DANIEL STEPHEN v. THE STATE
(2019)LCN/13291(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/A/716C/2017
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
DANIEL STEPHEN Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON MUST BE HELD TO THE OFFENCE HE CONFESSED TO HAVE COMMITTED
The approach is clear that a confessional statement unequivocally confessing to the commission of the offence charged to the appellant who confessed must be held to the offence he confessed to have committed. In Adebayo v. The State (2014) LPELR-22988 (SC), The Supreme Court Held that:-
“it must be noted that, in law, a voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the Court can convict. Whereas in this case, the prosecution has proved some facts and/or circumstances, outside the confession which made it probable that the confession was true, then there is a clear ground for conviction. See R. v. Obiasa (1962) WRNLR 354; (1962) 2 SCNLR 402; Paul Onochie & Ors v. The Republic (1966) N.M.L.R. 307.” PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kogi State High Court sitting at Ankpa in case No: AHC/6C/2016 dated on the 30th day of June 2017, by Awulu, J.
The facts of this case in brief are that the appellant was charged along with two others on a two count charge for the offences of conspiracy and armed robbery under Sections 97(1) and 298 (c) of the Penal Code. The allegation brought against the appellant from the record before us is that on or about the 17th day of July 2015 at Ugbogbo lgah in Olamaboro Local Government of Kogi State, the appellant and another person mounted a road block and robbed one Otalike lsah. They were said to be without masks, one of them carried a gun, another a knife and the third person held a torch light. They robbed the complaint of a Nokia 1600 GSM Handset, a Rechargeable Lantern and a sum of N2, 250. Report of the robbery was made first to the National Union of Road Transport Workers and later to the Vigilante group in the area. Finally report was lodged at the Police who investigated and lodged the charge before the Court.
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The lower Court heard the case and convicted the appellant then sentenced him to a term of 15 years imprisonment. Aggrieved by the decision, the appellant appealed to this Court vide his notice of appeal dated and filed on 13th Sept, 2017.
The Record of appeal was transmitted on 19/10/2017. The appellant filed his brief of argument on 4/12/17 while the Respondent file her brief on 7/3/18 but deemed on 20/2/19. The appellant filed a reply brief on 19/4/18 but deemed on 20/2/19.
The appellant distilled two issues for determination these issues read:-
1. Whether the Learned trial judge rightly convicted the appellant having regard to the evidence on record and the standard of proof required by law to secure a conviction for the offence of armed robbery and conspiracy.
2. Whether the learned trial Judge properly evaluated the evidence on record and whether the decision of the trial Court is not liable to be set aside.
The Respondent also framed two issues for determination but differently worded. The issues are framed as follows:-
1. Whether the trial Court proper evaluated the evidence before convicting and sentencing the Appellant for
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the offences of Criminal conspiracy and Armed Robbery. This is distilled from grounds 1,2,3,4 and 5 of the notice of Appeal.
2. Whether the Appellant was sufficiently described and fixed at the scene of the crime to warrant his conviction.
From the issues framed by the parties the theme is that of evaluation of evidence as captured by the Respondent in issue One. The appellant’s two issues also are on evaluation of evidence at the trial Court.
The issue of the appellant being sufficiently described and fixed at the scene of crime to warrant his conviction as raised by the Respondent in Issue 2 is not based on any ground of the appeal. It is trite that issues are framed from the grounds of appeal as per the notice of appeal. It is to be borne in mind that grounds of Appeal arise only from the ratio decidendi of the decision appealed against. Issues for determination must arise from the grounds of appeal. See Awusa V. Nigerian Army (2018) LPELR 44377 (SC). Any issue that is raised outside the grounds of appeal is without a foundation and must be struck out. Furthermore, any ground of appeal from which no issue is distilled from is deemed dead and must
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be struck out. See Olanipekun V. State (2016) 13 NWLR (PT1528) 100.
In the instant case, issue two generated by the Respondent is not founded upon any ground of appeal so it is hereby struck out.
Also ground five of the appeal deals with weight of evidence. A party talks of weight to be attached to evidence in a civil case. In a criminal case, the standard of proof is that of proof beyond reasonable doubt so weight of evidence is not the issue. It is only in civil process where the proof is on the balance of probabilities that weight of evidence is a sine qua non to resolution of issues raised in the case.
In Awusa V. Nigerian Army (2018) LPELR-44377 (SC), the Supreme Court Per Augie, JSC held that
“The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, Judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced- see Akinlagun V. Oshoboja (2006) 12 NWLR (Pt.993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the
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evidence and not the weight to be attached to any particular piece of evidence- Osolu V. Osolu (2003) 11 NWLR (Pt.832) 608 SC.”
Attaching weight to evidence is always the responsibility of the trial Court but the weight attached preponderates in Civil Proceedings where the law demands that the proof is on the balance of probabilities. It follows invariably that when an omnibus grounds of appeal is formulated there is always a dividing line between the Civil and Criminal appeals. This was made clear in the case of Muhammed V. The State (2017) 13 NWLR (Pt.1583) 386 416 H-G where the Supreme Court held:
“It is settled that in appeals in criminal cases, an Appeal Court will not allow an appeal merely because the verdict reached by the Trial Court is challenged on the grounds of its being contrary to the weight of evidence, and will only do so if it can be shown that the said verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence- see Adi V. R 15 WACA 6 where the West African Court of Appeal (WACA clearly stated- The last point – was that the decision was contrary to the weight of
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evidence. This is not a proper ground of appeal in criminal cases in which the point is not the preponderance of evidence on one side, which outweighs the evidences on the other side. The proper ground should have been that the “verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence.”
In the instant case, the ground of appeal stating that the judgment of the trial Court is against the weight of evidence is irregular and void. No issue can therefore be formulated on that ground for one cannot put something on nothing and expects it to stand.
The issue that is therefore viable and properly before the Court is the issue which can from the issues generated by the appellant be streamlined as follows:
“Whether the lower Court rightly convicted the appellant having regard to the evidence and the proof of the elements or ingredients of the offences of armed robbery and conspiracy.”
This sole issue is what will determine this appeal and in the interest of justice I will consider it anon:-
The appellant in his brief contended that the prosecution did not establish the essential ingredients of the offences of armed
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robbery and conspiracy beyond reasonable doubt.
The learned counsel for the appellant canvassed vehemently that the prosecution did not prove any of the essential ingredients of armed robbery against him before he was convicted. There is no credible and cogent or compelling evidence on record to establish any of the essential ingredients of the offence of armed robbery. In other word, that the prosecution did not prove the guilt of the appellant beyond reasonable doubt as required by law.
The learned counsel contended that it is the duty of the prosecution to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. This is a requisite precedent to establishing the guilt and conviction of an accused person. That the standard of proof is such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. He referred to AIGBADION V. STATE (2000) NWLR (Pt.666) 686 and HASSAN v. STATE (2001) 6 NWLR (Pt.709) 286. He contended that the appellant was charged, tried and convicted for the
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offences of armed robbery and conspiracy at the trial Court. He submitted that for the prosecution to succeed in a case of Armed Robbery under Section 298 (c) of the Penal Code, the following ingredients must be established thus:
1. That there was a robbery or series of robberies;
2. That each robbery was an armed robbery; and
3. That the accused was one of those who took part in the armed robbery. He cited the case of OLAYINKA v. STATE (2007) 9 NWLR (Pt.1040) 561. He canvassed that each of the ingredients must be proved to sustain the conviction of an accused person for the offence of armed robbery. It is not enough for the prosecution to prove all these ingredients alone it must prove any of these ingredients beyond reasonable doubt is fatal to its case. He relied on the cases of NWOCHA V. STATE (2012) 9 NWLR (Pt.1306) 571 at 579, and 592; THE PEOPLE OF LAGOS STATE .V. UMARU (2014) 7 NWLR (Pt.1407) 584 at 605-609.
The learned counsel in addition canvassed that there is no credible cogent or compelling evidence on record to indicate that there was robbery. That of the prosecution witnesses only PW1 is an eye witness. He referred to the
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PW1’s evidence at page 22 to 23 of the record and submitted that the testimony is not credible for the Court to safely hold that there was robbery. That the alleged crossing of the road by a bamboo stick is incapable of halting or stopping a vehicle. That Exhibits P1, P2 and P3 recovered were not recovered from the scene of the robbery or from the appellant or the co-accused. That the exhibits were not connected with the accused. The learned counsel submitted that the trial Court did not adequately evaluate the evidence on record and thereby occasioned a miscarriage of justice. He urged the Court to allow the appeal.
The Respondent argued in her brief that the judgment of the trial Court was supported by credible evidence adduced at the trial. That the evaluation of evidence is the principal duties of the trial Court which had the opportunity of seeing, hearing and accessing witnesses and that where the findings of fact before it are not perverse, the appellate Court ought not to interfere with it.
He submitted that the prosecution has proved the case against the appellant beyond reasonable doubt and urged the Court to so hold. That proof beyond
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reasonable doubt does not mean proof beyond every shadow of doubt. That the moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or the actus reus or both the prosecution has discharged the burden placed on it by law. He relied on the cases of Dibie V. The State (2007) 9 NWLR (Pt. 934) 30. State V. Aibangbee (1988) 7, SC (Pt.1) 96; Nasiru V. The State (1999) 2 NWLR (Pt.589) 89. He submitted that the prosecution has proved his case beyond reasonable doubt.
The Respondent further pointed out that the prosecution from the evidence of the PW1 at Pages 22 to 23 of the record established that “CAMPUS” is the Appellant and the 2nd Accused person on the charge sheet. That Exhibit P3 which is a Torch Light was recovered from the appellant.
He opined that to establish the offence of conspiracy, the prosecution must prove:-
i. An agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal but by illegal means.
ii. Where the agreement is other than an agreement to commit an offence that some act besides
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the agreement was done by one or more parties in furtherance of the agreement, and
iii. Specifically that each of the accused individually participated in the conspiracy.
He relied on the definition of the offence of conspiracy in TANKO V. THE STATE (2008) 16 NWLR (Pt. 114) 597, at 637-638 where the Supreme Court held that:-
“Conspiracy is the agreement of two or more Persons to do an unlawful act or to do lawful act by unlawful means the two or more persons must be found to have combined in order to ground a conviction for conspiracy. For the offence to be in existence there must be consent of two or more person. There must be an agreement which is in an advancement of an intention conceived in the mind of each person secretly. The secret intention must have been translated into an overt act or omission or mutual consultation or agreement.”
The Respondent submitted that it is not in all cases that direct proof of conspiracy is required. That proof can be inferred from overt acts of the accused persons. See the case of OMOTOLA VS. THE STATE VOL. 37 PT. 2 NSCOR 963 at 1011. That it is equally trite law that the conspirators need not know
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themselves or be seen together planning the offence. They referred to the cases of NWOSU VS THE STATE (2004) 15 NWLR (Pt. 897) 466 at 486, CHIA VS THE STATE (1996) 6 NWLR (Pt. 455) 465 at 4.
The Respondent pointed out that the PW1 stated that the appellant and other persons robbed him on the highway. The appellant committed the offence as they barricaded the road. Also in the instant case, the appellant held Exhibit P3 while his co-accused held other exhibits. The rechargeable torch of the complainant was also recovered from the appellant. He therefore submitted that the learned trial judge rightly inferred conspiracy from the overt acts of the appellant and his partners in crime. He urged the Court to affirm the conviction and sentence of the appellant by the trial judge.
The offences for which the appellant was convicted and sentenced are the offences of armed robbery punishable under Section 298 (c) of the Penal Code and criminal conspiracy punishable under Section 97 (1) respectively of the Penal Code.
Under Section 298 of the penal Code, the offence of armed Robbery is comprised of the following elements:
(1) Theft by the accused;<br< p=””</br<
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(2) That the accused person caused some persons hurt or wrongful restraint;
(3) That the accused did the acts so mentioned in committing the theft, or in order to commit the theft and also to carry away the property obtained by the theft;
(4) That the accused did the acts listed above voluntarily and;
(5) That the accused person was armed with dangerous weapons.
The offence of conspiracy was defined in the case of Musa Yusuf V. FRN (2017) LPELR-43830 (SC) as a matter of inference from certain criminal acts of parties concerned and done in pursuance of their common criminal intention. See also the case of Oduneye V. State (2001) NWLR (Pt. 697) 311 @ 325. The essence of conspiracy therefore is breeding an agreement between two or more persons to do an unlawful act such as in the instant case armed robbery. The agreement may be express or implied. What must necessarily be established is that all the parties to the conspiracy have a common purpose communicated to others or at least one other person to the conspiracy. The agreement whether express or implied must be proved beyond reasonable doubt. in most situations an inference or
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circumstantial would do. See the cases of Osondu v. FRN (2000) 12 NWLR (Pt. 682) 448; Balogun V. the State (2018) LPELR – 44215 (SC); Smart V. The State (2016) LPELR – 40728 (SC).
The argument of the appellant in the instant case is that the ingredients of the offences against her were not proved and that the lower Court ought not to have convicted and sentenced him.
The lower Court in its judgment assessed and evaluated the evidence of the prosecution at pages 70-72. The Court found as follows:
“The prosecution is relying on the evidence of PW1 to prove that robbery was in fact committed. PW1 testified that on 17th July, 2015, he was robbed at Ugbogbo Igah of money, handset and a lantern. The time of the commission of the offence was about 4:40 am. He was driving his taxi to the motor park when he ran into a road block mounted by some persons. When he stopped, three persons emerged from the bush and took from him two thousand, two hundred and fifty naira, his Nokia 1600 phone and a lantern. There is no challenge from the defence on this ingredient. His testimony that he was robbed was not discredited. I hold that the prosecution
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proved this ingredient beyond reasonable doubt.”
In my view, the critical question is whether the accused participated in the robbery. The prosecution is relying on the evidence of PW1 and Exhibits P.4 and P.5 in proving this ingredient. I have perused Exhibits P.4 and P.5 both statements are confessional in nature. Both were admitted after a trial within trial.
The statements of both accused persons contain the graphic details of the robbery operation. The contents also corroborate the evidence of PW1 on the items he lost to the robbers, the scene of crime and the road blocked with a bamboo stick.
“I hold that the statements are positive and direct confessional Statements.”
The lower Court did a thorough evaluation of the evidence placed before it. Where a lower Court properly evaluated the evidence adduced by the parties in the case, the appellate Court would have no business tampering with the findings based on such evaluation. Findings of the lower Court it is trite, can only be tampered with if it is perverse. This is apt because, evaluation of evidence and ascription of relevant probative value thereto is the primary duty of the trial
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Court, who had the opportunity to see and hear the parties and assess the witnesses. The trial judge has the advantage of seeing the witnesses, watching their demeanours and hearing them give evidence. In the instant case, the lower Court duly assessed and accepted the evidence before arriving at its decision. It follows therefore that the findings of the lower Court in the circumstance is unassailable.
The appellant along with two others conspired and mounted a road block. He was armed with his conspirators for the robbery. His confessional statement Exhibit materially reads in part:-
“on 17th of July, 2015 we were returning from a burial when one Emmanuel Ogidi and Oche Michael and myself all arranged to go for high way robbery. Having agreed with ourselves, we used bamboo tree and block the road between lgah and Ugbogbo highway. One Oche Michael was holding a cut to size single barrel gun, Emmanuel was holding stick and I was holding torch light. On reaching lgah Ugbogbo after Old Military Check Point we blocked the road with the said bamboo stick. Afterward, one man came with a four wheel drive commercial vehicle. We stopped him and forced him
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out of the vehicle. He asked what we needed from him. Emmanuel started beating him. I put torch light on his face. Emmanuel entered into his vehicle and removed the sum of two thousand (N2,000) only from the vehicle. Oche Michael was pointing gun at his head. Emmanuel also took his handset….”
This confessional statement of the appellant was corroborated by the evidence of the PWI Otalike lsah who was the victim of the Robbery. His rechargeable torch stolen from him during robbery was found in the house of the appellant.
The lower Court found clearly and I believe correctly that the confessional statement of the appellant was positive, direct and cogent. The confession of the appellant from the facts before the Court is consistent with other ascertained facts. It was therefore not in doubt that the confession of the appellant is reliable and can be relied upon in convicting the appellant at the lower Court. The approach is clear that a confessional statement unequivocally confessing to the commission of the offence charged to the appellant who confessed must be held to the offence he confessed to have committed. In Adebayo v. The State (2014)
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LPELR-22988 (SC), The Supreme Court Held that:-
“it must be noted that, in law, a voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the Court can convict. Whereas in this case, the prosecution has proved some facts and/or circumstances, outside the confession which made it probable that the confession was true, then there is a clear ground for conviction. See R. v. Obiasa (1962) WRNLR 354; (1962) 2 SCNLR 402; Paul Onochie & Ors v. The Republic (1966) N.M.L.R. 307.”
In the instant case, the facts and circumstances indicate that the appellant and others conspired and robbed the PW1. Some of the property of the PW1 stolen in the robbery were found in custody of the appellant. It is not only definite but very clear that the appellant committed the offences charged and the lower Court duly found him guilty for the offences he was convicted and sentenced.
From the foregoing therefore, I am of the view that the lower Court was right in its judgment that the appellant committed the offences as ?charged.
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I therefore find this appeal unmeritorious. The appeal is hereby dismissed.
The decision of the lower Court in case No AHC/6C/2016 delivered on 30/6/2017 is hereby affirmed. The conviction and sentence as passed therein are accordingly affirmed.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother ADAH JCA just delivered and I agree that this appeal lacks any merit. The property of PWI found in the custody of the appellant has nailed his coffin. Nothing useful has been urged in his appeal. I dismiss it and affirm the Judgment of the trial Court in case No AHC/6C/2016 delivered on 30th June 2017 which convicted and sentenced the appellant.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA. I am in agreement with his reasoning and conclusion and Orders reached therein.
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Appearances:
A.O. Igeh, Esq. with him, A. Agu, Esq.For Appellant(s)
Mohammed Sani Ibahan, SAN with him, H.A. Agu, Esq., H.E. Yusuf, Esq. (S.G /PS, Senior Legal Officer) and M.M. Isega, Esq. (Legal Officer)For Respondent(s)
Appearances
A.O. Igeh, Esq. with him, A. Agu, Esq.For Appellant
AND
Mohammed Sani Ibahan, SAN with him, H.A. Agu, Esq., H.E. Yusuf, Esq. (S.G /PS, Senior Legal Officer) and M.M. Isega, Esq. (Legal Officer)For Respondent
