DELE BABALOLA v. THE STATE
(2017)LCN/9593(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of March, 2017
CA/IB/339C/2014
RATIO
UNAPPEALED ADMISSION: CONSEQUENCE OF NOT APPEALING AGAINST AN ADMISSION
As I stated earlier the admissibility of the statements of the Appellant made to the Police, which the learned trial Judge considered to be confessional of the crime charged is not in issue. At least there is no ground in the Amended Notice of Appeal which was deemed filed on the 30/1/2015 which touches on the admissibility of the Appellant’s Statements to the Police. Those statements were tendered by the prosecution, admitted after a trial-within-a trial and marked as Exhibits “E” and “H” respectively. There is no appeal against their admission in evidence. Those statements have therefore, in law, been duly proved and admitted in evidence. PER HARUNA SIMON TSAMMANI, J.C.A.
CONFESSIONAL STATEMENT: WHETHER AN ACCUSED CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT ALONE; THE TESTS TO BE APPLIED IN DETERMINING THE TRUTH OF A CONFESSIONAL STATEMENT
It is the settled law that a Confessional Statement which has been proved to have been voluntarily made by an accused person is a relevant fact against him at the trial. A confession therefore is the strongest evidence that can be led against an accused person. If such statement has been duly proved and admitted, it may alone, in some cases, be sufficient to warrant convicting an accused person on it. A Confessional Statement made by an accused person and properly admitted in evidence, is in law, the best guide to the truth of the involvement of the accused in the offence charged. In the case of Adebayo v. State (2014) LPELR – 22988 (SC), My Lord Ariwoola, JSC held that: “On the confession of an accused person, this Court had held that: “evidential value of a confession of truth is very great indeed. It is very sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See; Rep. v. Chartwood (1980) 1 WLR 874; James Obi Achabua v. The State (1976) 12 SC 63 at 68; Jimoh Yesufu v. The State (1976) 6 SC 167.” Similarly, in the case of Akeem Agboola v. The State (2013) LPELR – 20652 (SC), My Lord Ariwoola, JSC again held that: “The law is trite on the point that a man may be convicted on his own confession alone and there is no law against it. The position of the law is that if a suspect makes a free and voluntary confession in his extra judicial statement to the Police, which confession is direct and positive and the Court is satisfied with its truth, such Confessional Statement alone is sufficient to ground and support conviction without corroboration. See; Asimiyu Alarape & Ors. v. The State (2001) 5 NWLR (pt. 705) p. 79, (2001) 2 SC 1134; (2001) LPELR 412 (SC), Ozana Ubierho v. The State (2005) 5 NWLR (pt. 919) 644; (2005) 2 SC (pt. 1) 18, (2005) LPELR – 3283 (SC). There is certainly no evidence stronger than a person’s own admission or confession. Such a confession is admissible.” It is therefore clear that, conviction can be properly founded on a direct, positive, unequivocal and voluntary Confessional Statement of an accused. Such a conviction may be upheld on appeal. See Ikemson & Ors v. The State (1989) 1 C.L.R.N. p. 1; Egbogbonome v. The State (1993) 7 NWLR (pt. 306) p. 383; Omoju v. F.R.N. (2008) 7 NWLR (pt. 1085) p. 38; Akinbisade v. State (2006) 17 NWLR (pt. 1007) p. 184 at 211 – 212; The State v. Olashehu Salawu (2011) LPELR – 8252 (SC) and Dawa & Anor v. The State (1980) 8 – 11 S.C (Reprint) p.147. The law however is that, a Court should be careful or cautious of convicting an accused person on a Confessional Statement alone, especially where such an accused person has retracted the statement. In that respect, the Court must carefully evaluate such statement in the light of other evidence placed before the Court before relying on same to convict. Thus, in the case of Dawa v. State (supra) the Supreme Court relied on the English case of R. v. Sykes (1913) 18 C.A.R. p. 233 to state the tests trial Courts are enjoined to apply in the evaluation of Confessional Statements before convicting thereon. Those tests have over the years been adopted by our Courts in the determination of the probative value to attach to Confessional Statements of accused persons. See for example Nwachukwu v. The State (2007) 12 S.C.M. (pt. 2) p. 447 at 455; Okeke v. The State (2003) 15 NWLR (pt. 842) p. 25; James Chiokwe v. The State (2012) LPELR – 19716 (SC); Sule v. State (2009) 17 NWLR (pt. 1169) p.33 at 60; Nsofor v. State (2004) 18 NWLR (pt. 905) p. 292 at 310 – 311 and Habibu Musa v. The State (2013) LPELR – 19932 (SC). To restate those points, I refer to the case of Ikpo v. State (1995) 9 NWLR (pt. 421) p. 540 where the Supreme Court, per Iguh, JSC said: “It is clear that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession. See; R. v. Sykes (1913) 8 CAR 233 at 236; R. v. Ajayi Omokaro (1941) 7 WACA 146; Philip Kanu & Anor v. King (1952) 14 WACA 30; Jafiya Kopa v. The State (1971) 1 All NLR 150; James Obi Achabua v. The State (1976) 12 S.C. 63 at 68 – 69. But it is desirable to have outside the accused person’s confession, some corroborative evidence, no matter how slight, of circumstances which make it probable that the confession is true and correct as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Paul Onochie & Ors. v. The Republic (1966) NMLR 307; R. v. Sykes (supra).” His Lordship went on to stipulate the tests to be applied in determining the truth of such Confessional Statement in the following words: “Indeed the test for determining the truth or otherwise of a Confessional Statement is to seek any other evidence of circumstances which make it probable that the confession is true. In this regard, the Court would consider issues such as: (i) whether there is anything outside the confession to show that it is true. (ii) whether the statement is corroborated. (iii) whether the statement of facts made in the Confessional Statement so far as can be tested is true. (iv) whether the accused person had the opportunity of committing the offence charged. (v) whether the confession of the accused person was possible. (vi) whether the confession was consistent with other facts which have been ascertained and proved at the trial.” It would appear that if any of the above stated tests is resolved to be in the negative, the Court would be reluctant to convict on such Confessional Statement. PER HARUNA SIMON TSAMMANI, J.C.A.
OFFENCE OF CONSPIRACY: STATUTORY PROVISIONS AS REGARDS THE OFFENCE OF CONSPIRACY TO COMMIT ARMED ROBBERY
Now, the offence of robbery simpliciter and armed robbery have been created by Section 1(1) and (2) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. Section 6(b) creates the offence of conspiracy to commit any of the offences of robbery or armed robbery enshrined in Section 1(1) and (2) of the Act. Thus Section 6(b) stipulates that: “Any person who – (a) …… (b) Conspires with any person to commit such an offence; or (c) ……… whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act. PER HARUNA SIMON TSAMMANI, J.C.A.
OFFENCE OF CONSPIRACY: MEANING AND NATURE OF THE OFFENCE OF CONSPIRACY
The often recognized definition of conspiracy is that, it is an agreement of two or more persons to do an act which is an offence to agree to do. In the case of Oduneye v. State (2001) 2 NWLR (pt. 697) p. 311, Ejiwunmi, JSC said: “A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced “if lawful, punishable if for a criminal object or for the use of criminal means.” From the above definition, it appears to me that conspiracy must not remain in the intention of the alleged conspirators. There must be some act done by all or some of the conspirators from which the Court may infer that a conspiracy has been hatched. For as the saying goes, not even the devil knows the intention of a man. So, the intention of a man can only be deciphered from his actions. In that guise, the Courts have always determined that conspiracy is a matter of inference to be deduced by the trial Court from the actions of the alleged conspirators as disclosed by the evidence adduced at the trial. See State v. Sule (2009) 17 NWLR (pt. 1169) p. 33; Osetola & Anor v. The State (2012) LPELR – 9348 (SC); per Rhodes – Vivour, JSC; Osuagwu v. State (2013) LPELR – (19823) (SC); Adejobi v. State (2011) LPELR – 97 (SC) and Haruna & Ors v. The State (1972) All N.L.R. p. 738. In the case of Alufohai v. State (2014) LPELR – 24215 (SC) Ariwoola, JSC said: “Conspiracy is an agreement between two or more persons to do an unlawful act. It is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly are ever confined to one place. Therefore, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is, in itself a separate and distinct offence, independent of the actual offence conspired to commit. See; Balogun v. A.G; Ogun State (2002) 4 SCM 23, (2002) 2 SC (pt.II) 89, (2002) 2 SCNJ 196.” Recently in the case of Busari v. State (2015) LPELR – 24279 (SC), Mutaka – Coomasie, JSC also held that: “Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to do. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be Physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.” It would be seen therefore that the offence of conspiracy is often hatched in utmost secret. That is why to determine whether conspiracy which is an inchoate offence has been consummated, the Courts resort to making inferences from the facts proved and admitted at the trial. PER HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
DELE BABALOLA Appellant(s)
AND
THE STATE Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Ogun State High Court of Justice siting at Ilaro, delivered by the Hon. Justice M. A. Dipeolu on the 31st day of March, 2014 in Charge No. HCL/8C/2010, wherein the Appellant was convicted for the offence of conspiracy to commit armed robbery, and consequently sentenced to death by hanging.
The Charge against the Appellant and his co-accused persons before the trial Court reads as follows:
New ?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
DELE BABALOLA (M), SEGUN JAMES (M), TOSIN AVODEWU (M), on or about the 17th day of January, 2008 at Idosa Village via Ifoyin, Ipokia in the Ilaro Judicial Division conspired to commit Armed Robbery.New ?
New ?The case of the prosecution against the Appellant and the co-accused persons has been adequately summarized by the learned trial Judge in his judgment
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at page 107 of the Record of Appeal as follows:
New ?The prosecutionNew ?s case in brief is that on 17-1-2008 at about 3.30a.m, P.W1 New ? Kosoko Saibu was in his house at Idosa via Ipokia when he heard people trying to force open the door to his house and shooting. He escaped from the house through the back door and telephoned members of Vigilante group (neighbourhood watch) in his area. The members are PW2 Joseph Avah and PW4 Awise the head of the Vigilante group. PW4 telephoned the Police in the area who gave him and his team the go ahead to move to the scene of crime. As the Vigilante group led by Awise New ? PW4 approached the scene, they saw some people shining their torchlight and shooting. They (the Vigilante group) responded. The people shining their torch and shooting guns then started running towards the swampy area near PW1New ?s house. PW4 and his group pursued them. There they caught the 1st and 2nd accused persons with two guns and cartridges. They also recovered corpses of two of the members of the armed robbery group. They were all (sic) handed over to the Police at Nigeria Police Station, Ipokia.New ?
New ?
From the evidence
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adduced at the trial, the Appellant was said to have made statements to the Police, and which statements are in evidence as Exhibits New ?ENew ? and New ?HNew ? respectively. At the trial, the prosecution called five (5) witnesses and tendered some exhibits which include the statements of the Appellant, 2 locally made pistols and two (2) live cartridges. The Appellant testified and called one witness who testified as the DW5. At the close of evidence, counsel filed Written Addresses and in a considered judgment delivered on the 31st day of March, 2014, the learned trial Judge found the Appellant guilty of conspiracy to commit armed robbery and proceeded to sentence him to death. The Appellant is aggrieved by that decision and has therefore filed this appeal.
The Original Notice of Appeal which is at page 122 of the Record of Appeal was dated the 5/4/2014 and filed on the 28/4/2014. By order of Court made on the 30/1/2015, the Appellant filed an Amended Notice of Appeal. The said Amended Notice of Appeal is dated the 15/10/2014 and filed on the 17/10/2014 but deemed filed on the 30/1/2015. It consists of four (4) Grounds of Appeal. From the grounds
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of Appeal, the parties obeyed the Rules of this Court by filing Briefs of Arguments.
The AppellantNew ?s Brief of Arguments is dated and filed on the 20/4/2015 but deemed filed on the 16/2/2017. Two issues were framed therein for determination as follows:
1. Whether the Court below did not err in law when it attached undue weight to the AppellantNew ?s purported confessional statement and relied on it in convicting the Appellant for conspiracy to commit armed robber and sentencing him to death.
[Grounds 1 and 2]
2. Whether the learned trial Judge was right when he convicted the Appellant for conspiracy to commit armed robbery and sentenced him to death under Section 1(2)(a) of the Robbery and Firearms (Special Offences) Act.
[Grounds 1, 2, 3 and 4]
The Respondents Brief of Arguments settled by Akinlolu Osinbajo; Esq was dated the 14/2/2017 and filed on the 15/2/2017 but deemed filed on the 16/2/2017. Therein, two issues were also framed for determination as follows:
New ?1. Whether from the totality of evidence adduced at the trial, the prosecution has proved the offence of conspiracy to commit armed robbery against the
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Appellant beyond reasonable doubt.
2. Whether the trial Court rightly admitted and relied on the AppellantNew ?s confessional statements having regard to the circumstance of the case.
A close scrutiny of the issues raised by the parties would show that the RespondentNew ?s issue one (1) correspond with the AppellantNew ?s issue two (2). However, it appears to me that the RespondentNew ?s issue two (2) which purports to be in response to the Appellants issue one (1), is not really so. I shall explain the difference when resolving the issue. In that respect, I shall determine this appeal on the issues formulated by the Appellant. I begin with issue one (1).
Arguing in respect of issue one (1), learned counsel for the Appellant contended that, assuming (which is not conceded), that the AppellantNew ?s Confessional Statement was voluntarily made, same was retracted by the Appellant. That, in such a circumstance, the learned trial Judge had a duty to critically scrutinize the statement by looking to see if there is any independent evidence outside the Confessional Statement. The cases of Ogudo v. State (2011) 18 NWLR (pt.1278) p.1 at
5
26 Paragraphs C New ? H and Sabi v. State (2011) 14 NWLR (pt.1268) p.421 at 437 New ? 438 Paragraphs E New ? B were then cited to contend that the Supreme Court has emphasized the need for the trial Judge to seek external evidence in corroboration of a Confessional Statement no matter how slight before relying on such confession to convict an accused person.
Learned Counsel then referred to the finding of the learned trial Judge at page 68 of Record of Appeal, to submit that the learned trial Judge failed to comply with those important legal requirements as set out in Ogudo v. State (supra). That, this therefore amounts to improper evaluation of evidence by the Court which act has occasioned miscarriage of justice. The cases of Osuoha v. State (2010) 16 NWLR (pt.1219) p. 364 at 393 Paragraphs A New ? H; Usufu v. State (2007) 3 NWLR (pt. 1020) p. 94 at 120 Paragraph A New ? B and Dairo v. F.R.N. (2012) 16 NWLR (pt. 1325) p. 129 at 197 Paragraphs D New ? H were then cited to submit that the learned trial Judge failed to test the veracity of the AppellantNew ?s Confessional Statements in the light of the rules set out in OgudoNew ?s case (supra)
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and therefore erred when it attached weight to such Confessional Statement to convict the Appellant for conspiracy to commit armed robbery.
In response, learned counsel for the Respondent submitted that, it is trite law that, a trial Court can rely solely on the Confessional Statement of an accused person to convict him. He then cited the cases of Akpa v. State (2008) 8 S.C.M. p.68 and Nwachukwu v. State (2007) 12 S.C.M. (pt. 2) p. 447 at 455 to further submit that Confessional Statement is the best evidence in a criminal trial, and that once same is admitted in evidence, it becomes part of the prosecutionNew ?s case which the trial Court is bound to consider as was done in the present case. That, in the instant case, though objection was raised to the admissibility of the AppellantNew ?s Statement, the learned trial Judge conducted a trial-within-a trial and determined that the statements were voluntarily made before admitting same. Furthermore, that having found that the AppellantNew ?s Statement was made voluntarily, the learned trial Judge was right to have considered same in convicting the Appellant.
New ?
Learned Counsel for the Respondent also
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cited the case ofOseni v. State (2012) 4 S.C.M. p.150 at 153 and 166, as authority for conceding that the learned trial Judge was indeed required to look for other facts outside the confession before relying on same to convict the Appellant. That, in the instant case, the unshaken evidence of the prosecution witnesses served as a good corroboration to the Confessional Statements of the Appellant (Exhibits E and H). That in any case, it has been held in the case of Oseni v. State (supra), that without corroboration, a Confessional Statement may be sufficient to support a conviction so long as the Court is satisfied of its truth. It was then submitted that going through the evidence of the prosecution witnesses, it is obvious that the requirements stated in Oseni v. State (supra) were fully satisfied. We were accordingly urged to resolve this issue against the Appellant.
I have read the AppellantNew ?s Reply Brief of Arguments which is undated but filed on the 10/2/17 but deemed filed on the 16/2/17. I do not find anything useful in it in the determination of this issue.
New ?
I had earlier in the course of this judgment stated that the RespondentNew ?s
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issue two (2) which is said to be in response to the AppellantNew ?s issue one (1) is not really so. It appears clear to me that the AppellantNew ?s complaint in issue one (1) is on the evaluation of the AppellantNew ?s Statements (Exhibits New ?ENew ? and New ?HNew ?) by the learned trial Judge. However, a cursory look at the RespondentNew ?s issue two (2) reveals to me that it is a complaint on the admissibility of those statements. I have therefore excluded arguments by the Respondent touching on the admissibility of those exhibits. The issue as distilled by the Appellant and the arguments thereon do not touch on the admissibility of those statements.
Now, in the resolution of this issue, I wish to point out that, Section 29(1) of the Evidence Act, 2011 has stipulated that:
New ?In any proceeding, a confession made by a Defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.New ?
New ?
Section 28 of the Evidence Act (supra) has defined a confession (or Confessional Statement) as New ?an admission made at
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any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.New ? As I stated earlier the admissibility of the statements of the Appellant made to the Police, which the learned trial Judge considered to be confessional of the crime charged is not in issue. At least there is no ground in the Amended Notice of Appeal which was deemed filed on the 30/1/2015 which touches on the admissibility of the AppellantNew ?s Statements to the Police. Those statements were tendered by the prosecution, admitted after a trial-within-a trial and marked as Exhibits New ?ENew ? and New ?HNew ? respectively. There is no appeal against their admission in evidence. Those statements have therefore, in law, been duly proved and admitted in evidence.
It is the settled law that a Confessional Statement which has been proved to have been voluntarily made by an accused person is a relevant fact against him at the trial. A confession therefore is the strongest evidence that can be led against an accused person. If such statement has been duly proved and admitted, it may alone, in some cases, be sufficient to warrant
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convicting an accused person on it. A Confessional Statement made by an accused person and properly admitted in evidence, is in law, the best guide to the truth of the involvement of the accused in the offence charged. In the case of Adebayo v. State (2014) LPELR New ? 22988 (SC), My Lord Ariwoola, JSC held that:
New ?On the confession of an accused person, this Court had held that: New ?evidential value of a confession of truth is very great indeed. It is very sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See; Rep. v. Chartwood (1980) 1 WLR 874; James Obi Achabua v. The State (1976) 12 SC 63 at 68; Jimoh Yesufu v. The State (1976) 6 SC 167.New ?
Similarly, in the case of Akeem Agboola v. The State (2013) LPELR New ? 20652 (SC), My Lord Ariwoola, JSC again held that:
New ?The law is trite on the point that a man may be convicted on his own confession alone and there is no law against it. The position of the law is that if a suspect makes a free and voluntary
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confession in his extra judicial statement to the Police, which confession is direct and positive and the Court is satisfied with its truth, such Confessional Statement alone is sufficient to ground and support conviction without corroboration. See; Asimiyu Alarape & Ors. v. The State (2001) 5 NWLR (pt. 705) p. 79, (2001) 2 SC 1134; (2001) LPELR 412 (SC), Ozana Ubierho v. The State (2005) 5 NWLR (pt. 919) 644; (2005) 2 SC (pt. 1) 18, (2005) LPELR New ? 3283 (SC). There is certainly no evidence stronger than a personNew ?s own admission or confession. Such a confession is admissible.New ?
It is therefore clear that, conviction can be properly founded on a direct, positive, unequivocal and voluntary Confessional Statement of an accused. Such a conviction may be upheld on appeal. See Ikemson & Ors v. The State (1989) 1 C.L.R.N. p. 1; Egbogbonome v. The State (1993) 7 NWLR (pt. 306) p. 383; Omoju v. F.R.N. (2008) 7 NWLR (pt. 1085) p. 38; Akinbisade v. State (2006) 17 NWLR (pt. 1007) p. 184 at 211 New ? 212; The State v. Olashehu Salawu (2011) LPELR New ? 8252 (SC) and Dawa & Anor v. The State (1980) 8 New ? 11 S.C (Reprint) p.147.
The law
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however is that, a Court should be careful or cautious of convicting an accused person on a Confessional Statement alone, especially where such an accused person has retracted the statement. In that respect, the Court must carefully evaluate such statement in the light of other evidence placed before the Court before relying on same to convict. Thus, in the case of Dawa v. State (supra) the Supreme Court relied on the English case of R. v. Sykes (1913) 18 C.A.R. p. 233 to state the tests trial Courts are enjoined to apply in the evaluation of Confessional Statements before convicting thereon. Those tests have over the years been adopted by our Courts in the determination of the probative value to attach to Confessional Statements of accused persons. See for example Nwachukwu v. The State (2007) 12 S.C.M. (pt. 2) p. 447 at 455; Okeke v. The State (2003) 15 NWLR (pt. 842) p. 25; James Chiokwe v. The State (2012) LPELR New ? 19716 (SC); Sule v. State (2009) 17 NWLR (pt. 1169) p.33 at 60; Nsofor v. State (2004) 18 NWLR (pt. 905) p. 292 at 310 New ? 311 and Habibu Musa v. The State (2013) LPELR New ? 19932 (SC). To restate those points, I refer to the case of Ikpo v.
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State (1995) 9 NWLR (pt. 421) p. 540 where the Supreme Court, per Iguh, JSC said:
New ?It is clear that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession. See; R. v. Sykes (1913) 8 CAR 233 at 236; R. v. Ajayi Omokaro (1941) 7 WACA 146; Philip Kanu & Anor v. King (1952) 14 WACA 30; Jafiya Kopa v. The State (1971) 1 All NLR 150; James Obi Achabua v. The State (1976) 12 S.C. 63 at 68 New ? 69. But it is desirable to have outside the accused personNew ?s confession, some corroborative evidence, no matter how slight, of circumstances which make it probable that the confession is true and correct as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Paul Onochie & Ors. v. The Republic (1966) NMLR 307; R. v. Sykes (supra).New ?
His Lordship went on to stipulate the tests to be applied in determining the truth of such Confessional Statement in the following words:
New New New Indeed
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the test for determining the truth or otherwise of a Confessional Statement is to seek any other evidence of circumstances which make it probable that the confession is true. In this regard, the Court would consider issues such as:
(i) whether there is anything outside the confession to show that it is true.
(ii) whether the statement is corroborated.
(iii) whether the statement of facts made in the Confessional Statement so far as can be tested is true.
(iv) whether the accused person had the opportunity of committing the offence charged.
(v) whether the confession of the accused person was possible.
(vi) whether the confession was consistent with other facts which have been ascertained and proved at the trial.New ?
It would appear that if any of the above stated tests is resolved to be in the negative, the Court would be reluctant to convict on such Confessional Statement.
In the instant case, the Confessional Statements of the Appellant were admitted in evidence as Exhibits ENew ? and New ?HNew ? respectively. However, at the trial, the Appellant resiled from or retracted the
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contents of Exhibits New ?ENew ? and New ?HNew ?. Of course the law is that, the fact that an accused person has retracted his confession will not make the Confessional Statement inadmissible. Indeed, the Court may still convict on such retracted statement once the Court has applied the above stated tests and is satisfied of the truth of the Confessional Statement. See Edhigere v. State (1996) 8 NWLR (pt. 464) p. 1; Akpan v. State (2000) 12 NWLR (pt. 682) p. 607; Osetola v. State (2012) 17 NWLR (pt. 1329) p. 251; Busari v. State (2015) LPELR 24279 (SC) and Edamine v. The State (1996) 3 NWLR (pt. 438) p. 530.
I have carefully read the judgment of the trial Court at pages 107 -119 of the Record of Appeal. Having read the said judgment, I am unable to find anywhere in the judgment where the learned trial Judge, in the evaluation of the evidence adduced at the trial made reference to the Confessional Statement of the Appellant. The only reference to the Appellant in the evaluation or appraisal of the evidence against him is in pages 113 and 114 of the Records. At page 113 lines 32 – 35 the learned trial Judge held that:
New ?From the evidence of PWs 1,
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2 and 4, the victim and eye witnesses respectively, the 1st and 2nd accused persons were arrested in a swamp near the PWNew ?s house during a shoot-out between the accused persons and members of neighbourhood security watch (Vigilante group). It is also in evidence that two of the armed robbers were killed during the shoot-out. Two locally made guns and two live cartridges were recovered from the accused persons.New ?
The learned trail Judge then concluded in pages 113 line 38 – 114 line 3 as follows:
New ?.. 1st and 2nd accused persons in their testimony denied being armed robbers and/or arrested during a shoot-out between them and the neighbourhood security. 1st accused stated that he was returning from a market at Benin Republic where he went to purchase goods to sell in Nigeria. He returned through waterside to avoid customs check-point. While on his way, he was arrested by Vigilante men with his wares.New ?
The learned trial Judge reiterated at page 114 (last paragraph) New ? 115 lines 1-6 of the Record of Appeal that:
New ?Now, it is the evidence of PWs 2 and 4 men (sic) of the Vigilante group that the 1st and 2nd accused
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persons were arrested in the early hours of 17-1-2008 in a swamp near the ComplainantNew ?s house having being (sic) pursued there. Two guns and two cartridges were recovered from them. While two members of the armed robbery gang were found dead in the swamp.
From the circumstances surrounding the arrest of the 1st and 2nd accused person and the time of their arrest before 4.00am, the evidence of the prosecution witnesses, especially PWs 1, 2 and 4 being eye witness account those who actually arrested the accused persons, seems credible to me. I believe the evidence of the afore-said witnesses. I hold that the prosecution has proved the offence of conspiracy against the 1st and 2nd accused persons beyond reasonable doubt.New ?
It should be noted that the Appellant herein, was the 1st accused at the trial. It is clear therefore, that the learned trial Judge did not utilize any of the AppellantNew ?s Confessional Statements admitted in evidence (Exhibits New ?ENew ? and New ?HNew ?) in the evaluation or appraisal of the evidence against the Appellant. The learned trial Judge thus found the guilt of the Appellant as having been proved, on
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the evidence of PW2 and PW4 and the circumstances of his arrest as narrated by PW2 and PW4. The tests for determining the truth of Confessional Statements, was applied by the learned trial Judge only with respect to the case against the 3rd accused person. See pages 115 line 7 – 116 line 15 of the Record of Appeal. Pages 116 – 118 of the judgment also covers the evaluation of the evidence against the 3rd accused. It had nothing to do with evaluation of the evidence against the Appellant. It is therefore my finding that the learned trial Judge did not attach any weight or evidential value to the Confessional Statements of the Appellant in the evaluation of the evidence against him. The Grounds of Appeal from which this issue (issue one) was distilled did not therefore arise from the judgment of the trial Court. The only logical conclusion therefore is to resolve this issue against the Appellant. This issue is thereby resolved against the Appellant.
New ?
Now, on issue two (2), learned counsel for the Appellant reminded us of the presumption of innocence which enures in favour of the Appellant by virtue of Section 36 (5) of the Constitution of the Federal
19
Republic of Nigeria, 1999 (as amended). Section 135 (1) of the Evidence Act, 2011 and the case of Ani v. State (2009) 16 NWLR (pt. 1168) p. 443 at 457-458 Paragraphs F New ? B were cited to direct our minds as to where the burden and standard of proof lies in a criminal case. Learned counsel also referred to page 118 of the Record of Appeal to contend that the learned trial Judge correctly stated the ingredients to be proved in a charge of conspiracy. It was thus submitted that, those ingredients of the offence must be proved beyond reasonable doubt. Learned counsel for the Appellant then referred to the judgment of the trial Court at page 115 of the Record of Appeal, the testimony of the Appellant and the testimonies of PW2 and PW4 before the trial Court, to submit that the learned trial Judge did not properly evaluate the evidence against the Appellant but merely stated that he believed the testimonies of the RespondentNew ?s witnesses, especially the PW2 and PW4. That what the learned trial Judge should have done was to ask himself whether, from the totality of the evidence before him, all the ingredients of conspiracy to commit armed robbery had been
20
established beyond reasonable doubt.
Learned counsel for the Appellant further made reference to the testimonies of the Appellant, PW2 and PW4 to submit that the learned trial Judge failed to properly weigh the facts presented by the parties, but merely believed the RespondentNew ?s witnesses and disbelieved the testimony of the Appellant. That, the learned trial Judge did not give any reason for disbelieving the testimony of the Appellant while believing the testimonies of the PW2 and PW4 as credible especially when those witnesses differed in their account of the events that transpired on the day of the alleged robbery. That, while PW2 said Mr. Kosoko contacted them at 3.30a.m, PW4 stated that it was at about 3.50a.m. Learned counsel then cited the case of Ogundu v. State (supra) at p. 32 Paragraphs D – E and Anekwe v. State (2014) 10 NWLR (pt. 1415) p. 353 at 379 to submit that the conviction of the Appellant was not based on proper evaluation of the evidence adduced at the trial against the Appellant. Learned Counsel for the Appellant then submitted that the trial Court having fallen short in the evaluation of the evidence, the conviction and
21
sentenced meted on the Appellant should be set aside.
Learned counsel for the Appellant pointed out that the Appellant was only charged with the offence of conspiracy. That he was not charged with armed robbery. It was also pointed out the learned counsel for the Appellant that, the thrust of the evidence of the prosecution against the Appellant is his purported Confessional Statement and the testimonies of PW1, PW2 and PW3. Learned Counsel then cited the case of State v. Salawu (2011) 18 NWLR (pt. 1279) p. 580 at pp. 614 – 615 Paragraphs F – A, to adumbrate the ingredients that must be proved to establish that conspiracy has been committed. The case of Aituma v. The State (2006) 10 NWLR (pt. 989) p. 452 at 468 Paragraphs C – D was also cited to contend that for the prosecution to prove conspiracy, it must be established that:
(a) There is an agreement by two or more persons to execute an agreed act; and
(b) That the agreed act is unlawful.
It was then submitted that, apart from the purported Confessional Statements of the Appellant, there is no direct or circumstantial evidence from the testimonies of the RespondentNew ?s witnesses
22
which suggest that the Appellant agreed/conspired with the other accused persons to commit the offence of armed robbery. Learned Counsel for the Appellant then cited the cases of Ishola v. The State (1972) 10 S.C. p. 63 at 76 New ? 77 and Ikwunne v. The State (2000) 5 NWLR (pt. 658) p. 550 at 561 Paragraphs B New ? C, to submit that, where from the records, there is no evidence of any agreement by the alleged conspirators, then the charge of conspiracy cannot be said to have been made out. We were accordingly urged to hold that the prosecution failed to prove the charge of conspiracy to commit armed robbery against the Appellant; and to therefore set aside the judgment of the trial Court.
Responding on this issue, learned counsel for the Respondent cited the cases of Abifiron v. The State (2013) 9 SCM. P.1 at 5 and Nwaturuocha v. The State (2011) 2 S.C.M. p. 265 at 269 to submit that, the onus is always on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The cases of Osetola & 1 Or v. The State (2012) 12 S.C.M. (pt. 2) p. 347 at 371; and Nguma v. A.G; Imo State (2014) 3 S.C.M. p. 137 at 160 New ? 161 were then cited to
23
submit that the offence of conspiracy is complete when two or more persons agree to do an unlawful act or do a lawful act by an unlawful means. Furthermore, that as stated in the cases of Ajuluchukwu v. The State (2014) 10 S.C.M. p.43 at 56 per Ariwoola, JSC and Yakubu v. The State (2014) 3 S.C.M. p. 254 at 265, conspiracy can be inferred from the statements of the accused persons admitted in evidence as Exhibits E, F, G, H and I. That, a careful perusal of those Exhibits show that there was a meeting of the minds of the Appellant and the other accused persons to do and unlawful act.
Learned Counsel then cited the case of Ajayi v. The State (2013) 3 S.C.M. p.1 at 24 to further submit that, for the purpose of conviction on conspiracy, direct and distinct evidence though most desirable is not invariably indispensable. That it is therefore for the trial Judge to infer conspiracy from the fact of doing things towards a common goal and by the execution of a planned premeditated common intention and purpose, because conspiracy is usually hatched with utmost secrecy. That conspiracy being a separate and distinct offence from the substantive offence, failure to
24
prove the substantive offence does not make conviction for conspiracy inappropriate. The case of Ajuluchukwu v. The State (supra) was cited in support.
It was further submitted by learned counsel for the Respondent that, from the Exhibits and the testimonies of PW2 and PW4, the learned trial Judge had inferred and connected the facts together and had come to the irresistible conclusion that the accused persons did conspire to rob the PW1. That based on the Confessional Statements, of the Appellant, the fact that two locally made guns and two live cartridges were recovered from them and the timing of their arrest, points irresistibly to the inference that the Appellant did conspire to commit armed robbery. Furthermore, that the Appellant and the 2nd accused were arrested in a swamp near PW1New ?s house during a shoot-out with the Vigilante men. That, the alibi raised by the Appellant during his testimony in Court was raised too late because it is the law that alibi should be raised at the earliest opportunity so as to enable the police to investigate same. That, in the instant case, the Appellant raised the alibi for the first time at the trial. The
25
cases of Tongo v. C.O.P. (2007) 9 S.C.M. p.113; and Okolo Ochemaje v. The State (supra) at p.31 were also cited to submit that the Appellant not having raised the alibi at the earliest opportunity, same had been raised as an afterthought.
Learned Counsel for the Respondent went on to submit that, the testimonies of PW2 and PW4, and Exhibits New ?ENew ? and New ?HNew ? fixed the Appellant to the scene of crime; and that the Appellant having been arrested at the scene of crime cannot assert the defence of alibi. The cases of Ibrahim v. The State (2013) 12 S.C.M. (pt. 3) p. 545 and Lasisi v. The State (2013) 6 S.C.M. p. 97 at 112 were cited in support. It was also submitted that the identity of the Appellant was never in issue as he was arrested by PW2 and PW4 close to the scene of crime while trying to escape. Furthermore, that the Appellant admitted in Exhibits E and H to being at the scene of crime and also gave graphic details of his involvement in the operation. We were accordingly urged to resolve this issue against the Appellant and to dismiss the appeal.
New ?
Now, the offence of robbery simpliciter and armed robbery have been created by Section
26
1(1) and (2) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. Section 6(b) creates the offence of conspiracy to commit any of the offences of robbery or armed robbery enshrined in Section 1(1) and (2) of the Act. Thus Section 6(b) stipulates that:
New ?Any person who New ?
(a) New New New
(b) Conspires with any person to commit such an offence; or
(c) New New New New ?
whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.New ?
It is therefore glaring that the offence of conspiracy is one of the offences recognized under the Robbery and Firearms Act (supra). However, the Robbery and Firearms Act (supra) does not define what
27
conspiracy is. Courts in Nigeria have therefore resorted to case law on the issue. The often recognized definition of conspiracy is that, it is an agreement of two or more persons to do an act which is an offence to agree to do. In the case of Oduneye v. State (2001) 2 NWLR (pt. 697) p. 311, Ejiwunmi, JSC said:
New ?A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced New ?if lawful, punishable if for a criminal object or for the use of criminal means.New ?
From the above definition, it appears to me that conspiracy must not remain in the intention of the alleged conspirators. There must be some act done by all or some of the conspirators from which the Court may infer that a conspiracy has been hatched. For as the saying goes, not even the devil knows the intention of a man. So, the
28
intention of a man can only be deciphered from his actions. In that guise, the Courts have always determined that conspiracy is a matter of inference to be deduced by the trial Court from the actions of the alleged conspirators as disclosed by the evidence adduced at the trial. See State v. Sule (2009) 17 NWLR (pt. 1169) p. 33; Osetola & Anor v. The State (2012) LPELR New ? 9348 (SC); per Rhodes New ? Vivour, JSC; Osuagwu v. State (2013) LPELR New ? (19823) (SC); Adejobi v. State (2011) LPELR New ? 97 (SC) and Haruna & Ors v. The State (1972) All N.L.R. p. 738. In the case of Alufohai v. State (2014) LPELR New ? 24215 (SC) Ariwoola, JSC said:
New ?Conspiracy is an agreement between two or more persons to do an unlawful act. It is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly are ever confined to one place. Therefore, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is, in itself a separate and distinct offence, independent of the actual offence conspired to commit.
29
See; Balogun v. A.G; Ogun State (2002) 4 SCM 23, (2002) 2 SC (pt.II) 89, (2002) 2 SCNJ 196.New ?
Recently in the case of Busari v. State (2015) LPELR New ? 24279 (SC), Mutaka New ? Coomasie, JSC also held that:
New ?Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to do. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be Physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.New ?
It would be seen therefore that the offence of conspiracy is often hatched in utmost secret. That is why to determine whether conspiracy which is an inchoate offence has been consummated, the Courts resort to making inferences from the facts proved and admitted at the trial.
In the instance case, the Appellant was charged for New ?conspiracy to commit armed robberyNew ?. For the prosecution to succeed in proving a charge of conspiracy to commit armed robbery, the following
30
ingredients or facts must be proved beyond reasonable doubt:
(a) That the Accused/Appellant conspired with others to commit an offence.
(b) That the offence for which the conspiracy was formed is armed robbery; and
(c) That the accused or the co-conspirators did some act towards the execution of the crime for which the conspiracy was formed.
See the case of Usufu v. The State (2007) 3 NWLR (pt. 1020) p. 94 at 113 – 114 Paragraphs H-A. In the instant case, the Appellant was only charged for conspiracy to commit the offence of armed robbery. He was however not charged with the substantive offence of armed robbery. The general principle of law is that, an accused person cannot be convicted of conspiracy where he has been acquitted of the substantive offence for which he has been accused of conspiring to commit. The only exception is where the accused has confessed to the conspiracy and/or there is or are other evidence to sustain the conspiracy charge. However, were he has been charged for conspiracy to commit the substantive offence and for committing the substantive offence, he cannot be convicted of the conspiracy to commit the substantive
31
offence, if he is acquitted of the substantive offence. See Abioye v. The State (1987) 7 NWLR (pt. 58) p.645; Amadi v. State (1993) 8 NWLR (pt.313) p.664 at 677 and Oladejo v. State (1994) 6 NWLR (pt. 348) p. 101 at 127.
In the instant case, the Appellant was charged with conspiracy to commit the substantive offence of armed robbery only. He was not charged with the commission of the substantive offence of armed robbery. The evidence adduced at the trial and admitted by the Court, in proof of the charge of conspiracy, appear to me to be intricately connected to the evidence needed in proof of the charge of armed robbery. Alas, he was not charged for armed robbery as a distinct offence. Furthermore, the learned trial Judge did not consider the evidence in the Statements of the Appellant admitted by the trial Court as Exhibits New ?ENew ? and New ?HNew ?, which the trial Court considered to be confessional in nature. The only evidence which the learned trial Judge considered in prove of the charge of conspiracy are the testimonies of PW2, PW4 and the locally made pistols and cartridges of live ammunition said to have been recovered from the
32
Appellant and the co-accused persons. Though those portions of the findings of the learned trial Judge had been reproduced when resolving issue one, I think it will be necessary to again reproduce same, as that will explain the point I am trying to make clearer: At page 113 of the records, the learned trial Judge found and resolved as follows:
New ?From the evidence of PW1, 2 and 4, the victim and eye witnesses respectively, the 1st and 2nd accused persons were arrested in a swamp near the PW1New ?s house during a shoot-out between the accused persons and members of neighbourhood security watch (vigilante group). It is also in evidence that two of the armed robbers were killed during the shoot-out. Two locally made guns and two live cartridges were recovered from the accused persons. The 3rd accused person was arrested about 4 months later.
1st and 2nd accused persons in their testimony denied being armed robbers and/or arrested during a shoot-out between them and the neighbourhood security. 1st accused stated that he was returning from a market at Benin Republic were he went to purchase goods to sell in Nigeria. He returned through waterside to
33
avoid customs check point while on his way, he was arrested by vigilante men and his wares.New ?
In the last paragraph of page 114 of the Record of Appeal, the learned trial Judge made the following findings:
New ?Now, it is the evidence of PWs 2 and 4 men of the vigilante group, that the 1st and the 2nd accused persons were arrested in the early hours of 17-1-2008 in a swamp near the complainantNew ?s house having being (sic) pursued there. Two guns and two cartridges were recovered from them. While two members of the armed robbery gang were found dead in the swamp.
From the circumstances surrounding the arrest of the 1st and 2nd accused persons and the time of their arrest before 4.00 a.m, the evidence of the prosecution witnesses, especially PWs 1, 2 and 4 being eye witness account those who actually arrested the accused persons, seems credible to me. I believe the evidence of the aforesaid witnesses. I hold that the prosecution has proved the offence of conspiracy against the 1st and 2nd accused persons beyond reasonable doubt.New ?
New ?It is clear to me therefore that the learned trial Judge inferred conspiracy to commit armed
34
robbery as charged, from the testimony of the PW2 and 4, the place and time of the arrest of the Appellant and the 2nd accused. The fact of recovering of two guns and two cartridges with live ammunition and the recovery of two dead bodies alleged to be members of the armed robbery gang were also relied on by the learned trial Judge in making inference of conspiracy. It is obvious therefore, that the learned trial Judge did not use the alleged Confessional Statements (Exhibits New ?ENew ? and New ?HNew ?) of the Appellant being extra-judicially made to the police in drawing the inference of conspiracy to commit armed robbery.
I wish to point out at this juncture that the Appellant was charged and arraigned with two others; to wit: Segun James and Tosin Avodewu. The appeal of Segun James was heard and determined by this Court in a judgment delivered on the 9th day of December, 2015 in Appeal No: CA/I/344C/2014; SEGUN JAMES v. THE STATE. In the said judgment, my learned brother Daniel-Kalio, JCA made findings from the evidence on the printed record and held at pages 15 – 16 of the judgment as follows:
New ?From the evidence of the witnesses,
35
particularly PW2 and PW4, the Appellant was part of a gang of armed robbers who attempted to enter the house of the PW1 and who were caught while fleeing. Not only was the Appellant and members of his gang of robbers caught, they were caught with guns and ammunition.
Besides, two dead bodies of robbers were recovered. What I find both curious and flabbergasting about the evidence of PW2 and PW4 is that despite and in spite of the heavily incriminating evidence adduced by them against the Appellant and his co-accused, they were never charge with armed robbery. The million dollar question is why? Is it really possible to be caught fleeing from a scene of crime, literally caught with a New ?smoking gunNew ? i.e with arms, ammunition and even dead bodies and yet not be charged with armed robbery? Frankly, I find that to be strange.
It is my humble view that the fact that the Appellant and his co-accused were not charged with armed robbery suggests that contrary to the evidence led by PW1, PW2 and PW4, they were not involved in any incident of armed robbery. I find therefore that the finding of the lower Court accepting the evidence of PW1, PW2 and
36
PW4 in proof of conspiracy to commit armed robbery is perverse given the highly improbable nature of the evidence led by those witnesses.New ?
I was in the panel that heard Appeal No: CA/I/344c/2014, and did concur with the judgment. The facts relied on by the learned trial Judge in drawing the inference of conspiracy against the AppellantNew ?s co-accused, to wit: Segun James, is the same evidence the learned trial Judge used to convict the Appellant in this appeal of conspiracy to commit armed robbery. I am therefore bound by our earlier decision in Appeal No CA/I/344c/2014; SEGUN JAMES v. THE STATE delivered on the 9th day of December, 2015 as I have not seen any reason nor has any reason been drawn to my attention by learned counsel for the Respondent why I should depart from it. Having thus found, I hereby resolve this issue in favour of the Appellant.
On the whole therefore, I find this appeal to be meritorious. It is hereby allowed. Consequently, the judgment of the Ogun State High Court of Justice delivered on the 31st day of March, 2014 in charge N0: HCL/8C/2010 is hereby set aside. The Appellant is hereby discharged and
37
acquitted.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: Conspiracy as an inchoate act is in law held birthed when there is evidence of a meeting of the minds or two or more people to do an unlawful act or a lawful act by an unlawful means. being an agreement often against societal norms, rules and regulations, conspiracy is often hatched in secrecy.
Positive evidence against conspirators is often difficult to adduce. Only circumstances short of a direct confession, often give out the conspirators.
In this appeal, my Learned brother HARUNA SIMON TSAMMANI JCA has carefully and thoroughly navigated through the conspiracy elements as determined by the Apex Court and this Court and as forwarded by the prosecution and upon which evidence the learned trial Court found the Appellant guilty. He was accordingly convicted and sentenced to death per the provisions of Section (6)(b) and 1(2)(a) of the Robbery and Firearms Act Cap. R 11 laws of the Federation 2004or so it appears. However, a calm review of the evidence acted upon expose some yawning gap in the case of the prosecution.
New ?It is always in focus that the
38
prosecution has the entire burden of proof to enable it achieve the condemning nod of the Bench to send an accused person to the gallows. Expectantly so, for no man on his correct senses will help another man to cut off his own throat. That is why circumstances are the most helpful tools in the hands of the prosecutor.
However hard a man denies a matter, circumstances which constitute of hard facts always expose the least expected. Even at that, only some very rare circumstances can fix a crime on an accused who is found in such. For example a man caught with his hands painted red with blood, holding a knife beside the mutilated body of a man.
As elaborately stated in the lead judgment, the findings of the learned trial Judge as recorded at pages 114-115 is bare and without the facts supporting the said finding. That New New New two guns and two cartridges were recovered from the 1st and 2nd accused persons, while two members of the armed robbery gang were found dead in the swampNew New New is too sweeping a statement. Two membersNew ? found dead in the swampNew ? Who killed them, when did they each die, how did they die? The two dead
39
found could very well be the corpses of some victims of yet another crime! My learned brother who prepared the lead Judgment found that the learned trial Judge totally jettisoned all the confessional statements of the Appellant which were tendered and duly admitted in evidence.
Thus without a positive reliance on the confessional statements of the Appellant as an accused, which statement the Appellant resiled from at trial, the learned trial Court had no positive circumstantial evidence upon which to situate the conviction of the Appellant.
I too hereby allow this appeal and adopt all the consequential orders made in the lead judgment.
It is hereby so ordered.
MODUPE FASANMI, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA.
New ?I agree with the reasoning and conclusion. I too allow the appeal. I abide by the consequential orders contained therein.
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Appearances
L. O. Ikwuagwu (Mrs)For Appellant
AND
Akinlolu Osinbajo, Esq. with him, Fisayo Tifase, Esq.For Respondent
