EMMANUEL OLOYEDE v. THE STATE (2019)

EMMANUEL OLOYEDE v. THE STATE

(2019)LCN/13161(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of April, 2019

CA/IB/84C/2016

RATIO

CRIMINAL LAW AND PROCEDURE: STANDARD OF PROOF IN CRIMINAL MATTERS

In criminal prosecution, the required standard is that of proof beyond reasonable doubt. The burden on the Prosecution in a criminal trial has been concisely enshrined in Section 135(1) of the Evidence Act 2011 which provides as follows:-

If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL LAW AND PROCEDURE: PROOF BEYOND REASONABLE DOUBT IS NOT PROOF BEYOND SHADOW OF DOUBT
However proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt. When the ingredients of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:-
JUA VS THE STATE (SUPRA). JULIUS ABIRIFON VS. THE STATE (2013) LPELR – 20807 (SC). ADIO VS. THE STATE (1986) 5 SC PAGE 194 AT 219-220.PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL LAW AND PROCEDURE: HOW TO PROVE CRIME
The guilt of an accused person can be proved through any of the following methods:-
(a). Through Confessional Statement of the accused; or
(b). Through circumstantial evidence; or
(c). Through the testimony of an eye witness or eye witnesses.
See the following cases:-
ITU VS. STATE (2016) 5 NWLR PART 1506 PAGE 443 AT 465-466. IGABELE VS. STATE (2006) 6 NWLR PART 975 PAGE 100. EMEKA VS. THE STATE (2001) 14 NWLR PART 734 PAGE 666 AT 683.PER JIMI OLUKAYODE BADA, J.C.A.

ARMED ROBBERY: INGREDIENTS THAT MUST BE PROVED

It is trite that whenever an accused person is charged with the offence of Armed Robbery, the burden of proof is on the Prosecution to prove the following elements of the offence beyond reasonable doubt:-
(1). That there was a robbery or series of robberies.
(2). That the said robbery was an armed robbery.
(3). That the Appellant was one of those who took part in the armed robbery/robberies.
See the following cases:-
AJAYI VS. THE STATE (SUPRA) ATTAH VS. STATE (2010) 10 NWLR PART 1201 PAGE 190 AT 224 PARAGRAPHS B-F.

IDENTIFICATION PARADE: WHEN IS IT UNNECESSARY

Identification parade is unnecessary and would amount to a complete waste of time, where an accused has confessed to the commission of the crime as in this case. See the following cases: OSUAGWU VS. STATE (2013) 5 NWLR PART 134 PAGE 360. FATAI VS. STATE (2013) 10 NWLR PART 1361. ATTAH VS. THE STATE (2010) LPELR-597 (SC). ADISA VS. THE STATE (1991) 1 NWLR PART 168 PAGE 490. ADEYEMI VS. THE STATE LPELR-19776 (CA).PER JIMI OLUKAYODE BADA, J.C.A.

CONFESSIONAL STATEMENTS: DEFINITION AND WHETHER A CONFESSION CAN LEAD TO CONVICTION

CONFESSIONAL STATEMENT: ONCE ADMITTED BECOMES PART OF THE CASE FOR THE PROSECUTION
It is trite law that a Confessional Statement once admitted becomes part of the case for the prosecution which the lower Court was duty bound to consider in determining the probative value of the totality of the evidence adduced by the prosecution.PER JIMI OLUKAYODE BADA, J.C.A.

CONSPIRACY: DEFINITION

On the Count of conspiracy, the Blacks Law Dictionary 7th edition page 305 defined Conspiracy as an agreement by two or more persons to commit an unlawful act, a combination for an unlawful purpose.
See the following cases:-
BELLO VS. THE STATE (SUPRA).
KAZA VS. STATE (SUPRA).PER JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

EMMANUEL OLOYEDE Appellant(s)

AND

THE STATE Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Ogun State, Abeokuta Judicial Division, in Charge No: AB/7R/2014 Between: THE STATE VS. (1). BUSAYO ODEWOLE, (2). AKINWUNMI AKINKUNMI, (3) EMMANUEL OLOYEDE, (4). MOJEED HAMMED delivered on the 19th day of October 2015 wherein the Appellant along with three other accused persons were convicted for conspiracy to commit Armed Robbery, Armed Robbery and Attempted Robbery and sentenced to death by hanging.

Briefly, the facts of the case are that the Appellant and three others were arraigned before the lower Court on 25/11/2014 on a six count charge of conspiracy to commit Armed Robbery, Armed Robbery, Attempted Robbery and receiving stolen goods contrary to Section 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R II, Laws of the Federation of Nigeria 2004, Section 2(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R II, Laws of the Federation of Nigeria 2004 and receiving stolen property obtained by means of Armed Robbery contrary to Section 5 of the Robbery and Firearms (Special

Provisions) Act, Cap R II, Laws of the Federation of Nigeria 2004.

The Appellant and the other three accused persons pleaded not guilty to the charge and at the trial of the case, prosecution called seven witnesses and tendered Exhibits.

At the close of the prosecution?s case, the Appellant and the other three accused persons entered their defence and Counsel on both sides thereafter submitted Written Addresses.

At the conclusion of hearing, the learned trial Judge in a Judgment delivered on the 19th day of October 2015 found the Appellant and the other three accused persons guilty and sentenced them to death by hanging.
The Appellant, who is dissatisfied with the Judgment of the lower Court, appealed to this Court.

The learned Counsel for the Appellant formulated four issues for the determination of the Appeal. The issues are reproduced as follows:-
?(1). Whether the trial Judge was right in convicting the Appellant for Conspiracy to commit Armed Robbery, Armed Robbery and Attempted Robbery when the Prosecution failed to prove the charge against the Appellant beyond reasonable doubt as required under the law. (Distilled from Grounds 1, 2, 4 and 6).

(2). Whether the Appellant?s evidence was not compelling enough to exonerate the Appellant from the offences with which he was charged. (Distilled from Ground 2).
(3). Whether the evidence of PW1 to PW7 are cogent enough or sufficient to support the charge of Armed Robbery under the Robbery and Firearms (Special Provisions) Act. (Distilled from Grounds 5 and 7).
(4). Whether considering the totality of evidence adduced by the prosecution the trial Judge ought not to have discharged the Appellant. (Distilled from Grounds 8 and 9).?

The learned Counsel for the Respondent in his own case formulated a sole issue for the determination of the appeal. The said issue is reproduced as follows:-
?Whether the prosecution has proved the offences of Conspiracy to commit Armed Robbery, Armed Robbery and Attempted Robbery against the Appellant beyond reasonable doubt. (Distilled from Grounds 1 to 9).

?At the hearing of this appeal on 25/2/2019, the learned Counsel for the Appellant stated that the appeal is against the Judgment of High Court of Ogun State delivered on the

19th day of October 2015. The Notice of Appeal was filed on 3/12/15. The Record of Appeal was transmitted on 8/3/2016 and deemed as properly transmitted on 28/9/2017. The Appellant?s Brief of Argument was filed on 13/10/2017.

The learned Counsel for the Appellant adopted and relied on the said brief as his argument in urging that the appeal be allowed.

The learned Counsel for the Respondent in his own case referred to the Respondent?s Brief of Argument filed on 21/2/2018 which was deemed as properly filed and served on 8/11/2018.
He adopted and relied on the said Respondent?s Brief as his argument in urging that this appeal be dismissed.

I have carefully examined the issues formulated for the determination of this appeal by Counsel for the parties. The sole issue formulated on behalf of the Respondent encapsulates the issues formulated on behalf of the Appellant. I will therefore rely on the sole issue formulated for the determination of the appeal on behalf of the Respondent.

ISSUE FOR THE DETERMINATION OF THE APPEAL
?Whether the prosecution has proved the offences of Conspiracy to commit Armed Robbery, Armed

Robbery and Attempted Robbery against the Appellant beyond reasonable doubt.?

The learned Counsel for the Appellant submitted that the lower Court was wrong in convicting the Appellant for Conspiracy to commit Armed Robbery and Armed Robbery because the prosecution failed to prove the offences against the Appellant. He contended that the onus of proof is on the Prosecution to establish its case against the accused beyond reasonable doubt. He relied on the following cases:- MUSA VS. COMMISSIONER OF POLICE (2004) 9 NWLR PART 879 PAGE 502 PARAGRAPHS C-D.
CHIANUGO & OTHERS VS. THE STATE (2001) FWLR PART 74 PAGE 242 AT 251.
KOLAWOLE VS. THE STATE (2013) 1 SCM.

It was submitted on behalf of the Appellant that in order to establish the offence of Conspiracy against the Appellant, the Prosecution must prove that the Appellant together with others agreed to carry out an unlawful act or lawful act by an unlawful means. He relied on the case of:-
OSENI VS. THE STATE (2012) 4 SCM PAGE 150 AT 181.

?Learned Counsel for the Appellant argued that the prosecution witnesses were not able to prove that the Appellant and other accused

persons agreed to carry out an unlawful act on 27/5/2012. He relied on the case of:- OYENEYE VS. THE STATE (2012) 11 SCM PAGE 141.

He also submitted that the Prosecution failed to prove the offence of Armed Robbery against the Appellant. He referred to the evidence of PW1 which he contended did not connect the Appellant with armed robbery. He relied on the following cases:-
OLOWOYO VS. STATE (2012) 17 NWLR PART 1329 PAGE 346. BOLANLE VS. STATE (2005) NWLR PART 925 PAGE 451 PARAGRAPHS C-D. THE STATE VS. AIBANGBEE (1988) 7 SC PART 1 PAGE 142.

The learned Counsel for the Appellant also referred to Exhibits 5, 6, and 6A which he said were made when the Appellant was being tortured. He submitted that the principles guiding the veracity of Confessional Statement should be applied. He relied on the case of:- ALARAPE VS. STATE (2001) 5 NWLR PART 705 PAGES 98-99 PARAGRAPHS H, A-B.

It was argued that Exhibits 3, 3A, 4 and 4A were written by the police IPO and the Appellant was made to sign the statements.

It was further submitted on behalf of the Appellant that the evidence of Prosecution witnesses i.e. PW1 to PW7 are not

cogent or sufficient to support the charge of armed robbery.

The learned Counsel for the Appellant also submitted that for the Prosecution to succeed in proving the offence of conspiracy to commit armed robbery against the Appellant, the evidence must be led that there are series of events pointing to the fact that the Appellant with whom he was charged had meeting of minds, since conspiracy cannot be committed by a single person. He relied on the case of:- BOLANLE VS. STATE (SUPRA).

It was also submitted that there ought to be proper identification parade, he went further that the evidence of PW1 was not cogent enough and that the evidence that he was robbed on 27/5/2012 was not reliable.

He also submitted that when the totality of the evidence adduced by the Prosecution is placed on imaginary scale, the trial Judge ought not to convict the Appellant but discharge him. He stated further that PW2 to PW7 were not eye witnesses to the incident and could not have understood what happened at the scene of crime.
The learned Counsel for the Appellant urged that this appeal be allowed, discharge and acquit the Appellant.

?The learned Counsel for the Respondent in

his response to the submission of learned Counsel for the Appellant submitted that Prosecution in a criminal trial is required to prove its case against the accused beyond reasonable doubt. He relied on the case of:-
JUA VS. THE STATE (2010) 2 SCM PAGE 68 AT 70.

It was submitted on behalf of the Respondent that for the Prosecution to succeed in a charge of armed robbery the Prosecution must establish the following:-
(a). That there was a robbery or series of robberies.
(b). That the robbery was armed robbery.
(c). That the accused person was one of the armed robbers.

He relied on ? AJAYI VS. THE STATE (2013) 3 SCM PAGE 1 AT 25 PARAGRAPHS F-G.

The learned Counsel for the Respondent submitted that the evidence of PW1 established beyond reasonable doubt that there was a robbery incident on 27/5/2012 and that the robbers i.e. the Appellant and 2nd accused were armed during the robbery with broken bottles and cutlasses. He referred to Exhibits 3 and 3A and Exhibits 4 and 4A.

On the issue of attempted robbery, learned Counsel for the Respondent commended the testimony of PW2 and PW3 to the Court.

He went further that the Appellant was arrested at the scene of crime.

Learned Counsel for the Respondent referred to Exhibits ?4? and ?4A? which were admitted in evidence after trial within trial. He submitted that a trial Court can rely solely on Confessional Statement of an accused to convict him. He relied on the following cases of:-
ALAPA VS. STATE (2008) 8 SCM PAGE 68 AT 70. OSENI VS. THE STATE (2012) 4 SCM PAGE 150 AT 153.

On count of conspiracy, he defined it as an agreement by two or more persons to commit an unlawful act. He referred to the following cases:-
OSETOLA VS. THE STATE (2012) 12 SCM PAGE 347 AT 371. BELLO VS. STATE (2010) 12 SCM PAGE 28 AT 34. KAZA VS. STATE (2008) 5 SCM PAGE 70 AT 104.

The learned Counsel for the Respondent submitted that the Appellant did not also give proper explanation as to how he got the motorcycle in question.
He therefore urged that this appeal be dismissed.

RESOLUTION
In criminal prosecution, the required standard is that of proof beyond reasonable doubt. The burden on the Prosecution in a criminal trial has been concisely enshrined in Section 135(1) of the Evidence Act 2011 which provides as follows:-

?If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.?
However proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt. When the ingredients of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:-
JUA VS THE STATE (SUPRA). JULIUS ABIRIFON VS. THE STATE (2013) LPELR – 20807 (SC). ADIO VS. THE STATE (1986) 5 SC PAGE 194 AT 219-220.
The guilt of an accused person can be proved through any of the following methods:-
(a). Through Confessional Statement of the accused; or
(b). Through circumstantial evidence; or
(c). Through the testimony of an eye witness or eye witnesses.
See the following cases:-
ITU VS. STATE (2016) 5 NWLR PART 1506 PAGE 443 AT 465-466. IGABELE VS. STATE (2006) 6 NWLR PART 975 PAGE 100. EMEKA VS. THE STATE (2001) 14 NWLR PART 734 PAGE 666 AT 683.

The Appellant who was the 3rd accused at the lower Court along with two others were charged with counts of Conspiracy to commit Armed Robbery, Armed Robbery and Attempted Robbery.

In order to prove the ingredients of armed robbery, the PW1 SEGUN KAYODE testified among others as follows:-
?On 27th May 2012 on Saturday at about 7pm. I rode my Okada I saw the 2nd accused person, he asked me to take him to Oloruntedo and said, I would also pick somebody else along the way, asked me what my fee would be. I said N100.00…

He pleaded with to collect N100.00?. The person I picked ?.. is present 3rd accused i.e. Appellant. When we got Oloruntedo the 2nd accused gave me N200.00 and asked me for change. I said I did not have change and they told me to leave my motorcycle behind to go and look for change but I refused. I then asked one of them to allow me on the motorcycle so I could go and look for change, one of them did as I tried to turn to go, both of them started to hit me with cutlasses. I was dragging the Okada with them and they were hitting me with the cutlass. I heard one of them say ?bring out the other thing? and I knew it was gun he was referring to, so I immediately stopped dragging the Okada with them and ran away…
The following week, Alhaji Okanlomo called me to come and see some thieves, and see whether they are those who robbed me. When I go there, I saw them and identified the two of them.
One of them even looked at me and confirmed that they were the ones who robbed me and said they thought I was dead.
They said my motorcycle was at Ibadan.

Later, police recovered my Okada back for me from the accused persons… The accused person used cutlasses to cut me on my head. (Shows several head cuts to the Court).?

PW2 Alhaji Shakiru Alimi Okanlomo testified among others as follows:-
?On 1st of June 2012, at about 7am, I was inside my house when I heard ?thief? thief? and I peeped out of my window. I saw the 2nd and 3rd accused persons i.e. the Appellant. They jumped a fence and ran into a bush behind my house. I rushed out and pursued them, then I heard a gunshot fired by one of them, then I ran back. The gunshot was directed at me but did not hit me. I phoned the Chief Security Officer of my area ? Mr. Oyediran to inform him of what has happened. Mr Oyediran and other security men came and we decided to guard the bush…
We could see them lying down inside the bush, we went into the bush and captured them, there was a pistol and 2 bullets in their possession. We called the police at Obantoko and the Police came. I called PW1…
Later a young man came who said they were trying to rob him of his Okada. When PW1 came and saw them, he identified

them as the one who robbed him ? and the accused themselves were saying yes, yes the Okada is in Ibadan…
2 days later Police went with them to Ibadan, and returned with the Okada that they stole from PW1. It was then identified with the particulars which the owner one Tony brought. (See pages 75-79 of the record of appeal).?

The evidence of PW1 set out above established beyond reasonable doubt that there was a robbery incident on 27/5/2012. The PW1 testified that he was robbed of his motorcycle and that the robbers used matchet to inflict several injuries on his body especially his head.

The testimony of PW1 was corroborated by accused/Appellants Statements though retracted by the Appellant during trial and testimony of PW2.

?I am of the view that Armed Robbery has been proved against the Appellant beyond reasonable doubt.
The 2nd and 3rd ingredients of the offence of armed robbery was also proved by the testimonies of PW1 and PW2. (See pages 75 to 80 of the Records of Appeal). The evidence showed that the Appellant and the 2nd accused were armed during the robbery with broken bottles and cutlasses.

The Appellant also made Confessional Statement i.e. Exhibits 3 and 3A and Exhibits 4 and 4A.
The Appellant and his accomplice were arrested while trying to rob Haruna Akinwande of his motorcycle on 1/6/2012.

The Confessional Statement of the Appellant showed his involvement in the crime and it was through the confession that other members of the gang like 1st and 4th Accused persons were arrested. See Exhibits 3 and 3A and 4 and 4A.

The evidence before the Court also showed that the Appellant was arrested at the scene of crime while attempting to rob Haruna Akinwande of his motorcycle. Immediately the PW1 saw the robbers he identified them as the robbers that attacked and robbed him on 27/5/2012. This was corroborated by the Confessional Statement of the Appellant. (See Exhibits 3 and 3A and 4 and 4A). Also, the fact that the motorcycle that was robbed from PW1 was found in possession of the 4th accused person in Ibadan corroborated the testimonies of PW1 and PW2. See pages 81 lines 15-17 and 105 lines 1 to 5 of the record of appeal.

Identification parade is unnecessary and would amount to a complete waste of time, where an

accused has confessed to the commission of the crime as in this case. See the following cases: OSUAGWU VS. STATE (2013) 5 NWLR PART 134 PAGE 360. FATAI VS. STATE (2013) 10 NWLR PART 1361. ATTAH VS. THE STATE (2010) LPELR-597 (SC). ADISA VS. THE STATE (1991) 1 NWLR PART 168 PAGE 490. ADEYEMI VS. THE STATE LPELR-19776 (CA).
In view of the evidence placed before the Court, I am of the view that this is not one of the cases in which identification parade is necessary. See also Exhibits 8 and 9.

On the issue of Confessional Statements made by the Appellant and his other accomplices, it is trite that Confession is an admission made by an accused person. And an accused can be convicted on his Confessional Statement alone where same is direct, positive and proved.
See the case of:- ALAPA VS. STATE (2008) 8 SCM PAGE 68 AT 70.
It is trite law that a Confessional Statement once admitted becomes part of the case for the prosecution which the lower Court was duty bound to consider in determining the probative value of the totality of the evidence adduced by the prosecution.
Furthermore, there cannot be a more appropriate person to

give evidence of the guilt of the accused more than the accused himself. Therefore, if an accused says that he committed the offence and the Court comes to a conclusion that he made the statement in a stable mind and not under duress, then the accused must be convicted.
The learned Counsel for the Appellant contended that the Appellant was tortured before he made the Confessional Statement. He urged this Court not to rely on it.
A careful perusal of the record of appeal showed that there was no objection to the statements. Although the issue of voluntariness was raised to the admissibility of Exhibits 4 and 4A which was eventually admitted in evidence after trial-within-trial.
The Appellant retracted Exhibits 3 and 3A and 4 and 4A but admitted that he took the motorcycle in question to the 4th accused.
I am of the view that a retracted Confessional Statement will not adversely affect same since the trial Court found the statement positive, direct and unequivocal and it was also found that the statement was well corroborated by the evidence of PW1 to PW7. The learned trial Judge was therefore right in relying on the said Confessional Statement of the Appellant in convicting him.

See OSENI VS. STATE (2012) 4 SCM PAGE 150 AT 153.

On the Count of conspiracy, the Black?s Law Dictionary 7th edition page 305 defined Conspiracy as an agreement by two or more persons to commit an unlawful act, a combination for an unlawful purpose.
See the following cases:-
BELLO VS. THE STATE (SUPRA).
KAZA VS. STATE (SUPRA).

A careful reading of the evidence of the prosecution witnesses in this case showed that the Appellant and each of the accused persons charged before the lower Court had different roles to play which in the end resulted into a well-planned intents and purpose.

The evidence of PW1 showed that the Appellant who was the 3rd accused was with the 2nd accused on 27/5/2012 when they robbed PW1 of his motorcycle. See page 75 to 76 and 78 to 81 of the record of appeal.

In view of the foregoing and from the totality of the evidence of all the prosecution witnesses along with the Appellants statements to the police one can safely come to the conclusion that the Appellant committed the offence and that the learned trial Judge was right in convicting him.

Consequent upon the foregoing, this issue is resolved in favour of the Respondent and against the Appellant. Therefore I am of the view that this appeal lacks merit and it is hereby dismissed.

The Judgment of the lower Court in Charge No: AB/7R/2014 Between: THE STATE VS. (1). BUSAYO ODEWOLE, (2). AKINWUNMI AKINKUNMI, (3) EMMANUEL OLOYEDE, (4). MOJEED HAMMED delivered on 19th day of October 2015 is hereby affirmed.
Appeal dismissed.

NONYEREM OKORONKWO. J.C.A.: In this appeal, there was direct evidence from the PW1 a victim of the incident and PW2 who played significant roles that led to the ?capture? of the miscreants. Besides the direct evidence of PW1 and PW2, there was also the confessional statement of the appellant Exhibits “4? and ?4A? that connected and implicated the appellant and his ?participle criminis? in the offence.

The lead judgment of my lord Jimi Olukayode Bada, JCA has amply demonstrated the connection of these direct and other elements that led to the conviction and sentence of the appellant by the lower Court. I agree with the lead judgment. I have nothing more.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Jimi Olukayode Bada JCA. I agree with the reasoning and conclusion therein. His Lordship has dealt extensively with all issues in the appeal.
?I also find no merit in this appeal and I totally agree it should be dismissed. This appeal is hereby dismissed.

Appearances:

Mr. Yemi Adesina with him, Adekunle IdowuFor Appellant(s)

Mr. Adekunle Manuwa (PSC Ogun State)For Respondent(s)

Appearances

Mr. Yemi Adesina with him, Adekunle IdowuFor Appellant

AND

Mr. Adekunle Manuwa (PSC Ogun State)For Respondent