ARIBIGBOLA AWOSIKA & ANOR. V. THE STATE
(2010)LCN/3612(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of March, 2010
CA/I/193/07
RATIO
CRIMINAL LAW: WHETHER A COURT CAN CONVICT AN ACCUSED SOLELY ON HIS CONFESSIONAL STATEMENT
An accused can be convicted solely on his confessional statement. See IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468-469; NWACHUKWU V. THE STATE (2007) 12 SCM PT 2 page 447 & 455. PER STANLEY SHENKO ALAGOA, J.C.A.
EVIDENCE: TESTS FOR THE VERIFICATION OF CONFESSIONAL STATEMENTS
Nevertheless the Supreme Court in DAWA V. THE STATE (1980) 8-11 SC 236 in reliance on the English decision in R. V. SYKES (1913) 18 CR App. Reports and cited in KANU V. R. 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them. The six tests are as follows –
- Is there anything outside it to show that it is true?
- Is it corroborated?
- Are the statements made in it of fact true as they can be tested?
- Was the prisoner one who had the opportunity of committing the offence?
- Is his confession possible?
- Is it consistent with other facts which have been ascertained and which have been proved? PER STANLEY SHENKO ALAGOA, J.C.A.
APPEAL: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL SET ASIDE THE JUDGMENT OF A LOWER COURT
It is trite that an appellate court will only set aside the judgment of a lower court on the ground that there are contradictions when such contradictions are material. See ARCHIBONG V. THE STATE (Supra). PER STANLEY SHENKO ALAGOA, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CRIMINAL TRIALS
Earlier in this write up I had made reference to AIGBANGBON V. THE STATE (supra) where the Supreme Court had said as follows,
“In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in his statement to the Police admitted committing the offence, the prosecution is not relieved of that burden.” (Underlining mine for emphasis). PER STANLEY SHENKO ALAGOA, J.C.A.
CRIMINAL LAW: MEANING OF CONSPIRACY
Conspiracy has been held in a number of judicial authorities to mean the meeting of the minds of the Conspirators. It consists of the intention of two or more persons to do an unlawful act or a lawful act by unlawful means and conviction is usually based on circumstantial evidence. See PATRICK NJOVENS V. THE STATE (1973) 5 SC 17. The Court may sometimes infer conspiracy. See UPAHAR V. THE STATE (2003) 6 NWLR page 630 at 239. PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. ARIBIGBOLA AWOSIKA
2. TAJUDEEN ADISA Appellant(s)
AND
THE STATE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment):This is an appeal against the judgment of Mobolaji Ojo J. of the High Court of Justice Ijebu Ode, Ogun State in Charge No. HCB/4C/2004 THE STATE V. ARIBIGBOLA AWOSIKA & ANOR delivered on the 8th February 2007 wherein the, Appellants as accused persons were convicted and sentenced to death on four counts of Conspiracy to commit armed robbery and Armed Robbery. The Appellants as accused persons were charged in the court below as follows:
“COUNT I.
That you, ARIBIGBOLA AWOSIKA, TAJUDEEN ADISA and others still at large on or about the 31st day of August, 2003 at Ijebu-Igbo in the Ijebu-Igbo. Judicial Division conspired together to commit a felony to wit: Armed Robbery and thereby committed an offence contrary to Section 5(b) and punishable under Section 1(2)(a) of the Robbery and firearms. (Special Provisions) Act (Cap. 398) Laws of the Federation of Nigeria 1990 as amended by the Tribunals(Certain Consequential Amendments etc) Decree 1999.
COUNT II
That you, ARIBIGBOLA AWOSIKA, TAJUDEEN ADISA and others still at large on or about the 31st day of August 2003 at Ijebu-Igbo in the Ijebu-Igbo Judicial Division while armed with offensive weapons to wit: Cutlass and axe robbed one Wasiu Fowosere of a G.S.M. Handset valued at N25,000.00 (Twenty-five thousand Naira) and a cash sum of N75,000.000 (Seventy-Five thousand Naira) and thereby committed an offence contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree 1999.
COUNT III
That you, ARIBIGBOLA AWOSIKA, TAJUDEEN ADISA and others still at large on or about the 31st day of August, 2003 at Surakatu Fowosere Avenue, Ijebu-Igbo in the Ijebu- Igbo Judicial Division while armed with offensive weapons to wit: Cutlass and axe robbed one Niyi Fowosere of two wrist watches valued at N5,500.00 (Five thousand five hundred Naira) and a cash sum of N40,000.00 (Forty thousand Naira) and thereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree 1999.
COUNT IV
That you, ARIBIGBOLA AWOSIKA, TAJUDEEN ADISA and others still at large on or about the 31st day of August, 2003 at Surakatu Fowosere Avenue, Ijebu-igbo in the Ijebu-Igbo Judicial Division while armed with offensive weapons to wit: cutlass and axe robbed one Mrs. Yemi Fowosere of a sum of N15,000.00 (Fifteen Thousand Naira) and thereby committed an offence contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree 1999.”
They pleaded not guilty to the charge. Four witnesses testified for the prosecution as PW1-PW4 while each of the accused/Appellants testified in his own defence as DW1 and DW2 and called no witness. The case for the prosecution as stated by PW1, PW2 and PW3 is that on the 31st August 2003 at about 1.30 a.m. some robbers armed with axe and cutlasses broke into their house at Sirakatu Fowosere Avenue, Ijebu Igbo and robbed them of money, wrist watches and GSM handsets. Statements of the accused/Appellants which were confessional in nature but which were later denied were tendered and admitted in evidence without objection as Exhibits “A” and “B”. The Appellants denied the charge claiming not to be at the scene of the alleged robbery on the date and time in question. Counsel on both sides addressed court at the end of the case for the prosecution and defence and in a considered judgment delivered on the 8th February 2007, the learned trial Judge Mobolaji Ojo J. found the accused/Appellants guilty of the four count charge of Conspiracy to Commit Armed Robbery and Armed Robbery and sentenced each of the two accused/Appellants to death pursuant to S.1(2)(a) of the Robbery and Firearms (Special Provisions) Act as amended by the Tribunals (Certain Consequential Amendments etc) Act 1999. Dissatisfied with this judgment the Appellants appealed to this Court by their Notices of Appeal which are at pages 60 and 61 of the Record of Appeal.
The Appellants brought a motion on Notice elated the 14th February 2008 and filed on the 27th February 2008 pursuant to Order 16 Rules 3(3); Order 7 Rules 1 and 10; Order 19 Rules 2 and 3 of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court praying for the following orders:-
“(a) Amending the Notices of Appeal in terms of Exhibits “3” and “4” attached to this application.
(b) Deeming the Amended Notices of Appeal already filed as properly filed.
(c) Consolidating the two Appeals filed by each of the Appellants.
(d) Extending the time within which the Appellants are to file the Appellants’ Brief of Argument.
(e) Deeming the Appellants’ brief of Argument already filed as properly filed.
AND for such further orders as this Court may deem fit to make in the circumstances.”
This motion was moved and granted by this Court on the 1st July 2008. The effect of the granting of this application is that the respective appeals filed by each of the Appellants became consolidated. Additionally, the amended Notices of Appeal attached as Exhibits “3” and “4” which had been separately filed on the 27th February 2008 were deemed properly filed and served on the Respondent on the 1st July 2008. The Appellants’ Brief of Argument dated the 27th February 2008 and filed same day was also deemed properly filed and served on the 1st July 2008. The Amended Notice of Appeal consists of four Grounds of Appeal and is reproduced hereunder as follows:
“GROUNDS OF APPEAL
1. The Learned Trial Judge erred in Law when he held that the “the prosecution has therefore proved beyond reasonable doubt that there was a robbery as alleged in this case and that the robbery was an armed robbery” when:
(a) The evidence of prosecution witness was insufficient, contradictory and unreliable.
(b) The accused persons were not found in possession of the amount of money stolen.
(c) The OPC men who arrested the 1st accused person were not called as a witness.
(d) The burden of proof is always on the prosecution and never shifts to the accused person in a criminal trial and the credibility of a witness is not established by mere reason of being unchallenged in cross-examination.
(e) The essential ingredients of the offence of armed robbery were not proved or established by the Prosecution.
2. The Learned Trial Judge erred in Law when he held that the accused persons were properly and positively identified when:
(a) The suitability or otherwise of holding an identification parade is not closed and depends on the circumstances of each case.
(b) The evidence of PW1, PW2, PW3 and PW4 was that the robbery took place around 1.30 a.m.
(c) The evidence of PW1, PW2and PW3 was that prior to the date of robbery, they had never seen the accused persons before.
(d) There was a possibility that PW1, PW2 and PW3 who suffered a trauma could wrongly identify the accused persons.
(e) There was contradiction in the evidence of PW1, PW2 and PW3. The Learned Trial judge erred in Law when he admitted Exhibits A and B in evidence and attached weight thereon when:
(a) The Exhibit was a confessional statement which required a Senior Police Officer’s endorsement that it was voluntarily made.
(b) The Senior Police Officer who allegedly confirmed the voluntariness of the Statement was not called as a witness despite the accused persons position that the Statement was not voluntarily made during the trial.
(c) The requirement of a standard form which is a requirement of law was not led or tendered by the prosecution.
(d) There were material contradictions in the statement and also other evidence which rendered the confessions improbable or suspect.
(e) There was uncontroverted evidence that the confessions were obtained by torture.
(f) The accused persons denied the statement in the defence and the learned trial Judge should have been weary in placing any reliance on them.
4. The Judgment cannot be supported having regard to the evidence in the case.”
From the four Grounds of appeal contained in the Amended Notice of Appeal the Appellants have in paragraph 2.01 at pages 2 and 3 of the Appellants’ brief of Argument distilled the following four issues for the determination of this Court –
“ISSUE NO. 1 – Whether there was sufficient evidence that, there was a robbery as alleged and that the robbery was an armed robbery (Ground 1).
ISSUE NO. 2 – Whether there was positive, direct and reliable evidence as to the identity of the accused persons as participants in the Robbery (Ground 2).
ISSUE NO. 3 – Whether reliance should have been placed on Exhibits A and B in determining the guilt of the accused persons (Ground 3).
ISSUE NO.4 – Whether the judgment of the lower court is against the weight of evidence (Ground 4).”
The Respondent for its part has formulated the following single issue for the determination by this court-
“Whether the learned trial Judge rightly held that the offence of Armed Robbery was proved by the prosecution against the Appellant beyond reasonable doubt.”
This issue is contained at page 4 of the Respondent’s brief of Argument which is undated but filed on the 11th February 2009 but deemed properly filed and served on the Appellants on the 6th April 2009 following the grant on that day of a motion on Notice dated the 23rd February 2009 and filed on the 25th February 2009 and brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules 2007 and the inherent jurisdiction of this Court praying for the following orders –
(i) An order of Court extending the time within which the Respondent may file her brief of Argument.
(ii)An order deeming the brief of Argument already filed as having been properly filed and served.
This appeal came up for hearing on the 28th January 2010. J.A. Badejo Esq. Counsel for the Appellants informed this Court that all the Briefs of Argument were in place and as such the appeal was ripe for hearing. Counsel for the Respondent was not however in Court. Upon information by the Court Registrar that the Respondent’s Counsel was in Court on the 27th May 2007 when this matter last came up, this Court dug into its records and observed as follows, “As had earlier been observed the Respondent’s counsel Mr. Akinsinde was in Court on the 27th May 2007 when this matter last came up and he is not here today but the Respondent’s Brief has been filed. By the provisions of order 17 rule 9(4) of the Court of Appeal Rules 2007, this appeal can proceed to be heard”. The purport of this observation is that learned counsel for the state having been in court at the last date of adjournment (27th May 2007) did not need any further hearing Notice to be in Court on the 28th January 2010 which was the next date of adjournment. Perhaps it is instructive to examine at this juncture the provisions of Order 17 Rule 9(4) of the Court of Appeal Rules 2007 which states as follows,
“When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”
A breakdown of this provision is that:
(1) Parties have been duly served with the hearing notice for the day when the appeal is to be heard. Such service is deemed good service where such parties are represented by Counsel and the service of the hearing notice for that day is made on Counsel where the address for service on counsel is so indicated. Where parties or their Counsel are in Court when an appeal is adjourned to a particular date for hearing, such parties or their Counsel do not need another fresh hearing notice to be in court on the fixed adjourned date for the hearing of the appeal.
(2) Having been so served with the hearing Notice for the day fixed for the hearing of the appeal or having been deemed to have been so served with such hearing notice for the day fixed for the hearing of the appeal by virtue of the fact that parties or their counsel was/were in court on the day where, the appeal was adjourned to a particular date for hearing and despite that are not present in court to present oral argument at the hearing of the appeal.
(3) Briefs of Argument have been filed by all the parties concerned in the appeal.
Given this scenario, the appeal will be treated as having been argued. It was in compliance with this provision that the appeal was deemed as having been duly argued in the absence of counsel for the Respondent on the 28th January 2010. This Court had earlier made reference to the Respondent’s Brief of Argument which was deemed filed and served on the 6th April 2009 wherein at page 4 a sole issue was distilled for the determination of this Court. At the hearing J.A. Badejo of counsel for the Appellants adopted and relied on the Appellants’ Briefs of Argument and Reply brief, not forgetting to inform or remind the Court that the amended Notices of Appeal dated and filed on the 2ih April 2008 had been consolidated and deemed properly filed and served on the 1st July 2008. In effect there is now just one Appellants’ Brief of Argument for the 1st & 2nd Appellants.
Expatiating further on arguments contained in the Appellants’ Brief of Argument, J.A. Badejo submitted that the learned trial Judge was in error to rely on Exhibits “A” and “B” which are the confessional statements of each of the Appellants as it is on record that the Appellants denied making the confessional statements. Counsel argued that this was not a matter of trial within trial and the trial court could have looked at the evidence holistically to find out whether there is a doubt whether it could be said that the statements were made by the accused persons. Counsel urged this Court to allow the appeal and set aside the Judgment of the lower trial court and discharge and acquit the accused persons. At page 15 of the Respondent’s Brief of Argument, we were urged to dismiss the appeal.
After a very careful consideration of the issues formulated by the Appellants and Respondent in their respective Briefs of Argument, I think that the proper issue for determination is:
Whether the learned trial Judge rightly held that the offences of Conspiracy to commit Armed Robbery and Armed Robbery have been proved by the prosecution against the Appellants beyond reasonable doubt.
This sole issue embraces all the arguments canvassed in the briefs of Arguments of the Appellants and Respondent. As was rightly noted in paragraph 2.01 at page 3 of the Respondent’s Brief of Argument, this Court and indeed the Supreme Court frowns at the proliferation of issues when an appeal can be effectively determined by fewer issues. Appellants have submitted that it is settled that the prosecution must prove three essential ingredients of the offence of armed robbery to wit:
(a) That there was a robbery or series of robberies;
(b) That the robberies were armed robberies;
(c) That the accused persons were, or some of the people who committed the robbery.
Reliance was placed on BOZIN V. STATE (1985) 2 NWLR (PART 8) 465; OKOSI V. A.G. BENDEL STATE (1989) 1 NWLR PART 1(0) 642. Appellants further submitted that for an accused person to be convicted of armed robbery under section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap 398, the prosecution must prove not only that robbery was committed by the accused persons but that the accused persons were armed with “firearms” or “offensive’ weapon” and the “firearm” or “offensive weapon” must come within the meaning of the words used in section 9 of the Act. The offence of robbery must also come within the meaning of section 15 of the Act. Counsel referred to the evidence of PW1, PW2 and PW3 to the effect that various sums of money, two wrist watches and three GSM handsets were stolen from them and yet not a single kobo or any of the items allegedly stolen was recovered from the accused persons. The prosecution also gave evidence that the accused persons were armed with cutlass and axe with PW3 adding machete and knife and yet none of these offensive weapons were tendered in court, nor any scintilla of evidence given as to the whereabout of or any attempt to locate the offensive weapons. Also not tendered by the prosecution was the broken door listed at page 4 of the records as part of the evidence to be tendered and no explanation was given as to why it was not tendered. Counsel referred to NWOMUKORO V. STATE (1995) 1 NWLR (PART 372) 432 where the failure of the prosecution to tender stolen items allegedly found on the accused persons as well as the offensive weapons was held to be fatal to the prosecution’s case.
Counsel went further to say that the OPC men who allegedly arrested the 1st accused/Appellant were not called as witnesses and so the prosecution had failed to prove beyond reasonable doubt that there was a robbery talk less of an armed robbery. On the identity of the Appellants, Appellants’ Counsel submitted, that judicial authorities have stressed the need for the courts to be cautious when considering evidence of identity. Reliance was placed on CHRISTOPHER OKOSI & ANOR V. THE STATE (1989) 1 NWLR PART 100 page 642; ZEKERI ABUDU V. THE STATE (1985) 1 NWLR PART 1 page 55 at 62; R. V. TURNBULL (1976) 3 WLR 455. Counsel submitted that the pieces of evidence adduced by PW1, PW2 and PW3 at pages 30 and 31 of the Record of Appeal were contradictory, shaky and unreliable and the trial court should not have acted on them, moreso as PW4 the Police IPO under cross-examination said there was no identification parade and the learned Prosecuting Counsel admitted in his address that he did not deem it necessary that an identification parade be conducted. Appellants drew the attention of this Court to the contradictory evidence of PW1- PW3 as to what exactly happened when the robbers entered their house noting that the Prosecuting Counsel admitted that there were indeed contradictions which were said by him not to be material but that this was wrong in law as the court could not be expected to pick and chose from evidence led by the prosecution in order to ascribe credibility to one version and discredit another. Counsel referred to QUEEN V. ITULE (1961) All NLR 462 to the effect that the whole of an account which a party gives of a transaction must be taken together. Appellant further submitted that the learned trial Judge while stating correctly the principles in the Supreme Court decisions in EYISI V. THE STATE (2000) 4 NSCQR 60 at 100, (2000) 15 NWLR (PART 691) 555 at 587 and ORIMOLOYE V. THE STATE (1984) 10 SC 138 wrongly evaluated the evidence adduced by the prosecution as to (a) the state of light and illumination at the scene of crime (b) the state of mind of PW1, PW2 and PW3 (c) the length of time of the observation (d) whether the observation was impaired and (e) the length of time between the original observation and the time of identification.
On whether reliance should have been placed on Exhibits A and B in determining the guilt of the accused/Appellants, Appellants in their Brief of Argument submitted that there were facts that were inconsistent with the confessions. Counsel for the Appellants wondered why the Police Officers who either took or endorsed the statements of the accused persons and who were listed as witnesses were not called to give evidence neither were the OPC men who arrested 1st accused/Appellant called to give evidence. Counsel referred to page 40 of the records where PW4 stated under cross-examination that the statements of the Complainants and witnesses were attached to the case files but were not tendered, which Counsel submitted raised a presumption under section 149 (d) of the Evidence Act that were they tendered they would have been unfavourable to the prosecution. Reference was made to R. v. TURNER (1957) W.R.N.L.R. 35. Appellants’ Counsel further argued that the Senior Police Officers who allegedly confirmed the voluntariness of the statements of the Appellants though listed as witnesses were not called as witnesses despite the Appellants’ position that the statements were not made by them. Counsel relied on JALLO LIMITED V. OWONIBOYS TECHNICAL SERVICES LTD. (1995) 4 NWLR (PART 391) page 534 at 546; IWUCHUKWU V. ANYANWU (1993) 8 NWLR PART 311 page 307 at 381 paras. D-G.
Appellants’ Counsel went further to submit that the confessional statements failed to meet the standard tests laid down in ALARAPE V. THE STATE (2001) 5 NWLR (Part 705) 79 at 98-99. Respondent in its Brief of argument endorsed the requirements enunciated in BOZIN V. THE STATE (supra) as to what the prosecution must prove to succeed in a case of armed robbery. On the 1st ingredient, Respondent submitted that the fact that there was a robbery in the house of the Fowoseres on the 31st August 2003 is not in doubt. Reference was made to the evidence of PW2 Olayemi Fowosere and PW3 Wasiu Fowosere at pages 31 and 33 of the Record of Appeal on how armed robbers entered their house. Respondent also made reference to the confessional statements of the Appellants. The statement of the 1st Appellant was admitted without any objection as to its voluntariness, Respondent submitted. Respondent while conceding that the prosecution, did not tender the weapons used in the robbery and the various items recovered from the Appellants even though they were listed as exhibits submitted that this did not vitiate the trial as there were other pieces of evidence convincingly pointing to the guilt of the Appellants. It was argued by the Respondent that the Court would have in any event convicted the Appellants on their confessional statements alone especially as the statements were made without any objection. Reliance was placed on IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468-469.
On the question of tendering of the confessional statements of the accused/Appellants, Respondent submitted that one police officer could properly tender documents that formed the official records of another police officer made in the course of his employment and which he received in the course of his own employment. It is the contention of the Respondent that the confessional statements of the Appellants having been admitted without objection excuses according to the Respondent would not suffice. Reference was made to IKEMSON V. THE STATE (supra); AKPAN V. THE STATE (2001) 15 NWLR (PART 737)745 at 763. Failure to take confessional statements to superior police officers is not fatal to the prosecution’s case, Respondent submitted.
On the question as to whether the Appellants took part in the robbery Respondent has submitted that this is linked up with the question of identification where PW1 under cross-examination at page 30 of the Record of Appeal stated that immediately the accused/Appellants entered the house he saw them because the light was on. Respondent submitted that the Appellants having been sufficiently identified, an identification parade became unnecessary. Reliance was placed on UKPABI V. THE STATE (2004) 7 SC 189 at 199-200; ARCHIBONG V. THE STATE (2006) 5 SCNJ 2022 at 2035.
On the submission by the Appellants that there were contradictions in the evidence of the prosecution witnesses, Respondent submitted that whatever contradictions there were they were not material contradictions as would make, an appellate court set aside the decision of the lower court. Reliance was placed on ARCHBONG V. THE STATE (supra).
On whether the Appellants were armed, Respondent referred to the evidence of the 1st Appellant where he stated that he and his companions did not go to the house armed but took the cutlass and axe they used for their operation “from Alhaja’s house”. The learned trial Judge was therefore right in his statement that the accused were armed on the fateful day.
Appellants have submitted in their Reply Brief of Argument that the evidence of PW2 and PW3 cannot be the basis for conviction of the Appellants without independent corroboration that there was indeed a robbery. Reliance was placed on NDIDI V. STATE (2007) 13 NWLR (PART 1052) 633 at 658.
The charge against the Appellants is for Conspiracy to Commit Armed Robbery and Armed Robbery. It is therefore surprising that arguments in this appeal have been centred only on the Armed Robbery aspect leaving the Conspiracy aspect. Conspiracy to commit armed robbery is a separate offence from the offence of Armed Robbery. The act of Conspiracy may be based on the same facts or set of facts as in the main offence of Armed Robbery and the two may be intricately interwoven. Courts are enjoined when such is the case to deal with the main offence first. This is just as well because should the substantive charge (the Armed Robbery itself) be unproven there would be no offence left that the accused would have been guilty of committing.
Section 138 (1) of the Evidence Act provides as follows:
(1) “If the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.”
(2) “The burden of proving that any person has been guilty of a crime or wrongful act is subject to the provisions of section 141 of this act on the person who asserts if whether the commission of such is or is not directly in issue in the action.”
(3) “If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.”
The purport of these provisions is that it is the duty of the prosecution to prove the case against the Appellants beyond reasonable doubt and this burden of proof does not shift until it is discharged. In NWOSU V. THE STATE (1998) 8 NWLR {PART 562) 433 at 444, it was held that,
“In all criminal trials the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused. Failure to do so will automatically lead to the discharge of the accused. The burden never changes.”
This burden on the prosecution is further exemplified in AIGBANGBON V. THE STATE (2000) 7 NWLR (PART 666) 686 at 704 where the Supreme Court held that,
“Even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of that burden.”
As has therefore been seen the burden on the shoulders of the prosecution is indeed very heavy. Has the prosecution proved or discharged this heavy burden in this case? The main offence for which the Appellants were charged, convicted and sentenced to death is Armed Robbery. Happily both the Appellants in paragraph 3.01 at pages 3 and 4 of the Appellants’ Brief of Argument and the Respondent also in paragraph 3.01 at page 4 of the Respondent’s Brief of Argument are agreed that the prosecution must prove three essential ingredients of the offence of Armed robbery and these are as follows-
1. That there was a robbery or series of robberies.
2. That the robberies were armed robberies.
3. That the accused persons were or some of the people who took part in the robberies.
These requirements are clearly spelt out in ALABI V. THE STATE (1993) 7 NWLR page 511 at 523 paragraph F-H. See also the following cases BOZIN V. THE STATE (1985)1 NWLR (PART 8) 465; OKOSI V. A.G. BENDEL STATE (1989) 1 NWLR (PART 100) 642.
The first ingredient or requirement is whether there was ever a robbery. To determine this a necessary step is to place the evidence of the prosecution witnesses under strict scrutiny and by that is meant those whose evidence is that they came into contact with or saw or had some dealings or encounter with the armed robbers. The robbery allegedly took place in what I can properly refer to as the family house of the Fowoseres. PW1 Mrs. Olayemi Fowosere said as follows at page 31 of the Records-
“Before I could get to the door they had broken it open. Two men entered and they were armed with cutlass and axe. They demanded for the money my husband sent to me from the U.S.A. I told them I had no money. One of the men threatened to kill me if I did not release the money. It was the 1st accused who threatened to kill me and he raised up the axe in his hand to hit me.”
The evidence of PW3 Wasiu Fowosere at pages 32-33 of the Records is also instructive,
“On that day I suddenly heard a bang on the door to my brother’s room. I was in my own room. About 2 mins later, 3 men including the two accused persons used my brother as a shield and entered my room because I did not lock my door. They were armed with matchete, knife and axe. They asked who was Wasiu Alhaja’s son. We said Wasiu was not around. The men took myself, my brother and another occupier in the room to the toilet and locked the door against us. Thereafter they brought me and asked what I had in the room. They collected my telephone handset. They broke my wardrobe and took N70,000.00 and another N5,000 in the pocket of another dress. The handset was valued N125,000.00. ”
These two pieces of evidence were not contradicted during cross-examination. Whatever one may make out later of the confessional statements of the Appellants, it is necessary at this stage that at page. 7 of the Record of Appeal 1st Appellant said as follows,
“We did not collect money from Alhaja but we only collected N40,000.00 from Alhaja’s children and two handsets ……………. We only operated in 3 rooms during the robbery and apart from the
money and handsets we did not collect anything again.”
This statement of the 1st Appellant was admitted without objection as Exhibit “A”. Section 15 (1) of the Robbery and Fire Arms (Special Provisions) Act Cap 398 defines “Robbery”. It says,
“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 to its being stolen or retained.”
From this definition of “robbery” and the pieces of evidence just highlighted above, the prosecution has undoubtedly proved beyond reasonable doubt that there was a robbery.
The second ingredient or requirement is whether the robbery just established by the prosecution was an armed robbery. Here again one must have recourse to the bits and pieces of evidence of the prosecution witnesses alluding to the use of arms. Under section 15(1) of the Robbery and Fire Arms (Special Provisions) Act the word “arms” is made to include “firearms” and “offensive weapon” with the same punishment or sanction under that Act. For the purpose of this appeal, the use of the word “arms” is made to connote “offensive weapon” which includes inter alia cutlass, axe and machete. (Underlining mine for emphasis). PW2 said in evidence at page 31 of the Record “Two men entered and they were armed with cutlass and axe”. PW3 also said of the robbers, “They were armed with machete, knife and an axe”. See page 31 of the Record of Appeal. It should perhaps be noted that machete and knife mean one and the same weapon. 1st Appellant Aribigbola Awosika had in his confessional statement at page 7 of the Record of Appeal said as follows,
“We did not go to the house with any instrument but the cutlass and axe we used was taken by us from Alhaja (sic) house.” (Underlining mine for emphasis).
As has thus been seen the use of cutlass and axe permeates the evidence not only of PW2 and PW3 but also the confessional statement of 1st Appellant. I think that it will be right to say that whoever the robbers were, they were armed.
The third ingredient or requirement is that the appellants were or some of the people who committed the armed robbery. Admittedly this is the most difficult of all the three requirements and it will involve an intriguing discourse not just as to the identity of the armed robbers, but the alleged confessional statements etc and arguments will tend to dovetail and criss cross one another. As to the identity of the armed robbers we shall have to go again into the evidence of the witnesses. PW1 Niyi Fowosere at page 30 of the Records said as follows,
“There was light at the time of the incident. The police invited me to come and identify those who attached (sic) me out of several suspects arrested. There were about 5 suspects but I was able to identify the two accused persons.
PW2 Mrs Olayemi Fowosere as to identification of the armed robbers said at page 31 of the Records,
“I know the accused persons. Two men entered and they were armed with cutlass and axe. One of the men threatened to kill me if I did not release the money. It was the 1st accused who threatened to kill me if I did not release the money. It was the 1st accused who threatened to kill me and he raised up the axe in his hand to hit me. The second man then said he should not hit me. That other man is not on trial.”
Under cross-examination this witness said as follows,
“There was light in the house at the time of the incident. The light in my room was off but when the robbers came in they ordered me to switch it on.”
PW3 Wasiu Fowosere’s evidence at pages 32-33 of the Records had earlier been examined in this write-up. He said he knew the Appellants who were armed with machete, knife and axe and who asked him whether he was Wasiu Alhaja’s son and he had to lie that he was not and that Wasiu was not around. Under cross-examination he said the incident took place very late at night but he could see properly as there was light.
It will thus be seen that these pieces of evidence of PW1, PW2 and PW3 are consistent and appear not to have been destroyed by cross-examination which in my view instead strengthened them. From available evidence of PW1, PW2 and PW3 even though the incident happened late at night according to them, they were still able to see and identify the Appellants’ as there was light and in the case of PW2 even though the light in her room was off when the armed robbers visited, they asked her to switch it on which she did. The defence did not ask during cross-examination whether the armed robbers were not hooded and so it can safely be presumed that they were not hooded and could be identified. It is also worthy of note that P.W.1 under cross-examination said that when he was invited by the police to identify some suspects from five who had been arrested, he was able to identify the two Appellants. The Appellants appear to have made heavy weather of the absence of an identification parade to identify the actual armed robbers. I have taken pains to critically examine the evidence of the PW1, PW2 and PW3 and I do not have any iota of doubt that each and everyone of them was able to identify the Appellants as the armed robbers that invaded their residence on the 31st August 2003. Perhaps I should state that it is not in every instance when persons suspected of having committed a crime are paraded for identification. In UKPABI V.THE STATE (2004) 7 SCM 189 at 199-200. The Supreme Court had this to say,
“Where a trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Identification parade is not a sine qua non to conviction. IKESON V. STATE (1989U NWLR (PART 110) p. 455. In the instant case where the identification of the Appellant was informal and spontaneous shortly after the robbery and having regard to the surrounding circumstances incriminating the Appellant mention must now be made of the Appellants’ confessional statements Exhibits A and B. The confessional statements of the Appellants would appear to me to be in harmony with the evidence of PW1, PW2 and PW3. In the confessional statement of 1st Appellant which was admitted without objection, the 1st Appellant had said at page 7 of the Record, “We did not go to the house with any instrument but the cutlass and axe we used was taken by us from Alhaja (sic) house.” This statement of 1st Appellant is in harmony with the evidence of PW1, PW2 and PW3 that the Appellants were armed with cutlass and axe when they visited the house of the Fowoseres. 1st Appellant had also said in that statement as follows, “We did not collect money from Alhaja but we only collected N40,000.00 from Alhaja’s children and two handsets.” This statement again is in harmony with the evidence of PW2 Mrs. Olayemi Fowosere at page 31 of the Record of Appeal where she said as follows,
“On getting to Alhaja’s door they knocked the door and Alhaja asked who they were and they said they were armed robbers. My mother in law opened the door and gathered all her money and gave it to the robbers but they did not take the money saying Alhaja was an old woman.”
Thus the statement of the 1st Appeliant that no money was taken by them from Alhaja is in line with PW2’s evidence. 1st Appellants statement is also to the effect that “the Alhaja prayed for Segun because of the money he left for her.”
An accused can be convicted solely on his confessional statement. See IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468-469; NWACHUKWU V. THE STATE (2007) 12 SCM PT 2 page 447 & 455. Nevertheless the Supreme Court in DAWA V. THE STATE (1980) 8-11 SC 236 in reliance on the English decision in R. V. SYKES (1913) 18 CR App. Reports and cited in KANU V. R. 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them. The six tests are as follows –
1. Is there anything outside it to show that it is true?
2. Is it corroborated?
3. Are the statements made in it of fact true as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and which have been proved?
Going through each of these six tests, it will be seen that the prosecution has satisfied each of these requirements. Not only is the confession of the Appellants possible, facts contained in them are in complete harmony with the evidence of PW1, PW2 and PW3. The statements in Exhibits A and B are true, having been found to be so by the evidence of the prosecution witnesses. Appellants have faulted the confessional statements on the ground that the police officer who endorsed the statements was not called to tender the said statements and testify on same. Respondent has pointed out and rightly too that one police officer can properly tender documents that forms the official records of another police officer made in the course of his employment. As to the endorsement by a superior police officer of the confessional statement of an accused person, there is nothing sacrosanct about this. Indeed the Supreme Court in EDHIGERE V. THE STATE (1996) 8 NWLR (PART 464) 1917 held as follows,
“This Court has said it several times in reported cases that the administrative practice of confirmation of confessional statements before a senior police officer is not a legal requirement which if not complied with would render the statement unreliable.
It should also be stated that there is no obligation on a party to call a particular witness. A party will call only such witnesses as are necessary to establish its case. The prosecution in this regard may not have deemed it necessary to call the OPC men Appellants referred to.
Appellants in their Brief of Argument have also alluded to contradictions in the evidence of prosecution witnesses especially as to where they said they were locked up by the armed robbers. Respondent’s Counsel while conceding to such a contradiction in the evidence of prosecution witnesses said they were minor. I cannot agree more with the learned counsel for the Respondent. It is trite that an appellate court will only set aside the judgment of a lower court on the ground that there are contradictions when such contradictions are material. See ARCHIBONG V. THE STATE (Supra). In the present case the contradictions complained of are not material.
Appellants have made heavy weather of the fact that the prosecution did not tender the weapons used in the robbery and the various items recovered from the Appellants even though they were listed as exhibits. Appellants alluded at pages 6 and 7 of their Brief of Argument to the fact that these items which included cutlass and axe as well as handsets were not tendered. Respondent while conceding to this fact at page 6 of the Respondent’s Brief of Argument submitted that there are other convincing pieces of evidence which point to the guilt of the Appellants. This may well be true but the Respondent’s argument is flawed by the fact that the Appellants took their plea based on the charge read to them which was to the effect that they carried out the armed robbery while armed with offensive weapons to wit cutlass and axe (underlining mine for emphasis). The prosecution failed to tender the said cutlass and axe. Can the prosecution then be said to have proved that there was an ARMED robbery when not only were the cutlass and axe allegedly used in the armed robbery operation not tendered but no explanation for the failure of the prosecution to tender them was supplied? Can the prosecution then be said to have discharged its burden of proving that there was an armed robbery beyond reasonable doubt? Earlier in this write up I had made reference to AIGBANGBON V. THE STATE (supra) where the Supreme Court had said as follows,
“In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in his statement to the Police admitted committing the offence, the prosecution is not relieved of that burden.” (Underlining mine for emphasis).
I had earlier in this write-up spelt out the ingredients for the offence of robbery. There can be no doubt from the available evidence that there was indeed a robbery and that the Appellants carried out the robbery. The prosecution has also successfully established that Exhibits A and B were confessional statements made by the Appellants. That fact however does not absolve the prosecution from proving that the Appellants were indeed armed with axe and cutlass as contained in the charge while carrying out their Robbery. That onus the prosecution has failed to discharge. The purport is that while the prosecution may have succeeded in establishing that there was a robbery, the charge of armed robbery has not been established and so must fail.
I had earlier said that there was a general failure on the part of counsel to address this Court on Count 1 which is Conspiracy. Conspiracy has been held in a number of judicial authorities to mean the meeting of the minds of the Conspirators. It consists of the intention of two or more persons to do an unlawful act or a lawful act by unlawful means and conviction is usually based on circumstantial evidence. See PATRICK NJOVENS V. THE STATE (1973) 5 SC 17. The Court may sometimes infer conspiracy. See UPAHAR V. THE STATE (2003) 6 NWLR page 630 at 239. In the present case there is no doubt from the evidence adduced that the Appellants conspired among themselves to commit robbery. The evidence showed that although 2nd Appellant escaped being arrested after the robbery it was 1st Appellant that took the police to his place in Lagos where he was eventually arrested. I find them guilty. Where the evidence adduced by the prosecution supports the conviction for a lesser offence than that for which an accused is charged an appellate court can convict for such lesser offence. I find the Appellants not guilty of the offence of Conspiracy to Commit Armed Robbery and Armed Robbery but guilty of the lesser offence of Conspiracy to Commit Robbery and Robbery. Section 1(1) of the Robbery and Fire Arms (Special Provisions) Act under which the Appellants are charged provides as follows:
“Any person who commits the offence of robbery shall upon conviction under this Act be sentenced to imprisonment for 21 (twenty one years.)”
In the premises I set aside the conviction and sentence to death of the Appellants passed by Mobolaji Ojo J. on the 8th February 2007 and in its place convict and sentence the Appellants to 21 years imprisonment each without an option of fine on each of the Counts. Sentences shall run concurrently. Sentences shall begin to run as from the 8th February 2007 being the date of conviction and sentence at the High Court Ijebu Ode.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment just delivered by my learned brother S. S. Alagoa, J.C.A .
The issues have been comprehensively and adequately dealt with. I adopt the analysis and final decision as mine in setting aside the conviction and sentence to death by the learned trial judge on 8/2/07, I endorse the conviction and sentence of the Appellants to 21 years imprisonment each without an option of fine and the order that the sentence be made to run concurrently. Sentences to run from 8/2/07, the date of conviction and sentence in the trial court.
MODUPE FASANMI. J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother S. S. ALAGOA J.C.A just delivered now. I agree with the reasonings and conclusions reached therein. I also abide with the consequential orders made.
Appearances
J. A. Badejo Esq.For Appellant
AND
Respondent’s Counsel absent.For Respondent
