycles. And yet the same Appellant was arrested holed up inside a room with another person. The Pw2 seems to have confirmed that the Appellant was the
only person arrested at Akure. This is what he said: “He is the only suspect that was arrested at Akure through his wife at Ijoka Road,” It is now clear that it was the Appellant who was purportedly arrested along the road with two motorcycles. The same appellant was arrested with some other person holed up inside a room and the other person was released by the police. It is clear from the foregoing that the Pw2 was talking nonsense. On this type of nonsense, it cannot be suggested that his evidence corroborated the purported confessional statement of the Appellant.
It is not surprising therefore that the Pw2 during trial within trial said that the Appellant was arrested on the 30th July, 2007 see page 99 of the record of appeal and at page 106 while testifying in chief that the Appellant was arrested on the 5th of July, 2007. The different dates churned out by the Pw2 in respect of the arrest is part of the fumbling of the witness shown above. Taken in isolation the evidence of the Pw2 that the Appellant was arrested on 30th July, 2007 and 5th July, 2007 would appear not to be material. But in light of the entire evidence of the Pw2 it was part of the
material contradictions in the evidence of the witness. As shown earlier in the judgment the witness claimed that the Appellant was arrested along the road with two motorcycles and in the next breath, he claimed that the Appellant was arrested with one other person from a room in which they were hiding.
In my view the Lower Court wrongly relied on the evidence of the Pw2 as corroborating the confessional statement of the Appellant.
The Lower Court however found the “statement” of the Appellant Exhibit P5 confessional. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime and this includes both extra-judicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of full confession. See Section 28 of the Evidence Act 2011 . A confession has been held to be an accused person’s oral or written acknowledgement of guilt which often includes details about the crime alleged. See Okanlawon v. State (Supra).
An accused person can be convicted solely on his confessional statement if made voluntarily and it
is fully consistent and probable. It is however desirable to have outside the confession some evidence be it slight of circumstances which make it probable that the confession was true. See Alo v. The State (2015) 2 SCNJ (Pt 11) 405.
The “statement” of the Appellant Exhibit P5 does not qualify as one. It is not the “statement” but the statements of the Appellant. The statements are two different statements tendered as one during the trial within trial and admitted as such. I am surprise that the Lower Court failed to see that there were two different statements and continued to consider them as the statement of the Appellant. The statements reproduced immediately hereunder read as follows:
“after the Cautional Ward I Oye Arowotolu ‘m’ voluntarily elect to state as follows: that I am a native of Irele Local Govt area of Ondo State, I attended catholic primary school ode Irele. I did not go to secondary school due to the death of my father. I came to show boy Ore for over ten years back. I came to stay with my mother one Mrs Omolere Arowojolu before she finally pack to Ore town. I was frying eggro and sell at show boy Express before. But for about one
year/started/riding okada. Now I have two motor cycle. I bought the two motor cycle on hire purchase. The first motor cycle remain the sum of twenty five thousand Naira to ballance (sic) the dealer. The second one also remain thirty six thousand Naira to ballance (sic) the dealer also. On the 24th of June 2007 at about few minutes to six o clock in the evening one Deji called me to carry to Ofosu read by old road. I convey Deji and Femi on top of my motorcycle and drop them at area they ask me to come and carry them the following morning but when I was going to carry them I had information that one okada was arrested with the motor cycle and the called him Taiwo ‘m’ who drop a gang of armed robbers on the road for operation I could not be able to go further again and I turn back to Ore. When I got to my house at show boy. When I enter my house I inform my land lord son one Ade that I took some people to road and they were arrested. I ran down to Akure with Ade who show me his sister house which both of us sleep together before he went back, After four days the sister to Ade assisted me to get a room beside Sunday Bus Stop Juction (sic) before I went
back to Ore to pack some of my load. It was Ade my land lord son that assisted me to ride the second motor cycle down to Akure.
Deji told me that he came form Ilori (sic) in kwara State and Femi is from Ondo town But I don’t know their houses. I know udoka he stay at Akinjagula while I am staying at show boy. Area Deji hire my motor cyxle for two thousand naira for to and fro But they promise to pay me the following day I came to convey them back to show boy. They group them (seve) selves inside Cocoa farm before they called me to drop them for road. I did not go out with them for any robbery before But when I have from people that same of their gang were arrested that is why I ran to Akure. That is all my statement. Oye?
“In the statement I made to the police I wish to state as follows that I smoke india hemp we have our joint at show Ore inside Cocoa Farm. The owner of the india hemp join is called Solomon and Damy. It was at that join I know one Deji from Ilori in Kwara State and Femi from Ondo town. I join them in armed robbery operation along Ore Ofosu road. In the month of June we go out for robbery three times. We do block road with
stick. Our first operation was with Femi and Deji. I was given the sum of two thousand Naira for droping them at the scene of their operation. I join them in the second operation which I was given a share of N5,000.00k and the second one was six thousand Naira share N6,000.00k. It was Udoka and one other Ibo man that carry gun. The first operation we are about twenty two armed robbers while the last one on the 24/6/07 we are about twenty seven. One Lati is our member He use his okada to drop them and both of us robbed together But I had that Lati has already ran away. I know Lati house at shoe boy. The last operation I was given a Nokia handset and I sold that hand set to Femi one of the gang member I am married with one child. When I discored (sic) that police arrested some of our gang member I came home and inform my wife to run to his fathers house that I went out for robbery. I now ran out of show boy in Ore to Akure with my two motor cycle. That is all my statement.”
Which of these statements did the Lower Court find confessional?
I cursory look at the two statements will show that one of them was not confessional. If the Lower Court had looked
at the statements well it would have found that there were two separate statements and would have considered each of the statements separately. It would probably have decided on whether both were confessional or one of the two only was confessional. The Lower Court would probably also have shown if it was acting on one of the statements or both in coming to its conclusion.
Instead, it did some patch work at page 140 of record of appeal. The Lower Court cut part of the second statement which contained some babbling talk about some purported criminal exploits by the Appellant and joined it to part of the first statement which had nothing incriminating against the Appellant.
The Lower Court did not need to go through this painful exercise. All it was required to do was to merely look at the evidence before it. Consider what piece of evidence incriminated the Appellant and decide if the case was proved beyond reasonable doubt.
?Before convicting on a confessional statement, such statement must be subjected to detailed scrutiny notwithstanding how rampant armed robbery is in the society. Judges who sit to hear such cases should try to be detached and
seek justice with an open mind. See Ogudo v. The State (2011) 18 NWLR (Pt 1278) 1 at 32.
The Lower Court did not see that the second statement which it patched to the first was not signed by the recorder. The evidence is that the statement of the Appellant was recorded for him. While the first statement was signed by the recorder, the second statement was not signed by the recorder and was therefore an unreliable piece of evidence.
Even if it was signed it would still not be evidence in proof the offence for which the Appellant was tried. In it the Appellant, purportedly claimed that their last operation was on 24th June 2007. They were charged for an armed robbery that purportedly took place on the 25th June, 2007.
It is clear from the foregoing that the Lower Court ought not to have found the Appellant guilty on the basis of his confession as no such confession was established before the Court.
?There is no evidence that when the police took the accused persons to the scene they admitted committing the offence. What did the Appellant actually say at the scene of crime when the police took them there that amounted to an admission?
In the absence of the confession there is no evidence to show that there was any armed robbery. None of the alleged victims of the robbery testified to say he was robbed with a gun or without a gun. None of the police officers who arrested the Appellant immediately after the alleged armed robbery gave evidence before the Court. None of the Exhibits kept with the exhibit keeper was tendered in evidence.
There is also no evidence of conspiracy against the Appellant.
In the circumstances, the only issue for determination is resolved in favour of the Appellant.
The appeal is allowed. The conviction and sentence of the Appellant are hereby quashed.
The Appellant is accordingly discharged and acquitted.
MOJEED ADEKUNLE OWOADE, J.C.A.:I had a preview of the judgment just delivered by my learned brother, James Shehu Abiriyi, JCA, I agree entirely with the reasoning and conclusion of His Lordship that this appeal has merit. I also allow it. The conviction and sentence of the Appellant are also hereby quashed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
Appearances
A. O. Omotoso with him, S. O. Afahokor and A. A. AdedoyinFor Appellant
AND
O. F. Akeredolu (Principal Legal Officer Ministry of Justice Ondo State) with him, C. ChukwuFor Respondent
