BABATUNDE ADELANI V. THE STATE
(2012)LCN/5478(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of June, 2012
CA/I/179A/2009
RATIO
CRIMINAL LAW AND PROCEDURE: ARMED ROBBERY: NECESSARY INGREDIENTS TO PROVE THE OFFENCE
It is settled law and therefore trite that for the prosecution to succeed in the proof of the offence of armed robbery against the appellant, the following ingredients must be proved beyond reasonable doubt. The ingredients are:-
(a) that there was a robbery or series of robberies.
(ii) that the robbery or each robbery was an armed Robbery
(iii) that the accused person was one of those who took part in the robbery. See Bozin vs. State (1985) 2 NWLR (Pt. 8) 465 at 469; Aruna vs. The State (1990) 6 NWLR (Pt. 155) 125 at 135; Okosi vs. State (1989) 1 NWLR (Pt.100) 642; Nwachukwu vs. The State (1985) 3 NWLR (Pt.11) 218; Ani vs. State (2003) 11 NWLR (Pt. 830) 142 and Bolanle vs. State (2005) 7 NWLR (Pt.925) 431 at 541.PER ADZIRA GANA MSHELIA, J.C.A.
ALIBI: DUTY OF PROSECUTION WHEN AN ACCUSED HAS SET UP A DEFENCE OF ALIBI
It is trite that where an accused sets up a defence of alibi at the earliest opportunity, it is the duty of the prosecution to investigate the truth of such alibi. However, the alibi must be unequivocal and must be given during the investigation and not during the hearing of evidence at the trial. See Salami vs. The State (1988) 3 NWLR (Pt. 85) 670. It is not in every case that prosecution must investigate the defence of alibi. Where the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is logically and physically demolished. In Patrick Njovens vs. The State 1973 3-5 SC 17 at 55 the apex court per Coker JSC had this to say:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was there. Even if it is the duty of the prosecution to check on statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished.”
See also Hausa vs. State (1994) 6 NWLR (Pt. 350) 281 at 301 – 302 paras H-B; Odu vs. State (2001) 10 NWLR (Pt. 722) 668 at 673. Ndidi vs. State (2007) 13 NWLR (Pt. 1052) 633; Ukwunnenyi vs. State (1989) 4 NWLR (Pt 114) 131; Adisa vs. State (1997) 1 NWLR (Pt. 168) 491 and Ibrahim vs. State (1991) 4 NWLR (Pt. 186) 399.PER ADZIRA GANA MSHELIA, J.C.A.
CONFESSION: WHETHER A CONFESSION CAN LEAD TO A CONVICTION
Once a confessional statement is proved to have been made voluntarily, as in this case and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground conviction regardless of the fact that the maker resiled there from or retracted the same completely at the trial, as such retraction does not make it inadmissible or that the court should not act on it. See Egboghonome vs. State (1993) 7 NWLR (Pt. 306) 383, Idowu vs. State (1998) 13 NWLR (Pt. 582) 391; Obisi vs. Chief of Naval Staff (2002) 2 NWLR (Pt.751) 400 at 418 and Shade vs. State (2005) 1 NWLR (Pt. 218) 218.PER ADZIRA GANA MSHELIA, J.C.A.
CRIMINAL LAW AND PROCEDURE: PROSECUTION: DUTY OF THE PROSECUTION TO PROVE CASE BEYOND REASONABLE DOUBT
The law is that the prosecution always has a duty to prove its case beyond reasonable doubt to secure conviction. It is my view therefore that prosecution had duly proved the charge of armed robbery against the appellant.
I now consider the charge of conspiracy. Whether, prosecution has proved same beyond reasonable doubt. Conspiracy simply means the meeting of the minds to carry out a lawful purpose in an unlawful way. In effect the meeting of the two or more minds is to commit an offence. In law it takes at least two minds to meet and the two minds must really meet with a common intention and common purpose. The ordinary meeting of the minds does not fuel the offence of conspiracy without the corresponding or associated element of crime commission. Therefore in a charge of conspiracy, the prosecution has the burden to prove not only the inchoate or rudimentary nature of the offence but also meeting of at least two criminal minds with a common intention and purpose to commit a particular offence or offences. And in the relevant offence of armed robbery and conspiracy to rob, the burden is on the prosecution to prove that conspiracy. See Iyaro vs. The State (1988) 1 NWLR (Pt. 69) 256.PER ADZIRA GANA MSHELIA, J.C.A.
CRIMINAL LAW AND PROCEDURE: CONSPIRACY: THE KIND OF EVIDENCE REQUIRED TO PROVE THE OFFENCE OF CONSPIRACY
The law is trite that for the purposes of convicting on conspiracy, direct and distinct evidence though most desirable is not invariably indispensable. It is open to the trial judge to infer conspiracy from the fact of doing things towards a common and by the execution of a planned and premeditated common intention and common purpose. This is because the crime of conspiracy is usually hatched with utmost secrecy and the law leads direct and distinct evidence. See Nwosu vs. State (2004) 15 NWLR (Pt. 897) 466; Oduneye vs. State (2001) 2 NWLR (Pt. 697) 311 and Obiakor vs. State (2002) 10 NWLR (Pt. 776) 612.PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
BABATUNDE ADELANI – Appellant(s)
AND
THE STATE – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Ilaro, Ogun State of Nigeria, the Appellant Babatunde Adelani and other persons were charged with the following offences. Viz:-
COUNT 1
STATEMENT OF OFFENCE
CONSPIRACY to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act (Cap. R 11), Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OKIKI FAKEYE (M), IDOWU OLOJEDE (M), BABATUNDE ADELANI (M) and others now at large on or about the 15th day of April, 2003 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division conspired to commit a felony to wit; Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap. R 11) Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OKIKI FAKEYE (M), IDOWU OLOJEDE (M), BABATUNDE ADELANI (M) and others now at large on or about the 15th day of April, 2003 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division while armed with offensive weapons to wit; guns, cutlasses and axe robbed one Bamidele Ogunbiyi (M) of one video cassette recorder, Rechargeable Lantern, Video Cassettes, one Nokia Mobile Phone, one travel bag, wristwatches, some clothes, a sum of N32,000.00 (Thirty-Two Thousand Naira) and CFA 50,000 Cash.
COUNT III
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act (cap. R.11) Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OKIKI FAKEYE (M), IDOWU OLOJEDE (M), BABATUNDE ADELANI (M) and others now at large on or about the 15th day of April, 2003 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division while armed with offensive weapons to wit; guns, cutlasses and axe robbed one Rasidatu Ogunbiyi of Jewelry and wrist watches.”
They pleaded not guilty to the offences as charged and trial commenced. The facts of the case as presented by the prosecution are that on 15/04/2003 at about 1.00 a.m. at Agbonselu quarters Ayetoro, Ogun State the Appellant and five others while armed with guns and cutlasses attacked Bamidele Ogunbiyi and Rasidat Ogunbiyi, PW1 and PW2 respectively. PW1 informed the robbers that he had no money with him but he kept some with his friend, Biodun Otunde (PW3) who lived three houses away from him. The robbers thereafter led PW1 to the house of PW3 who handed the sum of N32,000 and CFA 50,000 to PW1 who in turn handed the money over to the robbers. The robbers led PW1 back to his house where he was locked up in the toilet. After sometime when PW1 did not hear any movement inside his house, he forced the toilet door open and when he got to his sitting room he observed that the armed robbers also stole his wrist-watches, telephone, handset, clothes, rechargeable lamps and a video cassettes player and had escaped. Thereafter PW1 went into his wife’s (PW2) flat and he also observed that her flat had also been ransacked and some items stolen. His wife and children had also been locked in the toilet. PW2 in her evidence claimed robbers came into her apartment while armed with guns and cutlasses which were held to her head, and they threatened to rape her but she pleaded with them and that one of the robbers forced open her wardrobe and took all her jewelry and clothes and thereafter locked her in the toilet.
After the attack on PW1, and PW2, PW3 who had observed that the men who came to his house with PW1 were armed with guns and cutlasses, woke Sunday Ajiboye (PW4) a policeman, who lives in the same house with him and informed him of what just happened. PW3 and PW4 then went to PW1’s house and observed that the gate of the house was locked from outside and they opened it and went in to meet PW1 and his family who informed them of the armed robbery. Thereafter PW1, PW2, and PW4 went to Ayetoro Motor Park where they reported the incident to the commercial drivers and told them to be on the lookout. Thereafter they reported the incident at Aiyetoro Police Station where a policeman was detailed to follow them. They all proceed to the Police Check Point at Iyana Papa on Abeokuta Road to inform the policemen on duty and as they were discussing with the said policemen, a red Starlet car approached which was stopped and the occupants were ordered to alight from the vehicle. A search of the boot of the car revealed properties stolen from the house of PW1 as identified by the latter who was also at the check point. When PW1 informed the police of this, the occupants of the vehicle tried to escape but two of them, the appellant and another were apprehended by the police. Later on, one of the robbers who was shot during the attempt to escape was also apprehended and PW1’s handset and wrist-watch were found in his pocket. After the apprehension of the Appellant and the two others PW1 and PW2 identified them as some of the armed robbers that attacked them. PW3 also identified the Appellant and the two others as some of the armed men who came with PW1 to his house. During trial, PW1, PW2 and PW3 identified the Appellant and the others as the apprehended robbers that attacked PW1 and PW2 on the 15/04/2003. The Appellant upon apprehension was taken to Lafenwa Police Station and subsequently transferred to the state CID Eleweran.
The prosecution at the trial of the case called 8 witnesses and tendered 23 exhibits in proof of the charge. At the close of the prosecution’s case, the Appellant entered his defence and gave evidence in his own defence and tendered Exhibit ‘M’ the statement he made at Lafenwa Police Station. Both counsel filed written addresses. In a well considered Judgment delivered on 31/10/08 Dipeolu J. found the Appellant and two others guilty as charged in respect of the three counts and were sentenced to death by hanging. See pages 89-106 of the record.
Aggrieved with this Judgment the Appellant has appealed to this court by his Notice of Appeal filed on 11th November, 2008 at page 108 of the record. The Notice of Appeal was subsequently amended by order of this court and the amended Notice of Appeal which was deemed properly filed on 16/12/10 contained three grounds of appeal.In compliance with the rules of this court, parties exchanged briefs of argument. Appellant’s brief of argument dated 8/2/2011 and filed 8/2/11 was deemed properly filed on 3/5/11. Respondent’s brief of argument dated 23/01/12 and filed on 24/01/12 was deemed properly filed on 26/3/12. Appellant filed a reply brief on 26/3/12. When the case came up for hearing on 18/4/12 Appellant’s Counsel adopted the appellant’s brief of argument as well as the reply brief. While Respondent’s counsel adopted the Respondent’s brief of argument.
Appellant distilled three issues from the three grounds of appeal for determination as follows:-
1. Whether the prosecution has proved beyond reasonable doubt that the Appellant conspired with the 1st and 2nd accused persons to commit armed robbery. (Ground 1).
2. Whether the prosecution has proved beyond reasonable doubt that the Appellant participated in the armed robbery on 15th April, 2003. (Ground 2).
3. Whether the decision of the High Court is reasonable and can be supported having regard to the weight of evidence. Ground 3).
Respondent distilled sole issue for determination thus:-
“Whether from the totality of evidence adduced at the trial, the prosecution has proved the charge against the Appellant beyond reasonable doubt in accordance with section 138(1) of the Evidence Act Laws of Federation of Nigeria, 2004.”
I consider the issues raised by the appellant as appropriate to effectually dispose of this appeal.
As stated in the brief of argument appellant argued the three issues together. In summary appellant’s counsel submitted that the learned trial judge failed to consider the facts and circumstances which create reasonable doubt as to the guilt of the appellant in relation to the offences for which he was charged. It was submitted that this court has the power to review the facts and circumstances of this case with a view to ascertaining whether the learned trial judge’s conclusion is perverse and not justified by the evidence. Reliance was placed on Sani Adisa vs. The State (1991) 1 NWLR (Pt. 168) 490. Counsel contended that none of the weapons allegedly utilized in the armed robbery were tendered in court. That PW1 did not list a gun as one of the items recovered during the search in his evidence at page 33 of the record. PW3 in his evidence at page 36 lines 10 -12 of the record did not also include any gun or toy gun in the items recovered. Reference was also made to the testimony of PW4 who said “service pistol” was among the items recovered. Learned counsel submitted that the failure of the prosecution to tender the “service pistol” or gun is fatal to the prosecution’s case as far as the conviction of the 3rd accused is concerned. Reliance was placed on Sani Adisa vs. The State (supra), Nwomukoro vs. The State (1995) 1 NWLR (Pt.352) 432 at 444 paras F. That the prosecution has failed to corroborate, the confessional statements of the 1st accused person sufficiently as regards the use of offensive weapons to warrant such statement being utilized as evidence against the appellant.
Another aspect that cast doubt in the prosecution’s case as identified by counsel is in respect of the items recovered inside the Toyota Starlet car. That the items recovered by PW1, PW2 and PW7 particularly the money was neither tendered nor traced to the appellant as part of the money stolen. See: Onagoruwa vs. The State (1993) 7 NWLR (Pt.303) 91. Learned counsel also argued that there is nothing on record to show that PW2 identified her properties among the items recovered both at the check point and with the 1st accused and that they were actually returned to her but still appellant was convicted of robbing her of jewelries. Counsel further submitted that the real identity and ownership of the goods allegedly recovered in the boot of the Toyota Starlet car in which the 1st, 2nd and 3rd accused/Appellant were travelling together was in doubt, yet the learned trial Judge adjudged the appellant guilty of conspiracy. That the identity of the appellant was not proved beyond reasonable doubt. See:- Christopher Okosi & Anor vs. The State (1989) 1 NWLR (Pt.100) 642, Zekeri Abudu vs. The State (1985) 1 NWLR (Pt.1) 55 at 62 paras D – E and Ndidi vs. The State (2007) 13 NWLR (Pt.1052) 633 at 654 Para C. Counsel argued that PW1, PW3 and PW4 admitted the need for proper identification of the accused persons. Learned counsel urged the court to hold that the purported identification of the appellant which was limited to PW1 only was of no probative value at the point in time. That PW2 did not identify the appellant at all. That PW2’s identification during her testimony is unreliable.
Furthermore, counsel contended that the alibi introduced vide exhibit ‘M’ was not investigated by the police. Counsel submitted that the main issue in the alibi is not when the appellant arrived in Papa Ijoun but where he was in the night of 14/4/03 and the early morning of 15/4/03. It was submitted that without investigating the alibi it cannot be said that the identity of the appellant was proved beyond reasonable doubt. That it is the duty of the police in the interest of fair hearing and justice, to investigate thoroughly the alibi before evidence of it could be placed before the court. Counsel argued that the case of Odu vs. State (2001) 10 NWLR (Pt.722) 668 relied upon by the learned trial Judge to absolve the prosecution from the need to investigate the appellant’s alibi does not apply to this case. That in Odu’s case there was positive evidence which cancels the alibi. Whereas in the instant case there are several contradictions and weakness which raises doubt as to the identity and culpability of the appellant that makes it mandatory for the prosecution to investigate the alibi. See:- Odu vs. The State (supra) page 674 para B. Reliance was also placed on Hausa vs. The State (1994) 6 NWLR (Pt.350) 281 at 302 paras A – E; Wasari Umani vs. The State (1988) 1 NWLR (Pt.70) 274 at 284 para D – G; Benson Ukwunmenyi & Anor vs. The State (1989) 4 NWLR (Pt.114) 131 at 144 Paras G-H; Akpan Ikono vs. The State (1973) 5 SC 231. (Now page 167 in the Reprint) at 184 lines 30 – 39 and The State vs. Edward Obinga & Ors. (1965) NMLR page 172.
Learned counsel further submitted that the learned trial judge placed undue weight on Exhibit ‘N’ which he said if properly construed is not a confessional statement. Counsel also complained that Exhibit ‘N’ was not tendered through any of the witnesses and the person who obtained the statement was not called as a witness to tender same. Counsel submitted that it is clear from all that had been said that the failure to investigate the alibi, consider appropriately the issue of identity and the probative value of exhibit ‘N’ and other circumstances of the case create reasonable doubt as to the guilt of the appellant. It is trite that once there is a reasonable doubt as to the guilt of an accused, a court will resolve such doubt in his favour and discharge him accordingly. See Samodi vs. The State (2007) 12 NWLR (Pt.1049) 639 and Oguntola vs. State (2007) 12 NWLR (Pt.1049) 617. Counsel urged the court to resolve the three issues in favour of the appellant.
In the brief of argument Respondent’s counsel commenced the argument by enumerating the ingredients required to establish the offence of armed robbery beyond reasonable doubt. Reliance was placed on Bolanle vs. State (2005) 7 NWLR (Pt.925) 431 at 541. Counsel commended the evidence of PW1, PW2 and PW3 in proving that there was robbery and the robbery was an armed robbery. In proving that appellant took part in the armed robbery that occurred on 15th April, 2003 counsel also commended the evidence of PW1 and PW2 who were victims as well as the testimony of PW3. It was submitted that PW1 a victim of the robbery gave vivid account of the encounter with the appellant and others in his evidence in chief. PW1 had ample opportunity of seeing his assailant one of whom he identified was the appellant. See page 32 lines 15 – 31 of the record. Counsel was also of the view that the provisions of S.148(a) of the Evidence Act could be invoked since several of the items belonging to the victims of robbery were found in the Toyota Starlet car in which appellant was arrested. See Yongo vs. C.O.P. (1990) 5 NWLR (Pt.148) 103 at 116 – 117 and Aremu vs. State (1991) 7 NWLR (Pt.201) 1 and exhibit ‘L’. That the learned trial Judge was justified in holding that the appellant was one of the armed robbers who robbed PW1 and PW2 on 15/04/2003. Learned counsel submitted that the evidence of PW1, PW2 and PW3 as regards the identification of the Appellant was not challenged under cross-examination.
On the issue of alibi learned counsel submitted that for an accused person to take advantage of the defence of alibi the accused must give a detailed particularization of his whereabout on the crucial day of the offence and such comprehensive information furnished by the accused person must unquestionably be capable of investigation by the police. That appellant did not furnish the particulars of where he was and with whom as rightly held by the trial Judge. That the facts were solely within the knowledge of the appellant and must furnish same to the police during investigation.
As regards exhibit ‘N’ counsel submitted that the learned trial Judge have eight reasons why, he found it more probable than exhibit ‘M’. Counsel contended that the court can convict an accused person based on his confessional statement so long as it was voluntarily made and properly tendered before the court. See Emeka vs. State (2001) 7 NSCQR at 592. It was further argued that appellant never challenged the voluntariness of the statement. He only retracted making same. Counsel submitted that once a confessional statement is proved properly it is sufficient to sustain a conviction even if it was retracted by the maker as in the instance case. Reliance was placed on Hassan vs. State (2001) 7 S.C.N.Q.R. 107 at 119 and Shade vs. State (2005) 1 NWLR (Pt.907) 218 at 248 – 249.
On the allegation of conspiracy learned counsel submitted that the offence can always be inferred from the circumstances of each case. See Erim vs. State (1994) 5 NWLR (Pt. 346) 522 at 538 para E and Nwosu vs. State (2004) 15 NWLR (Pt.897) 486 para F-H. Counsel contended that the learned trial Judge was right to have pointed out at pages 101 lines 23 – 33 of the record that from the evidence adduced by the prosecution, the court can conveniently draw the inference that the accused persons (one of whom was the appellant) conspired to commit the offence of armed robbery. That failure of the prosecution to call the driver of the Toyota Starlet car is not fatal to prosecution’s case as prosecution is not bound to call a host of witnesses when proving its case. Appellant cannot also dictate to the prosecution the particular witness it should call to give evidence. Reliance was placed on Olayinka vs. State (2007) vol. 3, CA 273 at 290.
Learned counsel further contended that the failure of the prosecution to tender the weapons recovered is not fatal to the prosecution’s case. That the learned trial Judge rightly held that there is no principle of law requiring the tendering of weapons of the alleged robbery to establish the guilt of the accused person. See Olayinka vs. State (2007) supra page 283 para C-E.
It was further submitted that what the prosecution is required to establish in proving the ingredients is that there was robbery or series of robbery, that it was an armed robbery and that the appellant was one of those who partook in that robbery. That prosecution is not required to prove that the properties stolen were recovered. That the argument proffered by the appellant is abstract and strange to the criminal law.
It is settled law and therefore trite that for the prosecution to succeed in the proof of the offence of armed robbery against the appellant, the following ingredients must be proved beyond reasonable doubt. The ingredients are:-
(a) that there was a robbery or series of robberies.
(ii) that the robbery or each robbery was an armed Robbery
(iii) that the accused person was one of those who took part in the robbery. See Bozin vs. State (1985) 2 NWLR (Pt. 8) 465 at 469; Aruna vs. The State (1990) 6 NWLR (Pt. 155) 125 at 135; Okosi vs. State (1989) 1 NWLR (Pt.100) 642; Nwachukwu vs. The State (1985) 3 NWLR (Pt.11) 218; Ani vs. State (2003) 11 NWLR (Pt. 830) 142 and Bolanle vs. State (2005) 7 NWLR (Pt.925) 431 at 541.
The testimonies of PW1 and PW2 showed that they were attacked by armed robbers in their house at Ogbonselu Quarters Ayetoro on 15/4/03. It is in evidence that the armed robbers carted away the following items: wrist watch, handset, clothes, rechargeable lantern, video cassette player, sum of N32,000.00, CFA 50,000.00, jewelries and clothes. It is also evident that the robbery was an armed robbery. PW1, PW2 and PW3 narrated in their evidence that the robbers who attacked and robbed them were armed with guns, cutlasses and axe. PW1 stated in evidence at page 32 lines 17-27 of the record as follows:
“They woke me up, pointed a gun at my ear and demanded for money saying they would kill me. The armed robbers were about six, the accused persons were some of them. I told them I had no money in the house. They locked me up in the toilet, later they brought me out and told me that they could not find my money in my house and so they would kill me. I pleaded with them, saying one of my workers, living four houses away had some money with him, I was led there by the armed robbers holding guns, cutlasses and axe—–“.
PW2’s evidence in chief at page 34 lines 24-29 of the record is relevant.
PW2 stated thus:
“I remember 15/4/03. I was attacked in the middle of night by armed robbers. They forced open the door to my flat surrounded my bed holding guns and cutlasses, one of them said Emperor’s wife, we have killed your husband.”
There is no doubt that there was robbery and the robbery was an armed robbery. It is trite law that for an offence to constitute armed robbery the offender must have been armed with either firearms or offensive weapon. PW3 also confirmed the testimony of PW1 that there was robbery and the robbery was an armed robbery.
The third ingredient to be proved is whether appellant was one of those who took part in the armed robbery that occurred on 15th April, 2003 in the house of PW1. PW1 gave a vivid account of the encounter with the appellant and others in his evidence in chief when he said:
“On 15/4/03 at about 1.00a.m I was attacked by armed robbers in my house. They woke me up, pointed gun at my ears and demanded for money, saying they would kill me. The armed robbers were about six, the accused persons were some of them. I told them I had no money in the house. They locked me up in the toilet, later they brought me out and told me that they could not find money in your house and so they would kill me. I pleaded with them, saying one of my workers, living four houses away from my house had some money with him. I was led there by the armed robbers holding guns, cutlasses and axe. My worker’s name is Biodun Otunde (PW3), On getting there, I was instructed to tell him to come out with the money with him. I did and Biodun brought out the money N32,000.00 and CFA 50,000. I took the money from Biodun and handed it over to them.”
Under cross-examination he said:
“I could identify the accused persons because the lights in the house were on. I identified them to the police immediately they alighted the vehicle.”
The evidence of PW2 is also very relevant and material as she stated that the accused persons were the ones who attacked her and that they were not masked. PW2 stated at page 34 of the record thus:-
“The accused persons were the people that attacked me. They were not masked.”
Under cross-examination PW2 stated further that:-
“When the robbers entered my room I was terrified, but I was able to look at their faces the lights were on. They did not ask me to lie face down on my bed. I was on the bed when my wardrobe was forced open. I was looking at the armed robbers surrounding my bed. The wardrobe is in front of my bed.”
PW3 also gave evidence that an identification parade was conducted at the police station and PW1 identified the accused persons one of whom was the appellant as the people that robbed them. PW4 also stated under cross examination that when they reported the incident at the police station, PW1 described the armed robbers. PW1, PW3, PW4 and PW7 confirmed in their testimonies in court that appellant was arrested at the check-point. He was inside the vehicle Toyota Starlet car in which several items belonging to victims of the robbery i.e. PW1 and PW2 were recovered inside the boot of the car. From the available evidence adduced by the prosecution witnesses particularly PW1, PW2 and PW3 it is my considered view that the identification of the appellant as one of those who took part in the robbery cannot be faulted. Their evidence was not challenged under cross-examination. There was electric light, the robbers were not masked and they spent enough time with PW1, PW2 and PW3 which made identification easier.
Appellant’s grouse is that the defence of alibi raised by him was not properly investigated. Alibi as defence simply put, seeks to establish that at all times material to the commission of the offence the accused was nowhere near the locus in quo and ordinarily therefore, he could not be expected to be involved in the physical execution of the criminal offence alleged. The appellant in his statement exhibit ‘m’ stated that on 14/4/03 he slept in one pastor Ashore’s house at Ijoun Ogun State. In his evidence appellant also stated that he was at Ijoun at the time the offence for which he was charged was committed. It is trite that where an accused sets up a defence of alibi at the earliest opportunity, it is the duty of the prosecution to investigate the truth of such alibi. However, the alibi must be unequivocal and must be given during the investigation and not during the hearing of evidence at the trial. See Salami vs. The State (1988) 3 NWLR (Pt. 85) 670. It is not in every case that prosecution must investigate the defence of alibi. Where the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is logically and physically demolished. In Patrick Njovens vs. The State 1973 3-5 SC 17 at 55 the apex court per Coker JSC had this to say:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was there. Even if it is the duty of the prosecution to check on statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished.”
See also Hausa vs. State (1994) 6 NWLR (Pt. 350) 281 at 301 – 302 paras H-B; Odu vs. State (2001) 10 NWLR (Pt. 722) 668 at 673. Ndidi vs. State (2007) 13 NWLR (Pt. 1052) 633; Ukwunnenyi vs. State (1989) 4 NWLR (Pt 114) 131; Adisa vs. State (1997) 1 NWLR (Pt. 168) 491 and Ibrahim vs. State (1991) 4 NWLR (Pt. 186) 399.
In the instant case PW1 and PW2 identified the appellant as one of the armed robbers that robbed them on 15/4/03 because there was electric light and they were not masked. There is evidence to the effect that soon after the robbery appellant and other accused persons were arrested at police check point and some of the items belonging to the victims of the robbery (PW1 and PW2) were recovered inside the boot of the vehicle Toyota Starlet that carried the appellant. The finding of the learned trial judge at page 104 of the record cannot be faulted. The trial judge had this to say:
“In the circumstance of this case where the accused was found in the same vehicle where the items stolen were found, I hold this to be a positive evidence of the accused complicity in the offence and so the police need not investigate his alibi. See Ubor & Anor. vs. The State (1983) SC 1.”
I am of the humble view that prosecution has adduced sufficient cogent evidence linking the appellant with the alleged armed robbery. The failure of the prosecution to investigate defence of alibi is not fatal to the prosecution’s case. Appellant even admitted participating in the alleged armed robbery in his statement to the police which was tendered and admitted in evidence as exhibit “N” without objection from the defence, though appellant retracted same in his evidence. Once a confessional statement is proved to have been made voluntarily, as in this case and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground conviction regardless of the fact that the maker resiled there from or retracted the same completely at the trial, as such retraction does not make it inadmissible or that the court should not act on it. See Egboghonome vs. State (1993) 7 NWLR (Pt. 306) 383, Idowu vs. State (1998) 13 NWLR (Pt. 582) 391; Obisi vs. Chief of Naval Staff (2002) 2 NWLR (Pt.751) 400 at 418 and Shade vs. State (2005) 1 NWLR (Pt. 218) 218.
The Learned trial Judge rightly in my view accepted exhibit ‘N’ being a confessional statement as more credible and probable. From the evidence adduced it is clear that appellant was one of those who took part in the armed robbery.
Appellant’s counsel had contended that the failure of the prosecution to tender the “Service Pistol” or gun is fatal to the prosecution’s case. Having regard to the facts and circumstances of this case, it is my considered view that the trial Judge rightly concluded that the failure of the prosecution to tender the weapons is not fatal to the prosecution’s case. The finding of the learned trial Judge at page 102 of the record is as follows:-
“I do not think there is any principle of law requiring the tendering of the weapon of the alleged robbery to establish the guilt of the accused person. Whether or not the prosecution needed to have tendered the weapons with which the accused allegedly committed the robbery depends by and large on the character and circumstances of the case. On the issue of the weapons of the alleged robbery, prosecution witnesses 1, 3, 4 and 7 testified that when the vehicle in which the accused persons were travelling was searched a toy gun was recovered. Also there is evidence that shot gun was found with the 1st accused person. The victims of the robbery prosecution witnesses 1 and 2 testified that those who robbed them were armed with guns, cutlasses and axe. It seems to me that with the circumstances under which the accused persons were arrested the weapons used need not be produced.”
In Olayinka vs. State (2007) 9 NWLR (Pt. 1040) 561 at 574 the apex Court per Tabai JSC had this to say:-
“With respect to the submission of the appellant about the failure of the prosecution to tender the weapons of the alleged robbery and its effect on the prosecution I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person. Whether or not the prosecution needed to tender the weapons with which the appellant allegedly committed robbery depends, by and large, on the character and circumstances of the case.”
Once there is cogent reliable and authentic oral evidence which the court believes and admits failure to tender the weapons employed in the robbery cannot be prejudicial to the prosecution. See Gbadamosi vs. State (1991) 6 NWLR (Pt. 196) 182.
As rightly pointed out by the trial Judge the victims of the robbery i.e PW1 and PW2 clearly stated that the robbers were armed with guns, cutlasses and axe. The mere fact that the prosecution failed to tender in evidence the “service Pistol” recovered from the 1st accused is not in my humble view fatal to the prosecution’s case. Every case has to be treated according to its given set of facts and circumstances.
The law is that the prosecution always has a duty to prove its case beyond reasonable doubt to secure conviction. It is my view therefore that prosecution had duly proved the charge of armed robbery against the appellant.
I now consider the charge of conspiracy. Whether, prosecution has proved same beyond reasonable doubt. Conspiracy simply means the meeting of the minds to carry out a lawful purpose in an unlawful way. In effect the meeting of the two or more minds is to commit an offence. In law it takes at least two minds to meet and the two minds must really meet with a common intention and common purpose. The ordinary meeting of the minds does not fuel the offence of conspiracy without the corresponding or associated element of crime commission. Therefore in a charge of conspiracy, the prosecution has the burden to prove not only the inchoate or rudimentary nature of the offence but also meeting of at least two criminal minds with a common intention and purpose to commit a particular offence or offences. And in the relevant offence of armed robbery and conspiracy to rob, the burden is on the prosecution to prove that conspiracy. See Iyaro vs. The State (1988) 1 NWLR (Pt. 69) 256.
The law is trite that for the purposes of convicting on conspiracy, direct and distinct evidence though most desirable is not invariably indispensable. It is open to the trial judge to infer conspiracy from the fact of doing things towards a common and by the execution of a planned and premeditated common intention and common purpose. This is because the crime of conspiracy is usually hatched with utmost secrecy and the law leads direct and distinct evidence. See Nwosu vs. State (2004) 15 NWLR (Pt. 897) 466; Oduneye vs. State (2001) 2 NWLR (Pt. 697) 311 and Obiakor vs. State (2002) 10 NWLR (Pt. 776) 612.
I have stated the principles let me now consider the factual position. It is clear from the confessional statement of the 1st accused exhibit A and 3rd accused/appellant’s statement exhibit ‘N’ that the offence of conspiracy was committed. In exhibit ‘N’ appellant admitted he was in company of the accused on the date of the incident. He only claimed that he did not follow them to the house where they robbed the victims (PW1 and PW2). Apart from this piece of evidence, there is evidence adduced by the prosecution witnesses to the effect that 2nd and 3rd accused persons were arrested with a vehicle in which some of the stolen items were found. While the 1st accused who escaped from the check point, was later arrested with some of the stolen items. Appellant and 2nd accused were arrested soon after the robbery incident. PW1 victim of the robbery identified the recovered items as his own. It could be inferred from the circumstances that appellant and other accused persons conspired to commit the offence of armed robbery. Appellant was also identified during the identification parade. The trial judge was right to have pointed out at page 101 lines 23-33 of the record that from the evidence adduced by the prosecution, the court can conveniently draw the inference that the accused person (one of whom was the appellant) conspired to commit the offence of armed robbery. As earlier stated several of the items belonging to the victims of the robbery were found in Toyota starlet car that carried the appellant and other accused persons. Respondent’s counsel had urged the court to invoke S.149(a) of the Evidence Act as amended in order to raise the presumption that appellant stole the goods. In other words, appellant was one of robbers who robbed PW1 and PW2 on the fateful day. From the circumstances of the case I seem to agree with respondent’s counsel that the provisions of S.149(a) of the Evidence Act as amended can also be invoked. Where an accused person is found in possession of a recently stolen article the doctrine of recent possession within section 149(a) of the Evidence Act would apply. The trial court would rightly presume that the accused was either the thief who stole the items recovered or he has received the items knowing same to be stolen unless he could account for his possession of the stolen items. See Salami vs. The State (1988) 3 NWLR (Pt. 85) 670; Yonao vs. C.O.P (1990) 5 NWLR (Pt. 148) 103 at 116 – 117 and Aremu vs. State (1991) 7 NWLR (Pt. 201) 1.
In considering the question whether or not possession is recent, regard is to be taken of the nature of the property stolen as well as the course of human conduct in relation to the facts of the particular case. See The State vs. Aiyeola (1969) 1 All NLR 303 and Omogodo vs. The State (1981) 5 SC 5.
What constitutes “recent possession”‘ is a matter of fact which can only be deduced from the circumstances of the case. In the final analysis, the court has to consider the evidence of the accused person whether he has been able to explain away how he came about the stolen goods. In the instant case the explanation of the appellant that he did not participate in the armed robbery was rejected by the trial court. As earlier stated PW1 identified the items recovered inside the vehicle that was stopped at the check point and same were released on bond to PW1 as evidenced by Exhibit L.
As regards the complaint of the appellant that prosecution did not call the driver of the vehicle i.e Toyota starlet car which carried him and other armed robbers, it is trite that prosecution is not bound to call host of witnesses in order to prove its case. See Hausa vs. State (supra) Adeje vs. State (1979) 6-9 SC 18; Aliyu vs. State (1988) 1 NWLR (Pt. 68) 1; Opayemi vs. State (1985) 2 NWLR (Pt. 5) 101 and Nwomukoro vs. State (1995) 1 NWLR (Pt. 372) 432 at 448. Prosecution is also not obliged to call any particular witness even though the witness is very important. It is my humble view that the failure of the prosecution to call the driver of the vehicle is not fatal to the prosecutions’ case. Appellant was at liberty to call him as his witness. The witnesses called by the prosecution gave cogent and credible evidence which the trial court believed. I have no cause to interfere with the findings of the trial court. There is nothing on record to show that the findings of the trial court are erroneous or perverse.
From the evidence led at the trial, the respondent was able to prove beyond reasonable doubt the essential ingredients of the offences of armed robbery and conspiracy to commit armed robbery.
In the light of all I have said, I hold that this appeal is devoid of merit. It is accordingly dismissed. I affirm the conviction and sentence passed by Dipeolu J. of the High Court of Justice Ogun State on 31st October, 2008, in charge No. HCL/3c/2004.
MODUPE FASANMI, J.C.A.: I am in agreement with the judgment prepared by my learned brother Mshelia J.C.A., which I had the privilege of reading in advance.
The appeal is unmeritorious and it is accordingly dismissed by me, I abide by the consequential orders contained in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment just delivered by my learned brother, Mshelia, J.C.A, I also hold that the appeal is devoid of merit and is hereby dismissed accordingly.
Appearances
J. A Badejo with A. K Sanni Esq. For Appellant
AND
J. K. Omotosho Deputy Director Public Prosecution Ogun State Ministry of Justice with W. A. Onawole (SC) State Counsel and O. A. Fadeyi (SC) State Counsel For Respondent
