CHRISTOPHER DIBIA v. THE STATE
(2012)LCN/5800(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of May, 2012
CA/I/270/2011
RATIO
WORDS AND PHRASES: DEFINITION OF ATTEMPTED ROBBERY
Attempted Robbery under the Robbery and Firearms (Special Provisions) Act is defined thus:
“Any person who with intent to steal anything assaults any other person and at or immediately after the time of assault uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not greater than twenty one years.” PER STANLEY SHENKO ALAGOA, J.C.A.
CRIMINAL LAW: STANDARD OF PROVING THE OFFENCE OF ATTEMPTED ROBBERY
The offence of attempted robbery like all other criminal offences must be proved by the prosecution beyond reasonable doubt. The list of authorities on this legal principle is inexhaustive. See UMEH V. THE STATE (1978) 6-7 SC 27; NWEKE v. STATE (2001) 15 WRN 96; (2001) 6 NWLR (PART 709) 286; TANKO V. STATE (2008) 31 WRN 117; (2008) 16 NWLR (PART 114) 597 at 636. PER STANLEY SHENKO ALAGOA, J.C.A.
WORDS AND PHRASES: MEANING OF CONSPIRACY
Conspiracy has been defined as or held to be a meeting of the minds of the Conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means. See OKEKE V. STATE (1992) 2 NWLR (PART 590) 246; ODUNEYE v. STATE (2001) 2 NWLR (part 697) 311. PER STANLEY SHENKO ALAGOA, J.C.A.
CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
With respect to the offence of armed robbery, the following are the ingredients –
(i) There must be a robbery.
(ii) The robbery must be an armed robbery.
(iii) The accused persons must be among those who took part in the armed robbery.
See the following cases – ALABI V. STATE (1993) 7 NWLR (PART 307) 511; (1993) 9 SCNJ 109; OKOSI v. ATT. GEN. BENDEL STATE (1989) 1 NWLR (PART 100) 642; (1989) 1 SCNJ 29; BOZIN V, THE STATE (1985) 2 NWLR (PART 8) 46; 1985 7 SC 450. PER STANLEY SHENKO ALAGOA, J.C.A.
Before Their Lordships
STANLEY SHENKO ALAGOAJustice of The Court of Appeal of Nigeria
OFRJustice of The Court of Appeal of Nigeria
ADRIZA GANA MSHELIAJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
Between
CHRISTOPHER DIBIAAppellant(s)
AND
THE STATERespondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Ota, Ogun State of Nigeria, the Appellant Christopher Dibia 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) 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
CHRISTOPHYER DIBIA (M) and VINCENT EZE (M) and another now at large on or about the 8th day of December 2006 at Akute in the Ota Judicial Division conspired together 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.
PARTICUIARS OF OFFENCE
CHRISTOPHER DIBIA and VINCENT EZE (M) and another now at large on or about the 8th day of December 2006 at Akute in the Ota Judicial Division while armed with firearm to wit: gun robbed Sunday Ofunonye of the sum of fifty thousand Naira (N50,000.00), two Afribank cheque books and ATM card.
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
CHRISTOPHER DIBIA (M) and VINCENT EZE (M) and another now at large on or about the 8th day of December 2006 at Akute in the Ota Judicial Division while armed with firearm to wit: gun robbed Ada Ofunonye of the sum of Twelve thousand Naira (N12,000.00) and one Samsung mobile phone.
They pleaded not guilty to the offences as charged and the case went on to be heard. The case of the prosecution in the trial High Court was that on the 8th December 2006 at about 8.30p.m., the Appellant and others went to the residence of the 1st and 2nd prosecution witnesses in Akute Ogun State. On getting there, they mentioned the name of the 2nd prosecution witness to the 1st prosecution witness who thereupon opened the door for them. They claimed that they had been sent by the church as one of them was to get married soon and it was their wish that the 2nd P.W. should bake a wedding cake for him. An agreed price of N23,000.00 was negotiated. Shortly thereafter the Appellant and the others brought out a gun and ordered the witnesses into the sitting room where they were forced to lie down and threatened with death if they did not co-operate with them.
They carted away N62,000.00 and two Samsung mobile phones and beat up 1st prosecution’s mother who fainted before they left. A housemaid was able to escape through the fence who alerted neighbours who gave chase and were able to arrest two of the intruders while the third escaped.
On arrest the Appellant confessed to the crime and was accordingly charged with another with the offences of Conspiracy to commit armed robbery and armed robbery. The Appellant retracted his confessional statement and denied involvement in the crime. The learned trial Judge held in his judgment that the prosecution had failed to prove beyond reasonable doubt the offences of Conspiracy to commit armed robbery and armed robbery but succeeded in proving the offence of Attempted Robbery and accordingly sentenced the Appellant to 16 years imprisonment.
Aggrieved with this judgment the Appellant has appealed to the Court of Appeal by his Notice of Appeal dated the 9th August 2011 and filed on the 10th August 2011. The Grounds of Appeal as stated at pages 101-102 of the Record of Appeal are reproduced hereunder viz –
1. The learned trial Judge erred in law in convicting the Appellant for the offence of Attempted Robbery solely on the retracted confessional statement (Exhibit “A”) of the Appellant without admitting same to test as required by law.
PARTICULARS OF ERROR
(a) The trial Judge failed to call for trial within trial to determine the Appellant’s allegation that Exhibit “A” was not voluntarily made.
(b) The omission of the learned trial Judge to call for trial within trial to determine the authenticity of Exhibit “A” rightly confirms the Appellant’s allegation that the confessional statement was not voluntarily made by him.
2. The learned trial Judge erred in law when in finding the Appellant guilty of the offence of attempted robbery he held as follows:
“Having compared the confessional statements of the two accused persons i.e. Exhibits “A” and “B” with facts and circumstances outside the statements, it is my finding that it was two accused persons that made the confessional statements.”
PARTICULARS OF ERROR
(a) There was nothing on record to show that trial within trial was conducted by the trial court to establish whether or not the confessional statement Exhibit “A” was voluntarily made by the Appellant.
(b) The truth or otherwise of Exhibit “A” was not properly investigated by the trial court as required by law.
3. That the decision of the trial court is unreasonable and cannot be supported having regard to the weight of evidence.
From these grounds of Appeal as contained in the Notice of Appeal, the following issues were distilled by the Appellant in paragraph D1 at page 4 of the Appellant’s Brief of Argument viz –
(a) Whether the learned trial Judge was right in convicting the Appellant solely on his retracted confessional statement without admitting same to test as required by law? (Ground 1)
(b) Whether the learned trial Judge was right in law that the Appellant made Exhibit “A” despite not conducting a trial within trial? (Ground 2)
The Respondent (the State) for its part distilled the following sole issue for determination by this Court in paragraph 3.01 at page 6 of the Respondent’s Brief of Argument viz –
“Whether the trial Court was right in admitting and relying on Exhibit “A” without conducting a trial within trial.”
I have considered the issues formulated by the Appellant and Respondent and I consider the following as issues that will effectually determine this appeal –
1. Was the trial Judge right in admitting Exhibit “A” without conducting a trial within trial?
2. Was the conviction and sentence of the Appellant for Attempted Robbery proper having regard to the weight of evidence?
I shall now proceed to deal with both issues in that order.
Was the trial Judge right in admitting Exhibit “A” without conducting a trial within trial?
For the avoidance of doubt Exhibit “A” is the alleged confessional statement of the Appellant as having committed the offence for which he stood charged in the court below. Heavy weather has been made of the fact that the Court admitted Exhibit “A” without as much as conducting a trial within trial. .”
But what in essence is a “trial within trial”? In ADELARIN LATEEF & ORS V. THE FEDERAL REPUBLIC OF NIGERIA (2010) 37 W.R.N. 85 page 107, lines 26-42, I had in considering the meaning and nature of a trial within trial stated as follows,
“It does happen sometimes that an accused person facing a criminal trial in court protests to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or intimidation or actual physical torture to his person.
It becomes at this stage necessary for the Court to temporarily halt the main trial upon which the accused person is facing trial and conducts a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the police was voluntarily made or not. It takes the form of a normal trial as witnesses are called to give evidence and are subject to cross examination by the other side. The Court proceeds to write a ruling either admitting the statement of the accused or rejecting same after which the normal trial temporarily suspended continues.”
It should therefore be borne in mind that the hallmark of a trial within trial is to try to determine whether an accused person’s confessional statement to the police of the commission of a crime was voluntarily made by the accused person or not. It is perhaps necessary at this stage to distinguish two possible scenarios that may arise. The first is where an accused person faced with a confessional statement allegedly made by him admits that he made it. The second is where an accused person faced with a confessional statement allegedly made by him admits that he made it but did not do so voluntarily.
Whilst in the latter case it is necessary for the Court to conduct a trial within trial in an attempt to determine whether the accused person voluntarily made the statement or not, in the former case, the conduct of a trial within trial by the Court is not necessary and same is uncalled for. An accused person who wishes to raise objection to the admissibility of a statement should do so at the point of tendering same. Reference is made at this stage to the evidence of PW4 Sergeant Lawal Lukman at page 61 of the Record of Appeal. He said as follows,
“After I obtained the statement of the 1st accused person (Appellant) I discovered that it is confessional in nature. I took him (Appellant) before my superior police officer Late Assistant Superintendent Christianah Ejembe. The late Superintendent read over the accused statement to him. The 1st accused person confirmed that it was his statement. He also asked him whether the statement was made under duress and the accused person said No. The officer also asked the accused person whether I made any promise to him or any threat to him before he made the statement and he said No.”
After this, the prosecution sought to tender the statement and Mr. F. B. Agbanwu raised no objection to its admissibility and the Appellant’s Statement was admitted in evidence as Exhibit “A”. It is clear from the records that Appellant’s confessional statement went in without any hassle and the question of whether it was voluntarily made by him did not arise at that stage. The point has been made in this write-up and it is now again being remade that in the circumstances in which the confessional statement of the Appellant was tendered and admitted as Exhibit “A” by the trial High Court, the conduct of a trial within trial was not necessary. Let it be reiterated that a trial within trial is conducted before a confessional statement is admitted as Exhibit and not thereafter. It can therefore be said that the trial Judge was right in admitting Exhibit “A” without conducting a trial within trial. Issue No. 1 is therefore resolved in favour of the Respondent against the Appellant.
Issue 2 is whether the conviction and sentence of the Appellant for Attempted Robbery was proper having regard to the weight of evidence.
What is attempted robbery? Attempted Robbery under the Robbery and Firearms (Special Provisions) Act is defined thus:
“Any person who with intent to steal anything assaults any other person and at or immediately after the time of assault uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction be sentenced to imprisonment for not less than fourteen years but not greater than twenty one years.”
The offence of attempted robbery like all other criminal offences must be proved by the prosecution beyond reasonable doubt. The list of authorities on this legal principle is inexhaustive. See UMEH V. THE STATE (1978) 6-7 SC 27; NWEKE v. STATE (2001) 15 WRN 96; (2001) 6 NWLR (PART 709) 286; TANKO V. STATE (2008) 31 WRN 117; (2008) 16 NWLR (PART 114) 597 at 636.
As has been seen the learned trial Judge admitted and rightly too, Exhibit “A” the confessional statement of the Appellant same not having been objected to at the point of tendering. It has been held in a plethora of cases that an accused person can be convicted solely on his confessional statement. See NWACHUKWU V. THE STATE (2008) 4 WRN 1; OKE UTUYORUME V. STATE (2010) 43 WRN 162 at 187. Where however there has been a retraction of the confessional statement by an accused person it is desirable and the Courts have over time fashioned out a number of tests to ascertain what can be made out of such confessional statements. Is there for example anything outside the confessional statement to show that it is true? The learned trial Judge did not lose sight of this requirement when he said in his judgment at page 97 of the Record of Appeal as follows:-
“Having compared the confessional statements – Exhibits “A” and “B” with facts and circumstances outside the statements, it is my finding that it was two accused persons that made the confessional statements.”
For the avoidance of doubt, the learned trial Judge was referring to the confessional statement (Exhibit “B’) of Vincent Eze who had been charged along with the Appellant. The learned trial Judge took the following steps –
1. He examined Exhibit “A” the confessional statement of the Appellant.
2. He examined Exhibit “B” the confessional statement of Vincent Eze who was charged along with the Appellant.
3. He compared Exhibit “A” with Exhibit “B” and drew conclusions.
4. He compared those conclusions reached with facts and circumstances outside Exhibits “A” and “B”.
This procedure adopted by the learned trial Judge is consonant with a long line of judicial authorities. See for example NSOFOR V. STATE (2005) 4 WRN 29; (2004) 18 NWLR (PART 905) 292; UBIERHO v. STATE (2005) 21 NSCQR 38, 45-46 and 54-56; AFOLABI V. STATE (2010) 19 WRN 117; OSETOLA V. STATE (2010) 36 WRN 177; KASA V. STATE (1994) 2 NWLR PART 325, 143 at 151.
Other facts and circumstances outside Exhibit “A”, the Appellant’s confessional statement refer to the evidence of the prosecution witnesses and the evidence and even demeanour of the Appellant himself in the course of trial. The evidence of PW1 Sunday Uzor Ofuonye and his wife PW2 Mrs. Ada Lovina Ofuonye are similar and consistent with each other and were not punctured by cross-examination. The Appellant and two others had on the 8th December 2006 at about 8.30 p.m. visited their residence at No. 2 Ishola Ota Jesu Street, Akuta Ogun State and knocked at the gate, PW1 asked them who they were and what they wanted. They called PW1’s wife’s name very well and said they had been sent by persons from her church. PW1 then opened the gate and let them in. They then told him that the Appellant was to get married very soon and wanted his wife (PW2) to bake the wedding cake. PW1 then sent his little son Nnamdi to go and call PW2. When PW2 came discussions began on the wedding cake to be baked and a negotiated price of N23,000.00 was arrived at. The Appellant and the other persons then got together and murmured something to themselves after which the Appellant brought out a gun and forced PW1, PW2 and their little son Nnamdi indoors where they were made to lie face downwards in the sitting room. PW1 was beaten up and when PW2’s mother screamed; she too was beaten up and she then fainted. The housegirl of the couple by name Amarachi was able to escape by climbing the fence and as she raised an alarm “ole ole” meaning “thieves thieves”, alerted neighbours gave chase and were able to apprehend the Appellant and another person in an uncompleted building and soakaway while the other person who was part of the vicious gang of three made good his escape. Items lost to the robbers included N50,000.00 belonging to PW1; N12,000.00 belonging to PW2, ATM Card, wrist watches etc. Appellant and his partner in crime were handed over to the police.
PW3, one Otunba Rasaq Oyedele who said he is a neighbour of PW1, also narrated how he was in front of his house when he heard “ole ole” from the next street. PW2 came out shouting “ole ole”. He and some other people he was able to mobilise chased the intruders and were able to apprehend the Appellant and another person while the third person escaped. The Captors of the Appellant and the other person wanted to kill them because of frequent armed robbery raids in that area but PW3 said he prevailed on them to hand the captives over to the police. PW4 Sergeant Lawal Lukman was the investigating police officer who took down the statement of the Appellant, His evidence it will be remembered was earlier in this write-up given. He also said in evidence that at the time Appellant was handed over to him, no arms and no items of stolen property was recovered from him although the Appellant had informed him that he (Appellant) and others had gone to the house of PW1 and PW2 pretending to be customers who wanted PW2 to bake a wedding cake which vocation they knew PW2 was into.
Conspiracy has been defined as or held to be a meeting of the minds of the Conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means. See OKEKE V. STATE (1992) 2 NWLR (PART 590) 246; ODUNEYE v. STATE (2001) 2 NWLR (part 697) 311. A look and careful study of Exhibits “A” and “B” show that the impression that the Appellant created to the other co-accused was that they were all attending a party and the learned trial Judge reasoned that the Appellant and others could not have therefore conspired to commit armed robbery.
With respect to the offence of armed robbery, the following are the ingredients –
(i) There must be a robbery.
(ii) The robbery must be an armed robbery.
(iii) The accused persons must be among those who took part in the armed robbery.
See the following cases – ALABI V. STATE (1993) 7 NWLR (PART 307) 511; (1993) 9 SCNJ 109; OKOSI v. ATT. GEN. BENDEL STATE (1989) 1 NWLR (PART 100) 642; (1989) 1 SCNJ 29; BOZIN V, THE STATE (1985) 2 NWLR (PART 8) 46; 1985 7 SC 450. The evaluation of the offence of armed robbery by the Appellant is at pages 98 and 99 of the record of Appeal. The learned trial Judge reasoned that although the confessional statement of the Appellant – Exhibit “A” showed that the Appellant attempted to rob PW1 and PW2, they took to their heals on hearing “thief thief” and not only did they not succeed in stealing anything, they were also not armed. The evidence of PW3 their neighbour as well as PW4 the investigating officer did not show that any items of stolen property or arms was recovered from the Appellant and so there was nothing outside the evidence of PW1 and PW2 to show that the Appellant stole anything or was indeed armed. This line of reasoning to me is sound. This is more so where in the Nigerian Criminal Justice system as in other Common law countries, there is the legal aphorism and concept that it is better for ten guilty men to be set free than for one innocent man to be punished for an offence he did not or may not have committed. This concept of justice was not lost on the Romans of old and Sir Seymon while contributing to a bill in 1696 voiced this same concept. This is no doubt in line with our concept of proof beyond reasonable doubt in all criminal cases – The line of judicial authorities on this concept is inexhaustive, See however the following cases – ONUBOGU V. STATE (1974) 9 SC 1; (1974) 1 ALL NLR (PART 11) 5; (1974) 9 NSCC 358; NWEKE V. STATE (2001) 4 NWLR (PART 704) 588; (2001) 2 SCNJ 12; MORKA V. STATE (1998) 2 NWLR (PART 537) 294 at 307; CHIA V. STATE (1996) 6 NWLR (PART 455) 465; AIGBEDION V. STATE (2000) 7 NWLR (PART 666) 585 at 704; (2000) 4 SCNJ 1.
The learned trial Judge while holding that the prosecution had failed to prove the offences of armed robbery and conspiracy to commit armed robbery also noted that the Appellant could be convicted of a lesser offence than that for which he is charged if that lesser offence is proved. The learned trial Judge noted that although the offences of Conspiracy to commit armed robbery and armed robbery had not been proved by the prosecution against the Appellant, the confessional statement of the Appellant Exhibit “A” showed that the Appellant and others had assaulted PW1 and his family, threatening to kill them if they did not part with the items of property that the Appellant and the others sought to deprive them of. This reasoning of the learned trial Judge to my mind is correct. Where the charge of conspiracy to commit armed robbery and armed robbery failed, the Appellant could be convicted of the lesser offence of Attempted Robbery which was undoubtedly proved. An attempt to commit an offence means the perpetration of the said act so near the substantive offence that except it is interrupted in some way, will lead to the commission of that offence. The position of the law was put more succinctly in the case of ALHAJI YAKUBU SANNI v. STATE (1993) 4 NWLR (PART 285) 99 at page 199 where it was held thus –
“It is the law that in every crime, there is first an intention to commit it, secondly the preparation to commit it and thirdly the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test for determining whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would lead to the commission of the offence. It would amount to an attempt to commit the offence.”
See also YAKUBU IBRAHIM v. STATE (1995) 3 NWLR (PART 381) 35 at 45-45; SANI V. STATE (1993) 4 NWLR (PART 285) 99. The offence of attempted robbery under the Act has already been defined in this write-up and needs no further redefinition. That definition needs careful study. That definition does not admit of the use of any weapon whatsoever. A mere threat to use actual violence on the person of another with intent to steal his property is enough. That threat can be verbal. The learned trial Judge was to my mind right in his evaluation that even if the prosecution failed to prove the use of a gun, PW1 and his family were subjected to physical beating and were thus assaulted by the Appellant with an intent to steal their property and were thus guilty of the lesser offence of Attempted Robbery. The punishment for Attempted Robbery under the Act upon conviction is imprisonment for not less than fourteen years but not greater than 21 years (twenty-one years). The Appellant was sentenced to imprisonment for sixteen years which was proper. I find no reason whatsoever to find differently from what the learned trial Judge has done.
I accordingly dismiss the Appeal and affirm the judgment of the learned trial Judge Asenuga J. in Suit No.HCT/6R/07 delivered on the 13th July 2011 convicting the Appellant Christopher Dibia and the sentence of sixteen years imprisonment passed on him by the learned trial Judge.
ADZIRA GANA MSHELIA, J.C.A.: I have read the lead Judgment of my learned brother, ALAGOA, J.C.A. (OFR) in draft. I entirely agree with his reasoning and conclusion therein. For the same reasons clearly stated in the lead judgment which I adopt as mine, I too dismiss the appeal and affirm the conviction and sentence passed by the lower court.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
Appearances
A. A. Adedeji Esq. with him are O. A. Idowu Esq. and K. Gbadamosi Esq.For Appellant
AND
J. K. Omotosho DDPP Ogun State with Anita Adejumo (Miss) State Counsel, R. O. Agboola (Miss) State Counsel and Emmanuel Fadeyi State CounselFor Respondent
