CHIDERA AKUBUIRO v. THE STATE
(2016)LCN/8238(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/AK/23C/2014
RATIO
CRIMINAL LAW: CONSPIRACY; HOW A TRIAL COURT MAY INFER CONSPIRACY
Conspiracy is a separate and distinct offence from the offence of armed robbery although in most cases both offences are intricately interwoven. Conspiracy simply put is the meeting of the minds of the conspirators to perpetrate an unlawful act by unlawful means. Conviction is usually grounded on circumstantial evidence and the trial Court may infer conspiracy from facts through which a common purpose is achieved. See Kolawole v. The State (2015) 2 SCNJ (Pt 1) 186. per. JAMES SHEHU ABIRIYI, J.C.A.
CRIMINAL LAW: ROBBERY; THE NATURE OF THE OFFENCE OF ROBBERY AND WHAT THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT TO ESTABLISH THE OFFENCE OF ROBBERY
Robbery is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. But armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. The law is now well established that in order to establish the offence of armed robbery the prosecution must prove beyond reasonable doubt the following:
1) That there was a robbery or series of robberies.
2) That the robber/s was/were armed.
3) That the accused person was the armed robber or one of the armed robbers.
See Okanlawon v. State (2015) 17 NWLR (Pt 1489) 445, Ibrahim v. State (2015) 3 SCNJ 359 and Kolawole v. State (Supra). per. JAMES SHEHU ABIRIYI, J.C.A.
THE DEFENCE OF ALIBI: THE CONDITION FOR THE DEFENCE OF ALIBI TO AVAIL AN ACCUSED PERSON
For the defence of alibi to avail an accused person such a defence must be raised at the earliest opportunity and with sufficient particulars to enable the police investigate it. See Mohammed v. The State (2015) 2 SCNJ 468. per. JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; THE NATURE OF CONFESSION STATEMENT AND WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
An accused person can be convicted solely on his confessional statement if made voluntarily and it is fully consistent and probable. It is however desirable to have outside the confession some evidence be it slight of circumstances which make it probable that the confession is true. See Alo v. State (2015) 2 SCNJ (Pt 11) 405. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
CHIDERA AKUBUIRO Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 25th January 2012 in the High Court of Ondo State in the Ore Judicial Division holden at Ondo.
In that Court the Appellant and others were charged for conspiracy to commit armed robbery and armed robbery contrary to Sections 6(b) and 1 (2)(a) of the Robbery And Firearms (Special Provisions) Act Cap R 11 Vol. XIV Laws FRN 2004.
The Appellant and all other accused persons pleaded not guilty to the Charge.
?The facts of the case as can be gathered from the evidence of the two prosecution witnesses Inspector James Jaiyeoba (Pw1) and Inspector Adejoh Ojogbane (Pw2) are simple and short. According to the Pw1, on the 30th June, 2007 a case of robbery was transferred from Ofosu Division to their office Special Anti-Robbery Squad, Akure. The case was minuted to their team for investigation. All the suspects were charged and cautioned and they volunteered “their statement respectively”. They were confessional statements which were read over to them and they admitted that they were correct and they signed. Being
confessional statements they were taken before a superior police officer and they confirmed the statements to be correct and they all signed.
During investigation, the police took the Appellant and other accused persons to the scene of the crime along Benin/Ore Express Road.
All the Exhibits forwarded to the Special Anti-Robbery Squad Akure along with the accused persons were registered with the Exhibit keeper.
The statement of the Appellant which the Pw1 recorded was admitted in evidence after a trial within trial and marked Exhibit P1. In that statement the Appellant stated that the first time he followed one Udoka and other people whose names he did not know to rob was on the 24th June 2007 at Asejire Benin Express Road Ore.
?But in his evidence in Court the Appellant stated that he was riding a bike when he was arrested on the way to the market. Others had been arrested. The other accused persons were not there at the point of his arrest. The police took them to Ore Police Station. They were kept in cell for two days before they were taken to Ofosu Police Station. That it is not true that he robbed anybody.
He claimed that he signed the statement which the police officer wrote after the police shot his leg.
After considering the evidence adduced at the trial and addresses of Learned Counsel for the parties, the Lower Court convicted the Appellant and other accused persons and sentenced each of them to death by hanging or by firing squad.
The Appellant has therefore appealed to this Court against the conviction and sentence. He filed an initial notice of appeal dated 14th February, 2012 but filed on the 27th February, 2012. The Notice of Appeal was amended with leave of this Court granted on 26th May 2015. The amended notice of appeal dated 28th March 2014 but filed on 4th April 2014 has three grounds of appeal from which the Appellant presented the following two issues for determination:
1. Whether in the light of the evidence adduced at the trial the Respondent proved, beyond all reasonable doubt, that the Appellant committed the offence of conspiracy to commit armed robbery, such as to justify the sentence of death imposed upon him by the trial Court. (This issue has been distilled from grounds 1 and 3 of the Notice of Appeal)
2. Whether in the light of the evidence
adduced at trial, the Respondent proved, beyond all reasonable doubt that the Appellant committed the offence of armed robbery, such as to justify the sentence imposed upon him by the trial Court. (This issue has been distilled from Ground 2 of the Notice of Appeal).
The Respondent formulated a lone issue for determination:
1. Whether the learned trial Justice of the High Court premised on the totality of the evidence adduced before it during the trial of the case, was right when he convicted and accordingly sentenced the Appellant for the offences for which he was charged.
The appeal was contested on the following briefs:
1. Appellant’s brief of argument dated 13th October, 2014 and filed 15th October but deemed duly filed and served on 15th June, 2015 settled by Ayodeji Omotoso Esq., Olurotimi Aju Esq. and Oladimedi Akindele Esq.
2. Respondent’s Brief of Argument dated 10th November 2014 filed 13th November 2014 deemed duly filed on 15th June 2015 settled by Mrs. A. O. Adeyemi – Tuki Director Public Prosecutions Ministry of Justice Ondo State and O. F. Akeredolu Principal Legal Officer.
?Appellant’s issues 1 and 2 in my view are
similar. I will reframe them into a single issue to read as follows:
1. Whether, in the light of the evidence adduced at trial the Respondent proved beyond reasonable doubt that Appellant committed the offences of conspiracy to commit armed robbery and armed robbery such as to justify the sentence of death imposed upon him by the Trial Court.
The appeal will be determined on the above issue.
Arguing the appeal, Learned Counsel for the Appellant submitted that the burden of proving that a crime has been committed is on the prosecution and the standard of proof is proof beyond reasonable doubt. We were referred to Section 135 (1) of the Evidence Act 2011, Adam v. A. G. Bendel State (1986) 2 NWLR (pt 22) 284 and Akpan v. State (1990) 7 NWLR (pt 160) 101.
Conspiracy, it was submitted, is an agreement by two or more persons to commit an unlawful act, coupled with intent to achieve the agreement’s objective. We were referred to Osondu v. Federal Republic of Nigeria (2000) 12 NWLR (pt 682) 483.
The Lower Court, it was contended, wrongly only used the retracted confessional statement of the Appellant Exhibit p1 as corroborated by the oral
Evidence of pw1 and pw2 who were not eyewitnesses as the basis for arriving at its decision.
It was submitted that apart from Pw1’s and Pw2’s testimony and Exhibits P1-P5, no evidence was adduced whether direct or circumstantial which tended to establish that the Appellant agreed or conspired to commit armed robbery, either with any of the co-accused persons charged along with him at the trial Court or at all.
It is the law, it was submitted that it is desirable to have outside the accused person’s confession, some corroborative evidence, no matter how slight, circumstances which would make it probable that the confession is true. We were referred to Nwachukwu v. Ire State (2007) 17 NWLR (Pt 1062) 31 at 70.
Learned Counsel for the Appellants submitted further that the Lower Court had a duty to ascertain that whatever evidence was being used or regarded as corroborative evidence was independent of the evidence to be corroborated and as such, supports the story of the main evidence to the effect that it renders that story probable and that it implicates the accused person in some material particular. We were referred to Okabichi v. The State
(1975) 3 S.C. 96.
The testimonies of Pw1 and Pw2, it was submitted, were not independent of the confessional statement of the Appellant Exhibit P1.
The Lower Court, it was contended, failed to test the confessional statement of the Appellant.
The tests to be applied, it was submitted, were laid down in R v. Sykes (1913) 8 Cr. App. Report 233 approved by the West African Court of Appeal in Kanu v. The King (1952/955) 14 WACA 30 and also followed by the Supreme Court in the recent case of Shodiya v. The State (2013) 14 NWLR (Pt 373) 147 at 168.
It was submitted that there was no evidence that anybody was in fact robbed as there was no evidence from the supposed victims of the alleged armed robbery nor was there any of the alleged stolen items found with the Appellant. No weapon, it was submitted, was found on the Appellant.
The Appellant it was contended, testified that he was already in custody when the alleged robbery was committed and this fact was disregarded by the Lower Court.
?It was submitted that where corroborative evidence does not show beyond reasonable doubt that the accused person is guilty, he should be given the
benefit of the doubt. We were referred to Ogudo V. The State (2011) 18 NWLR (pt 1278) 1 at 32 – 33.
It was submitted that by virtue of Section 1(2) (a) of the Robbery And Firearms (Special Provisions) Act, the crucial ingredients necessary for the prosecution to establish the offence of armed robbery against an accused person are: that a robbery has taken place, that the robbery was an armed robbery, and that the accused person participated in the armed robbery. We were referred to Oseni v. State (2012) 5 NWLR (Pt 1293) 351 and Adekoya v. The State (2012) 9 NWLR (Pt 1306) 539. That the standard of proof is proof beyond reasonable doubt.
It was submitted that outside the confessional statements of the Appellant and the other accused persons, along with the testimonies Pw1 and Pw2, there was no evidence to show that a robbery actually occurred. That neither the victims nor the police officers who allegedly arrested the accused persons were called to give evidence.
?The prosecution, it was submitted, failed to establish the crucial ingredients for the offence of armed robbery against the Appellant. That none of the victims of the alleged armed
robbery was called to give evidence. No evidence was led in proof of the fact that the alleged robbery was an armed robbery as the exhibits allegedly kept with the Exhibit keeper were not tendered in evidence.
It was submitted that the prosecution wholly failed to establish the essential ingredients of the offence of armed robbery.
It was submitted by Learned Counsel for the Respondent that the contention of the Appellant that the testimonies of the Pw1 and Pw2 do not qualify as a substantial corroboration of Exhibit P1 is misconceived. It was contended that the evidence of Pw2 that in the course of investigation the accused persons and the Appellant were taken to the scene by the team of investigators and they admitted committing the offence is a confirmation and corroboration of Exhibit P1. That it is a reliable corroboration outside the confessional statement.
?It was submitted that the confession made at the scene of crime is an extra-judicial confession though made orally would carry no less weight than the one that is made in writing. It was submitted that the oral confession to the police at the scene of crime corroborates Exhibit P1.
It was submitted that the submission that the Lower Court failed to subject the (statement) confession to the usual test is contrary to the facts contained in the record of the Court.
It was submitted that the contention of the Appellant that the victims of the crime and the police officers that arrested them ought to have testified is either mischievous or misconceived.
It was submitted that it was too late for the Appellant to raise the defence of alibi for the first time in his defence in Court. We were referred to Ikemson v. State (1989) NWLR (Pt 110) 45.
It was submitted that the Respondent called necessary witnesses and tendered necessary exhibits to prove its case beyond reasonable doubt as required by law and the failure to call any other witnesses cannot vitiate the sound judgment of the Lower Court.
It was submitted that corroboration does not need to be direct evidence but could consist of any other material in the proceedings which could come from either the maker of the confession himself or by way of conduct. We were referred to Njoku v. State (1992) 8 NWLR (Pt 262) 714.
Conspiracy is a separate and distinct offence
from the offence of armed robbery although in most cases both offences are intricately interwoven. Conspiracy simply put is the meeting of the minds of the conspirators to perpetrate an unlawful act by unlawful means. Conviction is usually grounded on circumstantial evidence and the trial Court may infer conspiracy from facts through which a common purpose is achieved. See Kolawole v. The State (2015) 2 SCNJ (Pt 1) 186.
Robbery is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. But armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used.
The law is now well established that in order to establish the offence of armed robbery the prosecution must prove beyond reasonable doubt the following:
1) That there was a robbery or series of robberies.
2) That the robber/s was/were armed.
3) That the accused person was the armed robber or one of the armed robbers.
See Okanlawon v. State (2015) 17 NWLR (Pt 1489) 445, Ibrahim v. State (2015) 3 SCNJ 359 and Kolawole v. State (Supra).
The Appellant in his
evidence in Court claimed that he was already in detention having been earlier arrested in May 2007 before the alleged armed robbery took place on 25th June 2007.
The Lower Court in my view rightly dismissed this belated defence of alibi. For the defence of alibi to avail an accused person such a defence must be raised at the earliest opportunity and with sufficient particulars to enable the police investigate it. See Mohammed v. The State (2015) 2 SCNJ 468. The Appellant having raised the defence of alibi while already in the dock to defend himself, the Lower Court ought not have wasted its time on that defence. The Lower Court therefore rightly rejected the defence of alibi.
An accused person can be convicted solely on his confessional statement if made voluntarily and it is fully consistent and probable. It is however desirable to have outside the confession some evidence be it slight of circumstances which make it probable that the confession is true. See Alo v. State (2015) 2 SCNJ (Pt 11) 405.
Exhibit P1 which the Respondent contends profusely that it is confessional reads in part as follows:
“I told him that I would like to be
following them to robb (sic) because I need money to start business. The first time I followed Udoka and others to robb (sic) was on Sunday 24/6/2007 at Asejire Benin Express Road Ore… The robbery operation I went on 24/6/2007 I was shared the sum of N7,000 with Samsung handset …”
The date of the alleged robbery admitted in the confession of the Appellant is 24/6/07. 24/6/2007 is repeated twice in the confessional state. However, the robbery for which he was charged and tried was allegedly committed on the 25/6/2007. No evidence was adduced by the prosecution to show that it was the same robbery that the Appellant was charged with that he admitted in the confessional statement Exhibit P1. It is therefore doubtful if the Appellant admitted the offence alleged. It is the law that where the evidence in the alleged confessional statement raises reasonable doubt this ought to be resolved in favour of the Appellant. See Ogudo v. The State (2011) 18 NWLR (Pt 1278) 1.
Furthermore, it is common ground that it is desirable to have outside Exhibit P1 some evidence of circumstances which make it probable that the contents of Exhibit P1 are true. These may
include evidence of police officers who arrested the Appellant or any of the alleged victims of the armed robbery. But none of the policemen who arrested the Appellant testified in Court. None of the victims of the alleged robbery testified.
Pw1 and Pw2 were not among the police officers that arrested the Appellant. Learned Counsel for the Respondent argued that the claim by the Pw1 and Pw2 that when they took the Appellant and the other accused persons to the scene of crime they admitted committing the offence in my view in doubtful. There is nothing to show that there was any such admission. What exactly did each of them say? What exactly did the Appellant say at the scene which the Pw1 and Pw2 call admission? This unsubstantiated claim by the Pw1 and Pw2 that the Appellant admitted the offence when they took them to the scene of crime could not corroborate the confessional statement Exhibit P1 because it is doubtful that he admitted committing the offence at the scene.
Where corroborative evidence does not show beyond reasonable doubt that the accused is guilty he should be given the benefit of the doubt. In this case there was no corroborative
evidence coupled with the fact that the alleged victims of the robbery did not come to Court to testify. Even the exhibits which the Pw1 and Pw2 said they kept with the exhibit keeper were not tendered to show that there was a robbery and that it was an armed robbery. The policemen who arrested the Appellant and other accused persons did not testify. All these amount to a grave doubt which ought to be resolved in favour of the Appellant. See Ogudo v. State (supra).
The contention of learned counsel for the Respondent that it was mischievous to expect the victims of the alleged robbery and the police officers who arrested the Appellant and other accused persons to testify is to say the least unfortunate. How would a prosecutor argue that a victim of the alleged crime and the police officer/s who arrest the accused person are not vital witnesses. Wonders they say will never end.
It is clear from all that I have stated above that the only issue for determination should be resolved in favour of the Appellant.
I resolve the said issue in favour of the Appellant.
I allow the appeal.
The conviction and sentence of the Appellant are hereby
quashed and the Appellant discharged and acquitted.
MOJEED ADEKUNLE OWOADE, J.C.A.:?I have had the opportunity of reading in draft the leading judgment of my learned brother, James Shehu Abiriyi, JCA, just delivered. I entirely agree. For the same reasons so eloquently and comprehensively set out in the lead judgment I am compelled by the facts and circumstances of this case to allow the appeal.
?Appeal is accordingly allowed and the judgment of the Court below set aside. The Appellant is discharged and acquitted.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:I agree.
Appearances
A. O. Omotoso with him, S. O. Afahokor and A. A. AdedoyinFor Appellant
AND
O. F. Akeredolu Principal Legal Officer( Ministry of Justice Ondo State) with C. ChukwuFor Respondent
