AKEEM AFOLAHAN v. THE STATE (2012)

AKEEM AFOLAHAN v. THE STATE

(2012)LCN/5354(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 8th day of May, 2012

CA/I/97/2005

RATIO

CRIMINAL LAW: MEANING OF A CONFESSION

Section 27 of the Evidence Act provides that “a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.” Section 27(2) provides further that “confessions, if voluntary are deemed to be relevant facts against the persons who make them only.” Per CHINWE E. IYIZOBA, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN OF PROVING VOLUNTARINESS OF A CONFESSION

EVIDENCE: WHETHER THE PROSECUTION IS UNDER OBLIGATION TO CALL ANY NUMBER OF WITNESSES

The law clearly is that the prosecution is under no obligation to call any number of witnesses in proof of their case. Even one witness who is able to establish the case will suffice except where corroboration is required by law. Akpa v. The State (supra). The prosecution is also under no obligation to charge other persons mentioned by an accused person in his statement to the police.

The so called exception referred to by the appellant, in my view embodies nothing more than the usual requirement of the law that the prosecution must prove the case against the accused beyond reasonable doubt. lf the failure to call a particular witness leaves some gap in the case of the prosecution such that it was unable to prove its case beyond reasonable doubt, then to that extent the witness becomes a necessary witness whose evidence is a must to secure a conviction. Per CHINWE E. IYIZOBA, J.C.A.

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF CONSPIRACY

What then are the ingredients of the offence of conspiracy?

In Kaza v. The State (2008) 7 NWLR (Pt. 1085) 125 @ 176, Tobi JSC listed the ingredients of the offence of conspiracy as follows:-

There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds.
The persons must plan to carry out an unlawful or illegal act, which is an offence.
Bare agreement to commit an offence is sufficient.
An agreement to commit a civil wrong does not give rise to the offence, as section 97(1) of the Penal code provides only for criminal conspiracy.
One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
A conspiracy is complete if there are acts on the part of an accused person which lead the trial court to the conclusion that he and others were engaged in accomplishing a common object or objective.

This last item is particularly relevant in the case in hand. As pointed out by Tobi JSC in Kaza v. State (supra) the mens rea of the offence of conspiracy is not easy to locate as it is usually buried in secrecy. It is the actus reus of the offence that would draw the mens rea to the open and make it possible for the court to find inculpatory evidence. Per CHINWE E. IYIZOBA, J.C.A.

JUSTICES:

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

AKEEM AFOLAHAN – Appellant(s)

AND

THE STATE – Respondent(s)

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osogbo High Court in Charge No. HOS/7C/2000 delivered on the 12th day of December 2002 in which the learned trial judge convicted and sentenced the appellant to death on a two count charge of conspiracy to commit felony to wit armed robbery and armed robbery contrary to Section 5(b), 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII, Laws of the Federation of Nigeria, 1990.
Dissatisfied with the judgment, the appellant has appealed to this court on eight grounds of appeal as contained in his notice of appeal filed on the 23rd day of December 2002.
The facts briefly stated are that the appellant and others at large on the 21st day of December, 1999, robbed one Alhaja Sariyu Aladorin of the sum of N140,000.00 under gun point. The story is that the Alhaja, a trader who had testified as PW1 was praying in her house when she heard her friend’s daughter one Kemi knocking outside the gate of her house. She instructed her daughter to open the gate for her. As soon as the gate was opened, some men entered the compound, came to her room beat her up mercilessly and made away with the sum of N140,000.00. They also removed her bank cheque books. The appellant was apprehended outside the gate of the house by Alhaja’s night guard but he managed to escape from him and was re – arrested. He claimed to be a commercial motorcyclist and that he was hired by somebody to bring him to the area but when the area was checked no motorcycle was found. During investigation, the police discovered that a vehicle had been snatched by the assailants and when the vehicle was recovered, Alhaja’s cheque books were found in the car. When interrogated by the police, the appellant volunteered statements exhibits P3, P4 and Q which were alleged to be confessional statements. In his defence the appellant denied participating in the robbery. He claimed he took somebody to the area as a commercial motorcyclist and that he was arrested at the scene when he had misunderstanding with the passenger as to the amount of fare he should pay.
In proof of their case the prosecution called five witnesses. The appellant denied making exhibit Q voluntarily. A trial within a trial was conducted, after which the trial judge ruled the alleged confession voluntary. The appellant gave evidence in his own defence and called one witness, his mother. Learned Counsel for the parties addressed the court. In a considered judgment, the learned trial judge found the appellant guilty of the offences charged and convicted him accordingly.
On the 5th day of March 2012 when the appeal came up for hearing, appellant’s counsel was not in court but hearing notice was duly served on him on 15/2/12. Appellant’s brief dated 17/15/07 and filed on 1/5/07 but deemed properly filed on 20/9/07 was deemed duly adopted and argued. Learned counsel for the respondent, Biodun Badiora Esq. Principal State Counsel Ministry of Justice Osun State adopted and relied on their brief dated 15/2/10 and filed on 29/3/10 as their argument and submissions in the appeal and urged us to dismiss the appeal and affirm the judgment of the trial court.
In the appellant’s brief of argument, four issues were formulated for determination. They read as follows:
(1) Whether the learned trial judge was right in admitting Exhibit “Q” as a voluntary confessional statement and acting on it to convict the appellant having regard to the evidence adduced in the trial conducted to determine the admissibility of the statement – exhibit “Q”.
(2) Whether the trial judge was right in holding that the Prosecution established the case of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt as mandatorily required in law having regard to the totality of the evidence before the trial court.
(3) Was the learned trial judge right in holding that the contradictions in the evidence of the prosecution witnesses were not so material as to warrant the evidence being treated as unreliable and the appellant being acquitted of the charges against him.
(4) Whether the learned trial judge was right by not holding that the prosecution acted in breach of the constitutional right of the appellant to fair hearing by withholding the evidence of Seun and Azeez Omoniyi who had been arrested in connection with the case and one of whom the appellant claimed he had carried to Kola Balogun Area of Osogbo on the date of the incident as a commercial motorcycle operator when their evidence would have positively assisted the case of the appellant to the effect that he knew nothing about the offences with which he had been charged.
The respondent adopted the issues formulated by the appellant but reordered the numbering. I shall adopt the numbering as set out by the respondent in determining this appeal. The issues as renumbered are:-
l. Whether the learned trial judge was right in admitting exhibit Q as a voluntary confessional statement.
2. Whether there are material contradictions in the evidence of the prosecution witnesses as to warrant their evidence being treated as unreliable.
3. Whether in the peculiar circumstances of this case, the prosecution is under any obligation either to charge “Seun” and “Azeez Omoniyi” alongside the appellant or to call them as prosecution witnesses.
4. Whether by the totality of the evidence adduced the respondent proved the charge against the appellant beyond reasonable doubt
ISSUE 1
Whether the learned trial judge was right in admitting exhibit Q as a voluntary confessional statement.
Learned counsel for the appellant, Olalekan Ojo Esq. after detailed examination of the law relating to admissibility of confessional statements with relevant authorities submitted that the failure of the respondent to challenge the detailed evidence of the appellant in the trial within trial either by cross-examination or by adducing evidence in rebuttal left the appellant’s evidence unchallenged and un-contradicted. Counsel submitted that the learned trial judge should have in the circumstances held that the respondent had not satisfactorily established the voluntariness of the confessional statement beyond reasonable doubt as mandatorily required by law. Counsel called in aid the following cases: Queen v. Ijioma (1962) 1 All NLR 402; Ofortele v. The State; Agbo v. The State (2006) Q.C.C.R. (vol. 6) 48 @ 70. In the alternative, learned counsel submitted, if the learned trial judge had properly evaluated the conflicting evidence before the court in the trial within trial, he would not or ought not to have been satisfied that the statement exhibit Q was voluntarily made as the evidence of the appellant ought to have created reasonable doubt as to the voluntariness of the confession which doubt the trial court should have resolved in favour of the appellant.
Learned counsel further submitted that the second reason for attacking the admissibility of exhibit Q is that it was recorded in English when the appellant made his statement in Yoruba Language, the only language the appellant understands without the respondent producing the Yoruba version and calling as a witness the person who took the statement in Yoruba language and translated it into English. Counsel submitted that exhibit P3 was obtained from the appellant in Yoruba language and that exhibit P4 is the English translation. Counsel submitted that PW5 Sgt. Lucky Uyabieme who recorded exhibit Q is clearly not a Yoruba and there is no evidence that he speaks and understands Yoruba language. Counsel contended that in law where the statement of an accused person is not taken down in his language, the interpreter as well as the person who took down the statement must be called as witnesses, otherwise the statement is inadmissible. R v. Ogbuewu (1949) 12 WACA 483: Queen v. Keshinro (1955 – 56) WRNLR 56. Learned counsel urged us to resolve this issue in favour of the appellant and to hold that the learned trial judge was wrong in admitting exhibit Q as having been made voluntarily and relying on same to convict the appellant.
Learned Counsel for the respondent, K.M. Akano (Mrs.) in reply submitted that the respondent’s right to cross-examine a witness called by the appellant is not an obligation to be exercised willy nilly where there is nothing to examine the witness on and where as in this case credible evidence had already been called by the respondent to establish the contrary. Counsel distinguished the case of Agbo v. The State (supra) cited by learned counsel for the appellant on the effect of failure to cross-examine. Counsel submitted that in Agbo, no evidence was adduced to establish the contrary unlike in the present case where the respondent’s witness had already given evidence that the confession was voluntarily made and as pointed out by appellant’s counsel, that during cross-examination, the witness stood his ground that the appellant was neither threatened or beaten. On the matter of the confessional statement being recorded in English when it was made in Yoruba, learned counsel submitted that no issue was made of this when the statement was tendered and all through the trial within trial. Counsel argued that the appellant never contended that he made a statement in Yoruba language which was translated and that PW5 not being a Yoruba man was unable to understand him when he was taking his statement or that he used any interpreter. Learned counsel referred to the case of Alarape v. The State (2001) 2 SCNJ 162 @ 182 and submitted that the law requires an accused person to raise the objection to the admissibility of a statement made under duress at the earliest opportune time.
Counsel further submitted that looking at the totality of the evidence before the court that the statement of the appellant was obtained voluntarily. He urged us to resolve the issue in favour of the respondent.
Section 27 of the Evidence Act provides that “a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.” Section 27(2) provides further that “confessions, if voluntary are deemed to be relevant facts against the persons who make them only.”

The burden of proving that a confession is voluntary usually rests on the prosecution. See Dawa v The State (1980) NSCC 334; Nwanghonu v. State (1994) 2 NWLR (Pt. 327) 380: Emiowe v. State (2000) 1 NWLR (Pt. 641) 408. The burden is discharged by leading evidence to show that in obtaining the statement, the police complied with the usual rules, practice and procedure. These are usually referred to as Judge’s Rules. They are rules of practice which are designed to assist police officers in obtaining statements from accused persons. The statement must carry the usual forms of caution; the words of caution must be in the language understood by the maker; it must be followed by the maker’s thumb-print or signature as the case may be; it must be recorded in the language understood by the maker; it must be read over and interpreted to the maker in the language in which it is made. It is also the practice where the maker is an illiterate to take him to a superior police officer who will interview him in order to confirm that the statement if confessional was voluntarily made. See R v. Igwe (1961) All NLR 330 @ 333: Kim v. The State (1992) 4 NWLR (Pt. 233) 17 @ 42-43 H-C
In this case, PW5 the investigating police officer who tendered exhibit Q did not lead evidence that any of the procedure was followed. He testified thus:
“….I know the accused person. On 22/12/99 I was in former SARS office when I was instructed by the OC of the Department to go to the State C.I.D. Osogbo to take over a case of armed robbery as directed by Commissioner of Police. On reaching there I was given the statement of Mufutau Jegede i.e. PW4, the statement of the accused and the accused person himself. I took the accused person and the two statements to SARS office Osogbo Oke-fia. I interrogated him, and he gave me a statement concerning the robbery incident in respect of the complainant i.e. Alhaja Aladorin. The statement was confessional and it led to the arrest of Azeez Omoniyi which the accused mentioned. He mentioned others who we could not trace. He later led us to arrest Azeez Omoniyi. I obtained the statement from the accused person.”
On the application of counsel to tender the statement as an exhibit, Counsel for the accused objected on the ground that it was not voluntarily made. The trial judge then ordered a trial within a trial to determine its voluntariness.
Surprisingly, all Sgt Lucky Uyabieme said during the trial within trial as PW1 was as follows:
“I obtained the statement of the accused in SARS office Okefia Osogbo. I obtained the statement in peaceful environment. The statement was obtained voluntarily. I did not threaten him; the atmosphere in which the statement was obtained was very calm.”
Under cross-examination he testified:-
“I was alone with the accused when I obtained his statement. I was asking him questions and he was answering. I did not beat the accused. He was sitting down while I was also sitting down. He was handcuffed when interrogating him. I did not beat him at all. I am telling the whole truth before the court.”
The accused during the trial within trial testified that the policeman knocked his head against the wall and that he was beaten mercilessly; that they used carpenters instrument to injure him and that his chest and shoulders were wounded and that he was forced to sign the statement. No questions at all were put to the accused in cross-examination.
In his ruling, the learned trial judge observed:- “Looking at the totality of the evidence before me, that of the witness Lucky Uyabieme and the accused person Akeem Afolahan it is my view that the statement of the accused was voluntarily obtained.”
With all due respect to the learned trial judge, I am of the view that the prosecution ought to have done more to establish that the statement was voluntarily obtained. From all the available evidence, the accused, a Yoruba man gave all his evidence in Yoruba. His previous statement to the police obtained by PW3 Sgt Ologunde was made in Yoruba and translated into English. Both the Yoruba version and the English version were admitted in evidence as Exhibits P3 and P4. PW3 in giving evidence said he cautioned the accused person in Yoruba Language and he volunteered a statement. He read the statement over to him in Yoruba language and he admitted that the contents were correct, he signed it and it was countersigned by PW3 as the recorder. He later translated the Yoruba version into English Language. None of these precautionary measures was shown to have been taken by PW5 before obtaining the statement Exhibit Q from the accused. Indeed exhibit Q shows that the accused was cautioned in English Language. All these ought to have put the learned trial judge on the alert in considering whether the statement was indeed voluntary. Notwithstanding the evidence in chief of the Sgt that he did not threaten the accused and that his statement was obtained voluntarily in a peaceful environment, he ought to have cross-examined the accused on his statement that he was beaten mercilessly and that his head was knocked against the wall.
Leaving the evidence totally unchallenged makes it difficult for the trial judge to assess the credibility of the witness. Considering that this is a criminal case where proof must be beyond reasonable doubt and that any doubt must be resolved in favour of the accused; PW5 ought to have done more to establish the voluntariness of the confession. He did not help matters by his statement under cross-examination that he was asking the accused questions and he was answering. In Namsoh v. The state. (1993) 5 NWLR (Pt. 292) 129, the Supreme court held that where a statement is the product of a question and answer session between the accused and the police officer such statement cannot be regarded as free and voluntary. That information having been extracted from PW5 during cross-examination, it was wrong for the trial judge to have dismissed it on the ground that counsel for the accused had the authority at the back of his mind when he couched the question the way he did. The police officer ought to know the rules. This slip coupled with all the other flaws in the manner of obtaining the statement from the accused leaves clear doubt as to the voluntariness of the so called confessional statement. The truth however is that a close and careful scrutiny of Exhibit Q raises doubt as to whether it is indeed a confessional statement. Bearing in mind the definition of a confession in Section 27 of the Evidence Act as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime; the accused did not in the exhibit admit committing the crime of robbery. He claimed he operated Okada business with his master Akeem alias M.S. On the day of the incident he had come to hand over to him the day’s income of N250.00 when he asked him to take certain persons somewhere and that they would pay him. That was how the accused alleged he came to the venue of the crime. He claimed he was arguing with one of his passengers over payment of his money when he heard a gunshot and he took to his heels and was arrested and brought to the police station. He never admitted being a party to the robbery. Whether the accused was telling the truth or not, it is wrong in my view to have treated this statement as a confessional statement. The appellant did not therein admit participating in the robbery. Perhaps that was why PW5 Sgt Lucky Uyabieme treated the statement with such laxity. He did not even countersign the statement as the recorder. The learned trial judge was in my humble view wrong to have admitted Exhibit Q as a confessional statement voluntarily made. Issue 1 is resolved in favour of the appellant.
ISSUE 2
Whether there are material contradictions in the evidence of the prosecution witnesses as to warrant their evidence being treated as unreliable.
On this issue, learned counsel for the appellant submitted that there were material contradictions between the evidence of PW1 and PW4 and their extra-judicial statements admitted in evidence as exhibits P1 and P5. Counsel argued that the learned trial judge ought to have treated their evidence in court as unreliable and refused to act on it. He referred to several authorities.
Learned counsel for the respondent in her reply brief on the issue submitted that by Sections 199 and 209 of the Evidence Act, where the oral evidence of a witness in court contradicts his previous extrajudicial statement, the statement cannot be used to contradict him unless his attention was first called to those parts of the extrajudicial statement desired to be used in so doing. Counsel argued that the attention of PW1 and PW4 not having been drawn while they were in the witness box to those parts of the contradictory statements, they could not be used in contradicting them. In the alternative, counsel submitted that the so called contradictions are mere discrepancies which are not uncommon in a case of this nature and which do not go to the foundation of the respondent’s case. Counsel referred to several authorities and set out in full the alleged contradictory statements. He then argued that there is no contradiction in the evidence of PW1 and her extrajudicial statement and that even if there were contradictions in her evidence and that of PW4, they did not go to the root of the charge against the appellant. She urged us to resolve this issue in favour of the respondent.
I have considered the arguments of counsel on this issue. I do not think the appellant’s concern is with cross-examination of PW1 and PW4 or contradicting their evidence within the context or meaning of Sections 199 and 209 of the Evidence Act. Their concern is with regard to what is generally known as the ‘inconsistency rule’. It was explained by the Supreme Court in Pius Jizurumba vs. The State (1976) 1 ALL NLR (Pt. 29). The relevant definition was set out in the appellant’s brief:
“If a witness had made a previous written statement to the Police in any material particular which was now inconsistent with his evidence in court in that particular and no satisfactory explanation was offered for the inconsistency, the duty of the Court was to reject both the statement to the Police and the evidence of the witness in that material particular.”
The crucial point therefore is how the trial judge handles such inconsistent statement and the evidence of the witness. It has passed the stage of taking evidence in court and Sections 199 and 209 are consequently not applicable. It is not in doubt that there are some discrepancies in the evidence in court of PW1 and Pw4 compared with their extrajudicial statements. The issue is whether those discrepancies are serious enough to justify the rejection by the trial judge of both their oral evidence and the extrajudicial statements.
PW1 in her oral evidence in court testified that the “accused and others entered and were asking for me. They came to where I was praying and asked whether I was the Alhaja …” but in her statement to the police made on the same day the robbery took place, PW1 said “I instructed my daughter Fatimat to open gate for Kemi… not knowing that two men unidentified forced the gate and gained entrance…” (Page 5 record of appeal). At page 6 of the record, she said” I cannot identify the hoodlums because I was unconscious…” It is clear that the evidence of PW1 in court mentioning the accused as one of those that entered and were asking for her is inconsistent with her extrajudicial statement that she could not recognize the people that robbed her as she was unconscious. The attempt of learned counsel for the respondent to draw a distinction between entry into the compound and entry into Alhaja’s room is not borne out by the evidence. The inconsistency is not in doubt. The issue of the identity of the accused person as one of those who entered and robbed Alhaja is very material to the charge against the accused. I have carefully examined the judgment of the trial judge at pages 32-37 of the record of appeal, although his Lordship dismissed the contradictions as immaterial and as not going to the root of the case, he did not base the conviction of the appellant on that aspect of PW1’s testimony. He relied mainly on Exhibits P and Q the alleged confessional statements. As regards the inconsistency in the statement of PW4 in Exhibit P5 that it was one of the sons of Alhaja who opened the gate of the house and his testimony in court that one of the daughters of Alhaja opened the gate. I totally agree with the trial judge that the inconsistency there is immaterial and did not go to the root of the case. See Dibie v. The State (2007) 7 SCM 101; Akpa v. The State (2008) 8 SCM 58 @ 81 & 86.
In the circumstances, in answer to issue 2, in respect of the evidence of PW1, I would say that the contradiction was material but since it did not form the basis of the judgment of the trial judge the question of treating her evidence as unreliable does not arise. The inconsistency in the evidence of PW4 is immaterial. Issue 2 is therefore resolved in favour of the respondent.
ISSUE 3
Whether in the peculiar circumstances of this case the prosecution is under any obligation either to charge “Seun” and “Azeez Omoniyi” alongside the appellant or to call them as prosecution witnesses.
The appellant on this issue submitted citing various authorities that the general position of the law with regard to the calling of witnesses by the prosecution is that the prosecution is not bound to call a witness whether or not his name appeared on the back of the information. Counsel submitted that there is at least one well recognized exception to the general rule. It is that where there is a vital point in issue which can only be settled one way or another by the evidence of one witness that witness ought to be called by the prosecution so as not to leave any lingering doubt in the case of the prosecution. Counsel called in aid the cases of R v. Essien 4 WACA 112 and R v. Kure 7 WACA 175.
Counsel further submitted that the appellant mentioned Akeem and Azeez in his statement to the police as the people he carried in the course of his duty as a commercial motor cyclist to the front of Presidential Hotel Osogbo; that it was in the course of demanding for his fare that he heard a shout and on taking to his heels he was arrested. The police later arrested Akeem and Azeez but released them without calling them as witnesses or tendering their statements if any or making them available for cross-examination. Counsel submitted that if the appellant’s case that he carried the two people in the ordinary course of his business without any knowledge of what they were up to is found to be true, then that would knock the bottom off the prosecution’s case. His innocence would then be established or at least reasonable doubt on his guilt would be raised. Counsel urged us to hold that failure of the prosecution to call Akeem and Azeez as witnesses was fatal to the prosecution’s case and occasioned serious miscarriage of justice.
Learned counsel for the respondent pointed out the discrepancies in the extrajudicial statements made to the police by the appellant, exhibits P and Q as regards the persons he carried on his motorcycle to the scene of the crime and his oral evidence in court that he carried an unnamed passenger to the scene. Counsel also pointed out the fact that from the records the only named person that was arrested according to the police investigators, PW3 and PWs was Azeez Omoniyi. The other named persons could not be traced. Further, counsel argued that the evidence before the court was that no motorcycle was seen around the scene of the crime and that subsequent investigation revealed that a vehicle had been snatched by the robbers and that when it was recovered, the victim’s bank documents were found in the vehicle. Counsel submitted that the respondent was under no obligation to call Seun or Azeez Omoniyi to resolve whether the accused is a commercial motorcyclist who carried the suspects to the scene of the crime in the line of duty or not since no motorcycle was seen or recovered in the area. Rather, the car that was snatched by the hoodlums was what was recovered. Further if the respondent refused to make the individuals their witnesses nothing stopped the appellant from calling them as his own witnesses.
The law clearly is that the prosecution is under no obligation to call any number of witnesses in proof of their case. Even one witness who is able to establish the case will suffice except where corroboration is required by law. Akpa v. The State (supra). The prosecution is also under no obligation to charge other persons mentioned by an accused person in his statement to the police.
The so called exception referred to by the appellant, in my view embodies nothing more than the usual requirement of the law that the prosecution must prove the case against the accused beyond reasonable doubt. lf the failure to call a particular witness leaves some gap in the case of the prosecution such that it was unable to prove its case beyond reasonable doubt, then to that extent the witness becomes a necessary witness whose evidence is a must to secure a conviction. I do not think the named Seun and Azeez Omoniyi fit within this category. I agree with learned counsel for the respondent that the prosecution was under no obligation to charge the named persons or to call them as witnesses. As stated by learned counsel for the respondent, what the appellant is indeed canvassing is that the prosecution calls witnesses to help him establish his defence. There is no such obligation on the prosecution in criminal matters. This issue is resolved against the appellant.
ISSUE 4
Whether by the totality of the evidence adduced the respondent proved the charge against the appellant beyond reasonable doubt.
Referring to numerous authorities, learned counsel for the appellant submitted that before it can be rightly said that the prosecution has proved its case beyond reasonable doubt, ingredients of the offence must be established. Counsel argued that if there is a failure to establish one element of the offence or crime then it must be held that there has been failure on the part of the prosecution to prove the case beyond reasonable doubt. He contended that where at the end of the trial, the court has doubt as to the guilt of the accused, the doubt must be resolved in favour of the accused and he ought to be acquitted. On the conspiracy count, learned counsel referred to the cases of Emeka v. The State (1998) 7 NWLR (Pt. 559) 556 @ 583 F-H: Obiakor v. The State (2002) 10 NWLR (Pt.770) 612 @ 629: Omisore v. State (2005) 1 QCCR 148 @ 165-166: Oyediran v. The Republic (2003) 3 A.C.L.R. 513 @ 5232; and submitted that conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or a lawful act by an unlawful means and that where there is no direct evidence of any witness or any admission or confession of the offence of conspiracy, the evidence must necessarily be circumstantial to sustain the conviction. Counsel further contended that the evidence adduced by the prosecution in this case did not prove or establish the ingredients of the offence of conspiracy in that the prosecution did not adduce any evidence of any agreement or any consensus ad idem between the appellant and any other person to commit the offence of armed robbery or any other offence. Counsel argued that there was no evidence direct or circumstantial that the appellant had fore knowledge of the crime. There was no evidence that he consented to do and did anything in pursuance of any criminal scheme or purpose held in common between him and other persons in the criminal enterprise. Counsel contended that the appellant was at all times material a commercial motorcycle operator carrying anybody who waved him down and agreed to pay the fare charged. Counsel submitted that on the totality of the evidence before the trial court, a case of conspiracy has not been and cannot be said to have been circumstantially established against the appellant.
On the count of armed robbery, Counsel submitted that the prosecution did not establish a case of armed robbery against the appellant beyond reasonable doubt as mandatorily required by law because no nexus was established between him and the property stolen during the robbery; that he was not shown to have been in the premises of the victim; that no weapon was found on him; and that there is no evidence of common intention between him and the other suspects. Counsel urged the court to resolve this issue in favour of the appellant and to hold that the prosecution did not establish either of the two-count charge against the appellant.
In response to the arguments of the appellant on this issue, learned counsel for the respondent submitted that conspiracy is usually inferred from the activities of those involved aimed towards a common end or purpose because it is not usual to have direct evidence. Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455; Gbadamosi v. The State (1991) 6 NWLR (Pt. 196) 182. Counsel submitted that the prosecution tendered exhibits P4 and Q in which the appellant stated his relationship with Akeem Musibau, Wasiu, Seun and Azeez. PW2 and PW4 testified that the appellant was arrested at the scene of the crime and that no motorcycle was seen as he claimed. Counsel submitted that the evidence adduced by the respondent established conspiracy against the appellant as charged. On the count of armed robbery, Counsel submitted that the ingredients of the offence which must be proved are as stated in the cases of Okeke v. The State (1995) 4 NWLR (Pt. 392) 676 and Okpulor v. The State (1990) 2 NWLR (Pt. 164) 581. They are:-
i. That there was robbery or series of robbery
ii. That the robbers were armed with offensive weapons; and
iii. That the accused (appellant) was among the robbers.
Counsel further submitted that PW1, PW2 and PW3 testified that the colleagues of the appellant were armed with guns. A fact also confirmed by the appellant in exhibits P4 and Q. PW1 confirmed that the sum of N140,000.00 was taken from her by the robbers. The appellant was caught at the scene of the crime after he had struggled with and escaped from PW4. Counsel submitted further that the appellant stated in exhibit P4 and Q that he took Wasiu and Kazeem on his motorcycle to the scene of the crime. At the hearing he told a different story. The trial judge consequently disbelieved the evidence of the appellant and found him guilty on the evidence of the prosecution. Counsel submitted finally that the prosecution proved the ingredients of the offence of conspiracy and armed robbery and urged the court to hold that the respondent proved the case against the appellant beyond reasonable doubt and to resolve this last issue in favour of the respondent.
Section 138(1) of the Evidence Act 1945, operative at the time of the commission of the offence provides that “if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” The prosecution must therefore prove beyond reasonable doubt the two counts of conspiracy to commit armed robbery and armed robbery.
Learned counsel for the respondent is no doubt right in her submission that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. See Miller v. Minister of Pensions (1947) 2 AII ER 377: State v. Salawu (2011) LPELR-SC/2011 However, the ingredients of the offence charged must be proved as required by law and to the satisfaction of the court. Agbachom v. State (1970) I All NLR 69: Okpulor v. State (1990) 7 NWLR Pt. 164) 581

What then are the ingredients of the offence of conspiracy?
In Kaza v. The State (2008) 7 NWLR (Pt. 1085) 125 @ 176, Tobi JSC listed the ingredients of the offence of conspiracy as follows:-
1. There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds.
2. The persons must plan to carry out an unlawful or illegal act, which is an offence.
3. Bare agreement to commit an offence is sufficient.
4. An agreement to commit a civil wrong does not give rise to the offence, as section 97(1) of the Penal code provides only for criminal conspiracy.
5. One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
6. A conspiracy is complete if there are acts on the part of an accused person which lead the trial court to the conclusion that he and others were engaged in accomplishing a common object or objective.
This last item is particularly relevant in the case in hand. As pointed out by Tobi JSC in Kaza v. State (supra) the mens rea of the offence of conspiracy is not easy to locate as it is usually buried in secrecy. It is the actus reus of the offence that would draw the mens rea to the open and make it possible for the court to find inculpatory evidence.
At page 36 of the record of appeal, the learned trial judge in convicting the appellant of conspiracy observed:-
“In considering whether the minds of the accused persons really met to commit the offence, the court should not only consider the physical meeting of the minds in a known and identifiable place or sport for the crime hatching or planning base or ground but the totality of the conduct of the parties.
Once the court comes to the conclusion that the prosecution has established some community effort on the part of the accused person aimed at committing a crime there should be no difficulty in convicting on conspiracy unless there exists other mitigating circumstances. See Abioye vs. The state (1987) 2 NWLR (Pt. 58) 645; Gbadamosi vs. The state (1991) 6 NWLR (Pt. 196) 182.
A careful examination of exhibits “P4” and “(Q)” showed that the accused and Akeem Musibau, Wasiu, Seun and Azeez at one time or the other were together and the totality of their conduct showed that there was conspiracy to commit the crime of robbery.
The accused was caught at the scene of the crime and he admitted that he took one of the robbers to the scene of crime in Exhibit “P4 “. I therefore have no hesitation in coming to the conclusion that the accused is guilty of conspiracy and I convict him accordingly.”
The appellant’s contention is that the mere fact he was with the named persons at one time or the other does not lead inexorably to the conclusion that they had formed a common intention to commit armed robbery. The point however is that conspiracy can be inferred from the conduct of the party. If there are acts on the part of an accused person which lead the trial court to the conclusion that he and others were engaged in accomplishing a common object or objective, then conspiracy can be inferred. It is necessary therefore to examine the acts of the appellant and the surrounding circumstances in order to determine whether the trial judge was right in finding the appellant guilty of conspiracy.
First, it is important to mention that the names of the alleged culprits in the armed robbery attack were given by the appellant in his statements to the police. I had earlier determined while resolving issue I that exhibit “Q” is not a confessional statement. The fact that it was not shown to have been made voluntarily did not affect its admissibility. Being just a statement obtained by the prosecution from the accused person, it is admissible as part of the case of the prosecution. The trial court would then weigh the facts contained therein along with the rest of the prosecution’s case in deciding whether the offences charged were proved beyond reasonable doubt. In both Exhibits P4 and Q, the appellant stated that he came to hand over to his master, Akeem the day’s money for running their okada business. Akeem then told him to carry three men to Kolabalogun area of Osogbo. He told Akeem that he cannot carry three men on the motorcycle. He then carried one of the men. He claimed in exhibit P4 that it was when Akeem called the man Wasiu that he came to know him by name. He said Wasiu told Akeem to enter Taxi and meet them at Kolabalogun. The appellant continued:
“On getting to Kola Balogun, I saw a man waiving us down that many (sic mummy) is at home. I waited until those two men that I left behind at Seun Shop came to meet us and they entered into the house before they came out, the people in the house came out and they were shouting thief, thief. I was waiting outside for the two men who entered Alhaja’s house, when I heard the sound of gun. I ran away from where I was standing before some men asked me to wait, but I did not answer them at all. It was when I was running away that they caught me and took me to Ayetoro Osogbo. Police obtained statement from me; the two men have ran away with my master named Akeem. The men I left in the shop where I carried the two men are Seun and Azeez, with other little children. I did not see Seun and Azeez when we got to Alhaja’s house at Kolabalogun. It was Wasiu, Akeem and one other man whom I did not know his name were the persons that entered Alhaja’s house. I did not see Seun and Azeez at all. It was true that I fought with them when Wasiu refused to give me money. The motorcycle I rode to that place snatched from me by the two men who entered Alhaja’s house before people arrested me and took me to the police station. I did not know how much the money the men stole from Alhaja and they cannot wait to tell me anything when the neighbours were pursuing us. I have taken policemen to Alekuwodo but we can’t trace them.”
This exhibit P4 was tendered in evidence by PW3 Sgt Ologunde who obtained the statement from the appellant in Yoruba and translated it into English, When it was tendered, counsel for the appellant initially objected to the tendering of the statement on the ground that the accused was beaten and that his life was threatened before he made the statement. When the judge ordered for a trial within a trial, Counsel withdrew the objection and both the Yoruba version and the English version were admitted as exhibits. Exhibit P4 sounds more like a confessional statement than exhibit Q. From the contents of Exhibit P4, it is not just a matter of the appellant having at one time or other been together with the named persons, the appellant’s acts as set out by him in the exhibit leaves no one in doubt that he and the other named culprits were engaged in accomplishing a common objective – to rob the Alhaja. The appellant was caught at the scene of the crime. He admitted that he took some of the culprits to the scene of the crime. He waited outside for the two men who entered Alhaja’s house. His conduct contrary to his claim was not that of a commercial motorcyclist who carried passengers to the scene for a fee. There was clear circumstantial evidence that he had foreknowledge of the crime committed. He stated in exhibit P4 that when they got to Kolabalogun, he saw a man waving them down that many (sic mummy) is at home. A man does not go making such announcement to persons who are not in on the business with him.
Again his statement that he did not know how much money the men stole from Alhaja because they cannot wait to tell him anything when the neighbours were pursuing them was quite telling as to their common objective. The learned trial judge was right in his conclusion that the appellant was guilty of conspiracy.
On the count of armed robbery, the essential ingredients of the offence of armed robbery as listed in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows:
l. That there was a robbery or series of robbery
2. That each of the robbery was an armed robbery
3. That the accused was one of those who robbed
See also the cases of Okeke v. The State (1995) 4 NWLR (Pt. 392) 676 and Okpulor v. The State (1990) 2 NWLR (Pt. 164) 581. There is ample evidence that there was a robbery. PW1 testified that she was robbed of the sum of N140,000.00. It was an armed robbery. PW1, PW2 and PW4 testified that the robbers were armed with guns. The appellant in his statements exhibits P4 and Q confirmed that he heard a gun shot and that when he demanded for his money from Azeez, he brought out a gun from his body and asked him if he had ran mad. As to whether the appellant was one of those who robbed PW1, having arrived at the conclusion that the appellant conspired with others now at large to rob PW1 it follows that he was a party to the robbery. The appellant’s contention that he was not seen in the premises of PW1, the complainant or that the money stolen was not found on him at the time of his arrest or thereafter or that he was not found with any weapon go to no issue. The fact is that there was evidence of common intention between the appellant and the robbers who absconded. The law is that if two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed, each is deemed to have committed the offence. It does not matter who did what. See Ubierho vs. State (2005) 5 NWLR (Pt 919) 644 @ 657 658 H – E. The appellant stated in exhibits P4 and Q that he took Wasiu and Kazeem on his motorcycle to the scene of the crime. He waited at the gate while the others went in to commit the act. If he had not been arrested, he would have absconded with the others to go and share their loot. It is noteworthy that in his oral evidence in court, the appellant did a complete somersault and now claimed that he picked a random passenger on his motorcycle who asked to be dropped at the scene of the crime. He did not pay him his full fare and that while they were arguing over the matter, passersby started to beat him and started shouting ‘thief, thief and he was arrested. Such fanciful tale! It is not surprising that the learned trial judge disbelieved his evidence and declared him not to be a witness of truth. It is also noteworthy that the motorcycle which the appellant claimed he used in conveying his associates to the scene of the crime was not seen. In exhibit P4, the appellant said the motorcycle was snatched from him by the two men who entered Alhaja’s house before people arrested him and took him to the police station. This is hard to reconcile with his earlier statement in the same exhibit that he was waiting outside for the two men who entered Alhaja’s house when he heard the sound of a gun and took to his heels. The learned trial judge was right in finding the charge of armed robbery proved against the appellant beyond reasonable doubt.
In conclusion, I find no merit in this appeal. It is hereby dismissed. The conviction and sentence of the appellant by Bada J (as he then was) in the Osogbo High Court in Charge No. HOS/7C/2000 delivered on the 12th day of December 2002 is hereby affirmed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read before now the judgment of my learned brother C. E. Iyizoba, JCA just delivered. His Lordship has exhaustively considered and ably resolved all the issues in contention in this appeal. I agree with the reasoning and conclusion therein.
It is instructive to note that on 23/9/09 the appellant herein filed a Notice of Abandonment of Appeal dated 18/9/2009. Consequently even though a brief of argument had been filed on his behalf, he was not represented by counsel on 5/3/2012 when the appeal was heard. His counsel had been duly served with hearing notice on 15/2/2012. The appellant was convicted and sentenced to death for conspiracy to commit armed robbery and armed robbery under Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. 22 Laws of the Federation of Nigeria 1990.
By virtue of Section 241(e) of the 1999 Constitution, an appeal shall lie as of right from decisions of the Federal High Court or a High Court to the Court of Appeal in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death. The right of appeal is unfettered.
In a case involving the highest penalty a court can impose i.e. sentence of death, an appeal ought not to be dismissed without a proper hearing on the merits, ho matter what the appellant considers his chances to be.
It was for this reason that notwithstanding the Notice of Abandonment of Appeal filed the appeal was heard on its merits. We are of the view that this accords with the appellant’s right to fair hearing as guaranteed by Chapter IV of the 1999 Constitution.
For the reasons elaborately advanced in the lead judgment, I also find no merit in the appeal and dismiss it accordingly. I affirm the conviction and sentence of the appellant by the lower court.

MOORE A. A. ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, IYIZOBA, JCA. I agree with His Lordship that this appeal ought to be dismissed for lacking merit.
For the reasons given in the lead judgment, I also dismiss the appeal.
I affirm the judgment of the lower court.

Appearances

For Appellant

AND

Biodun Badiora Esq. Principal State Counsel Ministry of Justice Osun State For Respondent