FRIDAY UTU v. THE STATE OF LAGOS
(2019)LCN/12559(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/L/126C/2018
RATIO
EVIDENCE: THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT
“In the case of Shurumo v. The State (2010) 19 NWLR (pt.1226) 73 at 90 – 91 the Supreme Court held in the lead judgment prepared by Mukhtar J.S.C., (later CJN) that objection to the admissibility of confessional statement on the ground that the procedure adopted in recording the statement was not in accordance with the laid down principle of law must be specifically raised at the trial Court and where not raised as in this case where the statement was not objected to for violating Section 9(3) of the ACJL 2015, objection to it cannot be raised on appeal and probative value would be accorded the statement. See also Olalekan v. State (2001) 18 NWLR (pt.746) 793, John and Anor. v. State (2011) 18 NWLR (pt.1278) 353 at 380.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
EVIDENCE: THE RETRACTION OF CONFESSIONAL STATEMENT
“Although a Court of law will usually not anchor its decision solely on a confessional statement without more. Where a confessional statement has been retracted by the defendant, as in the instant case the Court is required to apply the 6 way test for determining the truth or otherwise of a confessional statement. Thus the Court must look out for other evidence or material facts, which corroborates the confession. Whether there is anything outside the statement to show it is true. See: ABASI vs. STATE (1992) WLR [Pt. 260] @ 383; OGOALA vs. THE STATE (1991) 2 NWLR [Pt. 175] @ 509; AKPAN vs. STATE [1992] 7 SCNJ @ 22 and FATILEWA vs. STATE (2008) 12 NWLR [Pt. 101] @ 518; IDOWU vs. STATE (2000) 12 NWLR [Pt. 680] @ 48; ADA vs. STATE 2008) 13 NWLR [Pt. 1103] @ 149. As stated by Iguh, JSC in ALARAPE vs. STATE (2001) 5 NWLR [Pt. 705] @ 79 ”The test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight of circumstances which make it probable that the confession is true’.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
FRIDAY UTU – Appellant(s)
AND
THE STATE OF LAGOS – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is against the decision of the High Court of Justice of Lagos State (the Court below) whereby it convicted and sentenced the appellant to fourteen (14) years imprisonment for the offences of conspiracy to commit armed robbery and attempted armed robbery contrary to Sections 297 and 296(2)(a) of the Criminal Law of Lagos State, 2011, respectively.
In summary, the PW1, one Simeon Orakaba and the PW2, one Sunday Okafor, his colleague at work, boarded a commuter bus at Mile 2 bus stop at about 10p.m. en route to Ijesha bus stop on 26.01.12. A Mr. Samuel Oyeniyi, the appellant’s co-defendant, drove the vehicle at the material time. The appellant was the bus conductor. Unknown to the PW1 and the PW2, the appellant and his co-defendant posed as bus conductor and driver, respectively, whilst in reality they were operatives of a robbery gang plying that route. While they were close to Ijesha bus stop, the appellant shut the doors of the vehicle. He commanded the passengers including the PW1 and the PW2 to bend over. It was about 11p.m. The appellant pulled out a gun and pointed at Sunday Okafor, the PW2, who struggled with him over it.
The driver then lost control of the vehicle due to the struggle. The vehicle overturned and crashed into a container at the Ijesha bus stop. The passengers raised alarm that there were robbers in the vehicle. The appellant and his cohort, Samuel Oyeniyi, were trapped in the vehicle. Members of the public at the bus stop responded to the alarm. They came to the rescue of the commuters. The PW1 and PW2 identified the appellant and the co-defendant on the spot as the robbers. They were apprehended by members of the public and brought to the Ijeshatedo Police Station with the locally made gun and an iron bar found in the vehicle.
The police at Ijesha Police Station transferred the case with the appellant and his cohort to SARS police Ikeja where the appellant and his comrade-in-crime made voluntary confessional statements to the police.
On the other hand, the appellant’s version was that he was at all material times a foot-baller and owner of a lotto kiosk and was one of the passengers in the vehicle at the material time and was also a victim of the attempted robbery in the vehicle in question; that he was in the back seat of the vehicle and saw some ‘guys’ with guns who ordered the driver of the vehicle to stop and park the vehicle; that the ‘guys’ ordered them to face down and started to ‘raid’ the passengers of the vehicle, while one of the robbers struggled with the driver of the vehicle on the wheel and forced the vehicle to hit a 40ft container on the road-side.
The appellant further alleged that he collapsed and lost consciousness at the bus stop and was revived back to life with three others at the Ijesha Police Station; that the passengers admitted that they could not recognize the robbers because the incident happened in the bus which had no light at the material time; that he made a statement to the police, Exhibit 6, at Ijesha Police Station, which he also signed but that the contents of the statement are not true even though the statement, Exhibit 6, was based on what happened at the material time.
The Court below believed and accepted the version of the respondent and convicted the appellant as charged.
The appellant was dissatisfied with the decision of the Court below and challenged it on a notice of appeal with four (4) grounds of appeal filed on 13.12.17 vide pages 130 – 132 of the record of appeal (the record).
The appellant contended in the brief of argument filed on 07.02.18 that the evidence led by the respondent at the Court below did not disclose the meeting of the minds of the appellant and the other defendant, Friday Utu, to do an unlawful act or to do a lawful act by any unlawful means to establish the offence of conspiracy, as the substantive offence alleged in the charge was armed robbery which was not consummated especially as the confessional statement of the appellant where the offence of conspiracy was admitted as retracted at the trial, therefore the Court below was wrong in convicting the appellant of conspiracy citing in support the cases of State v. Salawu (2011) 8 NWLR (pt.1279) 613, Posu v. State (2011) 2 NWLR (pt.1234) 412, and that the initial statement of the appellant to the police, Exhibit 6, in pages 28?29 of the record, denied commission of the offences charged as the appellant had alleged in the statement that he was one of the victims of the robbery showing the evidence adduced at the Court below did not support the charge of conspiracy to commit the substantive offences of armed robbery, therefore the Court below should not have convicted the appellant for the offence of conspiracy.
The appellant contended that counts 2 and 3 of the charge are a duplication of the same offence and cannot co-exist independently; that the appellant was presumed innocent and the burden of proof was on the respondent to prove the offences charged citing in support Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and the case of George v. F.R.N. (2011) 10 NWLR (pt.1254) (no pagination).
It was also contended that the Court below relied on the evidence of the PW1 and the PW2 who were described as victims of the attempted robbery and the extra-judicial statements of PW3 and PW4 in convicting the appellant of the offences charged when PW1 and PW2 was materially contradictory in that the PW1 had stated that he sat on the front row of the bus behind the driver and identified the appellant as the driver but that he did not identify the driver as his assailant or being armed with a gun at the material time, while PW2 stated in contrast that he knew the appellant and his companion and could recognize Friday Utu very well only to state in another voice that it was dark but there was light which enabled them to see each other and that he did not know the driver of the vehicle, the appellant, because he was at the back seat which was contrary to the PW2?s earlier evidence that he knew both defendants; nor did the evidence of the respondent disclose that the appellant threatened to apply force or assaulted the PW1 and the PW2 as the appellant was said to be driving the vehicle at the material time.
The appellant contended that the investigation police officer (I.P.O.) did not take steps to ascertain ownership of the bus in view of the conflicting accounts in the purported confessional statements as to ownership thereof and the person that drove it at the material time; that the PW1 and PW2 did not state that the appellant and the co-defendant demanded money or valuables from them as to constitute part of the elements of offences charged; that from the surrounding circumstances of the incident which happened ‘late at night in poor visibility’ and the fact that the ‘PW4’ was the first to regain consciousness after the vehicle had an accident the Court below ought to have treaded with caution in assessing the evidence on the identity of the appellant and the co-defendant citing in support the cases of Ukpabi v. The State (2004) All FWLR (pt.411) 814, Ikemson v. The State (1989) 3 NWLR (pt.110) 455, Ndidi v. The State (2007) All FWLR (pt.381) 1618, Attah v. The State (1993) 7 NWLR (pt.305) 257, Archibong v. The State (2004) 1 NWLR (pt.858) 488 and that the doubt created by the contradictory evidence of the PW1 and PW2 on the identity of the appellant and his co-defendant should be resolved in favour of the appellant as the Court cannot pick and choose from the contradictory evidence citing in support the case of Obianwu v. The State (2016) LPELR 40955.
The appellant contended that the I.P.O. did not conduct further investigation by contacting other passengers in the vehicle at the material time and the appellant’s statement in Exhibit 6 that he did not drive the vehicle at the material time which in addition to the poor quality of the identity of the appellant and the co-defendant demonstrated that the evidence fell short of proving beyond reasonable doubt the elements of the offences charged – the appellant’s intention to steal; assault of the PW1 and PW2 by the appellant; use or threat of use of violence by the appellant; and that the appellant was in the company of any person armed at the material time – consequently, the appellant contended that the respondent did not establish the offences charged beyond reasonable doubt and that the Court below was wrong in convicting the appellant of the offences charged citing in support the cases of Njoku v. State (2013) 2 NWLR (pt.1339) 548, Nwokearu v. State (2013) 16 NWLR (pt.1380) 207, Liman v. The State (2016) LPELR 40260.
The appellant contended that the Court below should not have accorded any weight or probative value to Exhibit 2, the extra-judicial statement of the appellant in that it was written for the appellant by the I.P.O., PW4, and the recording of the statement was not on video or in the presence of a legal practitioner of the appellant’s choice as admitted by PW4 under cross-examination in page 73 of the record contrary to Section 9(3) of the Administration of Criminal Justice Law CAP A3 Laws of Lagos State 2015 and the cases of Akaeze Charles v. F.R.N. (2018) 13 NWLR (pt.1635) 50, Joseph Zhiya v. The People of Lagos State (2016) LPELR 40562 cited in the list of additional authorities filed on 21.09.18; and that there was no corroborative evidence of the purported confessional statement, exhibit 2, to sustain the conviction of the appellant, therefore the conviction was wrong citing in support the case of Kazeem v. The State (2009) All FWLR (pt.465) (no pagination).
The appellant contended that the judgment of the Court below in pages 116 – 117 of the record disclosed that the physical elements of the offence of attempted robbery had been established against the appellant when there was no finding or evidence establishing mens rea or intention to convict the offences charged, therefore the respondent did not prove the offences charged beyond reasonable doubt citing in support the cases of Njoku v. State (2013) 2 NWLR (pt.1339) 548, Nwokearu v. State (2013) 16 NWLR (pt.1380) 207.
The appellant contended that the 2nd and 3rd counts are in respect of the same offence of attempted armed robbery, therefore it amounted to double jeopardy to try and convict the appellant for the same offence twice contrary to the constitution of the land and criminal jurisprudence.
The appellant contended that the Court below erred by not considering his defence in pages 76 – 77 of the record that he was an innocent victim of circumstance and it was the failure of the appellant to part with the money demanded by the investigating police officer at SARS Ikeja who initially concealed the statement made by the appellant in Exhibit 5 at the Ijesha Police Station until he was compelled by the defence to tender same under cross-examination which was strengthened by the fact that the 3rd suspect, one Oluwaseyi Lana, who was arrested together with the appellant and taken into custody by the police was able to secure his freedom from the police which made the police not to charge him to Court was also not considered by the Court below showing the decision of the Court below is perverse and should be set aside citing in support the cases of Williams v. The State (1992) 8 NWLR (pt.261) 515,
Peter v. The State (1997) 3 NWLR (pt.496) 625, Nwankwoala v. The State (2006) All FWLR (pt.339) 801, Adeyeye v. State (2013) LPELR 1991, Chukwu v. State (2007) All FWLR 1224 at 1263; upon which the appellant urged that the appeal should be allowed and the conviction and sentence imposed on the appellant be set aside.
The respondent’s brief was filed on 28.11.18 and was deemed as properly filed on the same 28.11.18. The respondent argued in the brief that the PW1 and the PW2 identified the appellant and his co-defendant at the earliest opportunity after they attempted to rob them at gun-point; more so, the confessional statement of the appellant to the police which was corroborated by the evidence of PW1 and PW2 reinforced the unchallenged evidence of the respondent and established beyond reasonable doubt that the appellant and the co-defendant acted in concert in the attempted armed robbery of the PW1 and the PW2 thus proving the offences charged.
The respondent therefore argued that the Court below was right in convicting the appellant as charged on the evidence that had minor inconsistencies; and that Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2015 (ACJL 2015) which is procedural and subservient to Section 29(1) of the Evidence Act 2011 (Evidence Act) did not affect the admissibility of the confessional statement citing in support the cases of Shurumo v. The State (2011) All FWLR (pt.568) 864, Osetola and Anor. v. The State (2012) LPELR 9348, Okosi v. State (1989) 1 NWLR (pt.100) 642, Ukpabi v. State (2004) 11 NWLR (pt.884) 439, Osuagwu v. State (2009) 1 NWLR (pt.1123) at 527, Attah v. State (2010) 10 NWLR (pt.1201) 190, Odu and Anor. v. The State (2001) 5 SCNJ 115, Ebeinwe v. The State (2011) 7 NWLR 402, Omisade v. State (1976) 11 SC 75, Kaza v. State (2008) 2 NCC 374 at 425, Yakubu v. The State (2014) LPELR 22401, Abdullahi v. The State (2009) vol.2 SCLR (pt.16) 83, Oduneye v. The State (2001) 2 NWLR (pt.697) 311, Oladipupo v. The State (2012) LPELR 7965, Chijoke Ahukana Emmanuel v. F.R.N., unreported judgment of the Court in CA/L/1371C/2016 delivered on 25.04.18, Okondo v. People of Lagos State (2016) All FWLR (pt.851) 1308, Akalezi v. The State (1993) 2 NWLR (pt.273) 1 at 13, Adamu v. Akukalia (2005) 11 NWLR (pt.936) 263 at 279, Audu v. State (2003) (pt.820) 516 at 554, Okere v. The State (2001) 2 NWLR (pt.697) 397 at 415 416; upon which the respondent urged that the appeal should be dismissed.
The statement of the appellant to the police at SARS Ikeja is in pages 26 – 27 of the record. It reads :
‘I Friday Utu ‘m’ having been duly cautioned in English language that I am not obliged to say anything unless I wish to do so, but whatever I say shall be taken down in writing and maybe giving in evidence, voluntarily elect to state as follows:
I am the above named person and I stay at the above stated place. I am a native of Isoko in Delta State, I was born and brought up here in Lagos by my parents, I attended Jimoh Ojora Primary School Ajegunle, Lagos for my primary school education. I also attended Gaskiya College, Ijora-Badia, Lagos for my Secondary School Education. I have been working as a casual worker at the Seaport Apapa, Lagos. (For my) I joined one Armed Robbery gang in December 2011. I met the gang through one Akpom ‘m’ a friend of mine, it was Akpom, he introduce me to one Ade, they told me that they are Armed Robbers, that if
I was interested in the business, that I should come alone that was how I joined the gang that very day, it was how I started robbery, when we went to the first operation it was six of us, myself (2) Akpan (3) Seyi ‘m’ (4) Samuel (5) Ade A.K.A. Egbon all went to the first operation. We have one gun we use to take to operation is always with Ade ‘m’. Ade was the one that brought the gun. I have gone to Armed Robbery operations more than eight times, the last one I went was on the 26th of January 2012 at about 7.30pm myself and my gang members consisting of (1) Ade (2) Seyi (3) Schoolboy (4) Samuel all took Samuel?s Volkswagen Vanagon bus to operate, we normally pick people on the road, we normally pick them at various bus stops, we pick about 6 passengers it was when we started moving that we started robbing people. But the people were stubborn, that was how our driver went to hit the vehicle at a trailer already parked at Ijesha bus stop. I am aware that what I have been doing is called Armed Robbery. I will never go back to this type of business if I am released?.
The statement (supra) was tendered in evidence through PW4, one of the police investigators of the case, in page 56 of the record thus
Prosecution: I seek to tender.
Defence Counsel: These Statements were not contained in the proof of evidence. I rely on Section 26(a)(b) 1999 CFRN.?
The objection was overruled and the statement admitted in evidence as Exhibit 2. It is clear from the excerpt (supra) that the objection was not based on Section 9(3) of the ACJL 2015 which provides the procedure for the recording of confessional statement on video or in the presence of a legal practitioner of the defendant’s choice. In the case of Shurumo v. The State (2010) 19 NWLR (pt.1226) 73 at 90 – 91 the Supreme Court held in the lead judgment prepared by Mukhtar J.S.C., (later CJN) that objection to the admissibility of confessional statement on the ground that the procedure adopted in recording the statement was not in accordance with the laid down principle of law must be specifically raised at the trial Court and where not raised as in this case where the statement was not objected to for violating Section 9(3) of the ACJL 2015, objection to it cannot be raised on appeal and probative value would be accorded the statement. See also Olalekan v. State (2001) 18 NWLR (pt.746) 793, John and Anor. v. State (2011) 18 NWLR (pt.1278) 353 at 380.
Having not raised objection to the procedure of recording the confessional statement, Exhibit 2, at the Court below as laid down by Section 9(3) of ACJL 2015, the cases (supra) cited for and against the applicability of Section 9(3) of the ACJL to the present case are irrelevant and are hereby jettisoned.
The Court below considered the probative value of Exhibit 2, the confessional statement, in its judgment in pages 118 – 120 of the record where it observed and held thus :
‘I am however persuaded by the veracity of the eyewitness account of PW1 and PW2, which has clearly identified the 1st and 2nd defendants as the aggressors in the bus on that fateful night and I so hold. PW1 and PW2 came across as credible witnesses; of truth, their testimonies were given in a straightforward and concise manner without any embellishments. They were not shaken nor impeached. On the other hand DW1 and DW2 at SARS Ikeja both confessed to having taken part in the robbery. They each explained their role in the incident of 26/01/12.
Although a Court of law will usually not anchor its decision solely on a confessional statement without more. Where a confessional statement has been retracted by the defendant, as in the instant case the Court is required to apply the 6 way test for determining the truth or otherwise of a confessional statement. Thus the Court must look out for other evidence or material facts, which corroborates the confession. Whether there is anything outside the statement to show it is true. See: ABASI vs. STATE (1992) WLR [Pt. 260] @ 383; OGOALA vs. THE STATE (1991) 2 NWLR [Pt. 175] @ 509; AKPAN vs. STATE [1992] 7 SCNJ @ 22 and FATILEWA vs. STATE (2008) 12 NWLR [Pt. 101] @ 518; IDOWU vs. STATE (2000) 12 NWLR [Pt. 680] @ 48; ADA vs. STATE 2008) 13 NWLR [Pt. 1103] @ 149. As stated by Iguh, JSC in ALARAPE vs. STATE (2001) 5 NWLR [Pt. 705] @ 79 ”The test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight of circumstances which make it probable that the confession is true”.
Following the six-point test laid down in the countless cases referred to above, is evident that this Court can positively; answer in the affirmative the question whether there is anything outside the confession as mode on Exhibits 1 and 2 to show that it is true. In the first place, the two defendants have each put themselves in the locus criminis on the night in question. The second test is whether the confessional statements are corroborated. And again I must answer in the affirmative. The evidence of the victims PW1 and PW2 are consistent in all material particulars with the confessional statements of the defendants as made on Exhibits 1 and 2, and I so hold, Thirdly, I need to ask whether there are relevant facts in the statement, that are true as far as can be tested. Again, I am persuaded, to answer this in the affirmative. The police in their investigations were able to recover the cut to size shot gun used in the operations by the defendant and it is before the Court as Exhibit 4.
Furthermore, I am persuaded to answer in the affirmative the question, whether the facts on the confessional statement are plausible. I would say a categorical yes. To answer the question whether the defendants had the opportunity to commit the crime, one needs to consider the role played by each defendant. It appears that the defendants are members of a commuter bus gang of robbers who specialize in robbing passengers, and dispossessing them of their valuables at will and as opportunity presents itself?.
I endorse the holding (supra) that the Court below was indeed satisfied that the confessional statement, Exhibit 2, was true, positive, direct, clear and unequivocal and rightly, in my view, accorded probative value or weight to it.
The appellant and the co-defendant were apprehended on the spot and spontaneously identified by the PW1 and PW2 ruling out doubt on the identity of the appellant and the co-defendant. Besides, the appellant?s confessional statement identified him as the culprit vide Archibong v. State (2004) 1 NWLR (pt.855) 488 at 509 following Ikemson v. The State (1989) 3 NWLR (pt.110) 455 to the effect that where by his confession an accused person has identified himself the issue of his identity is settled without ado.
The alleged discrepancies (supra) in the evidence of PW1 and PW2 are discrepancies as to details not affecting the ingredients of the offences charged as the evidence of the presence of the PW1 and PW2 as passengers in the vehicle who witnessed the incident at the material time was unchallenged vide Osetola and Anor. v. State (2012) 17 NWLR (pt.1329) 251 at 282.
The PW1 and PW2 testified as victims of the alleged crime. The case against the appellant and the co-defendant did not require corroboration of the evidence of PW1 and PW2. Their credible evidence was therefore enough to sustain the case against the appellant and the co-defendant ruling out the interview and summoning of other passengers in the vehicle at the material time as witnesses in the case vide Adaje v. State (1979) 6 – 9 S.C. 18, and Osetola and Anor. v. State (supra) at 280, Shurumo v. State (supra) at 94 to the effect that it is the responsibility of the prosecution, not the defence, to determine the number of witnesses it needs to establish its case against the accused person; and that the prosecution need only call material witnesses such as victims of the crime as in this case where PW1 and PW2, victims of the alleged crime, were called as witnesses in the case.
The voluntary confessional statement of the appellant which the Court below found to be positive, direct, unequivocal sufficed to ground the guilt of the appellant regardless of the fact that the appellant resiled from or retracted it altogether in his defence at the trial which the Court below rightly held in its judgment in pages 118 – 120 of the record that the retraction of the confessional statement did not affect the potency of the confessional statement vide Osetola and Anor. v. State (supra) at 279 following Egbogbonome v. State (1993) 7 NWLR (pt.306) 383, Shurumo v. State (supra) at 98, 104.
The credible evidence of PW1 and PW2 whose demeanour was observed by the Court below also corroborated the confessional statement of the appellant as rightly held by the Court below in its judgment.
The confessional statement of the appellant formed part of the case for the prosecution at the Court below vide Nwabueze v. The People of Lagos State (2018) 11 NWLR (pt.1630) 201. Viewed dispassionately, the confessional statement of the appellant (supra) further supplied the ingredients of the offences charged.
Likewise, the evidence of PW1 and PW2 on the use of gun to threaten them showing the physical act of the appellant and his cohort was sufficiently proximate to complete the offence of armed robbery which evinced their intention to complete the offence of armed robbery but for the intervening act or obstruction to complete or consummate the commission of the substantive offence of armed robbery occasioned by the struggle over the gun and the crash of the vehicle. See Osetola and Anor. v. State (supra) at 285 following Orija v. Police (1957) NRNLR 189 to the effect that when an accused person is prevented from committing the complete offence, a conviction for attempt to commit the offence may be sustained. See also Jegede v. State (2001) 14 NWLR (pt.733) 264 at 275 ? 276, 282 ? 283, 284 ? 285 read with Section 21 in Chapter 4 of the Criminal Law of Lagos State 2015.
A person charged with substantive offence may be convicted of attempt to commit the substantive offence if evidence of attempt to commit the substantive offence is manifest in the record, as in this case vide Section 169 of the Criminal Procedure Law Cap C18 Laws of Lagos State which provides thus :
‘Where a person is charged with an offence but the evidence establishes an attempt to commit the offence he may be convicted of having attempted to commit that offence although the attempt is not separately charged’.
Conversely, Section 170 thereof provides that :
‘Where a person is charged with an attempt to commit an offence but the evidence establishes the commission of the full offence the accused person shall not be entitled to an acquittal but he may be convicted of the attempt and be punished accordingly’.
There is therefore no substance in the said complaint.
The defence of the appellant included the retraction of his confessional statement which was considered and rejected by the Court below in its judgment in pages 102 – 120 of the record particularly pages 118 – 120 thereof. The issue of the police demanding a bribe to release the appellant being a grave allegation and forming part of the defence of the appellant should have been put to the PW3, the I.P.O., from Ijesha Police Station and the PW4, the I.P.O. from SARS Ikeja under cross-examination during their testimonies in pages 47 – 49 and pages 54 – 55, 60 – 61, 72 – 73 of the record, respectively, vide Okosi and Anor. v. The State (1989) 1 NWLR (pt.100) 642 at 657 thus-
‘In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, admissible in the sense that it is not hearsay or opinion and not that of an expert, and an accused person wants to dispute it, the venue for doing so is when that witness is giving evidence in the case, witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even far an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this Court.’
Having not done so, the allegation at defence stage and in counsel’s address is an afterthought.
The appellant was caught in the act or red-handed attempting to commit the offence of armed robbery and his defence that he was one of the victims of the robbery was rejected by the Court below in its judgment where it held in particular that the appellant belonged to a gang that operated in that manner stated in his confessional statement.
The defence of the appellant contained in the record and/or evidence was therefore considered by the Court below which rejected it and, having had the singular opportunity of observing the appellant in the witness-box, the decision of the Court below rejecting his defence turned on the credibility of the evidence of the appellant which an appellate Court can scarcely interfere with; more so, the decision was not shown to be perverse or unreasonable or unwarranted as to occasion a miscarriage of justice to the appellant vide Faleye and Ors. v. Dada and Ors. (2016) LPELR – 40297.
The Court below was therefore right in convicting the appellant of attempt to commit the offence of armed robbery and as counts 2 and 3 of the charge related to different victims – PW1 and PW2, respectively, the complaint by the appellant that it amounted to duplicity and double jeopardy is hardly tenable.
The fact that the substantive offence of armed robbery was not consummated does not trivialise the serious nature of the offence of attempted armed robbery with a gun with its traumatised effect on the victim of the attempt to obtain property from him under the barrel of a gun vide the case of Bude v. State (2016) 12 NWLR (pt. 1525) 154.
Conspiracy to commit attempted armed robbery was proved by the circumstantial evidence given by the PW1 and PW2 as well as the confessional statement of the appellant showing he acted in concert with the co-defendant at the time of the commission of the offence of attempted armed robbery from which the meeting of their minds to do the said unlawful act can be inferred to ground the offence of conspiracy vide Osetola and Anor. v. The State (supra) at 284 following Onochie v. Republic (1966) 1 SCNLR 204, Ligali v. Queen (1959) SCNLR 14, Okosun v. A.-G., Bendel State (1985) 3 NWLR (pt.12) 283 to the effect that the offence of conspiracy is complete when two or more persons agree to do an unlawful act or do a lawful act by unlawful means which can be inferred by what each person does or does not do in furtherance of the offence of conspiracy and that the persons who conspire may not have met each other. See also Njovens and Ors. v. State (1973) 1 NMLR 331 and Shurumo v. State (supra) at 104 and 106. The Court below therefore properly convicted the appellant of the offence of conspiracy.
In the result, I find no merit in the appeal and hereby dismiss it and affirm the conviction and sentence of the appellant contained in the judgment of the Court below (Ipaye, J.).
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgement written by my learned brother Joseph Shagbaor Ikyegh, JCA and completely agree that this appeal is devoid of merit. For the reasons set therein, I too dismiss the appeal and affirm the conviction of the Appellant for the offence/s he was charged with.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother JOSEPH SHAGBAOR IKYEGH JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered. I adopt the judgment as mine with nothing further to add.
Appearances:
Mr. V. Ogude with him, Mr. A. AmokayeFor Appellant(s)
T. K. Shitta-Bey, Esqr. (DPP, Lagos State) with him, Mr. Y. Sule (P.S.C.) For Respondent(s)
