ALAYANDE v. STATE
(2022)LCN/16180(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/IB/242C/2020
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
RAHMAN ALAYANDE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON LAW ON OBSERVING A WITNESS IN THE WITNESS BOX
Observing a witness in the witness box by the Judge is one aspect of trial that the law allows the Judge to make use of what he sees in evaluating the evidence of the witness and whether to believe the witness or not. To now contend that there was no evidence of her age as to suggest that she was younger to PW1 is preposterous. It is natural that even people of same age observe events differently. There is no definite and single mould within which to fit what the eyes must see by different people about an incident. A Judge who observes witnesses in the box is in the best position to assess the credibility of the witness in terms of what the witness testifies to in Court. It is natural and indeed expected to have some slight variations, discrepancies or differences depending on individual’s ability to recollect an incident, particularly such violent incidence. It is not possible to have two witnesses giving exactly the same evidence except it was rehearsed or they were tutored it, see YAKUBU V. JAUROYEL & ORS (2014) LPELR-22732(SC) wherein the apex Court held thusly:
“…it must be realised that human beings not being machines do not, in the course of giving evidence before Courts, act with the characteristic automation of machines. Where two people give evidence on the same matter or event and remain consistent to the minutest details, their evidence become suspect. The Court in such a situation will be justified to infer that they had either been tutored or rehearsed before the date of giving evidence. See Samson Owie V. Solomon E. Ighiwi (2005) 2 SCM 149, Agbo V. The State (2006) 1 SCNJ 332 and Lukmon Osetola & Anor V. The State (2012) 6 SC (Pt iv) 148.” Per MUHAMMAD, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT CONFESSIONAL STATEMENT ONCE ADMITTED CAN BE REVISTED
Now to Exhibits A and D which the Appellant contends should be discarded, the law is settled that a confessional statement once admitted cannot be revisited with a view to reevaluating the basis for its admissibility before ascription of probative value, see OSUNG V STATE (2012) LPELR-9720(SC) which held thus:
“It is trite law that a valid voluntary statement tendered without objection and admitted in evidence, is good evidence and no amount of subsequent arguments against it or a retraction will vitiate its admissibility and potency as a voluntary statement; and the mere denial by the accused, will not be a good reason for rejecting it. It is only desirable to have some evidence of circumstances which make it probable that the confession was truly confessional, although a free and voluntary confession alone is sufficient without further corroboration to warrant and sustain a conviction. Therefore, once a confessional statement is in evidence it becomes part of the case for the prosecution which the Court is bound to consider, provided that it admits of the essential elements of the offence charged and is such that when tested against proven facts will show that the accused committed the offence. See AKPAN v. THE STATE (2001) 15 NWLR (Pt.737) 745.” Per GALADIMA, J.S.C. PER NIMPAR, J.C.A.
THE POSITION OF LAW ON THE WEIGHT TO BE ATTACHED TO RETRACTED CONFESSIONAL STATEMENTS
A retraction just alerts the Court to find some evidence outside the statement and to conduct a test to see if the statement was truly made, the questions the Court must answer before the statement can be used were restated in the case of OGUDO V. STATE (2011) LPELR-860(SC) and SA’ADU V. STATE (2018) LPELR-44709(CA) wherein the Court held thus:
“… in the case of Dawa v. State (1980) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267-268: “On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and/or followed were laid down in R. v. Sykes (1913) 8 Cr. App. R.233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a Judge must ask himself are: (1) Is there anything outside the confession to show that it is true? (2) Is it corroborated? (3) Are the relevant statements made in it of facts, true as far as they can be tested? (4) Was the prisoner one who had the opportunity of committing the murder? (5) Is his confession possible? (6) Is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain. Since Kanu v. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line of authorities may be mentioned: (1) The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307 (4) Obue v. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The State (1976) 6 SC 167 (6) Ebhomien & Ors v. The Queen (1963) 1 All NR 365.” Per BDLIYA, J.C.A. PER NIMPAR, J.C.A.
WAYS THE PROSECUTION CAN ESTABLISH OR PROVE A CRIME IN CRIMINAL MATTERS
The law recognizes 3 ways the Respondent can establish or prove a crime, which were named in the case of DAWAI V. STATE (SUPRA) as follows:
“… In order to establish or prove the above ingredients of the offence of armed robbery, the prosecution’s evidence may flow from any of the following ways: – (i) the confessional statement of the accused which has been duly tested, proven and admitted in evidence. (ii) By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged. (iii) By direct evidence of eye witnesses who actually saw the accused committing the offence.” Per OKORO, J.S.C.
The prosecution can do so by any of the ways or a combination of two or all the three ways. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Ogun State High Court sitting in Abeokuta and delivered by HON. JUSTICE A. A. AKINYEMI on the 24th November, 2014 wherein the lower Court found the Appellant guilty of the offences of conspiracy to commit Armed Robbery and Armed Robbery thereafter convicted and sentenced him to death by hanging. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated 5th day of June, 2020 setting out 8 grounds of Appeal.
Facts leading to this appeal are straightforward and amenable to brief summary. By an Information dated 20th February, 2013, the Respondent arraigned the Appellant and one other person on a two count charge of conspiracy to commit Armed Robbery and Armed Robbery, while the 3rd accused person was charged with Receiving Stolen Property contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation of Nigeria, 2004. The 2 counts read:
COUNT I
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to Section 6(b) and punishable under Section1(2)(a) of the Robbery and Firearms (special provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
RAHMAN ALAYANDE(M), AKINYELE SAUBANA(M) on or about 4th day of July, 2011 at Olomore Area of Abeokuta, in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (special provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
RAHMAN ALAYANDE(M), AKINYELE SAUBANA(M) on or about 4th day of July, 2011 at Olomore Area of Abeokuta, in the Abeokuta Judicial Division while armed with offensive weapon to wit: gun robbed Carol Nnenna Ubani of an Almera Nissan Saloon Car, the sum of Two-Fifty Thousand Naira (N250,000.00) and suits valued at Six Hundred and Twenty Eight Thousand Naira (N628,000.00).
During trial the Appellant testified for himself while the Respondent called 5 witnesses and tendered 14 Exhibits. Thereafter and upon due consideration the trial Judge found the Appellant guilty, convicted and sentenced him to death by hanging. The Appellant aggrieved with the said judgment brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the appeal. The Appellant’s brief settled by IRE W. EGERT-OMONEUKANRIN, ESQ., is dated 12th day of August, 2020 and filed on the same. The Appellant distilled 4 issues for determination as follows:
1. From the totality of the evidence led by the prosecution at the trial Court, was the findings of the Honourable trial Court that PW2 was younger person who could not have been so vigilant or aware of her surroundings not perverse. (Distilled from ground 2)
2. From the totality of the evidence led by the prosecution at the trial Court, was the Honourable trial Court in its findings that as at the time Exhibit A and D were made, PW3 and PW4 could not have known that PW1 was robbed and how the robbery took place. (Distilled from ground3).
3. In the entire circumstances of this case, can it be said that the prosecution has successfully established all the ingredients of the offence Armed Robbery to warrant the conviction of the Appellant by the Honourable trial Court. (Distilled from grounds 4, 5, 6 and 7)
4. In the entire circumstances of this case, can it be that the Prosecution has successfully established all the ingredients of the offence of conspiracy to commit Armed Robbery to warrant the conviction of the Appellant by the Honourable trial Court. (Distilled from grounds 8)
The Respondent’s Brief settled by F. E. BOLARINWA-ADEBOWALE, (MRS) Chief State Counsel Ministry of Justice, Ogun State dated 20th day of September, 2021, filed on the same date but deemed on the 17th January, 2022. The Respondents formulated a sole issue for determination as follows:
Whether the admission and the reliance on the Appellant’s confessional statement, the testimony of PW1 and PW2 by the trial Court was wrong, when convicting the Appellant for the offences of conspiracy to commit Armed Robbery and Armed Robbery.
APPELLANT’S SUBMISSION
ISSUE ONE & TWO
Arguing this issue, the Appellant submits that from the totality of evidence led by the parties at the trial Court, there is no evidence whether from the case of the Respondent establishing that PW2 was a younger girl neither was there any evidence that PW2 was not vigilant or aware of her surroundings on the night of the incident. Continuing, the Appellant argued that there is no evidence on record before the trial Court suggesting the age of PW2 or that PW2 was younger than PW1 to make her not to be vigilant of her surroundings, therefore, the findings of the trial Court that PW2 is younger than PW1 is not supported by any iota of evidence before the trial Court, hence, these findings are perverse and should be disregarded by the Court because PW2 was able to narrate what happened on the day the incident occurred and she was equally sworn on oath just as PW1. The Appellant relied on IDUNG V. STATE (2014) LPELR-23443 (CA), GABRIEL V. STATE (2010) 6 NWLR (PT. 1190) 280 and UDOKA V. FRN (2010) 2 NWLR (PT. 1177) 188 to support his argument.
It was the submission of the Appellant that the trial Judge came to the conclusion and made findings that the Appellant made Exhibit A and D majorly because both statements were purportedly made at a time when PW1 had not become aware of the arrest and had not made a report at Agbado Police Station, however, from the evidence of PW3, PW4 and PW5 it is clear that they were aware of the robbery incident and how it occurred since July, 2011 when PW1, the victim came to the State CID to report the incident stating emphatically how and when the robbery took place which usually assists the Police in carrying out their investigation, therefore, Exhibits A and D were made for the Appellant because the Police were fully aware of the incident before the arrest, hence, the holding of the trial Judge that PW3 and PW4 were not aware of the information concerning the robbery incident is not supported by evidence adduced and such should be discountenanced.
ISSUE THREE & FOUR
In arguing these issues, the Appellant submits that the Respondent failed to prove the elements of the offence of Armed Robbery and conspiracy to commit Armed Robbery because the law is settled that to establish the offence of Armed Robbery, all elements must be proven beyond reasonable doubt and once the elements are not proved, the consequence of which is an acquittal as held in ALABI V. STATE (1993) 7 NWLR (PT. 307) 511, OZAKI V. STATE (1990) 1 NWLR (PT. 124) 92, BUBA V. STATE (1993) 9 NWLR (PT. 315) 78 and SECTION 135(1) of the Evidence Act, 2011. Citing BOZIN V. STATE (1985) 2 NWLR (PT. 8) 465, the Appellant spelt out the 3 elements establishing the offence of armed robbery which are (a) that there was robbery or series of robberies (b) that each robbery was an armed robbery (c) that the Appellant was one of those who took part in the armed robberies and submits that each of these elements must be proved beyond reasonable doubt and the Respondent only succeeded in proving only two of the elements based on the testimony of the PW1 and PW2 but failed to prove that the Appellant was one of those who took part in the armed robbery and the trial Court relied on the eye-witness account of PW1 and Exhibits A and D being the confessional statements of the Appellant to convict the Appellant.
The Appellant reproduced the holding of the trial Judge at page 198 of the Record to submit that on the identification of the PW1, she gave evidence that the medicated glasses she used were recommended for sight and reading and she does not see clearly without the glasses with double lens which implies that PW1 has visual impairment or visual disorder which goes to show that PW1 cannot see clearly both in the day and night unless with the aid of the medicated glasses which also implies that her identifying the Appellant as one who robbed her is uncertain especially when she gave evidence that she was not putting on her eyeglass at the time of the incident. The Appellant urged the Court to settle this doubt in favour of the Appellant and cited IGBI V. STATE (2000) 3 NWLR (PT. 648) 169 and EFFIA V. STATE (1999) 8 NWLR (PT. 613) 1. The Appellant further submit that PW1 testified that there was light when she was robbed, however, PW2’s testimony is that there was no light at the time of the incident which is a material contradiction but the trial Judge did not believe the testimony of PW2 on the ground that she was younger and might not have been so vigilant or aware of her surroundings and believed the evidence of PW1 as cogent and reliable. Continuing, the Appellant argued that the trial Court cannot pick and choose from the evidence of the Respondent’s witnesses. The evidence of PW1 was materially contradicted by PW2 which create doubt in the case of the Respondent and this doubt which is in regard to the lighting of the scene should be settled in favour of the Appellant as held in OCHIBA V. THE STATE (2011) 17 NWLR (PT. 1277) 663, STATE V. AZEEZ (2008) 14 NWLR (PT. 1108) 439, BASSEY AKPAN ARCHIBONG V. STATE (2006) 5 SCNJ 202, CHUKWU V. STATE (1996) 7 NWLR (PT. 463) 686 and IGBI V. STATE (SUPRA) and there was no explanation given on this contradiction by the Respondent and as such, this must also be resolved in favour of the Appellant. The Appellant relied on ARUNA V. STATE (1990) 9-10 SC 97.
Predicated on the above, the Appellant submits that PW1 who claimed to have purportedly seen the robbers testified that while she was at her place of business 3 months after the robbery incident, she saw on TV robbers lined up at Eleweran and she identified her car, which made her go to Eleweran Police station in order to claim her car and the Police asked if she could identify those who robbed her and she immediately identified the Appellant and his mate as persons who robbed her. The Appellant contends that the mode of identification was not proper as the identifying witness (PW1) had seen the Appellant on TV lined up as one of the robbers of her car, therefore, the identification process should be expunged as it contradicts the identification parade known to law, secondly, by identifying them on TV, hence, PW1 would have known the role allegedly played by the Appellant and his co-accused which would make it very easy for her to identify them. Citing CHUKWU V. STATE (SUPRA) the Appellant submit that the identification parade conducted by the Police did not prove their case beyond reasonable doubt.
In the light of the foregoing, the Appellant submits that in Exhibit A the Appellant admitted the commission of a crime by robbing a Nissan Almera but that it was in the month of May, 2011 which is not the month which the Appellant was alleged to have committed the crime in the Information filed against the Appellant and though there was an admission of commission of crime by the Appellant but on the face of Exhibit A it was committed on a different date means that the crime admitted is another crime other than the one charged. The Appellant relied on AKPAN V. STATE (2001) 15 NWLR (PT. 737) 745, EKPE V. STATE (1994) 9 NWLR (PT. 368) 263 and ADEYEMI V. STATE (1991) 6 NWLR (PT. 195) 1.
Continuing, the Appellant argued that the evidence of the Respondent in Exhibit A shows variation on the date on which the offence was allegedly committed and this is not a minor variation as the trial Judge cannot speculate on the date in which the crime was committed. The Appellant referred the Court to ZUBAIRU V. STATE (2015) 16 NWLR (PT. 1486) 504 and AGHOLOR V. A.G. BENDEL STATE (1990) 6 NWLR (PT. 155) 141.
Relying in GBADAMOSI V. STATE (1992) 9 NWLR (PT. 266) 465, NWEZE V. STATE (2017) 12 (PT. 2) SCM 637 and DOGO V. STATE (2013) 10 (PT. 1361) 160, the Appellant submits that an accused person can only be convicted upon a confessional statement if he admits the offence charged, since the Appellant who admitted the offence committed in May, 2011 as shown by inference, cannot then be convicted of committing offence alleged to have taken place in July, 2011 because Section 36(6)(a) of the 1999 Constitution as altered makes it mandatory for an accused to be informed in detail of the offence, which is being tried for and the Appellant herein was never called upon to answer to a charge for a crime committed in May, 2011 rather that of July,2011, hence the law is settled that where evidence is at variance with the charge against the accused person, that accused person is entitled to a verdict of discharge as held in BELLO V. COP, PLATEAU STATE (2017) 12 (PT. 2) SCM 225.
On the same score, the Appellant submitted that PW3 testified that the Appellant gave his statement voluntarily in Yoruba language which was recorded in English Language and justice demands that the statement should be read back to him in Yoruba Language, however, PW3 stated that he read back to the Appellant in Yoruba and on another hand he stated that he read back in English Language. Continuing, the Appellant argued that this contradiction on the language PW3 used in reading back the statement of the Appellant back to him creates a doubt in the case of the Respondent and if the statement was read to the Appellant in English Language then there is no way the Appellant would have understood the content of the said statement, consequently, it is trite that such a doubt ought to be settled in favour of the Appellant as held inSTATE V. AZEEZ (SUPRA), BASSEY AKPAN ARCHIBONG V. STATE (SUPRA) and CHUKWU V. STATE (SUPRA). The Appellant contends that the trial Judge admitted Exhibit D which was dated the 28th day of August, 2011 in evidence having been tendered by the Respondent and the trial Court relied on it to convict the Appellant and even quoted a paragraph as contained in Exhibit D, however, there is nowhere in Exhibit D that the quoted portion by trial Judge appears, therefore, the quoted statement as contained in page 189 of the Record is not legal evidence that the trial Court can rely upon to convict the Appellant and the Appellant urge the Court to hold so. The Appellant referred the Court to SAMBO V. STATE (1993) 6 NWLR (PT. 300) 399 and OBINNA ORANIKA V. STATE (2018) LPELR-45481 (CA).
According to the Appellant, the trial Court relied on the oral evidence of PW1, PW4 and the Appellant to convict the Appellant, however, from the testimony of PW1, she stated that she was robbed on 4th July, 2011 of a Nissan Almera GL183LND while PW4 gave evidence that one Damilare Fadeyi made a report that the Appellant sold a stolen car to him, then PW4 and his team arrested the Appellant and his co-accused while a Nissan Almera DL183LND was recovered. Therefore, the difference between the registration numbers of the car stolen from PW1 and the one recovered by PW4, shows that nothing linking the Appellant with the alleged crime. Continuing, the Appellant submits that the Respondent failed to prove its case beyond reasonable doubt because failure to prove that the car recovered and the one stolen is same by their registration number is fatal to the Respondent’s case and burden the Respondent to produce homogenous evidence as to the identity of the car stolen. The Appellant cited BASSEY V. STATE (2012) 12 NWLR (PT. 1314) 226. Relying on EZE V. STATE (1992) 7 NWLR (PT. 251) 75, OLUYEDE V. ACCESS BANK PLC (2015) 17 NWLR (PT. 1489) 596, the Appellant contended that from the evidence adduced by the Respondent, one cannot say that the Respondent has proved the correct identity of the car allegedly stolen because of the contradiction in the registration number given by PW1 and PW4.
The Appellant citing AKINMOJU V. STATE (2000) 6 NWLR (PT. 662) 608, the Appellant argued that the Respondent adduced two conflicting evidence as regards the light condition of the crime scene as PW1 maintained on oath that there was light at the scene of the crime while PW2 stated that there was no light when the incident took place and the Respondent failed to resolve this contradiction and also failed to resolve the contradiction of the registration number, hence, the Respondent did not resolve these conflicting evidence at any point in time, therefore, it is trite that where conflicting evidence is not resolved by the prosecution, the Court ought to resolve it in favour of the accused person as held in NWOSU V. STATE (1986) LPELR-2134(SC) and COP V. AMUTA (2017) LPER-41386(SC).
It was the submission of the Appellant that on the issue of Conspiracy to commit Armed Robbery, the law that failure to prove a substantive offence does not make conviction for conspiracy inappropriate as it is a separate and distinct offence in itself, independent of the actual offence to have been conspired to commit and for the offence of conspiracy to commit Armed Robbery to be established, the prosecution has the burden to prove an agreement by two or more persons to do or cause to be done an illegal act or an act which is legal but illegal means. Furthermore, the Appellant relied on TAIYE V. STATE (2018) LPELR-44466(SC) and NJOVENS V. THE STATE (1973) 5 S.C. 49 to submit that the attempt to establish these elements of conspiracy with the purported confessional statements of the Appellant and his co-accused, however, the confessional statement of the Appellant was earlier discredited by the Appellant and cannot stand, therefore the Appellant urged the Court to discountenance the said confessional statements.
Finally, the Appellant urged the Court to set aside the judgment of the trial Court, discharge and acquit the Appellant.
RESPONDENT’S SUBMISSION
SOLE ISSUE
In arguing the sole issue, the Respondent submits that it is trite that in criminal trials, the prosecution must prove its case against the accused beyond reasonable doubt as held in ABIRIFON V. THE STATE (2013) 9 SCM 1, NWATURUOCHA V. THE STATE (2011) 12 SCM (PT. 2) 265 and OSETOLA V. THE STATE (2012) 12 SCM (PT 2) 347. Citing the case of OSUAGWU V. THE STATE (2013) LPELR-19823(SC) where the ingredients of proving the offence of armed robbery were mentioned, the Respondent submits that the first ingredient which is whether there was a robbery was established from the evidence of PW1 who testified that on 4th of July, 2011 she went to the nearest dump site with her sister to throw away thrash, her car was double crossed by a red gulf car and 3 young men jumped out of their car with one holding gun, forced her and younger sister into the back seat and asked them to face down and the Appellant took the steering and drove them away, stopped at Ewekoro by the Cement Factory, took everything away from them and asked them to step out of the car as they drove away with the car.
On the second ingredient, the Respondent submitted that during the act of robbery, the Appellant, 2nd Accused person and the other now at large were armed with a gun and the evidence of PW1 and PW2 was corroborated by Exhibits A and D, therefore, the Respondent has satisfied the burden of proof that the Appellant, 2nd Accused and another now at large were armed with gun, even when the Appellant himself was not armed. The Respondent relied on OSUNG V. THE STATE (2011) 11 SCM 176 to submit that the second ingredient of Armed Robbery has been established beyond reasonable doubt.
On the third ingredient, the Respondent further submits that the Appellant while armed participated in the robbery and PW1 identified the Appellant as one of the robbers and also gave a vivid account of the involvement of the Appellant in the robbery of 4/7/2011. Continuing, the Respondent submitted that it is trite that the identity of an accused person is very germane to the case of the prosecution, where the identity of an accused person is shady or in doubt, it must be resolved in his favour, however, where there is an eye witness account that fixes the accused to the scene of a crime, the identity of the accused person has been established, this is shown in the evidence of the PW1 where she and PW2 had a close contact with the Appellant, 2nd Accused person and the others, that with street lights on, she clearly saw their faces and this evidence were not contradicted. The Respondent relied on ISAH V. THE STATE (2017) LPELR-43472 (SC), ADEBAYO V. THE STATE (2014) 8 SCM 34, OMOPUPA V. THE STATE (2007) LPELR-8571 (CA) and OSUAGWU V. THE STATE (SUPRA).
The Respondent further argued that the Appellant in Exhibits A and D admitted being at the scene of crime and he also gave graphic details of his involvement in the robbery operation, the Respondent referred the Court to ADEYEMI V. THE STATE (2014) 8 SCM 34. Continuing, the Respondent submitted that the identity of the Appellant was not in issue because the Appellant was vividly identified by PW1 when identification parade was conducted at the Police station and Exhibits C and C1 were recovered from the Appellant and the 2nd Accused person and PW1 being the victim of the crime is a vital witness, whose evidence is fundamental. The Respondent cited USMAN V. THE STATE (2018) LPELR-46568 (CA), USEN V. THE STATE (2012) LPELR-20063 (CA) and ABDULLAHI V. THE STATE (2018) LPELR-44455(CA). The Respondent submitted that a Court can act on the evidence of a single witness if the witness is believed to have given a vivid account of all that happened and no corroboration is required as held in NKEBISI & ANOR V. THE STATE (2010) 3 SCM 170, SADIKU V. THE STATE (2013) 12 SCM 146, ADESINA V. THE STATE (2012) 6 SCM 82 and Section 167 (a) of the Evidence Act, 2011.
According to the Respondent, when the Appellant, 2nd accused person and 3rd accused person were apprehended through the help of Damilare Fadeyi to whom the Appellant and co-accused sold the vehicle to, two male suits belonging to the PW1 were found in their possession and contrary to the submission of the Appellant, there are no material contradictions in the evidence of PW1 and PW2, moreover the law is trite that not all discrepancies and inconsistencies in the evidence of prosecution’s witnesses will affect the substance of a criminal case, that has been proven with credible and unchallenged evidence as held in POPOOLA V. THE STATE (2015) (PT. 1442), NDUKWE V. STATE (2009) 2 SCM 147, MUSA V. THE STATE (2013) 3 SCM 79, ATTAH V. STATE (2010) 5 SCM 57 and SULE V. STATE (SUPRA) 8 SCM 177.
Citing Section 28 and 29 (1) of the Evidence Act, 2011, the cases of AKPA V. THE STATE (2008) 8 SCM 68, OSENI V. STATE (2012) 4 SCM 150, NWACHUKWU V. STATE (2007) 12 SCM 447 and ISMAIL V. STATE (2011) 10 SCM 35, the Respondent defines confession and submits that it is trite law that a trial Court can rely solely on the confessional statement of an accused person to convict him because confessional statements are the best form of evidence in criminal proceedings and that once same is admitted in evidence it becomes part of the prosecution’s case which the trial Judge is bound to consider as done in the present case.
It was the contention of the Respondent that a confession of guilt by Appellant is sufficient to ground a conviction without corroborative evidence and it is trite that corroborative evidence may be direct or circumstantial as held in DAGAYA V. STATE (2006) 2 SCM 33. Therefore, from the totality of Exhibits A and D and the evidence of the prosecution witnesses, it can be deduced that the Appellant committed the said crime and the Respondent urged the Court to hold that the trial Judge was right in convicting the Appellant based on his confessional statements, Exhibits A and D and the eye witness account of PW1 and PW2.
The Respondent defined conspiracy and referred the Court to BLACK’S LAW DICTIONARY, 7TH ED. P. 305, OSETOLA & 1 v. THE STATE (SUPRA) 371, UPAHAR V. STATE (2003) 6 NWLR 230, NGUMA V. A.G. IMO STATE (2014) 3 SCM 136, AJULUCHUKWU V. THE STATE (2014) 10 SCM 43 and YAKUBU V. THE STATE (2014) 3 SCM 254.
The Respondent finally urge the Court to uphold the decision of the trial Court and dismiss the appeal.
RESOLUTION
After a careful consideration of the Notice of Appeal, Record of Appeal and the respective briefs of learned Counsel in the appeal, the Court notes that the parties donated a total of 5 issues, the Appellant formulated 4 issues while the Respondent distilled a sole issue. I shall adopt the 4 issues donated by the Appellant though argued in 2 sets this way the complaint with the judgment shall be determined effectually. In doing so, the sole issue donated by the Respondent shall also be determined.
ISSUES ONE & TWO
The Appellant challenged some findings of the Court particularly the seeming disparity in the evidence of PW1 and PW2 where the trial Court found that PW2 was younger and therefore could not have noticed finer details of the robbery on the day in question. The trial Judge believed the evidence of PW1 on her narration of the event of that day and detailed identification of the 1st and 2nd accused persons even with the light situation that evening. Under cross-examination PW1 said:
“I was able to recognize the faces of the 1st and 2nd accused that night…. Three(3) people accosted me that night. There was street light on the road where they accosted me that night, so I was able to see very clearly… I cannot recall the colour of the clothes the accused persons were wearing that night. Their clothes colour did not matter to me that night. It was their faces that I saw well. There was light and they had a close encounter with me.”
The extract above is clear, unequivocal and direct evidence identifying those that attacked PW1 and on that alone the lower Court cannot be faulted. The arguments of the Appellant on PW1’s use of glasses cannot hold because her evidence is clear that she does not use glasses at night and if that cannot be medically true, then, the burden is on the Appellant to show by medical evidence that the PW1 could not have seen the Appellant without her glasses. This, however, was not so shown.
The said PW1 in the summary of her evidence attached to the proof of evidence said PW2 was her younger sister and told the Court that PW2 was her sister and of course she appeared to testify and therefore the trial Judge observed both of them.
Observing a witness in the witness box by the Judge is one aspect of trial that the law allows the Judge to make use of what he sees in evaluating the evidence of the witness and whether to believe the witness or not. To now contend that there was no evidence of her age as to suggest that she was younger to PW1 is preposterous. It is natural that even people of same age observe events differently. There is no definite and single mould within which to fit what the eyes must see by different people about an incident. A Judge who observes witnesses in the box is in the best position to assess the credibility of the witness in terms of what the witness testifies to in Court. It is natural and indeed expected to have some slight variations, discrepancies or differences depending on individual’s ability to recollect an incident, particularly such violent incidence. It is not possible to have two witnesses giving exactly the same evidence except it was rehearsed or they were tutored it, see YAKUBU V. JAUROYEL & ORS (2014) LPELR-22732(SC) wherein the apex Court held thusly:
“…it must be realized that human beings not being machines do not, in the course of giving evidence before Courts, act with the characteristic automation of machines. Where two people give evidence on the same matter or event and remain consistent to the minutest details, their evidence become suspect. The Court in such a situation will be justified to infer that they had either been tutored or rehearsed before the date of giving evidence. See Samson Owie V. Solomon E. Ighiwi (2005) 2 SCM 149, Agbo V. The State (2006) 1 SCNJ 332 and Lukmon Osetola & Anor V. The State (2012) 6 SC (Pt iv) 148.” Per MUHAMMAD, J.S.C.
I do not see any perversity with the assessment and evaluation of evidence done by the trial Judge who observed the witnesses in the box, it is his duty to make primary findings of facts which this Court cannot disturb except on established and exceptional grounds, see EZEAFULUKWE V. JOHN HOLT LTD (1996) LPELR-1196(SC) wherein the apex Court held thusly:
“This is because, although appeal Courts do not normally disturb findings of facts arrived at by the Courts below or are indeed or should be reluctant or slow in doing so, based upon errors apparent from the printed record of proceedings, the Appeal Court will however rise to the call of duty as in the instant case and in the interest of justice, to disturb, alter, reserve or set aside the lower Court’s findings of facts if on the printed record such, findings cannot be supported or are not proper conclusions and inferences to be drawn from evidence. See Kuforiji v. V.Y.B. Nigeria Ltd. (1981) 6-7 S.C. 40 at 84; George Okafor.” Per ONU, J.S.C
There cannot be perversity when the Judge reflects his observation of a witness in the box because it did not come from external inferences, not extrinsic but what the Judge observed in Court and he has the unfettered right to form an opinion to believe or disbelieve a witness based on facts and reasons stated, if he preferred the evidence of PW1 over that of PW2, this Court cannot fault it nor disturb such findings because he saw the two of them and observed them and he believed PW1. Why would the Judge be condemned for stating what he saw of a witness in the box? That will amount to taking away the power of the Judge to assess a witness in the box. The Appellant proffered argument which is very weak and cannot be the basis for the Appellate Court to disturb the findings.
Furthermore, the question of age and state of mind of the witness cannot really change the findings of fact based on the evidence before the Court because the conviction was not based solely on the evidence of PW1 but also on the confessional statement wherein the Appellant admitted committing the offence and surrounding facts.
Now to Exhibits A and D which the Appellant contends should be discarded, the law is settled that a confessional statement once admitted cannot be revisited with a view to reevaluating the basis for its admissibility before ascription of probative value, see OSUNG V STATE (2012) LPELR-9720(SC) which held thus:
“It is trite law that a valid voluntary statement tendered without objection and admitted in evidence, is good evidence and no amount of subsequent arguments against it or a retraction will vitiate its admissibility and potency as a voluntary statement; and the mere denial by the accused, will not be a good reason for rejecting it. It is only desirable to have some evidence of circumstances which make it probable that the confession was truly confessional, although a free and voluntary confession alone is sufficient without further corroboration to warrant and sustain a conviction. Therefore, once a confessional statement is in evidence it becomes part of the case for the prosecution which the Court is bound to consider, provided that it admits of the essential elements of the offence charged and is such that when tested against proven facts will show that the accused committed the offence. See AKPAN v. THE STATE (2001) 15 NWLR (Pt.737) 745.” Per GALADIMA, J.S.C.
The circumstances of making the statement should have been contested in a trial within trial. One major mistake Counsel for accused persons make is to think that retraction of a confessional statement will solve the problem of admissibility, far from it. Any person accused of a crime who desires to challenge a confessional statement must raise an objection at the point of its being sought to be tendered not at any other time, this was settled in the case of MUHAMMED V. STATE (2017) LPELR-42098(SC) wherein the apex Court held thus:
“This Court has repeatedly stated that the appropriate time to object to the admissibility of a statement said to be a confession is when the statement is sought to be tendered – see Oseni V State (2012) LPELR-7833(SC). Wherein I.T Muhammad JSC observed- There was no objection to the admissibility of the Appellant’s confessional statement. It is rather too late to raise such an issue on appeal. – It {is} regrettable that Appellant’s counsel at the trial stage did not object to the admissibility of [this] confessional statement, yet he went on to blame the trial Court in not treating Appellant’s confessional statement with utmost caution. It will appear to be too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived… It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is always taken as an afterthought, which Courts are not ready to accommodate.” Per AUGIE, J.S.C.
A retraction just alerts the Court to find some evidence outside the statement and to conduct a test to see if the statement was truly made, the questions the Court must answer before the statement can be used were restated in the case of OGUDO V. STATE (2011) LPELR-860(SC) and SA’ADU V. STATE (2018) LPELR-44709(CA) wherein the Court held thus:
“… in the case of Dawa v. State (1980) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267-268: “On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and/or followed were laid down in R. v. Sykes (1913) 8 Cr. App. R.233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a Judge must ask himself are: (1) Is there anything outside the confession to show that it is true? (2) Is it corroborated? (3) Are the relevant statements made in it of facts, true as far as they can be tested? (4) Was the prisoner one who had the opportunity of committing the murder? (5) Is his confession possible? (6) Is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain. Since Kanu v. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line of authorities may be mentioned: (1) The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307 (4) Obue v. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The State (1976) 6 SC 167 (6) Ebhomien & Ors v. The Queen (1963) 1 All NR 365.” Per BDLIYA, J.C.A.
Exhibits A and D being part of the evidence before the Court, the trial Judge has a duty to evaluate same towards a decision. The said exhibits are confessional statements and gave further details of how the robbery was executed and events leading to the Appellant’s arrest. Having passed the test of credibility, the Judge must apply it appropriately.
The Appellant’s counsel contended that the statement was read over to the Appellant in English language instead of Yoruba language. It is sad that the learned counsel distorted the record. PW3 was the Investigating Police Officer who recorded the statement of the Appellant and he told the Court that he read and explained cautionary word to the Appellant in Yoruba Language, the Appellant gave the statement in Yoruba but he (PW3) recorded the statement in English language, he was the interpreter. There was no distortion in the manner the Appellant gave his statement.
The Police officer who understands both languages can record the statement in English because he merely translated what was said to him in Yoruba into English. In any case, the Appellant flatly denied making the statement and that explains why it was admitted without any challenge. The Appellant never alleged that he was misled and no miscarriage of justice was alleged by the manner the statement, Exhibit A was recorded. The recorder served as an interpreter and therefore the legal requirement has been satisfied, see ADEYEMI V STATE (2012) LPELR-7956(CA); HAMZA V. STATE (2019) LPELR-47858(SC) and KALIMBO V STATE &ANOR (2020) LPELR-50540 (CA).
The argument that the Police knew about the robbery before the making of the statement suggesting that it was not made by the Appellant is preposterous, there is evidence of the Appellant’s background history which he alone knows and surrounding facts which confirm the content of the confessional statements. One might ask how the police will know of those personal details of the Appellant so as to include them in the confessional statements. It is even illogical to just make assumptions that the Police wrote the statements to implicate the Appellant, why not other persons? What is so special about the Appellant that the Police will just pick on him so as to concoct a confession in his name? The mere transmission of a signal notifying all commands that there was a robbery did not mean it was known at that point that it was the Appellant because PW1 did not give any name at the time of making a report to the police only details of how it was committed, so the contention of the Appellant is misconceived.
When the trial Judge said PW3 and PW4 were not aware of the robbery incident is because they cannot be said to have known or be seized with details of the robbery, the singular fact that a robbery was committed without relevant details cannot be said that they knew the content of the confessional statements. At the point, the suspects were not known and a report to the Police Station was not a report to PW3 and PW4. The Appellant made a specific allegation against PW3 and PW4 which is against them personally and not against the Police command and therefore he is duty bound to establish same but it was not proved and therefore it remained a mere allegation without more.
The Appellant also alleged that he confessed to a different offence because the alleged robbery was committed in May and not July the date stated in the charge. The case of the prosecution is clear as to the date the robbery was committed, when the law speaks against contradiction, it is that the case of the prosecution should not have contradiction, the allegation by the Appellant cannot create a contradiction within the case of the prosecution, that is not what the law says. Contradiction in the case of a party damages it, the burden of proving the robbery took place in May is on he who asserts so, the Appellant has burden of proof and he did not prove it. He cannot claim that he was not tried for the offence for which he admitted. The evidence against him is uncontroverted and strong to justify the conviction.
I resolve issues one and two against the Appellant.
ISSUES THREE AND FOUR
These issues seek to know whether the Respondent proved the offences of robbery and conspiracy. Starting with the offence of robbery, it was defined in the case of ADELEKE V. STATE (2013) LPELR-20971(SC) thusly:
“It is necessary to now state what the definition of Robbery is and in this regard that definition is found under Section 15(i) of the Robbery and Firearms (Special Provisions) Act Cap. 398 which provides as follows:- “Robbery means stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance of its being stolen or retained.” Per PETER-ODILI, J.S.C
The law has also delimited and settled the basic elements of the offence of robbery which the Respondent must prove, these are:
1. That there was indeed a robbery or series of robberies;
2. That the robbers were armed with dangerous weapons; and
3. That the accused person was the robber or one of the robbers.
See the cases of DAWAI V. STATE (2017) LPELR-43835(SC), AFOLALU V. THE STATE (2010) 16 NWLR (PT. 1220) 584, EMEKA V. THE STATE (2014) LPELR-23020 (SC), (2014) 13 NWLR (PT. 1425) 614, MUSA IKARIA V. THE STATE (2012) LPELR-15533 (SC) (2014) 1 NWLR (PT. 1389) 639 and AGUGUA V. THE STATE (2017) LPELR-42021 (SC)
The burden of proof is static on the Respondent and the standard is proof beyond reasonable doubt, see AKIBU V. STATE (2019) LPELR-47630(SC) wherein the apex Court held thusly:
“The duty of the prosecution in any criminal matter is to prove the charges against an accused person beyond reasonable doubt. This is a settled position of the law. The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that the burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See STATE VS JAMES GWANGWAN (2015) 13 NWLR (Pt.1477) 600, at 621, paras B-E, per Okoro JSC. See also YONGO VS COMMISSIONER OF POLICE (1992) LPELR-3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (Pt.257) 36; OGUNDIYAN VS THE STATE (1991) LPELR-2333 (SC); (1991) 3 NWLR (Pt.181) 519, ALONGE VS IGP (1959) 4 FSC 203; IBRAHIM VS THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192, paras A-B…” Per BAGE, J.S.C
The first element which is the occurrence of a robbery, was established by PW1, PW2, PW3, PW4 and PW5, particularly the victim of the robbery wherein her car was taken away along with some cash and suits. Those who carried it out were armed with a gun. PW1 identified the Appellant amongst two others who carried out the robbery in an identification parade conducted at the Police headquarters. Furthermore, Exhibits A and D also confirm that armed robbery took place. Therefore, the first two elements were duly established.
The most contentious element is the one requiring the Respondent to link the Appellant to the robbery by credible evidence.
The law recognizes 3 ways the Respondent can establish or prove a crime, which were named in the case of DAWAI V. STATE (SUPRA) as follows:
“… In order to establish or prove the above ingredients of the offence of armed robbery, the prosecution’s evidence may flow from any of the following ways: – (i) the confessional statement of the accused which has been duly tested, proven and admitted in evidence. (ii) By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged. (iii) By direct evidence of eye witnesses who actually saw the accused committing the offence.” Per OKORO, J.S.C.
The prosecution can do so by any of the ways or a combination of two or all the three ways.
Therefore, their nexus must be or link to the accused and the commission of the robbery.
The trial Judge found that the evidence before him established the link particularly by PW1, see page 195 of the record of appeal. It is the finding that is being challenged in this appeal.
PW1’s evidence was direct and credible having not been discredited under cross-examination. She also clearly identified the Appellant and the attempt to discredit her evidence failed and issue one and two dwelt on the credibility of the case of the Respondent. There is also that confessional statements in Exhibits A and D where the Appellant by his own words admitted committing the offence, which made the burden on the Respondent lighter.
On identification or recognition of the Appellant at the scene of crime, PW1 told the Court she does not use her glasses at night and therefore, she could clearly see the Appellant and even went on to make a conscious effort to focus on their faces. If medically what PW1 said was not possible having introduced that evidence the burden shifted on the Appellant to show that her saying “she does not need glasses at night” is not possible since she wears prescription glasses in the day time. There is no doubt that this goes to the advantage of the Respondent, in that, she gave eye witness account of how the robbery was carried out. To reinforce what PW1 said, her car taken away by the robbers was later recovered along with some items in the car which PW1 identified. Furthermore, PW1 said street lights were on, the contention that PW2 said there was no light was her own perception and the trial Judge explained and disbelieved her when she said there was no light and in any case, it was PW1 who was driving, PW2 was holding the baby and PW1 was the one who had a close encounter with the Appellant and his co-travelers and she positively identified the Appellant at the identification parade. All these have weakened the contention of the Appellant. PW2 did not participate in the identification parade, she was not driving and was busy carrying the baby.
The apex Court in the case of OCHIBA V. THE STATE (2011) 17 NWLR (Pt. 1277) 663 at 694 gave a guide on what to consider in the identification of suspects so as to avoid mistaken identity, it named the following:
i. Circumstances in which the eye witness saw the suspect- conditions;
ii. The length of time the witness saw the suspect, a glance or longer observation;
iii. The opportunity of close observation;
iv. Previous contact between the two parties; and
v. The lighting conditions.
The evidence of PW1 satisfied above conditions, her evidence is explicit and direct, it was not demolished under cross-examination and the alleged areas of doubt are merely wishful thinking. The authority of OCHIBA (supra) was satisfied (incidentally, I was the trial Judge in OCHIBA’s case) and the facts are not the same. That was culpable homicide committed in broad day light by a Policeman. There is no doubt as to the light conditions, the street light was on and there is nothing which can discredit the evidence of PW1. I still reiterate that the evidence of PW2 (who did not have a close contact with the robbers) cannot contradict PW1 who had a close contact with the Appellant and his friends.
The argument that PW1 was the only person who saw the Appellant and therefore should not be believed is preposterous because the Court can convict on the evidence of a single witness who gives credible evidence that is believed. The trial Judge believed PW1 and coupled with other pieces of evidence including Exhibits A and D, the evidence before the Court is strong enough to justify the conviction.
The Appellant also argued that PW1 saw the Appellant paraded on television before her identification of him at the Station, the facts omitted by the Appellant is that he was not paraded alone but along several other persons arrested for other crimes and his picture was not particularly shown to PW1 so as to bring the application of the case of BOZIN V STATE (supra) which is not applicable here. The ability of the PW1 to pick the Appellant out of several people further reinforces the credibility of her testimony. The confessional statement also on its own can ground a conviction, see JOHN V. STATE (2019) LPELR-46936(SC) wherein the apex Court held thusly:
“It is settled law that a confessional statement is the best evidence in our criminal procedure. Once it is admitted in evidence; the trial Court can safely convict an accused person based on his confessional statement. See Solola v. State (2005) 11 NWLR (Pt. 937) 460. Igri v. State (2012) 16 NWLR (Pt. 1327) 522 at 542.” Per OKORO, J.S.C.
The case of CHUKWU V STATE (SUPRA) is actually in support of the case for the Respondent because there are confessional statements in Exhibits A and D which could also ground the conviction. The confession of a co-accused cannot be used against the Appellant and therefore the Appellant cannot rely and use the content of the confessional statement of a co-accused to argue his case. The fact that all confessional statements tendered forms part of the evidence and case for the Respondent, does not mean that the confessional statement of one accused shall be applied to a co-accused, that is not the law, each accused person takes his plea and puts in his separate defence, joint trial is for convenience of trial and expediency, not joint culpability.
On the alleged date the offence was committed, the standard charge usually says on or about which gives room for slight variation in time and date, and any error in date cannot invalidate a charge if there is evidence that the Appellant committed the offence, assuming there was an error in stating the date of the offence, the apex Court held that it will invalidate a conviction, see ANKPEGHER V. STATE (2018) LPELR-43906(SC)
“Notwithstanding the concurrent findings of the two Courts below that the prosecution proved all the three ingredients of the charge against the appellant beyond reasonable doubt, the appellant is still not satisfied. One such area of dissatisfaction has to do with the date of the commission of the offence. Whereas it is stated in the charge that the offence was committed “on or about 19th October, 2002” the prosecution witnesses including the confessional statement of the Appellant show that the deceased was killed on 19th May, 2002. For me, I think the resolution of this issue by the Court below cannot be faulted at all…
The question now is whether the discrepancy as to date has occasioned miscarriage of justice…? As clearly stated in Awopejo’s case (supra), when the phrase “on or about” is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It appears that except where an accused person could show that he was misled, the error regarding the failure of prosecution to state the precise date in the charge will not be fatal to the prosecution’s case. See also Garba v. State (1999) 11 NWLR (Pt.627) 422 and Shehu v. The State (2010) 8 NWLR (Pt.1195) 112. In the instant case, all evidence adduced point to the fact that deceased was killed on 19/05/2002. This includes the alleged confessional statement of the accused/appellant. The error notwithstanding, it appears appellant was not misled and so no miscarriage of justice has been occasioned.”
As can be seen above, it is clear that all the prosecution witnesses testified to the fact that the deceased was killed by the appellant and his co-accused on 19th May, 2002. There is no contradiction by any prosecution witness contrary to the argument of the learned counsel for the appellant. The only discrepancy which can be found is in the month which the offence was committed. Both the day i.e. 19th and the year i.e. 2002 tally both in the charge and the evidence of witnesses. As was rightly observed by the Court below, this is a mere discrepancy which has not led to any miscarriage of justice. Moreso, the appellant has not shown that he was misled at all. He took his plea with his counsel in attendance.
If they had any misgivings about the charge, they ought to have raised an objection immediately after the charge was read to him and not later or now.
By virtue of Section 167 of the Criminal Procedure Act, an objection to a charge for any formal defect on the face thereof, must be taken immediately after the charge has been read over to the accused. See Shehu v. The State (supra), Obakpolor v. The State (1991) 1 NWLR (Pt.165) 113 at 124, 129-135, Agbo v. The State (2006) 6 NWLR (pt.977) 545. And accused person, who acquiesced to an irregular procedure of his trial, cannot complain about the irregularity on appeal except and unless it has led to a miscarriage of justice…
And in any case, it is trite that whenever the phrase “on or about” is used in a charge, the prosecution is not bound to prove a particular date. The date of the offence could be on the date written in the charge or about that date. In such circumstance, the prosecution must be consistent with a particular date as done in this case. From the consistency in the evidence of prosecution witnesses as touching the date of commission of the offence, it clearly shows that the month of October inserted in the charge was a mistake which I agree with the Court below to be a mere discrepancy. It cannot vitiate the conviction of the appellant because the quality of evidence led against him is unassailable.” Per OKORO, J.S.C.
Furthermore, there is no limitation of time in criminal cases, an admission of crime in a confessional statement is the most important element, actual time of the offence is not one of the ingredients that must be proved to ground a conviction. It has been held that confession is the best form of evidence upon which the Court can rely on to convict the accused because it comes from the heart not prompted by any external influence but a guilty conscience. The Appellant linked himself to the offence and cannot turn round to contend otherwise. The Appellant failed to show the crime he committed which is different from the one in the charge and for which he admitted. The fact that the Appellant gave a different date when the offence was committed cannot shift the evidence presented by the victim and the police and in any case, the facts all fit, and the date alone cannot invalidate the conviction.
I have under issue one and two resolved the issue with the confessional statements which were admitted with no challenge to its admissibility, it cannot be reopened at this stage, it is evidence available for evaluation by the Court for ascription of value.
I also agree with the lower Court that the Respondent linked the Appellant to the offence of armed robbery. The fact that those who robbed PW1 were armed was not challenged, PW1 was not challenged in her evidence and the confessional statements which are consistent also admits that those who robbed PW1 were in possession of a gun.
It is strange that the Appellant contends that it was not proved that the item taken was capable of being stolen, a car with men’s suits and cash was taken from PW1 while the Appellant was in the company of those armed with a gun and he confessed to it.
The said PW1 identified her car not just by the registration number and therefore any slight variation in stating the Registration number by PW4 when there are facts pinning the Appellant to the said car cannot be fatal. The disparity between DL and GL is minor and not fatal because there are other facts that fix the car as the one snatched from PW1. After all, there are other features of the car from where the victim can identify it. The facts of this case are different from the case of OLUYEDE V ACCESS BANK PLC (SUPRA). The finding of guilt, in this case, was not based on circumstantial evidence as held in AKINMOJU V STATE (supra). There is no law that says PW4 must know the victim from whom the car was snatched before his evidence can be believed. The owner of the car saw it on TV and identified it. The victim had previously reported the robbery to the Police.
I find the offence of armed robbery proved.
On conspiracy, the law defines it as an agreement by two or more persons to commit an offence or do an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct which furthers the agreement. The Oxford Advance Learners Dictionary 6th Edition also defines conspiracy as “a secret plan by a group of people to do something harmful or illegal.”
In a charge of conspiracy, proof of actual agreement is not always easy to come by as such agreements are hatched in secrecy. See ADELEKE V STATE (2013) 16 NWLR (PT 1381) 556, ODUNEYE V STATE (2001) 2 NWLR (PT 697) 311, (2001) LPELR-2245 (SC), and THE STATE V SALAWU (2011) 18 NWLR (PT 1279) 580.
The settled fact is that conspiracy is proved from inferential facts and most times not by direct evidence, see OFORDIKE V. STATE (2019) LPELR-46411(SC) wherein the apex Court held thusly:
“… Thus a trial Court can infer conspiracy and convict on it if it is established to its satisfaction that the accused persons, pursued, by their acts, the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and concluded; an agreement can be inferred from what each person does or does not do in furtherance of the offence of conspiracy.” Per OKORO, J.S.C.
The important element is the agreement and it needs not be proved by tangible evidence but from circumstantial facts, here, the Appellant was in the company of two others when the armed robbery was committed and they were armed. The Appellant admitted in his confessional statements (Exhibits A and D) that he went with the other two for the operation. PW1 also identified him in the company of the other two when she was dispossessed of her car. The agreement is usually complete whether they succeed in doing the illegal act or not, see TAIYE V. STATE (2018) LPELR-44466(SC) wherein apex Court held that:
“This brings me to the offence of conspiracy to commit armed robbery. Conspiracy simply needs an agreement by two or more persons to do or cause to be done an illegal act, or an act which is legal but by illegal means. The mere agreement alone constitutes the offence of conspiracy and it is immaterial to prove that the act was in fact committed. See Obiakor V The State (2002) 6 SC (pt. II) 33 at 39/40. The offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted. See Balogun v A.G Ogun State (2002) 2 SC (pt. II )89. It needs to be stressed here, that the essential ingredients of the offence of conspiracy to commit armed robbery lies in the agreement and association to do an unlawful thing or act which is contrary to or forbidden by law, whether that thing/act is criminal or not and whether the accused person has knowledge of its unlawfulness. The offence of conspiracy is often not proved through direct evidence but the Courts normally infers such agreement or plot from the facts of doing things towards a common purpose. See Clark v The State (1986) 4 NWLR (pt.35) 381; Oduneye v State (2001)1 SC 1; Nwankwoala v The State (2006) All FWLR (pt.339) 801.” Per SANUSI, J.S.C.
In this case, the Appellant and other co-accused did not just attempt the illegal act but carried it out and the case of NJOVENS V THE STATE (supra) is not on all fours with this appeal and therefore not applicable. There is a confessional statement admitting the agreement between the Appellant and the others and they were seen together, with the snatched car together. Carrying out a robbery together confirms an agreement.
I agree with the trial Judge that conspiracy was proved and therefore the conviction is justified.
In the light of above, I resolve issues three and four against the Appellant.
Having resolved all the issues adopted for determination against the Appellant, the appeal lacks merit and is hereby dismissed. The judgment of HON. JUSTICE A. A. AKINYEMI, delivered on the 24th November, 2014 is hereby affirmed.
FOLASADE AYODEJI OJO, J.C.A.: I was privileged to have read the draft of the lead judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA.
By virtue of Section 28 of the Evidence Act, 2011 a confession is an admission made at the time by a person charged with a crime stating or suggesting the inference that he committed that crime. Furthermore, Section 29 thereof provides that in any proceeding, a confession made by a Defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings.
It is trite that a confession proves the fact that constitutes one or all the elements of the offence. It also identifies the maker, the accused person, as the person who committed the offence. It is the best evidence to prove that the accused person and no other person committed the offence he is being tried for. That is why the accused person can be convicted for the offence for which he is standing trial on his confession alone, once the confession is direct and positive and the Court is satisfied that the accused person made the confession voluntarily. A Court of law can convict thereon without any corroborative evidence. See PHILIP VS. STATE (2019) 13 NWLR (PT. 1690) 509; LALAPU VS. COMMISSIONER OF POLICE (2019) 16 NWLR (PT. 1679) 476; AGBOOLA VS STATE (2013) 11 NWLR (PT. 1366) 619.
In the instant appeal, beyond the eye witness account given by PW1, the Appellant, upon his arrest made extra-judicial statements which were tendered and admitted as Exhibits A and D in which he narrated how the robbery operation was carried out and how he was eventually arrested. The confession of the Appellant shows there was a robbery and that the robbery was an armed robbery. The Appellant also admitted in the statements that he participated in the armed robbery. The three ingredients required to ground conviction for the offence of armed robbery were proved beyond reasonable doubt.
Accordingly, I join my learned brother, Yargata Byenchit Nimpar, JCA to affirm the decision of the trial Court. There being no substance in this appeal; it is accordingly dismissed.
ABBA BELLO MOHAMMED, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. I am in complete agreement with the reasoning and conclusions stated therein.
The law is trite that in a criminal trial, the burden is always on the prosecution to establish with credible evidence and beyond reasonable doubt the guilt of the Defendant for the offence(s) with which he is charged. See: Section 135(1) and (2) of the Evidence Act, 2011 and FRN v UMEH & ANOR (2019) LPELR-46801(SC), per Muhammad, JSC at pages 7-8, paras. E-B; EZEANI v FRN (2019) LPELR-46800(SC), per Okoro, JSC at pages 20-21, para. A: ABOKOKUYANRO v STATE (2016) LPELR-40107(SC), per Ogunbiyi, JSC at pages 8-9, paras. E-D. This burden of proof, the prosecution can discharge through any, combination of, or all of the three ways of establishing the guilt of a Defendant, namely – (i) by reliance on a voluntary confessional statement of the Defendant; (ii) by direct evidence of eye witnesses to the crime; or (iii) through circumstantial evidence. See: SAMINU v STATE (2019) LPELR-47622(SC), per Ariwoola, JSC at page 14, paras. A-E; BASSEY v STATE (2019) LPELR-46910(SC), per Sanusiz JSC at pages 9-10, para. C: ONITILO v THE STATE (2017) LPELR-42576(SC), per Kekere-Ekun, JSC at pages 16-17, paras. B-C.
Before the trial Court, the Prosecution had, in proof of the guilt of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery, relied upon the evidence of victims and eye witnesses to the robbery (PW1 and PW2), as well as the confessional statements of the Appellant (Exhibits A and D). In challenging the evidence of the prosecution witnesses, the Appellant had pointed to some disparities in the evidence of PW1 and PW2 and faulted the reliance placed by the learned trial Judge on the evidence of PW1 over that of PW2. However, as rightly observed in the lead judgment, the so-called variations in the testimonies of PW1 and PW2 are not material and it is only material contradictions in respect of a fact in issue that creates such doubt as would affect the finding or decision of the trial Court: MUSA v STATE (2019) LPELR-46350(SC), per Muhammad, JSC at page 9, para. A; and GALADIMA v STATE (2017) LPELR-43469(SC), per Galinje, JSC at page 49. para. C.
The Appellant had also faulted the reliance by the trial Court upon his confessional statement (Exhibits A and D), even as the record shows that no challenge was raised to the voluntariness of the said confessional statements when they were tendered and admitted in evidence by the trial Court.
The settled law is that objection as to voluntariness of a confessional statement must be timeously raised at the point when the statement is sought to be tendered in evidence and not after it has been admitted in evidence: TOPE v STATE (2019) LPELR-47837(SC), per Okoro, JSC at pages 19-20, paras. C-A; BASSEY v STATE (2019) LPELR-46910(SC) per Peter-Odili, JSC at pages 28-31. paras. F-A: and OSENI v STATE (2012) LPELR-7833(SC), per Muhammad, JSC at pages 37-38, paras. B – E. InTOPE v STATE (supra), the Supreme Court restated the legal effect of failure to timeously raise an objection to the voluntariness of confessional statement when His Lordship Okoro, JSC held:
“It is trite law that in a criminal trial, where an accused person wishes to attack the voluntariness of a confessional statement, he must raise an objection to the admission of that statement at the point where it is sought to be tendered. Where he fails to object to the admissibility of the statement when it is sought to be tendered, it would be taken that he conceded that he made the statement voluntarily and the content thereof represents what he told the recorder of the statement.”
The retraction of the confessional statements does not affect the admissibility of those statements. It only prompts the trial Court to test its truth against other evidence adduced at trial using the now trite 6 way test for determining the weight to be attached to the confessional statement: TOBI v STATE (2019) LPELR-46537(SC), per Sanusi, JSC at pages 17–20, paras. F-A; SHODIYA v STATE (2013) LPELR-20717(SC), per Muhammad, JSC at pages 26- 27, paras. B – C: and LASISI v STATE (2013) LPELR-20183(SC), per Ariwoola, JSC at pages 51-52, paras. F-C. In my view, the learned trial Judge had duly evaluated the confessional statements of the Appellant and found the evidence of the eye witnesses, especially PW1 to be consistent with it. The trial Court was therefore entitled to rely on those confessional statements in convicting the Appellant even if retracted, since the trial Court was satisfied as to its truth. See: OKOH v STATE (2008) LPELR-8358(CA), per Lokulo-Sodipe, JCA at pages 29-30, para. E; and UMAR v STATE (2015) LPELR-25960(CA), per Wambai, JCA at pages 17-18, para. B.
It is for the above reasons which have been more succinctly espoused in the lead judgment of my learned brother NIMPAR, JCA, that I also find this appeal bereft of any merit. Accordingly, I join in dismissing the appeal for lack of merit and in affirming the decision of the trial Court delivered on 24th November, 2014.
Appearances:
Ire W. Egert Olusesi For Appellant(s)
B. A. Adebayo D.P.P. Ogun State, with him, A. D. Adefala P.S.S For Respondent(s)