LUCKY EDET v. THE STATE (2014)

LUCKY EDET v. THE STATE

(2014)LCN/7569(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

CA/AK/110C/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE MEANING OF ARMED ROBBERY AND THE INGREDIENT OF THE OFFENCE OF ARMED ROBBERY
Armed robbery means simply stealing plus violence used or threatened. See Tanko V. State (2009) 2 SCNJ I at 19 and Mohammed V. State (2014) 10 NWLR (Pt 1414) 179. The ingredients of the offence of armed robbery are as follows:
a) That there was a robbery or series of robberies.
b) That the robberies were armed robberies and
c) That the accused person/s were or some of the people that committed the armed robbery.
These must be proved beyond reasonable doubt. Conviction can stand if the prosecution is able to establish the ingredients of the offence “even on the evidence of a single witness.” See Isiaka V. State (2013) 56 NSCQR 1158. per. JAMES SHEHU ABIRIYI, J.C.A.

CRIMINAL LAW; CONSPIRACY; THE MEANING OF CONSPIRACY

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF OF THE PROSECUTION IN THE DETERMINATION OF THE VOLUNTARINESS VEL NON OF THE STATEMENT OF AN ACCUSED
To determine the voluntariness vel non of the statement of an accused person the onus is on the prosecution to satisfy the Court beyond reasonable doubt that the statement in question had been voluntarily made. See Ganiyu & 1 OR V. State (1992) NWLR (Pt 266) 466. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Dibie V. State (2007) 9 NWLR (Pt 1038) 30 and Nwaebonyi V. State (1994) 5 NWLR (Pt 343) 130. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHEN CAN CIRCUMSTANTIAL EVIDENCE GORUND A CONVICTION
For circumstantial evidence to ground a conviction, it must lead to one conclusion, namely, the guilt of the accused person. See Ubani V. State (2003) 18 NWLR (Pt 851) 22. The pieces of evidence shown above can in no way point to the guilt of the Appellant. The visit he had paid to the co-accused while the later was working in the house of PW1 was not surprising because he was the person that introduced him to the complainants. The fact that Appellant was found sleeping at 11:45 am is no suggestion of his guilt. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: STANDARD OF PROOF; THE STANDARD OF PROOF IN A CRIMINAL TRIAL
The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence which identified the person accused with the offence and that it was his act which caused the offence. See Aighadion V. State (2000) SC (Pt 1) 1. per. JAMES SHEHU ABIRIYI, J.C.A.

Before Their Lordships

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMAJustice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria

Between

LUCKY EDETAppellant(s)

AND

THE STATERespondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice Ondo State holden at Akure wherein the Appellant and one other person were charged for conspiracy and armed robbery contrary to Sections 5(b) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation 1990.
The case of the Respondent at the Lower Court was that Appellant and the other accused person with three others stormed into the house of PW1 at about 2:00am. The first person had a solar light in one hand and a pistol in the other.
The person with the gun followed the PW1 to his room and the other four went to the room of the PW1’s wife. The person who followed the PW1 into the room asked for the N1 million, he was keeping in the room. The PW1 said he had only N400 in the room. His son was dragged into the room and two of them prostrated face down on the bed. He (PW1) gave the armed robbers only 400 (whatever that is).
They took his wife’s jewelry, his diary, radio and GSM. He did not recognize the armed robbers when they entered because they wore masks. After the operation the armed robbers moved out. He (PW1) and his son had escaped from the boy’s quarters into their farm. The robbers passed through that farm. Where the son was hiding he was able to recognize one of the accused persons (Daniel Bassey) who had been employed by the PW1 to assist his wife in her shop and was living in his house. However, two weeks before the incident Daniel left them without notice.
When his son told him that he saw Daniel (the other accused) he (PW1) went to the Special Anti-Robbery Squad (SARS) the following day to report. When the Police and PW1 got to the house of the other accused person, they knocked the door. When the door was opened, they saw ten people sleeping on the floor and the Appellant was among them. The Appellant told the PW1 that the other accused person had gone to his work place. The Appellant took the PW1 and the Police to where the other accused was working. The police then arrested the other accused person.
The other accused person, PW1 said knew where they kept the key to the house. The gate was not forced open and the three dogs they had which they had released were put back in their cages. They suspected the after accused person (Daniel) who used to feed the dogs and he knew the area; that there was no road through the farm.
In his defence the Appellant said he went home in January 2001 and brought (Daniel) the other accused person and gave him to the wife of PW1 and they entered into an agreement. Three months after, the other accused person came to the Appellant and asked for money to go home. He gave him N5,000. He went home and came back one week after. The wife of the PW1 rejected him.
One month after, the wife of the PW1 came asking for the other accused (Daniel). They went to the Sawmill where Daniel was working. He was arrested.
The Appellant went to the Police Station. The other accused was not granted bail. He gave them money for food. On 13th June, 2001, he Appellant was at Ijapo, he was arrested and taken to the police station and from there to the Special Anti – Robbery Squad. He was beaten and he then confessed. He was charged with robbery. He was arrested on 13/7/2001. He said he only knew PW1 in Court. He had never held a gun. PW2 was among those that beat him.
It was about two weeks after the arrest of the other accused (Daniel) that he too was arrested. He did not know the house of PW1. He visited the other accused three days after his arrest. He told the police that he brought the other accused (Daniel) from home, he did that in writing. He did not write the date in his statements. He signed the two statements.
The Lower Court tried the Appellant, convicted and sentenced him to death by hanging. It is against the conviction and sentence that the Appellant has approached this Court by way of appeal. He has appealed on six grounds against the conviction and sentence. Learned Counsel for the Appellant has formulated the following three issues from the grounds of appeal.
i. WHETHER the trial Judge erred in law and thereby occasioned a miscarriage of justice by failing to comply will the legal procedure in conducting trial-within-trial, and improperly determining the issues at stake in trial-within-trial, before admitting in evidence the alleged confessional statement of the appellant (i.e., Exhibit “C”)?
Ground 5.
ii. WHETHER the learned trial Judge erred in law in convicting the Appellant for the offence of conspiracy to commit armed robbery?

Ground 3.
iii. WHETHER, in view of the evidence on the record, the prosecution successfully proved the ingredients of the offence of armed robbery beyond reasonable doubt against the Appellant?
Ground 1, 2, 4 & 6.
The Respondent agreed with the issues formulated by the Appellant and adopted same.
On issue 1, learned counsel for the Appellant submitted that the Lower Court held a joint trial within trial for the Appellant and DW1 in respect of their alleged confessional statements Exhibits B and C. That without ruling on the trial within trial in respect of the alleged statement of the DW1, the Lower Court commenced another trial within trial in respect of the statement of the Appellant before delivering a joint ruling in respect of the statements of the DW1 and the Appellant on 2nd December, 2010.
Apart from this, the Lower Court, It was submitted proceeded to admit the statements because it said it was satisfied with the truth of the statement.
It was submitted that the joint ruling on the trial-within-trial in a Criminal Prosecution is not only perverse but occasioned a miscarriage of justice for which the Appellant must be acquitted. We were referred to Jindu V. Esurombi – Aro (2005) 14 NWLR (Pt 944) 142 at 194, Jua V. State (2005) A FWLR (Pt 449) 766 and Gambo V. State (2011) A FWLR (Pt 602 1609, Salawa V. State (2011) A FWLR (Pt 594) 35, Momodu V. State (2008) A FWLR (Pt 447) 67 and Amachree V. Nigerian Army (2003) 3 NWLR (Pt 807) 256.
It was submitted that from the evidence of the PW2 and Appellant the statement of the appellant was not voluntarily made. We were referred to State V. Salawu (2012) AFWLR (Pt 614) 1 at 22 where Ngwuta JSC stated that the duty of the police after the accused has been charged and cautioned, is to take or record the statement of the accused; if he makes any. That the police have no authority to obtain a statement from the accused having told him that he is not obliged to say anything. It was submitted that the evidence of PW2 that he told the Appellant to tell him what he knows clearly shows that the statement was not given of his own free will. Also that the evidence of PW2 that he “confronted” the Appellant indicates that there was an inducement.
On issue 2, it was submitted that conspiracy is the meeting of minds of the conspirators and that the prosecution has the primary duty to lead evidence of the existence of conspiracy and what part each of the conspirators played. We were referred to Daboh and Anor V. The State (1977) 5 SC 197 and R V. Orion (1922) Victoria Law Reports 474.
It was submitted that on a charge of conspiracy to commit an offence the actual agreement alone constitutes the offence and it is not necessary to prove that the act has been committed. So where a person is charged with the offence of conspiracy and with actually committing the substantive offence proper care must be taken in considering the offence relevant to the conspiracy and the substantive offence by separating the issues and elements. We were referred to Rabiu V. State (2010) 10 NWLR (Pt 1201) 127.
It was submitted that for the charge of conspiracy, the (prosecution) Respondent had to prove:
a) That there was an agreement to do an unlawful act; that is, to break into and rob the complainant at gun point.
b) That the agreement was reached by the two or more accused persons.
It was submitted that the mere presence of the Appellant in a room together with ten other men sleeping is not enough evidence of his knowledge neither was there in fact any evidence either of his being recruited into the conspiracy or being identified by the complainant as one of the masked armed robbers at the scene of crime or of any other joint act with the other culprits.
The only evidence against the Appellant on this count, it was submitted, was that he it was who seconded the DW1 to PW1’s wife as a house help, and therefore must have been among the five masked armed men.
It was submitted that there was no evidence of any agreement between the Appellant and DW1. It was submitted that mere allegation of crime without proof by the prosecution beyond reasonable doubt cannot ground a conviction.
On the final issue, it was submitted that the prosecution failed to prove the fundamental ingredients of the offence of armed robbery beyond reasonable doubt against the Appellant to ground his conviction.
It was submitted that the decision of the Lower Court to convict the Appellant was based on conjecture. This Court was referred to the evidence of PW1 to the effect that no one saw the Appellant in the house. But when he saw him sleeping “at that time of the day” (at about 11:45 am) he became suspicious of him. By the evidence of the witness, it was submitted, there was doubt as to the presence of the Appellant at the scene of crime. It was submitted that the basis for the prosecution of the Appellant sounded in suspicion.
The prosecution, it was submitted, had a duty to prove by cogent and convincing evidence that the accused committed armed robbery. On the evidence on the record the Appellant, it was submitted was not connected to the robbery incident. The finding of the Lower Court that “other compelling circumstances” operated to link the Appellant with the robbery was misconception, it was submitted.
On issue 1, learned counsel for the Respondent submitted that there is nothing sacrosanct about the procedure of delivering one ruling for the two trials-within-trial as this did not occasion a miscarriage of justice. It was a mere technicality, it was submitted and the law is concerned with substantial justice rather than technicalities.
On issue 2, Respondent’s counsel submitted that Exhibit C, the extra-judicial statement of the Appellant revealed that he acted in concert with others.
On issue 3, it was submitted that the conviction of the Appellant was not based on suspicion. That the Appellant conceded that there was indeed a robbery attack on the PW1. That from the testimony of PW1, Exhibits B and C, the robbery was an armed robbery. That the extra-judicial statement of the Appellant Exhibit C established that he was among the five man gang that robbed the complainant and members of his family. Apart from this, it was submitted, there was other compelling circumstantial evidence such as 1)
The visit, the Appellant once made to the 1st accused (Daniel) and his being found sleeping at about 11:45 am with ten other people in a room.
Armed robbery means simply stealing plus violence used or threatened. See Tanko V. State (2009) 2 SCNJ I at 19 and Mohammed V. State (2014) 10 NWLR (Pt 1414) 179. The ingredients of the offence of armed robbery are as follows:
a) That there was a robbery or series of robberies.
b) That the robberies were armed robberies and
c) That the accused person/s were or some of the people that committed the armed robbery.
These must be proved beyond reasonable doubt. Conviction can stand if the prosecution is able to establish the ingredients of the offence “even on the evidence of a single witness.” See Isiaka V. State (2013) 56 NSCQR 1158.

Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to do. It consists not merely in the intention of two or more persons but rather in the agreement of two or more persons to do an unlawful act, or do a lawful act by unlawful means. The Courts tackle conspiracy as a matter of inference to be deduced from certain acts or inactions of the parties concerned. See Nwosu V. State (2004) 15 NWLR (Pt 897) 466, Amachree V. Nigeria Army (2004) 3 NWLR (Pt 807) 256 and Oduneye V. State (2001) 13 WRN 88.
The only evidence apparently against the Appellant is his statement Exhibit C.
This is so because he was not, mentioned by PW1 in connection with the alleged robbery. Under cross-examination, the PW1 further exonerated him when he said that no member of his household saw the Appellant.
Issue 1,presented for determination is on the trial within trial leading to the admission of the statement Exhibit C made by the Appellant. The trial of the voluntariness or otherwise of the statement of the Appellant was done immediately after that to determine the voluntariness or otherwise of the statement of the co-accused and a joint ruling was delivered. Although the proper procedure was to have ruled on the voluntariness or otherwise of the co-accused’s statement before the trial within trial in respect of the Appellant’s statement and ruling separately on it; the failure of the Lower Court to do so in my view was a mere irregularly. It is not correct as learned counsel for the Appellant argued that the trials were simultaneous or happened at the same time. The trial within trial in respect of the co-accused person’s statement was concluded before the commencement and conclusion of the one in respect of the Appellant’s statement. Therefore the procedure of writing one ruling in respect of the two trials was an irregularity which did not occasion a miscarriage of justice.
However, the Lower Court seemed to have complicated matters when it admitted the statements of the co-accused and the Appellant because he was satisfied with the truth of the statement and not because the statements were voluntarily made. This misconception of the purport of the trial within trial in my view vitiated the trial within trial and the statement of the Appellant Exhibit C was wrongly admitted.
To determine the voluntariness vel non of the statement of an accused person the onus is on the prosecution to satisfy the Court beyond reasonable doubt that the statement in question had been voluntarily made. See Ganiyu & 1 OR V. State (1992) NWLR (Pt 266) 466. At the trial-within-trial, the Appellant in part testified thus:
“I said I did not rob they started beating me.
Ahmed was the one that wanted to blind me.
Frank was the person knocking my head with ruler. I did not write any statement. It was Frank that said that if I agree that I rob they would not beat me any more. I was tortured for three days”
Inspite of the above damning evidence, it was not seriously challenged by cross-examination. On this evidence, it is difficult to say that the prosecution proved beyond reasonable doubt that the statement was voluntarily made. In my view, it was therefore wrongly admitted for this reason also.
Although it was admitted, I think it ought to have been discountenanced by the Lower Court for the following reason. PW2 through whom it was admitted did not conclude his testimony in Court and was therefore not cross-examined.
The Lower Court ought to have either struck out his evidence or discountenanced same including the statement Exhibit C tendered through him. For the foregoing reasons I resolve issue 1 in favour of the Appellant.
Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Dibie V. State (2007) 9 NWLR (Pt 1038) 30 and Nwaebonyi V. State (1994) 5 NWLR (Pt 343) 130.
Assuming Exhibit C was rightly admitted the prosecution still had to lead some evidence outside it which would make it probable that the Appellant conspired with one or more persons to commit armed robbery. There is no such evidence. As I pointed out earlier PW1 did not mention him in his evidence in-chief and under cross-examination he said no member of his household saw the Appellant.
Issue 2 is therefore resolved in favour of the Appellant.
On issue 3, as shown elsewhere in this judgment, the only evidence against the Appellant is the extra-judicial statement. There is nothing outside it which would make it probable that the confession was true. The Lower Court found circumstantial evidence in proof of the alleged offence. The only circumstantial evidence according to the Lower Court on which it convicted the Appellant is that he once visited the co-accused while he was working with the complainants and also that Appellant was found sleeping in a room with ten other people at about 11:45 am when the complainants went to look for Appellants co-accused.
For circumstantial evidence to ground a conviction, it must lead to one conclusion, namely, the guilt of the accused person. See Ubani V. State (2003) 18 NWLR (Pt 851) 22. The pieces of evidence shown above can in no way point to the guilt of the Appellant. The visit he had paid to the co-accused while the later was working in the house of PW1 was not surprising because he was the person that introduced him to the complainants. The fact that Appellant was found sleeping at 11:45 am is no suggestion of his guilt.
The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence which identified the person accused with the offence and that it was his act which caused the offence. See Aighadion V. State (2000) SC (Pt 1) 1. There was no evidence linking the Appellant to the commission of any robbery.
Issue 3 is resolved in favour of the Appellant.
All three issues having been resolved in favour of the Appellant, the appeal is allowed. The conviction and sentence of the Appellant to death are hereby quashed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother, James Shehu Abiriyi, JCA just delivered. Where there is no direct eye-witness evidence as to the commission of a crime, the prosecution may rely on circumstantial evidence to prove its case. See Mohammed v. The state (2007) 11 NWLR (pt. 1045) 303 at 327.
The circumstantial evidence relied upon must be cogent and compelling and must lead to only one conclusion. That the accused person committed the offence.
By virtue of Section 135 of the Evidence Act, the prosecution must prove its case beyond reasonable doubt.
Having regard to the facts and circumstances of this case fully set out in the lead judgment, the prosecution failed woefully in this regard. The circumstantial evidence did not lead to the irresistible conclusion that the Appellant played any part or conspired in the armed robbery.
For these and the more detailed reasons comprehensively set out in the lead judgment, I also find merit in this appeal. Accordingly I allow the appeal, the conviction and sentence of the Appellant by the trial court are hereby quashed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with the leading Judgment of My Lord, Abiriyi, JCA that this appeal be allowed. There was no proof of the guilt of the offence of armed robbery against the Appellant, other than the speculation based on his having been to the victim’s house before; the identification evidence was purely hear say and left the charge unproven as merely finding an accused with 10 people sleeping in a room at about 10.30Am may be suggestive of idleness, belonging to a group or a gang or even people with a legitimate, purpose for being together at a place and at that hour of the day. The presumption of innocence imposes a duty to be discreet, comprehensive and painstaking in assembling evidence before the decision to prosecute is taken. In the same vein cases may not be prosecuted hapharsadly by truncating evidence as in this case where the PW2 was not cross examined and yet his evidence sought to be relied upon by the prosecution. His evidence in Chief related to the so-called damning confessional statement – Exhibit “C’, which ought be expunged and the inchoate evidence in that respect dis regarded.
In all, I agree that there was no proof of the identity of the Appellant as the perpetuator of the alleged act of robbery which, was by no means proved.
Appeal allowed by me also.

Appearances

ADEKUNLE OJO ESQ.For Appellant

AND

MRS BOLA JOEL OGUNDADEGBE CHIEF LEGAL OFFICER, MINISTRY OF JUSTICE, ONDO STATEFor Respondent