BABATUNDE v. STATE
(2022)LCN/16333(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, July 19, 2022
CA/IB/460C/2018
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
EZEKIEL BABATUNDE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON AN INVOLUNTARY CONFESSIONAL STATEMENT
It is perhaps necessary to emphasize that it is not a rule of our Criminal Procedure Law and the law of evidence that where in the course of recording the statement of an accused person, a police officer asks questions and records the answers by the accused therein, the statement automatically becomes involuntary and thus inadmissible in law. That was not the principle upon which Namsoh’s case was decided by this Court. A careful look at the Namsoh’s case
A shows that the specially prepared questions were oppressive of the accused in the sense that they were meant to sap and indeed sapped the free will of the accused person and thus rendered his ensuing statement involuntary. It is my firm view and I hold with respect, the Namsoh v. State (supra) is quite distinguishable from
B this case and was therefore wrongly applied by the Court below. The mere assertion by the PW1 that in the course of recording the statements of the respondent he asked questions and recorded the answers does not ipso facto render the statements involuntary. An alleged confessional statement made by an accused person to the
C police only become objectionable and inadmissible in evidence in a criminal proceeding, if the making of the confession is proved to have been prompted by any inducement, threat or promise by the police and sufficient to give the accused person the impression that by making it he would gain an advantage or avoid an evil.”
(Underlining mine, for the sake of emphasis). PER ADUMEIN, J.C.A.
THE DOCTRINE OF RECENT POSSESSION
This Court, in the case of Monday Udoh & Anor v. The State (1993) 5 NWLR (Pt. 295) 556 at 568, per Nike Tobi, JCA (as he then was) dealt extensively on the doctrine of recent possession, under the Evidence Act, by stating as follows:
“Section 149(a) of the Evidence Act, Cap112 Laws of the Federation of Nigeria, 1990 provides in general, the English common law principle of doctrine of recent possession. Although the learned trial Judge did not specifically invoke the provision, counsel on both sides, particularly, the learned D.P.P., dealt with the principle in some detail. Section 149(a), which is a rebuttable presumption, is not one of law but one of fact to be determined in the light of the circumstances of each case, especially the time lag between the period when the offence was committed and when the stolen goods were found on the accused.
For Section 149(a) to apply, there must be evidence that (i) the accused was found in possession of some goods; (ii) the goods were recently stolen; and (iii) the accused failed to give a satisfactory account of his possession of the goods.”
See also the cases of Kwashie v. R. 13 WACA 86; Evarist Eze v. The State (1985) 3 NWLR (Pt. 13) 429 and Mafutau Aremu & Anor. v. The State (1991) 7 NWLR (Pt. 201) 1.
In the case of Anthony Isibor v. The State (2002) 4 NWLR (Pt. 758) 741 at 766, per Ejiwunmi, JSC; the Supreme Court relied on the cases of R. V. Loughlim 35 CR App. 69; In Re: Karimu Atanda v. The State (1983) 6 SC 1 and Isiaka Ayinde Oseni v. The State (1984) 11 SC 44 and held that:
“It is no doubt that law that if a person is found in possession of a property, which was the property reported to have been recently stolen, with or without violence from another person, it is open for a trial Court to convict that person of the theft.” PER ADUMEIN, J.C.A.
WAYS OF PROVING THE CRIME OF AN ACCUSED PERSON
The law is now very settled that there are three judicially recognized ways of proving a crime or an offence and they are:
i. by the direct evidence of eyewitness or eyewitnesses; or
ii. by the confession of the defendant; or
iii. by circumstantial evidence.
See Iheanyighichi Apugo v. The State (2006) 15 NWLR (Pt. 1002) 227; Ime David Idiok v. State (2008) 13 NWLR (Pt. 1104) 225; Uzoma Okereke v. The State (2016) 5 NWLR (Pt. 1504) 96; Adebiyi Famakinwa v. The State (2016) 11 NWLR (Pt. 1524) 538; Fsonu Chukwunyere v. State (2018) 9 NWLR (Pt. 1624) 249; Adegbeyiro Seun v. The State (2019) 8 NWLR (Pt. 1673) 144; The State v. Emmanuel Gbahabo & 2 Ors. (2019) 14 NWLR (Pt. 1693) 522 and Iorliam Iorapuu v. The State (2020) 1 NWLR (Pt. 1706) 391. PER ADUMEIN, J.C.A.
ESTABLISHING THE OFFENCE OF CONSPIRACY
In the case of The State v. Olashehu Salawu (2011) 8 NWLR (Pt. 1279) 580 at 614, per Ibrahim Tanko Muhammad, JSC (as he then was), the Supreme Court comprehensively stated how the offence of conspiracy can be proved by holding as follows:
“In order to establish that conspiracy has been committed by some set or group of persons suspected to have committed a crime/crimes, the law requires the prosecution to prove that:
a) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but by illegal means.
b) Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
c) Specifically that each of the accused individually participated in the conspiracy.”
The above ingredients of the offence of conspiracy can be proved beyond reasonable doubt by circumstantial evidence, because the agreement to do an illegal act or a legal act by unlawful means can be inferred from the circumstances of the case. See Ezekiel Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 519. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant and his co-defendants were, by charge No. AB/4R/2017, arraigned, before the High Court of Ogun State, holden at Abeokuta, and charged with the following offences:
“COUNT I: STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act Cap. R.11 Laws of Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
MOSES AUSTINE, EZEKIEL BABATUNDE, WAHAB GANIYU, OLOWOBESE AKANNI, DOSUNMU ODUNAYO and others now at large on or about 6th day of June, 2014 at Redeemed Street, Federal Housing Estate, Olomore, in Abeokuta Judicial Division conspired to commit armed Robbery.
COUNT II: STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act Cap. R.11. Laws of Federation of Nigeria, 2014.
PARTICULARS OF OFFENCE
MOSES AUSTINE, EZEKIEL BABATUNDE, WAHAB GANIYU, OLOWOBESE AKANNI, DOSUNMU ODUNAYO and others now at large on or about 6th of June, 2014 at Redeemed Street, Federal Housing Estate, Olomore, in Abeokuta Judicial Division while armed with guns and cutlass robbed Adamo Lukumon of his valuables including four handsets (2 Nokia, Samsung Galaxy, Techno D1) the sum of N103,000.00 (One hundred and three thousand Naira only) and other items.”
Upon the plea of not guilty of each of the defendants, the prosecution opened and closed its case, after calling some witnesses and tendering exhibits. At the close of the prosecution, two of the defendants were discharged and acquitted by the trial Court.
The above charge was later amended to be as follows:
“COUNT I: STATEMENT OF OFFENCE
CONSPIRACY OF COMMIT ARMED ROBBERY, Contrary to Section 6(b) and punishable under 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
MOSES AUSTINE, EZEKIEL BABATUNDE (M) and others now at large on or about 6th of June, 2014 at Redeemed Street, Federal Housing Estate, Olomore, in Abeokuta Judicial Division conspired together to commit a felony to wit Armed Robbery.
“COUNT II: STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act. Cap R.11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
MOSES AUSTINE, EZEKIEL BABATUNDE, (M) and others now at large on or about 6th of June, 2014 at Redeemed Street, Federal Housing Estate, Olomore, in Abeokuta Judicial Division while armed with guns and cutlass robbed Adamo Lukumon of his valuables including four handsets (2 Nokia, Samsung Galaxy, Techno D1) the sum of N103,000.00 (One hundred and three thousand Naira only) and other items.”
The appellant and his co-defendant pleaded not guilty to the amended charge. Each of the appellants and his co-defendant testified in his defence. At the close of evidence and after taking the final addresses of the learned counsel for the respective parties, the trial Court delivered a reserved judgment on the 30th day of August, 2018 whereby the appellant and his co-defendant were each found guilty, convicted and sentenced to death for the offences of armed robbery and conspiracy to commit armed robbery.
The appeal is against the said decision and it was heard on:-
(i) amended notice of appeal filed 19/12/2018 but deemed as filed on 28/05/2020;
(ii) appellant’s filed on 07/09/2020 and deemed as properly filed on 26/01/2022;
(iii) appellant’s reply brief filed on 16/06/2020 but also deemed as filed on 26/01/2022.
Dr. Yemi Oke, learned counsel who settled the appellant’s brief, put forward the following three issues for determination:
“ISSUE (1)
Whether the prosecution established the three ingredients of armed robbery beyond reasonable doubt to warrant the conviction of the Appellant? (Distilled from Ground 1)
ISSUE TWO:
Whether the uncorroborated evidence of PW1 is sufficient to convict the Appellant? (Distilled from Ground 3)
ISSUE THREE:
Whether the trial Court was right when it relied on the confessional statement of the Appellant in convicting the Appellant when the said confessional statement was a mere question and answer and not attested by a superior officer? (Distilled from Ground 2)”
On behalf of the respondent, Mrs. Abimbola O. Akisanya (Chief State Counsel, Ogun State Ministry of Justice) raised two issues for determination as follows:
“(a) whether the allegation of conspiracy to commit armed robbery and armed robbery brought against the Appellant were proved beyond all reasonable doubt so as to justify the conviction of the appellant by the trial Court?
(b) whether the trial Court rightly admitted and relied on the confessional statement having regard to the circumstances of the case.”
I have read the amended notice of appeal and I am of the view that the three issues identified by the learned counsel for the appellant cover all his grounds of appeal. However, the two issues formulated by the learned counsel for the respondent cover all the three issues articulated by the appellant. The two issues distilled by the respondent can still be streamlined into a sole issue thus:
Whether or not, having regard to the totality of evidence adduced by the prosecution, the offences of conspiracy to commit armed robbery and armed robbery were proved beyond reasonable doubt.
The learned counsel for the appellant referred the Court to the cases of Ikaria v. State (2012) SCNJ 325 and Arowojolu v. State (2016) LPELR–40156 (CA) on the ingredients that the prosecution must prove beyond reasonable doubt, in order to establish the offence of armed robbery.
Counsel contended amongst other things that:-
“(i) there is no element of doubt as to if truly there was a robbery incident on 6th June, 2014 at Redeemed Street, Federal Housing Estate, Abeokuta”;
“(ii) the only evidence before the Court to show that robbery was committed is the evidence of PW1” who testified that he was robbed on 06/06/2014 and he thereafter made a report at Lafenwa Police Station;
(iii) however, PW3, who testified as one of those who investigated the case, did not tender any report thereof nor the complaint of PW1 and “this leaves a doubt as to whether an armed robbery actually took place on the 6th, 2018” (sic)”
Learned counsel submitted that “the failure of the prosecution to produce the report of the complainant about the robbery incident and the detailed report of the IPO … was fatal to the case of the prosecution as it is material evidence in this regard in proving that a robbery occurred on that day”. In support of this submission, learned counsel referred the Court to the case of The State v. Anibijuwon & Ors. (2011) LPELR–8804 (CA). On the meaning of material evidence, learned counsel referred the Court to the case of Adeniken v. State (2012) LPELR–8433 (CA).
Learned counsel contended that from the evidence of PW1, there was no evidence that the appellant was among the alleged robbers or was armed; that since the alleged robbers allegedly covered their faces, PW1 could not identify any of them, especially as PW1 admitted that he was lying down. Counsel then contended as follows:
“On the 3rd ingredient that must be established beyond reasonable doubt for the Court to reach that undoubtable conclusion that the Appellant is guilty of armed robbery is; that the appellant was among the people that took part in the robbery. My Lords, it is pertinent to point out that the only evidence before the Court upon which the prosecution linked the appellant to the crime was the T-shirt that PW1 saw the appellant wearing when he was arrested by the Police which he claimed was allegedly stolen on the day of robbery however, the inventory of things stolen from him before the day was not tendered in Court to show that the T-shirt was his. Under cross-examination PW1 stated thus; “the T-shirt was not customized for me, the T-shirt was not the only one in the market as at when I bought”. We refer my Lords to page 46 of the record of Appeal. We therefore submit that the mere fact that PW1 saw the T-shirt on the appellant does not make the T-shirt to be that of PW1 that was stolen.
Therefore the identification of the Appellant by PW1 on via T-shirt is not a positive and proper way of identification of the Appellant person as to among those that took part in the alleged robbery of 6th June, 2014. For purposes of emphasis, PW1 under cross-examination led evidence that when the SARS officers came to his area he could not identify any of them specifically as part of all those who came to rob him on the 6th June, 2014 save for the T-shirt. We refer my Lord to pages 46 of the record of Appeal.”
It was argued that since identification parade was necessary, it should have been conducted. In support of this, counsel cited the cases Edet v. State (2014) LPELR–23124 (CA); Tajudeen Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 and Otti v. The State (1993) LPELR–2826.
Learned counsel for the appellant cited the cases of Mohammed v. Kano State (2018) LPELR–43913 (SC); Akpan v. State (2014) LPELR–22741 (CA); Olasore & Anor. v. Ajibolade & Anor. (2011) LPELR–8953 (CA); Iko v. State (2001) 14 NWLR (Pt. 732) 240 and State v. Azeez (2008) LPELR–3215 (SC) on the meaning and essence of corroboration. Counsel contended that in view of the fact the only direct evidence was that of PW9, that he was robbed on the 6th day of June, 2014 the evidence “ought to be corroborated by independent evidence”. Learned counsel argued that:
“… The evidence of PW2 and PW3 under examination-in-chief did not corroborate with PW1 evidence that an offence was committed on 6th June, 2014. Their evidence related to another incident of 13th June, 2014 which to a critical mind would wonder why they were not charged as they were allegedly caught in the act rather for another incident that they did not investigate. Therefore the evidence of PW2 and PW3 did not corroborate the alleged armed robbery that took place on the 6th June, 2014 for which the appellant was charged. They solely relied on the identification of the appellant by PW1 via a T-shirt.”
On the appellant’s alleged confessional statement, learned counsel relied on the case of Manshep Namsoh v. The State (1993) 6 SCNJ (Pt. 1) 55 at 57 and submitted as follows:
“It is a misrepresentation of facts by PW3 to have testified before the Court that the Appellant made a confessional statement based on the question put through him. The confessional statement ought to be statement written by the accused person, administered with caution and attested by a superior officer. The prosecution not having gotten the statement of the Appellant according to the requirement of the law and the Appellant vehemently denying making same, the Court ought not to rely on it in convicting the Appellant.”
In urging the Court to resolve the live issue in this appeal in favour of the appellant, Dr. Yemi Oke, urged that “the confessional statement of the appellant ought to be disregarded in the circumstance and the Court ought not to have relied upon it in convicting the appellant.”
In response, learned counsel for the respondent referred the Court to the case of Osuagwu v. The State (2013) LPELR–19823 (SC) on the ingredients of the offence of armed robbery.
Relying on the case of Jimoh v. State (2018) LPELR–44074, learned counsel re-echoed the settled principle of law that “there are three ways of proving the commission of a crime” and submitted that apart from the evidence of PW1 – the victim and eyewitness, “there is a strong circumstantial evidence which is found in the doctrine of recent possession”. Counsel then stated inter alia, as follows:
“The Appellant was arrested by the police on the 14th June, 2014 at Oja-Odan, Ogun State while on his way with other members of his robbery gang to commit a separate robbery. Following Police in investigation, a search warrant (Exhibit 4) was executed in the Appellant’s house and properties which PW1 identified as items stolen from him, which included a black t-shirt (exhibit 3). Samsung Galaxy phone, PW1’s complete window blinds were found in the house of the Appellant.
The Appellant in the course of Police investigation took the Police to the house of the 1st Accused person (his gang member) where PW1 who heard that Police brought someone to the neighborhood, moved close, saw and identified his robbed. T-shirt which was worn by the Appellant. Both the Appellant and his co-accused confessed to being members of the robbery gang that attacked and robbed PW1 and his family on the 6th June, 2014.
It is trite that if shortly after a robbery, the stolen items are found in possession of one who is not able to give a reasonable explanation of how the items came into his possession, such a person is either the thief, or has received the items, knowing them to have been stolen.”
In support of the last leg of her above submissions, learned counsel relied on the case of Isibor v. State (2002) 4 NWLR (Pt. 758) 741.
After undertaking a comprehensive analysis of the evidence on record, Mrs. Abimbola A. Akisanya, contended that the crimes alleged against the appellant were proved beyond reasonable doubt by direct evidence of an eyewitness and the appellant’s confession. Learned counsel urged the Court to resolve the issue against the appellant.
The trial Court, found and held in its judgment, inter alia, as follows:
“I have read the contents of exhibit 5 and 6 – alleged confessional statements of the 1st and 2nd accused persons respectively. In them, each of them clearly and expressly admitted the commission of the crime. 1st accused stated that he was the one who supplied the information for the robbery to the 2nd accused and other gang members. He lived next door to the victim and led them to the operation. They admitted robbing with arms. They also itemized the things stolen by them from their victim, same with the 2nd accused.
I find the contents of the statements well corroborated by the evidence of PW1 and PW3. The items recovered from the 2nd accused which have been proved to belong to the victim, show that the confessions are true. As far as can be tested by the evidence before the Court, I am convinced that the contents of the statements are true. There is also no doubt that the accused persons had the opportunity to commit the crime, given that 1st accused lived next door to PW1, and had sufficient information about him to aid the robbery. The confessions are therefore possible and very consistent with the other facts in the case. Police investigation resulting in the 2nd accused taking the Police to the house of 1st accused, next door to the house of the victim – PW1, and the recovery of the stolen items from 2nd accused, so closely correlate with the contents of exhibits 5 and 6 that my irresistible conclusion is that the contents are true and freely made. Indeed the evidence is such that even without the confessions, it is sufficient to sustain the guilt of the accused persons.”
It is very instructive to note that the above specific findings of facts were not specifically attacked nor appealed against by the appellant. The law is now settled that findings not appealed against should be deemed to be correct and accepted. See Madam Adunola Adejumo & 2 Ors. v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors. (2018) 10 NWLR (Pt. 1627) 320.
In his extra-judicial statement – exhibit “6” the appellant made far-reaching confessions and, with particular reference to this case, he stated as follows:
“On 6th of June 2014 at about 0100hrs Moses Austine brought an information about a man that was selling bear beside his house and five of us excluding Odunayo Dosunmu ‘M’, he was sick he could not partake that day, we entered into the house and men and man with the people in the house, I baided them with the said gun while Austine Moses ‘M’ where mask to covered his face. We tied with their cloth and lied them down and asked them to face ground, we open their freeze drank bear, and I urinate in one of the people rug, while I hold my gun. We stole sum of N30,000.00, two phones, with some shoes. Austine Moses ‘M’ was the one that brought the job. One Akanni Olowobses ‘M’ was the one that brought all the job we did at Oja-Odan axis. We did all our operation in the midnight. Out of the phone I stole at Olomore Estate Redeem Street Abeokuta beside Moses Austine I was using one Samsung handset with two cloth and some shoes, while Ganiyu Wahab ‘M’ alias “Galoki” was using one phone.”
The learned counsel for the appellant contended that since the appellant’s confession was based on “the question put through him”, the Court ought not to rely on it. I think that this argument has no foundation in our criminal law jurisprudence or legal system, because the mere fact that questions are put to a suspect, by the Police, in the course of recording or taking his extra-judicial statement, such a statement if confessional is not automatically rendered inadmissible on the ground only that questions were directly asked by the Police. This point was clearly made by the Supreme Court in The State v. Jimoh Salawu (2011) 18 NWLR (Pt. 1279) 883 where the case of Manshep Namsoh v. The State (supra); (1993) 5 NWLR (Pt. 292) 129, heavily relied upon by the appellant, was explained and distinguished from other cases, such as this. In The State v. Jimoh Salawu (supra) at 908–909, per Francis Fedode Tabai, JSC; the Supreme Court elaborately state as follows:
“From the above text, there is one clear striking feature in the Namsoh’s case. It is that the police Sgt (PW7) who recorded the statement of the accused person was armed with a sheet of paper which contained selected questions already prepared by his superiors and designed to excite from him self-implicating answers. It was the view of this Court therefore that the alleged statement of the accused person made up of the answers to such specially prepared questions could not be said to be free and voluntary.
That situation does not exist in this case, Unlike the Namsoh’s case, there is in this case no evidence of the specific questions asked by the PW1, in response to which the admissions in exhibits “1”, “2” and “3” were made. Nor was there evidence that the facts constituting the admissions in the said statements were prompted by questions from the PW1.
It is perhaps necessary to emphasize that it is not a rule of our Criminal Procedure Law and the law of evidence that where in the course of recording the statement of an accused person, a police officer asks questions and records the answers by the accused therein, the statement automatically becomes involuntary and thus inadmissible in law. That was not the principle upon which Namsoh’s case was decided by this Court. A careful look at the Namsoh’s case
A shows that the specially prepared questions were oppressive of the accused in the sense that they were meant to sap and indeed sapped the free will of the accused person and thus rendered his ensuing statement involuntary. It is my firm view and I hold with respect, the Namsoh v. State (supra) is quite distinguishable from
B this case and was therefore wrongly applied by the Court below. The mere assertion by the PW1 that in the course of recording the statements of the respondent he asked questions and recorded the answers does not ipso facto render the statements involuntary. An alleged confessional statement made by an accused person to the
C police only become objectionable and inadmissible in evidence in a criminal proceeding, if the making of the confession is proved to have been prompted by any inducement, threat or promise by the police and sufficient to give the accused person the impression that by making it he would gain an advantage or avoid an evil.”
(Underlining mine, for the sake of emphasis).
Just like the case of The State v. Jimoh Salawu (supra), the appellant has not stated, and there is no evidence on record, the specific questions put to the appellant before he volunteered his confession. The case Manshep Namsoh v. The State (supra) is, therefore, inapplicable to the facts and circumstances of this case.
In any case, the appellant was found to be in possession of some of the items – Samsung handset, clothes including a T-shirt and shoes stolen from the victim – PW1. Apart from the confession in exhibit “6”, the appellant failed to give any explanation or satisfactory explanation on how he came to be in possession of the items recently stolen from PW1.
This Court, in the case of Monday Udoh & Anor v. The State (1993) 5 NWLR (Pt. 295) 556 at 568, per Nike Tobi, JCA (as he then was) dealt extensively on the doctrine of recent possession, under the Evidence Act, by stating as follows:
“Section 149(a) of the Evidence Act, Cap112 Laws of the Federation of Nigeria, 1990 provides in general, the English common law principle of doctrine of recent possession. Although the learned trial Judge did not specifically invoke the provision, counsel on both sides, particularly, the learned D.P.P., dealt with the principle in some detail. Section 149(a), which is a rebuttable presumption, is not one of law but one of fact to be determined in the light of the circumstances of each case, especially the time lag between the period when the offence was committed and when the stolen goods were found on the accused.
For Section 149(a) to apply, there must be evidence that (i) the accused was found in possession of some goods; (ii) the goods were recently stolen; and (iii) the accused failed to give a satisfactory account of his possession of the goods.”
See also the cases of Kwashie v. R. 13 WACA 86; Evarist Eze v. The State (1985) 3 NWLR (Pt. 13) 429 and Mafutau Aremu & Anor. v. The State (1991) 7 NWLR (Pt. 201) 1.
In the case of Anthony Isibor v. The State (2002) 4 NWLR (Pt. 758) 741 at 766, per Ejiwunmi, JSC; the Supreme Court relied on the cases of R. V. Loughlim 35 CR App. 69; In Re: Karimu Atanda v. The State (1983) 6 SC 1 and Isiaka Ayinde Oseni v. The State (1984) 11 SC 44 and held that:
“It is no doubt that law that if a person is found in possession of a property, which was the property reported to have been recently stolen, with or without violence from another person, it is open for a trial Court to convict that person of the theft.”
In this case, the appellants’ confession, his recent possession of stolen property and the direct evidence of the victim of the crime – PW1 conclusively proved the offence of armed robbery for which he was arraigned and tried by the trial Court.
The ingredients of the offence of armed robbery, which the prosecution is enjoined to prove beyond reasonable doubt, are that:
(a) there was a robbery;
(b) the defendant committed the robbery; and
(c) immediately before or after the robbery, the defendant used or threatened to use personal violence to any person.
See the cases of Bozin v. State (1985) 2 NWLR (Pt. 8) 465; Alabi v. State (1993) 7 NWLR (Pt. 307) 511; Bello v. State (2007) 10 NWLR (Pt. 1043) 564; Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 and Stephen John & Anor. v. The State (2011) 18 NWLR (Pt. 1279) 353.
In this case, all the elements of the offence of armed robbery were proved beyond reasonable doubt by the evidence of PW1 and the appellant’s confession in exhibit “6”.
The law is now very settled that there are three judicially recognized ways of proving a crime or an offence and they are:
i. by the direct evidence of eyewitness or eyewitnesses; or
ii. by the confession of the defendant; or
iii. by circumstantial evidence.
See Iheanyighichi Apugo v. The State (2006) 15 NWLR (Pt. 1002) 227; Ime David Idiok v. State (2008) 13 NWLR (Pt. 1104) 225; Uzoma Okereke v. The State (2016) 5 NWLR (Pt. 1504) 96; Adebiyi Famakinwa v. The State (2016) 11 NWLR (Pt. 1524) 538; Fsonu Chukwunyere v. State (2018) 9 NWLR (Pt. 1624) 249; Adegbeyiro Seun v. The State (2019) 8 NWLR (Pt. 1673) 144; The State v. Emmanuel Gbahabo & 2 Ors. (2019) 14 NWLR (Pt. 1693) 522 and Iorliam Iorapuu v. The State (2020) 1 NWLR (Pt. 1706) 391.
The learned counsel submitted that the prosecution ought to have carried out an identification parade since the victim – PW1 said that the robbers were covering their faces and he (the victim) was lying with his face down. I do not agree that identification parade was necessary in this case, where there was overwhelming evidence that the appellant was one of the persons who robbed the victim – PW1.
The law is settled that the main aim or purpose of carrying out an identification parade is to prove that the defendant is the person or one of the persons who committed the offence with which he is charged. Therefore, an identification parade is not necessary where there is sufficient evidence establishing that the defendant, as a suspect, committed the offence levelled against him. See The State v. Olashehu Salawu (2011) 8 NWLR (Pt. 1279) 580 at 621, per Adekeye, JSC; Luqman Kushimo v. The State (2021) 16 NWLR (Pt. 1801) 147 at 173, per Saulawa, JSC; Momoh Jimoh Salau v. The State (2019) 16 NWLR (Pt. 1699) 399 at 415, per Okoro, JSC and Mosunmola Kolawole v. The State (2021) 17 NWLR (Pt. 1804) 177 at 191, per Ogunwumiju, JSC.
Having regard to the facts and circumstances of this case, identification parade was unnecessary to establish whether or not the appellant, then a suspect, was one of those who committed the alleged armed robbery on or about the 6th day of June, 2014 at Redeemed Street, Federal Housing Estate, Olomore, Abeokuta, Ogun State.
In the case of The State v. Olashehu Salawu (2011) 8 NWLR (Pt. 1279) 580 at 614, per Ibrahim Tanko Muhammad, JSC (as he then was), the Supreme Court comprehensively stated how the offence of conspiracy can be proved by holding as follows:
“In order to establish that conspiracy has been committed by some set or group of persons suspected to have committed a crime/crimes, the law requires the prosecution to prove that:
a) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but by illegal means.
b) Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
c) Specifically that each of the accused individually participated in the conspiracy.”
The above ingredients of the offence of conspiracy can be proved beyond reasonable doubt by circumstantial evidence, because the agreement to do an illegal act or a legal act by unlawful means can be inferred from the circumstances of the case. See Ezekiel Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 519.
In this case, apart from the appellant’s confession in exhibit “6”, the agreement between the appellant and his co-defendant to commit armed robbery could be inferred from the facts and circumstances of the case, especially as they actually robbed the victim – PW1 while armed with guns and cutlass.
Without further ado, the live issue in this appeal is hereby resolved against the appellant.
This appeal is bereft of any merit and it is hereby dismissed.
The judgment of the trial Court, per Hon. Justice Abiodun A. Akinyemi; delivered on the 30th day of August, 2018 in Suit No. AB/4R/2017, is hereby affirmed.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance, the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment. To add my voice, it is not in every case that identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. ARCHIBONG VS THE STATE (2004) 1 NWLR PT 855 PG 488, ALADU VS STATE (1998) 8 NWLR PT 563 PG 618 IGBI VS STATE (2000) 2 SC PG 67. Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused like in this case, a parade is not necessary. Recognition of an accused may be more reliable than identification parade. See EYISI VS THE STATE (2001) 8 WRN PG 1 and UMAR V. STATE (2020) LPELR-51372(CA).
I, therefore adopt the reasoning in the judgment of my learned brother as mine and abide by the orders made therein.
FOLASADE AYODEJI OJO, J.C.A.: I was privileged to have read the draft of the leading judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA. He has meticulously dealt with the germane issue in this appeal. I will only make brief comments in support of his conclusion that this appeal is bereft of merit.
In this appeal, the Appellant made an extra-judicial statement (Exhibit 6) which is confessional in nature. He narrated how he and his gang got information about the victim. He further narrated how the robbery operation was carried out on the 6th of June, 2014.
It is trite that an extra-judicial statement which is confessional is the best form of evidence to prove the guilt of an Accused Person. The premium laid on confessional statement is very high. It is an established practice that an extra-judicial statement made freely and voluntarily, direct, positive and properly proved is enough to sustain a conviction. The trial Court should not however, act on the confession without first testing the truth thereof. The veritable test for determining the veracity of extra-judicial statement is to seek any other extraneous evidence, no matter how slight which render it probable that the confession is indeed true. In other words, the Court should test whether the confession is corroborated by other evidence outside the confession. See KUSHIMO VS. STATE (2021) 16 NWLR (PT. 1801)147; SAMINU VS. STATE (2019) 11 NWLR (PT. 1683)254; IFEANYI VS. FEDERAL REPUBLIC OF NIGERIA (2018) 12 NWLR (PT. 1632)164; ALO VS. STATE (2015) 9 NWLR (PT. 1464)238.
Now, corroboration means or entails the acts of supporting or strengthening the statement of a witness. Corroboration does not mean that the witness corroborating must use the exact or very like words. It must be an independent testimony, direct or circumstantial, which confirms in some material particular, not only that an offence has been committed, but that the Accused Person has committed it. The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support the already available credible evidence. See ALI VS. STATE (2021) 12 NWLR (PT. 1789)159; STATE VS. GWANGWAN (2015) 13 NWLR (PT. 1477)600; AFOLALU VS. STATE (2010) 14 NWLR (PT. 1220)584.
The victim of the armed robbery incident testified as PW1. He identified the Appellant as one of the armed robbers. Furthermore, some of the items stolen from PW1 including a Samsung mobile handset were found in the Appellant’s possession. The trial Court was right when it believed the evidence against the Appellant in proof of the offence of armed robbery.
It is for the foregoing and the comprehensive reasons contained in the leading judgment that I also dismiss the appeal and affirm the judgment of the trial Court.
Appearances:
Sandra Idedia, Esq. For Appellant(s)
Mrs. Abimbola O. Akisanya (Assistant Director of Public Prosecutions, Ogun State) For Respondent(s)
