AHMED OLATIDOYE v. THE STATE
(2010)LCN/4056(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of November, 2010
CA/I/283/2006
RATIO
ASSAULT : MEANING OF THE WORD “ASSAULT”
The word “assault” is given statutory definition in Section 15(1) of the Robbery and Firearms (Special Provisions) Act (Supra) thus: “assault” means striking, touching, moving or otherwise applying force, including heat, light, electrical force, gas, odour, or any other substance or thing whatever, if applied in such a degree as to cause injury or personal discomfort to the person of another, either directly or indirectly without his consent, or with his consent if the consent is obtained by fraud, or any bodily act or gesture, amounting to an attempt or threat to apply force of any kind as aforesaid to the person of another without his consent, in such circumstances that the person making the attempt or threat has in fact or apparently a present ability to effect the purpose.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
WHETHER A MAY BE CONVICTED ON HIS OWN CONFESSION ALONE
…Ridley, J., writing for the court in R. V. Sykes (supra) held inter alia at pages 236-237 that:
“The main point, however, is one independent of all these details, the question how far the jury could rely on these confessions. I think the Commissioner put it correctly; he said: “A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder (crime)? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
WHETHER THE CONFESSIONAL STATEMENTS OF A CO-ACCUSED PERSON CAN BE USED AGAINST AN ACCUSED WHEN HE DID NOT ADOPT THEM
The other alternative contention that the trial court should have looked for corroborative evidence for Exhibits c, D, E and F before convicting the appellant of attempted robbery overlooked the fact that Exhibits D and F were the appellant’s companion’s statements to the police. The trial court rightly, in my opinion, deleted them in determining the case against the appellant. They were statements of a co-accused person, not the statements of the appellant, He did not adopt them. In the circumstance, the trial court was correct to ignore them. They cannot be subjected to the test in R. v. SYKES (supra). See ENITAN AND OTHERS V. THE STATE (1986) 3 NWLR (PT.30) AT PAGE 604 as follows: “The law here is quite clear. A statement made to the Police during the investigation of a case may amount to an admission. Such a statement is evidence against the maker on that score. But such a Statement is definitely not evidence against a co-accused. In fact it is inadmissible against a co-accused:- R. V. AKINPELU AJANI & ORS. (1936) 5 W.A.C.A, 3 AT PAGE 4. But if a co-accused goes into the witness box and repeats on oath what he told the Police in his Statement, that evidence becomes evidence for all purposes including being evidence against a co-accused. But even there, such evidence should be and is always suspiciously regarded.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
CIRCUMSTANCES WHERE A CONFESSIONAL STATEMENT MUST PASS THROUGH A TRIAL-WITHIN-TRIAL
Exhibit E, the confessional statement of the appellant, had to pass through the crucible of a trial-within-trial. Because it was objected to in evidence. The trial-within-trial was to ensure fair trial and to ascertain the voluntariness of the confession – see GBADAMOSI V. THE STATE (1992) 9 NWLR (PT.256) 465. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
OFFENSIVE WEAPON: MEANING OF “OFFENSIVE WEAPON”
…”offensive weapon” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
CONSEQUENCE OF NOT CHALLENGING AN INCRIMINATING TESTIMONY OF THE PROSECUTION’S WITNESS AT THE TRIAL
…see OKOSI AND ANOTHER V. THE STATE (1989) 1 NWLR (PT.100) 642 AT 657 as follows: “The serious and incriminating testimonies of the P.W.1 and P.W.2 were thus left substantially unchallenged. In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even far an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this Court,” See also OFORLETE V. THE STATE (2000) 7 S.C.N.J. 162, and AGBONIFO V. AIWEREOBA AND ANOTHER (1988) 1 NWLR (PT.70) 325 AT 342-343. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
AHMED OLATIDOYE Appellant(s)
AND
THE STATE Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A.: (Delivering the Leading Judgment): The Ogun State High Court of Justices sitting and exercising its original jurisdiction at Ijebu-Ode convicted and sentenced the appellant and one other person, Azeez Niran Lawal, to five years imprisonment each for the offence of conspiracy to commit robbery and to life imprisonment each for the offence of attempted armed robbery contrary to sections 5(b) and 2(2), (b) of the Robbery and Firearms (special provisions) Act (Cap.398), Laws of the Federation of Nigeria, 1990, as subsequently amended by the Tribunals (certain consequential Amendments ETC) Act, 1999, respectively. It appears from the compiled record of appeal that only the appellant appealed against the said conviction. His Notice of Appeal with two grounds of appeal was filed on 19.2.08, pursuant to an order for extension of time granted by this court authorising him to file the said appeal out of tlme.
Briefly stated, the respondent’s case at the trial court disclosed that the P.W.1, one Segun Kehinde, was at all material times a commercial motor-cycle rider at Ikenne in Ogun State. He rode his motor-cycle out on 7.3.2003, looking for fare paying passengers. The appellant and his companion, one Azeez Niran Lawal, agreed to pay him N100 to convey them from Ikenne to Aiyepe.
They started on the journey. The appellant’s companion complained that his pair of slipper shoes had fallen. It made the P.W.1 to turn back to the spot for him to pick it. Immediately he stopped the motor-cycle, the appellant suddenly punched him in the face. Both of them started to beat him. He fell off his motor-cycle. They struggled to dispossess him of it. In the heat of the 1st struggle, the P.W.1 switched off the engine of the motorcycle.
Realizing the P.W.1’s said success’ the appellant’s companion removed a pistol concealed underneath his shirt. He aimed it on the P.W.1 and pulled the trigger. The pistol refused to fire. The appellant told him to hit the pistol butt on the P.W1’s head. He did so. The effect drove the p.w.1 close to unconsciousness. They pushed him into a tall bush verging the road. The appellant’s companion continued to hit the pistol butt on the P.W.1’s head. The pistol butt split into two pieces before he stopped.
The evidence for the respondent also disclosed that the P.W.1’s effort to attract the attention of other road users was frustrated by the gagged condition the appellant and his companion had subjected him to during the said attack. An elderly man eventually trekked by. He heard his shout and immediately responded to it. Some other persons also started emerging near the scene. The appellant who was struggling to start the motor-cycle abandoned it, He fled with his companion. They carried the remnant of the broken pistol along with them.
The P.W.1 then managed to get himself out of the bush. Some motorists helped him to the hospital. P.W.1 testified that his small bag containing the sum of N800 was removed by the appellant and his companion. They fled with it. His description of them facilitated their arrest on the same day. He left the hospital to the Police Station. There he identified the appellant and his companion. His statement to the police was also recorded.
The P.W.2, a police sergeant at Odogbolu, was the first to investigate the case. The two voluntary statements made by the appellant to him were admitted in evidence without objection as Exhibits A and C. He visited the scene of incident on 10.3.2003, The P.W.1, the appellant, twelve motor-cycle hirers, One State Security (S.S,S) officer, and another policeman were among the team that visited the scene with him. They searched the place of incident. Nothing incriminating was found.
The P.W.3, a police corporal attached to the anti robbery section of the State C.I.D, Eleweran, Abeokuta, took over the investigation of the case. He recorded the statement of the appellant. The P.W.3 treated the statement as confessional. He took it to his superior officer, Assistant Superintendent of Police (A.S.P.) Lukor Agbor, who endorsed it. The statement was admitted in evidence as Exhibit E, after a trial-within-trial.
The P.W.3 also visited the scene of crime. The appellant, his companion, the P.W.1, and an inspector of police called Olusegun Olusade accompanied him. The visit was on 19.3.2003. They searched the scene. The butt of a shot-gun was recovered on the scene. It was admitted in evidence as Exhibit L,
The appellant’s case may be stated thus. He visited his uncle at Ikenne-Remo on 7.3.2003. He was with one Azeez Niran Lawal, his friend. They left his uncle’s house at about 1p.m intending to travel to Aiyepe. The P.W.1 conveyed them on his motor-cycle at Ikenne for the journey. He agreed to accept the negotiated fare of N100 for the trip.
About four minutes into the journey, the P.W.1 asked them to add N20 on the fare on account of the heavy effect of their weight on the motor-cycle. The appellant and his friend refused to add the money. They reminded him of the earlier agreed sum of N100 for the journey. The p.w.1 kept silence, He continued the journey with them. Before they reached their destination, the P.w.1 demanded for payment of the fare. They told him the payment would be made at Aiyepe. He continued the journey. They were about three poles to their destination before the P.w.1 stopped the motor-cycle. He insisted on payment of the fare. The appellant’s friend gave him the agreed fare of N100. He insisted on N120. They refused to yield ground.
The P.W.1 boasted he would use his OPC position to deal with them. They still stood their ground. He then held the appellant’s friend’s cloth, and pushed him about. It escalated into a fight between them. An elderly man on a bicycle saw what was happening and stopped. He stepped in to separate the fight. The appellant also joined him. They finally succeeded in stopping the fight. The elderly man then inquired into the cause of the fight. He ended blaming the P.W.1 for demanding the extra fare of N20. The elderly man left. The P.W.1 rode away. They continued the short distance left on foot. Before they would reach Aiyepe, some policemen arrested them. The P.W.1 was with them.
The appellant admitted making the voluntary statement to the police in Exhibit A. He confirmed the two visits to the scene of crime given in the evidence of the p.W.2 and the P.W.3. He denied assaulting and robbing the P.W.1. The appellant closed his testimony on that note.
The trial court reviewed the evidence before it and found as a fact that the respondent proved its case against the appellant beyond reasonable doubt. It convicted him of conspiracy to commit armed robbery and of attempted robbery prompting the present appeal.
The scholarly brief of argument filed on behalf of the appellant by his learned counsel, Mr. Agbebi, on 26,5.09, was by an order of this court dated 8.10.09, deemed duly filed on 26.5.09. Two issues were identified by the appellant’s learned counsel for determination on the appeal. The two issues for determination are framed in page 5 of the appellant’s brief of argument in form of questions in these words:
“1. Whether the learned trial Judge was right in holding that the prosecution proved a case of attempted robbery against the appellant beyond reasonable doubt particularly in the light of the evidence adduced?
2. Whether the learned trial Judge properly evaluated the evidence before the court and if the defence put up by the appellant was considered?”
The appellant’s learned counsel tied the above issues 1 and 2 to grounds “one and 2” of the Notice of appear. He canvassed issues (1) and (2) (supra) together or in seamless pattern. The substance of the appellant’s contentions focused first on the permanent burden of proof placed on the prosecution to prove criminal cases beyond reasonable doubt. Reliance was put on section 36 (5) of the constitution of the Federal Republic of Nigeria, 1999, on the presumption of innocence of an accused person until proved guilty beyond reasonable doubt by the prosecution in virtue of Section 138 (1), (2) and (3) of the Evidence Act (Cap.112) considered together with the cases of IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt.610) 202 at 205; ESANGBEDO V. THE NWOSU V. THE STATE (1989) 4 NWRL (Pt.113) 57; NWOSU V. THE STATE (1998) 8 NWLR (PT.562) 433 at 444; and AIGBAGBON V. THE STATE (2007) 7 NWLR (PT.666) 686 at 704.
The next contention dwelt on the elements comprising the offence of attempt. The cases of QUEEN V. NWAUGOAGWU (1962) 1 All NLR 294; OZIGBO V. C.O.P. (1976) 2 S.C. 67; IDEN V. THE STATE (1994) 8 NWLR (Pt.365) 719 AT 727-728; IBRAHIM V. THE STATE (1995) 3 NWLR (PT.381) 35 at 45; D.P.P. V. STONEHOUSE (1978) A.C. 55 and REG. V. ENGLETON (1855) DEARS C.C. 505 and Section 2(1) of the Robbery and Firearms Act were cited by the appellant’s learned counsel to the effect that evidence of an attempt to commit an offence must show unequivocally that the accused person intended by his physical act to commit a specific crime by taking positive steps towards the commission of the substantive offence.
Amplifying on the preceding contention, the appellant’s learned counsel submitted that the trial court failed to make a finding of fact on whether the altercation between the P.w.1 and the appellant with his companion was on the disagreement of the actual rate of the transport fare for the journey as maintained by the appellant’s side or whether it was an incident of robbery as asserted by the P.W.1 on the other hand. He stressed the point that the mere presence of the appellant at the scene of incident was not enough to convict him of the commission of any crime. Nor would it be right to convict him for lying and/or on account of the fact that somebody saw seen him fleeing from the scene of crime unless there is strong and unequivocal evidence linking him to the crime charged vide DANIELS V. STATE (1991) 8 NWLR (PT.212) 715 AT 732 and THE STATE V. OGBUBUNJO (2001) 1 SCNJ 102.
It was contended further that the trial court merely reviewed the evidence, especially the appellant’s defence, without proper evaluation to ascertain whether the mental element (mens rea) of the offence of attempted robbery was established against him. To hold as did the trial court that the defence of the appellant was an afterthought amounted to saying “I believe” or “I do not believe” which does not measure up to the evaluation of evidence as held in OGUNLEYE V. OYEWOLE (2000) 14 NWLR (PT.687) 290 AT 303.
Submitting further on the defence put forward by the appellant, his learned counsel referred to Archibold on Criminal pleadings, Evidence and Practice 2000 Article 19 – 44 at page 1632 quoting the English case of R v. WHEELER 52 CR. APP. R. 28 AT 30 on the burden placed on the prosecution to disprove defence proffered by an accused person, which the trial court, according to the appellant’s learned counsel, failed to scrutinize occasioning miscarriage of justice in this case and contrary to the decision in IKONNE v. C.O.P and ANOTHER (1986) 4 NWLR (PT.36) 473.
The appellant’s learned counsel contended in respect of Exhibits A, B, C, D, E and F, the statements of the appellant and his companion to the police, that the trial court after referring to the six ways test a confessional statement should be subjected to for the purpose of ensuring its voluntariness and reliability, the trial court, contrary to the cases of R. V. SYKES (1913) 18 C.R. APP. R.233; KANU V. R. 14 WACA 30; and DAWA V. STATE (1980) 8-11 SC 236, and EKPO V. STATE (2003) FWLR (PT.166) 670, did not apply the said test on the statements of the appellant,
The appellant’s learned counsel contended that Exhibits A and B were a departure from Exhibits c and D and following the case of EKPO V. STATE (Supra) the conflict should render all the statements unreliable. Alternatively, the said conflict ought to be treated as evidence that the appellant did not make the confessional statements or he made them under torture vide R. V. SYKES (Supra); ANKWA V. THE STATE AT 302.
It was also contended by the appellant’s learned counsel that the overt act of the appellant did not reveal the intent to steal or commit an offence, therefore the trial court was wrong to convict him of attempted robbery when no offence was disclosed by his physical conduct. The case of ADEOSUN V. STATE (1975) 9-11 S.C. 1 AT 15 -16 was referred to in support of the above contention with the prayer that the appeal be allowed and the conviction and sentence of the appellant quashed.
Mrs. Oduniyi, the learned Director of Public Prosecutions (DPP, Ogun State), settled the respondent’s brief of argument filed on 9.3.010, in consequence to an order given by this court on 31.3.010, deeming the brief duly filed. She adopted the two Issues formulated by the appellant for determination in the appeal. In her own case, issues 1 and 2 were not lumped together for discussion. She divided the two issues and gave them separate treatment, starting with issue 1. The elegant arrangement of the issues for consideration in her brief is appreciated. That is how it should be.
After agreeing with the appellant on the burden of proof not shifting from the prosecution in criminal trials, and on the quantum of proof in criminal trials being beyond reasonable doubt, the learned D.P.P. advocated that the proof required in such cases is not proof beyond any shadow of doubt and that, in the instant case, the trial court applied the requisite standard of proof in criminal trials to the evidence before it in arriving at the decision that the prosecution had proved its case against the appellant beyond reasonable doubt.
The learned D.P.P. referred to the totality of the evidence adduced by the prosecution in order to show that what transpired between the appellant and the P.W.1 on 7.3.2003, was an attempt by the appellant and his friend or “Partner” (to borrow the learned D.P.P’s word) to rob the P.W.1 of his motor-cycle; and that the appellant and his friend used violence on the P.W.1 in the course of attempting to dispossess him of his motor-cycle. But for the intervention of the elderly man, the appellant would have consummated the substantive offence of robbery.
Flowing from the said pieces of evidence, which the learned D.P.P submitted were not controverted, she contended that the trial court was right to invoke Section 2(1), (2) of the Robbery and Firearms Act (Supra) and Section 4 of the Criminal Code to convict the appellant of attempted robbery. Reference was made by the learned D.P.P. to the cases of AWOSIKA V. I.G.P. (1968) 2 ALL N.L.R. 336 AT 340, and SANNI V. STATE (1993) 4 NWLR (PT.285) 99 in support of the above contention. Mrs. Oduniyi also submitted that the cases of D.P.P. V. STONEHOUSE (Supra) and OZIGBO V. C.O.P. (Supra) are inapplicable to the facts of this case having recourse to the existence of uncontroverted evidence by the prosecution that the appellant’s overt acts completed the offence of attempted robbery.
The learned D.P.P. submitted on issue 2 that the trial court properly and adequately evaluated the evidence adduced before it. Copious reference was made by the learned D.P.P. to passages in the judgment of the trial court in the bid to buttress the above submission.
It was submitted in respect of Exhibits A, B, C, D, E and F, the statements of the appellant and his companion to the police, that the trial court subjected them to the six ways test laid out in R. Vs. SYKES (Supra) by weighing them against other available evidence given by the prosecution at the trial court, therefore it committed no error in admitting and acting on the confessional statements. She reminded the court of the singular opportunity the court below had of hearing the evidence and watching the demeanour of the witnesses vide AGBANYI V. THE STATE (1995) 5 NWLR (PT.369) 22. The learned D.P.P. urged for the dismissal of the appeal based on her said submissions.
The P.W.1 was the victim of the crime. He was the star witness, His unshaken evidence that the appellant punched him in the face; they struggled and dispossessed him of his motor-cycle by force after beating him with the assistance of the appellant’s companion; the appellant’s effort to start the motor-cycle; the frustration of his effort by the interruption of people approaching the scene of crime on the fateful day, which made the appellant and his companion to flee abandoning the motor-cycle were believed by the trial court.
The learned trial judge watched the witnesses and heard their evidence first-hand. He had the exclusive advantage to assess their credibility. This court, as an appellate court, does not have that singular opportunity. Only the cold printed record devoid of witnesses is before this court. It is not appellant’s case that the above pieces of evidence are incredible or not worthy of belief, In my opinion, the learned trial judge was right in accepting the above pieces of evidence given by the P.W.1. I have no good cause and none was shown to disturb the said stance of the learned trial judge. I leave it intact. The P.W.1’s evidence highlighted above, standing alone, established that the appellant assaulted the P.W.1 by punching him in the face before he struggled and dispossessed him of the motor-cycle, after subjecting him to some beating. The overt acts or acteus reus in the said pieces of evidence are the use of violence by the appellant on the P.W.1 and the dispossession by force of the P.W.1’s motor-cycle by the appellant.
The word “assault” is given statutory definition in Section 15(1) of the Robbery and Firearms (Special Provisions) Act (Supra) thus:
“assault” means striking, touching, moving or otherwise applying force, including heat, light, electrical force, gas, odour, or any other substance or thing whatever, if applied in such a degree as to cause injury or personal discomfort to the person of another, either directly or indirectly without his consent, or with his consent if the consent is obtained by fraud, or any bodily act or gesture, amounting to an attempt or threat to apply force of any kind as aforesaid to the person of another without his consent, in such circumstances that the person making the attempt or threat has in fact or apparently a present ability to effect the purpose.”
The said personal violence inflicted on the P.W.1 by the appellant comes within the above definition, in my opinion.
No doubt some violence was used by the appellant before he dispossessed the P.W.1 of the motor-cycle. After the dispossession, the appellant tried to start the motor-cycle, but when he saw people approaching the scene, he fled with his companion, abandoning the motorcycle. The trial court believed the said pieces of evidence. It made findings of fact to back them up. The intent to rob the P.W.1 of the motorcycle was, therefore, clearly and irrevocably manifested by the appellant in the above pieces of evidence.
But for the interrupt/on of the people coming on the scene, he would have materialised his mission to ride the motor-cycle away with the intention of permanently depriving the P.W.1 of it, which would nave matured into the complete crime of ordinary robbery itself. The appellant did not reach the final objective of completing the crime of ordinary robbery. However, putting the pieces together as given in the accepted evidence of the P.W.1, the appellant had crossed the threshold and boundary of mere preparation to rob. He had fully landed in the territory of attempted robbery of the motor-cycle before the people coming on the scene interrupted him and forced or caused him to flee, abandoning the motor-cycle. The trial court so found, I cannot fault the said finding.
There is also Exhibit C, the statement of the appellant to the police. It was admitted in evidence without objection, The appellant did not attempt at the trial court to impugn its voluntariness or reliability, It was made by him on 10.3.2003, about some three days after the incident; he made it at the odogbolu Police Station. For ease of reference, Exhibit C is copied below:
“In addition to the statement I made to the police before, I want to say that it is true that on the 07/3/2003 my friend Azeez Lawal M. and myself chartered a motor-cyclist to carry us from Ikenne Remo to Aiyepe. The motorcyclist charged us the sum, of N100,00k to carry the two of us with his motor-cycle from Ikenne to Aiyepe and we agreed to pay him. I never see the motorcyclist before that day. He carried my friend Azeez Lawal M. and myself on his motor-cycle from Ikenne Remo and headed to Aiyepe. At about 4pm on our way to Aiyepe, Azeez Lawal M. dropped his sandal from his leg and it fell down on the road. He now told the motorcyclist that his sandal has fallen down and he wanted to take it. The motorcyclist then stopped his motorcycle to enable Azeez Lawal take his sandal from the road. Immediately the man stopped his motorcycle, Azeez Lawal and myself order him to surrender his motor-cycle and I removed the ignition key and the man struggled with us. He held Azeez Lawal M. and started to struggle the motor-cycle with him. Azeez Lawal then hit the man on the head with a stick and I joined him and we started to beat the man until we overpowered him. The man fell in the bush along the side of the road and we kicked the motor-cycle and it did not start. When we kicked the motorcycle to go away with it and it did not start, we abandoned it because people were now passing along the road. After abandoning the motor-cycle, we ran towards Aiyepe town and as we were running along the road, a white car parked by our side and some policemen in mufti came out of the car and got us arrested and took us to the police station. When I was searched, a bunch of charm was seen on my body, we had planned to collect the motor-cycle from its owner before he carried us. My friend Azeez Lawal M. came to me at Aiyepe from Ikorodu to steal motor-cycle and since he came to me, we have been planning the way to steal motor-cycle. We planned to be ridding the motor-cycle for commercial purpose if we had succeeded. I never rob anybody of his motor-cycle before. This is the first time I took part in stealing motor-cycle. OLATIDOYE HAMED 10/3/2003.”
That was the voluntary statement of the appellant. It confessed attempted robbery in similar tenor with the accepted evidence of the P.W,1 earlier referred to in this discourse.
Exhibit C does not, in my opinion, deviate from the evidence of the P.W.1 on the use of violence on him by the appellant before dispossessing him of his motor-cycle. The six ways test in R. V. SYKES (Supra) (1913) 8 CR. APP. R 233 (not 18 CR. APP. R cited (supra) by appellant’s learned counsel) was sufficiently met by the said pieces of evidence of the P.W.1, rendering Exhibit C trustworthy. For clearness, Ridley, J., writing for the court in R. V. Sykes (supra) held inter alia at pages 236-237 that:
“The main point, however, is one independent of all these details, the question how far the jury could rely on these confessions. I think the Commissioner put it correctly; he said:
“A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder (crime)? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?”
The contention of the appellant’s learned counsel that Exhibits A, C and E, the statements of the appellant to the police, departed from his sworn evidence, and/or that the said statements should be disregarded as retracted cannot, with respects, be tenable, The full Bench of the Supreme Court (with only Karibi-Whyte, J.S.C. dissenting, but not on the question of retraction of a confessional statement) held in the lead judgment of Bello, C.J.N., in the case of EGBOGHONOME V. THE STATE (1993) 7 NWLR (Pt.306) 383 AT PAGES 418 to 420 as follows:
“In my considered view, grave miscarriage of justice would also be occasioned by the extension. It may perpetuate injustice to the society as murderers (criminals) would be at large simply because after a second thought, they have retracted their confessions……
Moreover, the extension would occasion grave injustice to the accused as it would result to depriving him of the right to due consideration of his defence……
Confession and testimony of the accused person shall be evaluated and assessed by the trial Judge together; with the totality of the evidence in order to reach a just decision. ….,
Accordingly, the trial court was right to rely on the confession of the appellant in convicting him of murder. …..”
The other alternative contention that the trial court should have looked for corroborative evidence for Exhibits c, D, E and F before convicting the appellant of attempted robbery overlooked the fact that Exhibits D and F were the appellant’s companion’s statements to the police. The trial court rightly, in my opinion, deleted them in determining the case against the appellant. They were statements of a co-accused person, not the statements of the appellant, He did not adopt them. In the circumstance, the trial court was correct to ignore them. They cannot be subjected to the test in R. v. SYKES (supra). See ENITAN AND OTHERS V. THE STATE (1986) 3 NWLR (PT.30) AT PAGE 604 as follows:
“The law here is quite clear. A statement made to the Police during the investigation of a case may amount to an admission. Such a statement is evidence against the maker on that score. But such a Statement is definitely not evidence against a co-accused. In fact it is inadmissible against a co-accused:- R. V. AKINPELU AJANI & ORS. (1936) 5 W.A.C.A, 3 AT PAGE 4. But if a co-accused goes into the witness box and repeats on oath what he told the Police in his Statement, that evidence becomes evidence for all purposes including being evidence against a co-accused. But even there, such evidence should be and is always suspiciously regarded.”
Exhibit E, the confessional statement of the appellant, had to pass through the crucible of a trial-within-trial. Because it was objected to in evidence. The trial-within-trial was to ensure fair trial and to ascertain the voluntariness of the confession – see GBADAMOSI V. THE STATE (1992) 9 NWLR (PT.256) 465. The only difference between the contents of Exhibit E and the P.w.1’s evidence was whether firearms or a weapon was used in the physical encounter between the P.W.1 and the appellant with his friend. The trial court rejected part of the evidence of the P.W.1 that the butt of a pistol, Exhibit L, was used by the appellant’s friend on the P.W,1’s head. It held that the surrounding circumstances of the case did not support the introduction of Exhibit L into the case. Obviously, the principles in R. V. SYKES (Supra) influenced the trial court to arrive at the said decision.
The use of a stick by the appellant’s companion to strike the P.W.1 on the head in the course of their beating him was not mentioned by the P.W.1 in the gamut of his evidence. Exhibit E introduced it. No such stick was recovered on the scene of crime on the two occasions the police investigators visited it with other people. No explanation was given of the fate of the stick, Its size and shape or mode to bring it within the description of an offensive weapon under the definition in Section 15(1) of the Robbery and Firearms Act (Supra) was not given in evidence. The relevant part thereof reads: “offensive weapon” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.”
At least slight evidence from the respondent, particularly the P.W.1 and direct victim of the crime, of the use of the stick on him would have lent credence to the aspect of Exhibit E on the use of a stick by the appellant’s companion to assault the P.W.1. I agree with Mr. Agbebi that if the trial court had adverted its mind to the issue of offensive weapon, a stick, in the same way it did with the issue of firearms – the butt of a pistol, in Exhibit L, R. V. SYKES (Supra) should have caught the aspect of the confessional statement on the use of a stick to assault the P.W.1, The trial court itself could not take a clear stand on the use of the stick in assaulting the P.W.1. Part of its judgment held: “Be that as it may, the accused persons admitted that they inflicted personal violence on the P.W.1 in addition to hitting him on the head with a stick. See Exhibits E and F.” (underlining supplied).
The other part of the judgment held inter alia that:
“I am satisfied beyond reasonable doubt that the accused person attempted to commit armed robbery assaulted and used actual violence on the P.W. 1.” (underlining supplied),
Remarkably, the stick was not mentioned in the last quotation of the judgment. The use of an offensive weapon, a stick, in assaulting the P.W.1 cannot be allowed to stand. It is hereby discounted. What is left of Exhibit E, without the stick, is in substance similar to the p.W.1’s accepted evidence on the use of violence on him by the appellant before they attempted to rob him. The net effect is that the evidence in the case reduces the offence from attempted armed robbery under Section 2 (2) (b) of the Robbery and Firearms Act to attempted robbery without firearms or offensive weapon under Section 2(1) of the same Act (Supra), in my considered opinion.
The contention by the appellant that the trial court did not properly evaluate the evidence before it does not impress me. The trial court made important findings of fact amply supported by the evidence of the P.W.1 and the two statements of the appellant to the police in Exhibits C and E that the respondent, as the prosecutor, proved beyond reasonable doubt the offence of attempted robbery. It then gauged the defence of the appellant at pages 66 to 67 of the printed record as follows:
“The defence of the accused to all the counts is that there was no robbery on the day of the encounter between them and the P.W.1. I have given due consideration to the defence of the accused. The story bandied by the accused persons is mere after thought. Furthermore, their oral evidence is in conflict with the facts narrated to the police in their respective statements. I do not believe the accused persons.
It was not impressed with his defence, holding it an afterthought.
By holding the defence of the appellant an afterthought, the trial court went beyond the words “I believe” or “I do not believe”. An “afterthought” simply means:
“A thought or thing thought of after the occasion; a later thought or reflection or modification” (see Chambers Twentieth Century Dictionary page22).
“After thgught” is thus a pregnant expression. It is more embracing than the words “I believe” or “I do not believe”. pages 59 to 67 of the compiled record were part of the judgment of the trial court where it demonstrated with reference to Exhibit E that the testimony of the appellant was a change of mind or an afterthought. It also gave another reason;
“It was never suggested to the P.W.1 under cross-examination that his story was a fabrication.”
No question was put to the P.w.1 to suggest clearly and specifically that the violence inflicted on him by the appellant was due to disagreement on transport fare, which an elderly man intervened and settled in their favour. so the appellant’s introduction of that line of defence for the first time at the defence stage of the case was rightly held by the trial court to be an afterthought or a change of mind – see OKOSI AND ANOTHER V. THE STATE (1989) 1 NWLR (PT.100) 642 AT 657 as follows:
“The serious and incriminating testimonies of the P.W.1 and P.W.2 were thus left substantially unchallenged. In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination.The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even far an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this Court,”
See also OFORLETE V. THE STATE (2000) 7 S.C.N.J. 162, and AGBONIFO V. AIWEREOBA AND ANOTHER (1988) 1 NWLR (PT.70) 325 AT 342-343.
Mrs. Oduniyi is, accordingly, right in her submission that the trial court fully evaluated the evidence before it. The appellant has not convinced me that the learned trial judge misused or squandered the exclusive opportunity of seeing and hearing the witnesses that testified in the case. This court cannot intervene in such circumstances – see AGBANYI (Supra); YAKI v. THE STATE (2008) ALL FWLR (PT.440) 518 AT 654.
In my opinion, the onus of proof did not shift in the court below. It remained constant on the side of the respondent. The respondent also discharged it beyond reasonable doubt. There was no violation of the principles of law on the onus of proof and the evaluation of evidence to principles of law on the warrant the invocation of the bunch of legal authorities (supra) cited by the appellant’s learned counsel on the issues.
The unshaken credible evidence of the P.W.1 coupled with Exhibits C and E, the confessional statements of the appellant’ also met the standard of proof of the offence of attempted robbery without firearms or offensive weapons, Alluring as the definition of attempt in the legal authorities (Supra) cited by the appellant’s learned counsel on the point especially the case of IBRAHIM V. THE STATE (supra), (the only direct authority cited on attempt to commit armed robbery), may be, the accused persons in the said cases were, on the facts peculiar to those case, at the stage of mere preparation to commit a crime before they were apprehended and prosecuted.
In the present case the appellant had from the evidence of the P.W.1 and Exhibits C and E entered the arena of attempt to commit robbery before he was arrested and prosecuted. The said cumulative evidence proved beyond reasonable doubt the overt act of the appellant, which was immediately connected with attempted robbery, clearly and positively pointing in the only direction that the appellant was attempting to commit the offence of robbery of P.W.1’s motor-cycle – see Russell on Crime (10th Edition) at page 1790 where a practical test of the crime of attempt was suggested as follows:
“The prosecution must prove that the steps taken by the accused must have reached the point when they indicate beyond reasonable doubt what was the end to which they were directed.”
Except for the variation of the conviction from the higher offence of attempted armed robbery under Section 2 (2) (b) of the Robbery and Firearms Act (Supra) to the lesser offence of attempted robbery without firearms or offensive weapon under Section 2 (1) of the same Act, the appeal lacks merit and is hereby dismissed. The appellant’s conviction is altered to the lesser section 2 (1) of the said Act. For convenience, it reads:-
“2. (1) Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any other Person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.”
From the printed record, the appellant was a first offender at the time the trial court convicted him on 12.10.05. He was then a young person of 23 years in age (see page 30 of the record of appeal) in 2005. He should be 28 years old now, So, he is still a young man with the hope of living a useful life. Criminal punishment should be reformative not punitive or retributive. The motor-cycle itself was recovered and given to the P.W.1, Attempted robbery is, however, a serious offence. Taken into consideration the above factors, the mandatory minimum sentence of 14 years imprisonment would meet the justice of the case. Accordingly, the appellant is sentenced to 14 years imprisonment under section 2 (1) of the Act (supra). The sentence is back-dated to 7.3.2003, when the appellant lost his personal liberty on account of his arrest, detention and subsequent prosecution without bail in respect of this case.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading in draft the well reasoned lead judgment of my learned brother Ikyegh, JCA just delivered. His Lordship has meticulously considered and ably resolved the issue canvassed before us in this appeal. I agree entirely with his Lordship’s reasoning and conclusion. I have nothing further to add. i agree that the Appeal should be dismissed.
I however agree that the Appellant should be convicted of the lesser offence of attempted robbery punishable under section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap, 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Act 1999. I accordingly sentence the Appellant to 14 years imprisonment, I abide by the consequential order contained in the lead judgment.
MODUPE FASANMI, J.C.A: I have read in advance the lead judgment of my learned brother J.S. Ikyegh J.C.A., just delivered.
I agree with the reasoning and conclusion reached therein. The appeal lacks merit and it is accordingly dismissed by me. I abide with the consequential order made on the variation of conviction.
Appearances
Olakunle AgbebiFor Appellant
AND
F. F. Fakolade, State Counsel, Ogun State, Ministry of Justice, (holding the brief of Mrs. Oduniyi, D.P.P. Ogun State)For Respondent
