ABDULRAHIM USMAN v. THE STATE
(2018)LCN/12236(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/282C/2016
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY
“The offence of conspiracy is not defined in the Criminal or Penal Code. The Courts therefore tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned. See the case of ODUNEYE V THE STATE (2001) 13 WRN, 88. The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. Therefore direct positive evidence of the plot between the co-conspirators is hardly capable of proof. The actual commission of the offence is not necessary to ground conviction for conspiracy. See the decision of this Court in NWOSU V STATE (2004)15 NWLR, PT 897, 466.” PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVIDENCE: RETRACTED CONFESSIONAL STATEMENT
“The retracted confessional statement was in the circumstances corroborated by eye witnesses account and thus rendered relevant admissible and reliable.” PER MOHAMMED AMBI-USI DANJUMA J.C.A
EVIDENCE: RETRACTED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
“The law is trite that a conviction can be found on a retracted confessional statement of an accused person once it is voluntary, positive and true. See SIMON V. STATE (2017) 8 NWLR (PT. 1566) 119; DABIA V. STATE (2017) 12 NWLR (PT. 1579) 196; SUNDAY V. STATE (2018) 1 NWLR (PT. 1600) 251. Where an accused person object to the tendering of his confessional statement on the ground that he did not make it, the confession will be admitted and the question as to whether he made it or not will be decided at the end of the trial, since the issue of its voluntariness does not arise for consideration. In the instant case, the appellant only said that he did not make Exhibit C and D when they were sought to be tender in evidence.” PER RIDWAN MAIWADA ABDULLAHI J.C.A.
EVIDENCE: WAYS OF PROVE CRIMINAL OFFENCE
“There are three ways of proving the commission of a crime viz: An eye witness evidence, circumstantial evidence and confessional evidence. See OKIEMUTE V. STATE (2016) 15 NWLR (PT. 1535) 297; IGBIKIS V. STATE (2017) 11 NWLR (PT. 1575) 126. The offence of conspiracy is rarely proved by direct evidence but by circumstantial evidence and inferences from certain proved act.” PER RIDWAN MAIWADA ABDULLAHI J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
ABDULRAHIM USMAN – Appellant(s)
AND
THE STATE – Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgement of Hon. Justice D. I Kolawole of Ondo State High Court of Justice, Akure, delivered on the 28th day of April, 2016 wherein the appellant was convicted and sentenced to death by hanging on a two count charge of conspiracy and armed robbery, contrary to and punishable under Section 6(b) and 1(2) (a) respectively of the Robbery and Firearms (special Provisions) Act, Cap R11, Vol 14, Laws of the Federation of Nigeria, 2004.
The prosecution’s case in the Court below was that the appellant Abdurahim Usman along with two others still at large robbed one Fatima Yusuf (F) at her house in Owo, in Akure Judicial division of the sum of Sixty Thousand Naira (N60,000) and other valuables. In proof of its case the prosecution called three witnesses and tendered five exhibits. The appellant in his defence testified for himself and called no other witness.
At the conclusion of hearing, the learned trial judge found the appellant guilty for conspiracy and armed robbery and sentenced him as charged.
Dissatisfied with this judgement, the appellant filed a notice of appeal dated on the 20th day of July, 2016, containing five grounds of appeal:
1. The learned trial Judge erred in law when his Lordship held inter-alia that:
“I know that there is discrepancy as to date when PW3 said he saw the defendant at the Police Station and the date PW1 and PW2 said the robbery took place. Whereas PW1 and PW2 said the robbery was committed around 1 am of the 19th June, 2013 but the PW3 said he met the defendant lying down at the Police Station around past 3am of 18th June, 2013. There is no doubt that the discrepancy is nothing but a Mistake and should not affect the case of the prosecution in any significant way.”
PARTICULARS OF ERROR
a. The contradiction in the evidence of PW1, PW2 and PW3 as to the date when the alleged robbery took place and the date PW3 said he saw the defendant at Police Station is substantial and germane enough to destroy the prosecution’s case.
b. Where there is contradiction or discrepancy in the case of the prosecution (as in this case), the prosecution is bound to explain the cause of the discrepancies and must clarify the inconsistency at the trial of the defendant.
c. The Court is not allowed to assist the prosecution to offer explanation(s) on why and how the discrepancies/contradictions came up in the prosecution’s case.
d. The Court is precluded from assisting the prosecution to fill in the lacuna where there is any in the prosecution’s case.
e. The learned trial judge conceded the fact that it is not possible for the defendant to be in the Police Station at 3am of 18th June, 2013 when the PW1 and PW2 had not caught him and when he was not caught until about 1 am of 19th June, 2013.
f. The discrepancies/inconsistencies in the evidence of PW1, PW2 and PW3 have created reasonable doubt sufficient enough to be resolved in favour of the appellant
2. The trial Court erred in law when it held that:
“I do not believe that the Police will concoct the facts contained in the two statements and forced the defendant to sign the statement, I hold that the defendant made the two statements and signed them as claimed by PW3 and PW4.
PARTICULARS OF ERROR
a. The trial Court agreed that the defendant retracted his two purported confessional statements tendered and admitted as Exhibits C and D respectively.
b. The trial Court also agreed that the prosecution made the defendant to sign his signature in the open Court and same was tendered and admitted as Exhibit B.
c. The trial Court found that the signatures in Exhibit B are not similar to the ones contained in Exhibits C and D
d. The trial Court based its conclusion to the effect that Exhibits C and D were made by the defendant on mere speculation, conjecture and mere belief.
e. Sentiment, speculation, conjecture and mere belief and disbelief cannot be basis for conviction in law.
f. The judgement of the trial Court has occasioned a great miscarriage of justice against the appellant.
g. The trial Court rightly referred to the case of TOMTEC NIG.LTD V FEDERAL HOUSING AUTHORITY (2009) 12 SCNJ 190 AT 206 but wrongly applied same in this case to the detriment of the appellant.
3. The trial Court erred in law when it stated that:
“although the Police are maligned every time; sometime justifiable, I do not think that the allegation that the defendant was picked up along a federal road around 7.30 pm for standing by his faulty vehicle and at a place close to Owo polytechnic which is in a built area of Owo is believable.”
PARTICULARS OF ERROR
a. The Police are duty bound to extend their investigation to the place where the appellant claimed that he was picked up i.e. near Owo Polytechnic.
b. The appellant was not cross examined on the portion of his evidence referred to in paragraph (a) above.
c. The evidence of the appellant in paragraph (a) above was not controverted by the prosecution throughout the trial.
d. Facts/evidence admitted need no further proof
4. The learned trial judge erred in law when his Lordship held thus:
“The prosecution having proved all the essential elements of the offence of armed robbery charge and having decided that the defence of the defendant cannot deflect the weighty evidence of the prosecution, it follows that I must come to the conclusion that the defendant is found guilty of armed robbery”
PARTICULARS OF ERROR
a. The prosecution has failed woefully to prove its case beyond reasonable doubt as required by the law.
b. The ingredients of conspiracy were not established by the prosecution.
c. Where there is slightest doubt in the evidence of the prosecution, it must be resolved in favour of the accused person
d. There is no cogent/credible evidence outside Exhibits C and D that can be relied upon by the trial Court to convict the appellant
e. Exhibits C and D are not reliable as evidence that can ground conviction of the appellant.
5. The judgement of the trial Court is unreasonable and unwarranted and cannot be supported by the available evidence.
In prosecuting this appeal, the appellant?s his counsel, Mr. O. M Atoyebi settled his brief of argument dated 24th day of March, 2017, filed on the 30th day of March, 2017 but deemed properly filed on the 8th day of February, 2018. In it, counsel formulated two issues for the determination of this Court:
1. WHETHER THE RESPONDENT HAS PROVED ITS CASE BEYOND REASONABLE DOUBT IN THE LIGHT OF THE CONTRADICTIONS IN THE EVIDENCE OF PW1, PW2 & PW3 (GROUNDS 1, 4 & 5)
2. WHETHER THE JUDGEMENT OF THE TRIAL COURT HAS NOT OCCASIONED A GREAT MISCARRIAGE OF JUSTICE AGAINST THE APPELLANT HAVING BASED THE JUDGEMENT ON SPECULATION (GROUNDS 2 & 3).
On issue one, learned counsel to the appellant relied on the cases of OLAYINKA V STATE (2007) 9 NWLR PT. 1040, 561 and UDOSEN V STATE (2007) 4 NWLR PT. 1023, 125 AT 162, PARAS D-G to submit that the respondent has failed woefully to prove its case beyond reasonable doubt. He further submitted that there are material contradictions in the evidence of PW1, PW2 & PW3. Counsel also submitted that the law is trite that the Court cannot convict an accused with the statement of co-accused person unless the other adopts the said statement. He placed reliance on the cases of PAUL AMEH V STATE (1978) 6-7 SC, 21 AT 35 & ADEKOYA V THE STATE (2012) 9 NWLR, PT. 1306, 539 AT 547.
Learned counsel contended that the trial Court was wrong when it suggested that the discrepancy in the evidence of PW1, PW2 & PW3 was a mistake, noting that such contradictions are enough to create doubt in the mind of the trial judge which doubt should be resolved in favour of the appellant. He referred the Court to the case of MUKA V STATE (1976) 9-10 SC, 193 AT 206, LINES 9-15. Counsel also referred this Court to pages 3, 8, 9 and 12 of the printed records. Counsel contended that it is not for the accused person to prove his innocence for the prosecution to prove their case against him beyond reasonable doubt. Counsel placed reliance on the case of AIGBADION V STATE (2000) 7 NWLR PT. 666, 66 AT 701, PARA H.
Counsel submitted that the trial judge was wrong to guess or suggest as it did when he held that the discrepancies was a result of mistake, noting that the law does not allow the Court to do so. He referred the Court to the cases of AHMED V STATE (1999) 5 SCNJ, 223 AT 240, USUFU V STATE (2007)1 NWLR PT. 1020, 94 AT 116, PARA H & ONUCHUKWU V STATE (1998)4 NWLR PT. 547, 546 AT 588-589, PARAS D-H.
On Conspiracy, learned counsel relied on the definition of conspiracy as provided in the case of AITUMA V STATE (2006)10 NWLR PT. 989, 452 AT 470, PARAS C -D to submit that the prosecution has failed to prove the ingredients of conspiracy against the appellant. He further referred this Court to the case of OFORLETE V STATE (2000) 12 NWLR PT. 681, 415 AT 434, PARAS F & H and urged the Court to so hold.
On issue two, learned counsel referred the Court to page 48 of the printed records to submit that the trial judge was wrong when he placed reliance on the retracted statement of the appellant, i.e., Exhibits C & D respectively. Counsel contended that the signatures in Exhibit B are not similar to the ones in Exhibits C & D having made the appellant to sign his signature in the open Court and same was tendered and admitted as Exhibit B. He further submitted that Exhibits C and D have not passed the tests as enumerated in the cases of GABRIEL V THE STATE (2010) 6 NWLR, PT 1190, 326, PARAS A-D; SHURUMO V THE STATE (2010) ALL FWLR, PT 551, 1406 AT 1413 and DAWA V STATE (1980) 8-11 SC, 147 emphasing the fact that there is no corroborative evidence outside the alleged confessional statements as cautioned by the Courts.
Counsel finally submitted that the alleged confessional statement falls short of the provisions in Section 27(1) & (2) of the Evidence Act, 2011 and therefore ought to be expunged from the records. He relied on the authorities of INUSA SAIDU V STATE (1982) 4 SC, 26 AT 43, LINES 5-10; OSENI V STATE (2012) 5 NWLR, PT 1293, 613 AT 637, PARAS D-F & DERE V EBWA (2006) 1 SCNJ, 160 AT 186 and urged the Court to resolve this issue in favour of the appellant.
The respondent’s brief of argument is dated on the 7th day of June, 2017, but was filed on the 14th day of June, 2017 and deemed properly filed on the 8th day of February, 2018. It was settled by Mrs A.O Adeyemi-Tuki, the then DPP. It was however adopted by MR TAIWO OLUBODUN, DDCL, MOJ, ONDO STATE. In adopting the brief as his oral arguements in opposition to the appeal the learned DDCL formulated a sole issue for the determination of Court:
“WHETHER OR NOT FROM THE TOTALITY OF EVIDENCE BEFORE IT, THE TRIAL COURT RIGHTLY HELD THAT THE PROSECUTION PROVED THE CASE OF CONSPIRACY AND ARMED ROBBERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.”
In arguing the appeal, learned counsel submitted that the prosecution adduced cogent evidence to prove their case beyond reasonable doubt. He contended that most times conspiracy is a matter of inference, explaining that a person is guilty of conspiracy if he joins the original conspirators at any stage even after the formation of the conspiracy. He referred the Court to the cases of OMOTOLA & ORS V THE STATE (2007) 8 ACLR, 29, RATIO 23; SHODIYA V STATE (1992) 3 NWLR, PT 230, 457; ERIM V THE STATE (1994) 6 SCNJ, 104 AT 116-117 and THE QUEEN V ANTHONY ENAHORO (1965) NMLR, 265 and urged the Court to so hold.
Learned Counsel also referred the Court to page 46 of the printed records to submit that the prosecution proved their case beyond reasonable doubt. That the evidence led by the prosecution which included direct and circumstantial evidence as well as confessional statement shows that the appellant committed the offence of armed robbery. He placed reliance on the cases of BOZIN V THE STATE (1985) 2 NWLR, PT. 8, 456 & ABUDU V STATE (1985)1 NWLR PT. 1, 55.
On mistakes and discrepancies in the prosecution?s case, counsel contended that the mistake in the date of the offence as narrated by PW3 is a mere discrepancy which is not material to the fact in issue. That assuming but without conceding that this mistake amounts to a contradiction, such contradiction will not exculpate an accused person from criminal responsibility. He referred the Court to the cases of NDIDI V STATE (2007) ALL FWLR PT. 381, 1617 & IKEMSON V STATE (1989)3 NWLR PT. 110, 455 AT 474 PARAS G-H.
Counsel relied on the case of NWACHUKWU V STATE (2007) ALL NWLR PT. 390, 1409-1410, PARAS H-P to contend that the extra judicial statement was made voluntarily and same was positive, unequivocal and amounts to an admission of guilt regardless of the later actions of the appellant. Learned counsel finally submitted that the appellant has failed to substantiate how these mistakes and discrepancies amount to a miscarriage of justice against him in the Court below. He urged the Court to resolve this issue in favour of the respondent.
In determining this appeal, I have considered the submissions in the brief of both parties. While the appellant formulated two issues for determination, the respondent raised a sole issue. The sole issue raised by the respondent can be effectively determined under the appellant’s issue (1). This appeal will therefore be determined on the two issues as formulated by the appellant. For ease of reference, I reproduce the two issues as raised:
(a) whether the respondent has proved its case beyond reasonable doubt in the light of the contradiction in the evidence of PW1, PW2 and PW3.
(b) Whether the judgement of the trial Court has not occasioned a great miscarriage of justice against the appellant having based the said judgement on mere speculation.”
Issue (a) which is more or less the same with the sole issue raised by the respondent is whether the prosecution in the trial Court proved its case beyond reasonable doubt. The appellant’s counsel pointed to the alleged contradictions in the testimonies of PW1, PW2 and PW3 as to the date the offence was allegedly committed to argue that such contradiction was sufficient to create a doubt in the mind of the trial Court which doubt ought to be resolved in favour of the appellant. That it is the responsibility of the prosecution to explain such discrepancies in its evidence and not for the Court to explain it away as a mistake as the trial Court did at page 46 of the printed records.
MR TAIWO OLUBODUN, DDCL, MOJ ONDO STATE for the respondent in opposing this appeal submitted that the mistake in the date as narrated by PW3 is a mere discrepancy which is not material to the fact in issue before the Court as to warrant any explanation. He referred to the case of IKEMSON V STATE (1989)3 NWLR PT 110, 455 AT 474 PARAS G-H, 475 PARA C and 479 PARAS G-H to submit that it is only contradictions in respect of a material fact that would make the Court doubt the evidence and that the need for explanation only arises where there are material contradictions. IKEMSON V STATE (SUPRA) and a line of other cases after it, have laid down the principle that it is not every discrepancy in the testimony of the prosecution that is material. The testimonies of PW1, PW2 and PW3 complained about by the appellant are reproduced here:
PW1 (Fatimo Yusuf)
“I remember 19th June, 2013. I live in a room and parlour at the addresses stated above. At night while I was asleep, I heard a voice that said lie down, lie down. This was around 1.30am.”
PW2 (Isiaku Jamiu )
“I am Isiaku Jamiu. I live at II Oja-Ikoko, Owo. I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to our apartment was broken. I woke up and I saw three men with me.”
PW 3 (CPL Oluojo Taiwo)
“I know the defendant. I remember 18/6/2013 at about 3.20am. I was called by Supol Suleiman Rafiu. He said a suspect has been brought to the charge room. He said I should take over the case. I know that the defendant was transferred to SARS Akure on 19/4/2013 for further investigation.”
I am unable to see any contradiction in the evidence of PW1 and PW2 as to the date or in any other particular. They were the victims of the said robbery. If there was a major discrepancy in the evidence of the two, it might have been an issue. But there was none. PW3 was not an eye witness. He was called by his superior to attend to the appellant who had been arrested and taken to the police station on an allegation of robbery. If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.30am on the 19th of June. This is English culture that anything past 12 midnight is the next day. In most African cultures that would still be explained as the night of the 18th. Therefore 3.20am of 18th is actually the same thing as the early hours of the 19th since it is past midnight. The only difference here is that perhaps PW3 belongs to the African culture, so that until the day breaks, it is still the day before.
I do not agree with the appellant’s counsel that it was wrong for the trial judge to explain this minor discrepancy in the time the way he did, that perhaps PW3 made a mistake. This is especially so as the discrepancy is so insignificant that it does not affect the prosecution?s case or indeed the opinion of the trial judge. This position is fortified by the charge upon which the appellant was tried which reads as follows:
“Abdurahim Usman (M) and others still at large, on the 19th day of June, 2013 at about 01.30am
This is part of the first count of charge of conspiracy. There is no time that the appellant was misguided or misled as to the date he was alleged to have committed the offence or even the time. What is more, PW3 testified in chief at page 12 of the printed records. He stated in lines 5-6 thus:
“I know the defendant, I remember 18/06/2013 at about 3.20am. I was called by Supol Sulieman Rafiu, this was during the night hours of that day. In the morning, we visited the scene of crime.”
This testimony would confirm any misgivings about whether in fact, there is discrepancy between the testimonies of PW1/PW2 and PW3 as to date, i.e. that they are not in fact saying the same date from different perspectives. Besides PW3 was cross examined by the appellant’s counsel who never questioned him on this perceived discrepancy. Not having cross examined PW3, I hold that the appellant saw no discrepancy between his evidence and that of PW1/PW2 as to the time the offence was allegedly committed. I hold therefore that there is in fact no contradiction between the testimony of PW1/PW2 and PW3. Even if there is which is not conceded, I hold that it is not material or substantial enough to impact on the prosecution’s case. In the Supreme Court case of ASUQUO V THE STATE (2016) LPELR-40597, the Court held that:
“it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistency or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubts in the mind of the Court that the accused is entitled to benefit there from.”
In the instant case, it does not matter whether it was the night of 18th June as stated by PW3 or the ‘wee hours’ (1.30am) of 19th June. What is fundamental is that at some point around the night of 18th to the early hours of the 19th, the appellant robbed PW1 of her money while armed with a local gun and in the company of two others now at large. See also the case of CPL ISAH AHMED V THE NIGERIAN ARMY (2016) LPELR-40826 where the Supreme Court carried the principle further when it held that:
“For a contradiction to be material, it must not only relate to a material fact, it must in addition lead to a miscarriage of justice.”
The learned Counsel has not only failed to show that the alleged contradiction was material or substantial but that it had in addition occasioned a miscarriage of justice against the appellant. The appellant must therefore fail on this point.
The appellant’s counsel in support of his allegation that conspiracy was not proved referred to a number of authorities to contend that the prosecution failed to establish that there was an agreement, or confederacy between the appellant and any other person to commit robbery or armed robbery or any offence at all.
The offence of conspiracy is not defined in the Criminal or Penal Code. The Courts therefore tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned. See the case of ODUNEYE V THE STATE (2001) 13 WRN, 88. The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. Therefore direct positive evidence of the plot between the co-conspirators is hardly capable of proof. The actual commission of the offence is not necessary to ground conviction for conspiracy. See the decision of this Court in NWOSU V STATE (2004)15 NWLR, PT 897, 466.
In my view the learned trial judge properly appreciated the fact that in conspiracy cases, the Court often has to infer conspiracy from the circumstances of the case. This he did at page 50 of the printed records. He found therein that the evidence which shows that the appellant in the company of two others went to the house of PW1 in the early hours of 18th June and robbed her, that the fact that three of them went to the place to rob is evidence of conspiracy. That the agreement to act the way they acted is conspiratorial and the appellant being a part of them was guilty of conspiracy.
I am in agreement with the trial judge that he properly made this finding from the evidence before the Court which supports his inference of conspiracy. I agree that the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the Police patrol team which was summoned arrived and took him away is of such a quality that without doubt in the words of Achike JSC as quoted by Kekere-Ekun, JSC in the case of YAKUBU V STATE (2014) 8 NWLR PT 1408, 111:
“irresistibly compels the Court to make an inference as to the guilt of the accused.”
On whether the charge of armed robbery was proved beyond reasonable doubt, I hold the strong view that it was. The testimonies of PW1 and PW2 are very strong, positive and direct. They were not only the victims of the robbery but they saw the appellant, grabbed him and held him down until help came and he was taken away.
The evidence of PW1 is that the appellant along with two others broke into her house and were holding a local gun, Exhibit D over her son who was sleeping in the ‘parlour’. She was in her room next door sleeping when she heard the commotion and came out to the ‘parlour’ and was confronted with that scene. Fearing for her son’s life, she offered to give them money. Two of the gang members (still at large) followed her to the room where they robbed her of a total sum of N60, 000. At that point the neighbors sensing what was happening started shouting ‘thief, thief’ to draw attention of those who might aid them. Throughout the operation with the two gang members in the room, the appellant was holding a gun over PW2’s head in the ‘parlour’.
The evidence was that the two went out to shut up the neighbor who was trying to attract attention to them and bolted away when they realized the situation was dangerous. Before the appellant could leave PW1 grabbed him from the back. Assisted by PW2 they held down the appellant until the neighbours called for help and the patrol team went and took the him to the Police station. PW1’s evidence was never shaken under cross examination. Clearly she is a witness of truth.
In cross examination, she said she did not know the appellant before the date of the robbery. In further cross examination, she said the other two accomplices of the appellant wore face mask but the appellant had one together with the local gun and four ammunitions and hand gloves but was not wearing it at the time of their encounter with him. While she admitted that she could not identify the two accomplices who were masked, the identity of the appellant vis-a-vis PW1 was never in doubt. Indeed as has been held in a plethora of cases, the testimony of PW1 alone having proved all the essential elements of the offence of armed robbery is sufficient to prove the offence beyond reasonable doubt. It is direct, positive, cogent and reliable. I found earlier that the testimony of PW1 was not in any way shaken in cross examination. It is important that even though it could have relied on the evidence of PW1 alone to secure a conviction, the prosecution still called PW2.
On proof beyond reasonable doubt, Rhodes-Vivous, JSC in JOSEPH V THE STATE (2011) 16 NWLR, PT. 1273, 226 held amongst others that proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify. He stated further that the Court is only interested in the testimony of a quality witness so long as the charge is not one that needs corroboration. See also the case of EGWUMI V STATE (2013) 13 NWLR PT 1372, 525.
In the instant case, the evidence of PW2 corroborated the testimony of PW1 in every material particular. There was robbery involving three persons. The appellant was one of them. He was armed with a gun and was captured in the house with a gun and four ammunitions. They robbed PW1 of N60, 000.00. I am satisfied from the evidence of PW1 and PW2 which remained largely uncontroverted, that the prosecution proved its case beyond reasonable doubt. This issue is therefore resolved in favour of the respondent against the appellant.
In view of this, I do not wish to dwell too much on issue (2). The argument of counsel on this issue is based largely on the fact that the learned trial judge placed heavy reliance on the retracted statement of the appellant.
That the decision is therefore based on mere conjecture, speculation and guess work. Counsel also contended that the trial judge did not subject the confessional statement to the six point test as set out by the Supreme Court in the case of DAWA V STATE (SUPRA). I am of the opinion that the learned counsel to the appellant is a bit misconceived on the law as regards the three ways a case can be proved; by direct oral evidence of the witness who saw and heard, inference from circumstantial evidence and voluntary confession of guilt by an accused person which is direct, positive and satisfactorily proved. See the Supreme Court case of ABIRIFON V THE STATE (2013) 13 NWLR PT. 1372, 587.
The prosecution can prove its case beyond reasonable doubt using any of the three methods. They are not expected to proof the case by all three methods. Having found that the prosecution has proved the case by the direct oral evidence of PW1 and PW2, the issue of confessional statement is surplusage. When Exhibits C & D were being sought to be tendered, the appellant only said he did not make it. He did not make any direct allegation of lack of voluntariness that he was tortured, threatened, induced etc.
Yet the trial judge conducted a trial within trial (another surplusage) and admitted the statements in evidence as Exhibits C and D. The learned counsel made heavy weather about the fact that the appellant retracted his confessional statement. A confessional statement does not become inadmissible because the accused retracted the confession on oath. Nor can it be regarded as unreliable just because of a retraction. The proper consideration always is that the denial or retraction is taken into consideration in deciding the weight to be attached to it. See the case of DIBIE V STATE (2007) 9 NWLR PT. 1038, 30.
I find from the records that the trial judge evaluated the evidence of the appellant given in retraction and found it unbelievable. There is the evidence of PW1 and PW2 which corroborated the confessional statement. In other words, the learned trial judge used the six point test as set out in DAWA V STATE (SUPRA) and echoed in the more recent Supreme Court decision in OKPAKO V STATE (2018)9 NWLR, PT. 1624 213 AT 226, PARAS E-G. The testimonies of PW1 and PW2 show that the confession is true. They corroborated the statement.
Their testimonies show that the appellant who was arrested in their apartment with a gun and ammunitions at an unholy hour had the opportunity to commit the crime or offence and the confession is possible. I find that the trial judge could in the circumstances have properly convicted the appellant on his confessional statement alone. But he did not. He still based the conviction on the positive and credible testimonies of PW1 and PW2. I find that this issue fails against the appellant. I resolve same in favour of the respondent.
Even if, like urged by the learned counsel to the appellant, I expunge Exhibits C and D, the confessional statements of the appellant (which has not been justified), there is ample credible evidence left to sustain his conviction. I find no reason in the circumstances to disturb the judgement of the trial Court.
This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgement of the trial Court delivered on the 28th day of April, 2016.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read before now the draft of the lead Judgment delivered by my learned brother Patricia Ajuma Mahmoud, JCA in this appeal and I adopt in toto the reasons so meticulously set out for the conclusion arrived at in dismissing the appeal. There is no doubt about the fact of the commission of the offence, as the Pwl and Pw2 were in unison as to the theft by violence by the Appellant who was armed with a gun which he pointed at the Pw2, the mother of Pw1. The accused was over powered and was apprehended at the scene before help came from neighbours and the Police patrol team.
The said direct evidence of the act and the arrest, made any complaint on the certainty of the time of arrest or commission of the offence a trifling storm in a tea cup.
The overwhelming direct evidence of arrest with gun and ammunition at the scene where the Appellant’s two compatriots in the ring of conspiracy and robbery escaped, was such that was sufficient to prove beyond reasonable doubt the guilt of the Appellant.
The retracted confessional statement was in the circumstances corroborated by eye witnesses account and thus rendered relevant admissible and reliable.
The principles of law and case law authorities have been so aptly articulated and applied that I simply adopt them and concur.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have read before now in draft, the judgment of my learned brother PATRICIA A. MAHMOUD, JCA. just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of any merit and should be dismissed. His Lordship had thoroughly and painstakingly dealt with all the issues canvassed by the learned counsel to the parties. I shall make some few comments by way of emphasis. The appellant herein was convicted and sentenced to death by the Ondo State High Court of Justice for the offence of Conspiracy and Armed Robbery Contrary to and punishable under Section 6(b) and 1(2) (a) of the Robbery and Firearms (special provisions) Act, Cap R 11. Vol. 14 Laws of the Federation of Nigeria, 2004. In proof of its case, the prosecution called three witnesses and tendered some Exhibits. While the appellant testified for himself and called no other witness. Learned counsel for the appellant argued amongst other that the prosecution has failed to prove the ingredients of conspiracy against the appellant. That the learned trial judge was wrong to have relied on the retracted appellant’s confessional statement, Exhibits C and D.
There are three ways of proving the commission of a crime viz: An eye witness evidence, circumstantial evidence and confessional evidence. See OKIEMUTE V. STATE (2016) 15 NWLR (PT. 1535) 297; IGBIKIS V. STATE (2017) 11 NWLR (PT. 1575) 126. The offence of conspiracy is rarely proved by direct evidence but by circumstantial evidence and inferences from certain proved act.
In order to proved 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. In the instant case, PW1 and PW2 the victims of the robbery incident, gave a vivid account of the robbery as an eye witnesses and how they caught and held the appellant down at the scene of the crime until the police came and took him away. The evidence of PW1 and PW2 coupled with the appellant’s confessional statement is enough for the Court to make an inference as to the guilt of the appellant. The Court can find conviction base on the evidence of PW1 and PW2, this is because, conviction can stand if the prosecution is able to establish the ingredients of the offence even on the evidence of a single witness. See ISIAKA V. STATE (2015) 56 NSCQR 1158.
The law is trite that a conviction can be found on a retracted confessional statement of an accused person once it is voluntary, positive and true. See SIMON V. STATE (2017) 8 NWLR (PT. 1566) 119; DABIA V. STATE (2017) 12 NWLR (PT. 1579) 196; SUNDAY V. STATE (2018) 1 NWLR (PT. 1600) 251. Where an accused person object to the tendering of his confessional statement on the ground that he did not make it, the confession will be admitted and the question as to whether he made it or not will be decided at the end of the trial, since the issue of its voluntariness does not arise for consideration. In the instant case, the appellant only said that he did not make Exhibit C and D when they were sought to be tender in evidence.
Therefore, the mini trial conducted by the learned trial judge is a surplus, because trial within trial is not applicable where the objection by an accused person is on the ground that he is not the maker or that it was written by the prosecution and he only endorsed it. See IFARAMOYE V. STATE (2017) 8 NWLR (PT. 1568) 457.
In the circumstances of the instant case, even without the confession, it is clear that the evidence of the prosecution witnesses. i.e. PW1 and PW2 was unassailable and enough to ground the appellant conviction and sentence, the offence and conspiracy to commit same has been proved beyond reasonable doubt.
For these and the more detailed reasons advanced in the lead judgment, I also dismiss this appeal. I equally affirm the judgment of the trial Court.
Appearances:
Mr. O. M. AtoyebiFor Appellant(s)
Mr. Taiwo Olubodun (DDCL, MOJ, Ondo State)For Respondent(s)
