MICHAEL OLOYE V THE STATE
In the Supreme Court of Nigeria
Thursday, May 24, 2018
Case Number: SC. 325/2014
KUMAI BAYANG AKAAHS
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
AMINA ADAMU AUGIE
PAUL ADAMU GALINJE
(DELIVERED BY OLU ARIWOOLA, JSC)
The appellant and one other were arraigned and charged with the following offences:-
Conspiracy to commit a felony to wit Armed Robbery contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act (Cap. R11) Laws of the Federation of Nigeria 2004.
Armed Robbery, Contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, (Cap. R.11) Laws of the Federation of Nigeria, 2004.
The appellant was the 1st accused while one Sunday Adoba was the 2nd accused person. Upon the reading of the charge to both of them, each pleaded not guilty to the charge and the case proceeded to hearing. The prosecution called three witnesses while each of the accused testified in defence but did not call any other independent witness.
The case for the prosecution goes thus: On the 1st day of May, 2008, the accused persons, at Idedo village along Owode/Idiroko road, near Iju town, riding on a Nissan Bluebird car and posing as policemen, accosted the PW1 – one Mrs Kudirat Olawunmi, while she was travelling in her Nissan Vanette bus with her aides, towards Sango. The accused flashed police identity cards and asked for the vehicle particulars which the PW1’s driver produced. The accused asked if the PWI had any contraband in her vehicle but PW2 answered in the negative. The accused persons then started to search the bus and discovered the sum of three hundred and sixty five thousand naira (N365, 000), the property of PW1, in a polythene bag where it was kept and took the money. The 2nd accused pulled out a pistol and ordered the PW1 and her team to enter the bus. The accused dropped the money in their Nissan Bluebird car and drove off, initially towards Sango but later made a U-turn towards Atan. The PW2, by the steering of PW1’s car chased the accused and pursued them, but after a while lost sight of the accused. However, with the help of some policemen at a check point and some commercial Motorcycle riders at Atan junction, the PW1’s team became aware that the accused had driven towards Agbara direction, hence they followed them. The accused later abandoned their car and tried to escape in a village. The accused fled but with the assistance of the villagers, they were arrested while trying to escape through a river. The 3rd suspect however, escaped with the money. The accused were later taken to Agbara police station where both PW1 and PW2 made statements.
PW3, then Inspector Gideon Ogunlabi was the Investigation Police Officer (IPO), formally serving at the Anti-Robbery Section, State CID, Abeokuta. On 5th of May, 2008, a case of armed robbery was referred to him for investigation from Agbara Division. He obtained the statements of the witnesses and the accused persons who volunteered their statements. He observed that the statements of the two accused were confessional in nature, hence he took each of them before a Superior Police Officer, ASP Sola King. The two accused confirmed that the statements were their voluntary statements and then signed same before the ASP. PW3 also signed and the ASP endorsed same. The said “statements were tendered in evidence and were admitted without any objection and marked Exhibits A and B for the 1st and 2nd; accused respectively. The Investigating Police Officer at the Divisional level – one Sergent Njoku, was reported to be on a foreign mission but his own statement had been obtained and was tendered and admitted in evidence as Exhibit C. PW3 also tendered the statements made by the accused at Agbara Police Division. The defence objected to the admissibility of the statements, which objection was overruled, and same were admitted in evidence and marked as Exhibits A2 and B2 respectively. PW3 led a team of policemen to Akinwumi village where the accused were apprehended but they did not find the loot in the river where the accused claimed they had dropped the money. All efforts to arrest the 3rd member of the gang proved abortive.
The defence of the two accused persons was total denial. However, the trial court found that even though each of the two accused denied robbing the PW1, their evidence in almost every material particular confirms the case of the prosecution. Upon review of the total evidence adduced, the trial court found that the prosecution proved the two counts of conspiracy and robbery against the two accused persons beyond reasonable doubt. They were found guilty, convicted and respectively sentenced to 14 and 21 years imprisonment on each of the two counts.
The appellant was dissatisfied with the judgment of the trial court given on 15th December, 2010, hence appealed to the court below. In its judgment handed down on 27th February 2014 Coram: Dongban-Mensem, JCA; Uwa, JCA and Tsammani, JCA, the court below found the appeal unmeritorious and liable to dismissal. The appeal was dismissed and the judgment of the trial court, by which the appellant was convicted and sentenced to 14 and 21 years imprisonment with hard labour were affirmed.
The appellant was further dissatisfied with the unanimous decision of the court below and has” led to the instant appeal to this court on six grounds of appeal filed on 24th March, 2014.
After records were settled, in compliance with the Rules of this court, parties filed and exchanged briefs of argument. The appeal was then heard on the following processes.
• Appellant’s brief of argument filed on 30/3/2012.
•Appellant’s Reply brief of argument filed on 31/5/2017 but deemed properly filed and served on 01/3/2018.
•Respondent’s brief of argument filed on 18/04/2017.
Appellant distilled the following issues for determination of the appeal.
1.Whether the Honourable Justices of the Court of Appeal erred in law to hold that Exhibit A2 was admissible as a confessional statement when the recorder of the Statement Sgt. Njoku Peters was not called as witness to tender the Statement in evidence. (Ground 3 of the Grounds of Appeal).
2.Whether the Honourable Justices of the Court of Appeal erred in law to hold that the confessional statement, Exhibit A and A2 (if at all admissible) are corroborated and consistent with the other evidence presented by the Prosecution in proof of the offence of conspiracy and robbery. (Grounds 1 and 6 of the Grounds of Appeal).
3. Whether the Honourable Justices of the Court of Appeal erred in law to hold that contradictions in the evidence of PW1 and PW2 are not material and relevant to the proof of the ingredients of the offence of conspiracy and robbery. (Grounds 2, 4 and 5 of the Grounds of Appeal).
Learned appellant’s counsel in arguing issue No.1 referred to Exhibit A2 as the confessional statement of the appellant recorded by Sgt. Njoku Peters of the Agbara Police Station. The said document was tendered by PW3 – Inspector Gideon Ogunlabi, another Police Officer who was not the recorder of the Statement. He contended that the appellant’s counsel at the trial court raised an objection to the admissibility of the statement but was overruled by the court. Learned counsel referred to the findings of the court below that the appellant who made Exhibit A2 was in court, even though the Police Officer who recorded the statement was not in court, yet there was no objection. He submitted that the holding of the court below was erroneous in the light of the decisions of this court in Nwaeze Vs. The State (1996) 2 NWLR (Pt. 428) 1 at 20 and FRN Vs Usman (2012) 8 NWLR (Pt. 1301) 141 at 159. He submitted that for the purpose of admission of the said statement (Exhibit A2) in proof of the facts stated therein, the recorder is the maker of the said Exhibit which is a statement of what the appellant told the recorder and which was admitted in proof of the facts so recorded by the Sgt. Njoku Peters as the confession of the appellant. A tender of such statement, he contended, ought to be by the recorder to whom the appellant made the statement which the recorder (Sgt Njoku Peters) reduced into writing. He submitted that a tender otherwise by the PW3 will be hearsay and will be inadmissible in accordance with the above cited cases of Nwaeze Vs. State and FRN Vs. Usman (Supra)
On the issue No.2, learned counsel contended that at the trial court, Exhibit A was admitted without objection while Exhibit A2 was admitted despite the objection of the appellant’s counsel. Learned counsel contended further that even though the said confessional statement, Exhibits A and A2 were admitted by the trial court, he submitted that a conviction on such statements ought to be corroborated by other pieces of evidence presented at the trial and must also be consistent with such other evidence. He relied on Dauda Vs. State (1980) All NLR 226 at 244; State Vs. Isah (2012) 16 NWLR (Pt. 1327) 613 at 626.
Learned counsel contended that, to prove the offences of conspiracy and robbery for which the appellant was convicted, the respondent ought to prove the stealing of the sum of N365, 000 from the PW1 and PW2 and that the money was stolen while the appellant and his co-accused used or threatened actual violence to the person or property of the victims, that is, PW1 and PW2. He referred to the definition of “Robbery” in the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation, 2004.
Learned counsel contended that the statement of the appellant in Exhibits A and A2 in respect of the stealing of the said sum of N365, 000 quite contrary to the evidence of PW1 and PW2 on where and how the money was taken from them and submitted that the discrepancy raises a doubt as to whether the PW1 and PW2 were actually in possession of the said sum of money at the time they alleged they were robbed.
Learned counsel submitted that the veracity of the evidence of the PW1 had become doubtful and the court below should not have approved the attachment of any weight to the evidence as the trial court did. He contended that the evidence are inconsistent with each other on the material ingredients of “stealing” the sum of N365, 000 particularly, with regards to the possession of the money by PW1 and the point of its dispossession from PW1 which, he submitted is foggy and prevaricate.
Learned counsel submitted that it is an error in law and a perverse decision for the Court of Appeal to hold that since the appellant did not deny having anything ; to do with the victims, the PW1 and PW2, and that the appellant did not deny any knowledge of the victims were enough corroboration of Exhibit A and Exhibit A2. He contended that the fact that the appellant knew and ever had encounter with PW1 and PW2 only show an opportunity for the appellant to commit the offence alleged but is not enough evidence required for the proof of the very important ingredient of stealing which is the particular facts of the encounter, the evidence of which is contradictory and prevaricate and cannot be held up as constituting stealing with threat of actual violence.
Learned counsel referred to Exhibit A2 and submitted that as required by the court in the above earlier referred cases of this court, that piece of evidence, being a confessional statement ought to be corroborated and consistent with other available evidence at the trial. He contended that the said piece of evidence was not corroborated by the evidence of any of the villagers that allegedly affected the arrest. Learned counsel further referred to what he called three versions of the arrest of the appellant as contained in Exhibit A2, testimony of PW2 and appellant respectively. He submitted that there is a contradiction on the mode and place of arrest of the appellant. He contended that the mode of arrest of the appellant, being one of the very important evidence required for the proof of the offence of robbery for which the appellant was convicted he referred to The State Vs. Isah (supra) and submitted that appellant’s conviction is perverse. He referred to the finding of the court below on how and where the appellant was arrested which he contended was contrary to the available evidence before the court. He submitted that the courts are not entitled to pick and choose which of the evidence to believe of the versions of the evidence presented by the prosecution. He urged the court to so hold. He relied on Onubogu Vs. The State (1974) All NLR 561 at 571.
Learned counsel conceded that even, though the mode of arrest is not an ingredient of the offence of conspiracy and robbery he submitted that it is a material part of the evidence necessary for a proof beyond reasonable doubt of such an offence.
Learned counsel submitted that the alleged confessional statements Exhibits A and A2, having not been corroborated and being inconsistent with the evidence of the PW1 and PW2, the court ought to set aside the decision of the court below which had affirmed the conviction of the appellant based on the confessional statements as proof of the offences for which the appellant was convicted. He cited Bright Vs. State (2012) 8 NWLR (Pt.1302) 297 at 318 and 319.
On issue 3, learned counsel, contended that to prove the act of robbery, the respondent ought to proffer evidence on the fact that the appellant and his co-accused used or threatened to use actual violence on the persons of the PW1 and PW2 being an important ingredient of the offence of robbery. He referred to the findings of the court below to the effect that the prosecution only proved robbery simpliciter but not armed robbery, and convicted the appellant just for robbery. He contended that having disbelieved the prosecution, that piece of evidence that the appellant pulled out a gun to compel their lying down in their car, on the pain of severe danger, being the only act of severe danger that has induced fear to the lives of PW1 and PW2, and being the only source of threat to use actual violence on their persons as per their evidence, it is erroneous and perverse for the court below to approve of the finding of the trial court that the appellant and his co-accused used or threatened to use actual violence when the witnesses did not so state in their testimony. He submitted that the holden of the trial court upheld by the court below on the use or threat of actual violence is perverse as it is not supported by the evidence before the trial court.
Learned counsel further submitted that in the absence of the direct evidence of the PW1 and PW2 that the order of the appellant and his co-accused ordering them, back into the bus, to lie down, is the act that they believed was the use or threat of actual violence, then it is wrong in law for the court below to fill the gap and substitute the evidence of the PW1 and PW2 for what the court believed caused them pain of severe danger with what the Court, of Appeal thinks should be the evidence constituting, the use or threat of the use of actual violence which the PW1 and PW2 did not allege.
He contended that the important ingredient of the threat of violence to the person of the PW1 and PW2 in the proof of robbery was not established in this case. He submitted that an act of violence itself connotes the use of physical force on the persons of the victims. He contended that the only act of physical force in evidence in this case is the alleged pulling out of the gun which evidence was rejected by the trial court. He submitted that the act of ordering the PW1 and PW2 to lie down in their bus without any accompanying act of physical force exemplified by the rejected evidence, of pulling out a pistol cannot and will not constitute an act of violence or a threat to use violence on the person of the PW1 and PW2. As a result, the essential element of the use or threat of the use of actual violence in the definition of Robbery in the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004, is not present in this case, which he submitted, renders the conviction of the appellant a miscarriage of justice.
Learned counsel referred to page 142 of the record and contended that the court below found no material contradictions or discrepancies in the evidence of the prosecution at the trial of the appellant. He submitted that the critical aspects as stated by the trial court and approved by the court below does not amount to any proof beyond reasonable doubt of the ingredient of the offence of conspiracy and robbery as it omitted the facts that prove the act of stealing the sum of N365, 000.00 from PW1 and PW2. He contended that the said critical aspects also omitted to state that the said stealing is accompanied by the use of threat to use actual violence on the persons of the PW1 and PW2.
On the act of stealing, as an important ingredient, of robbery, learned counsel contended that it is material that there is credible evidence by the PW1 and PW2 to show that they were in actual possession of the sum of N365, 000 and that the appellant and his co-accused dispossessed them of the said sum. He referred to the testimony of PW1 both in Examination in Chief and during cross-examination on where she kept the said money inside her bus.
Learned counsel contended that while the PW1 stated in one breath that she kept the money in the glove compartment, at another breath, she stated that the money was kept under the carpet beneath her legs. He submitted that this discrepancy in the act of possession of the sum of N360, 000.00 lends itself to a doubt as to whether the PW1 was in fact in possession of the sum of money or not, which doubt ought to be resolved in favour of the appellant.
In addition, learned counsel contended that in the discrepancies earlier described the PW1 did not state which of the appellant and his co-accused dispossessed her of the said sum of money which he submitted is very material in the pursuit of whether the PW1 was actually dispossessed of the said sum of money. He urged the court to re-evaluate the evidence.
Learned counsel contended that the contradiction in the evidence on the mode of arrest of the appellant and his co-accused becomes more relevant and material when the issue of possession of the said sum of N365, 000.00 by PW1 and its dispossession from her is being doubtful is considered with the fact that the money was not found upon the appellant and his co-accused when they were arrested. He urged the court to hold that since no money was found on either the appellant or his co-accused when arrested, then they did not steal any money from the PW1 and PW2.
He submitted that the concurrent findings of the two courts below of the facts of this case are erroneous-and perverse as the said findings cannot be supported by the evidence presented at the trial court. He urged the court to set aside the said findings and allow the appeal.
In the brief of argument settled by Mark Mordi Esq. of counsel for the respondent, the following three issues were distilled for the determination of the appeal.
1.Whether Exhibit A2 was properly admitted in evidence notwithstanding the fact that Sergeant Njoku Peters, the Police Officer who recorded same was not called to tender the statement in evidence.
2.Whether there are material inconsistencies in the appellant’s confessional statements (Exhibits A and A2) and the evidence led by the prosecution to warrant the setting aside of the appellant’s conviction for the offence of conspiracy and armed robbery.
3.Whether the alleged contradiction in the evidence of PW1 and PW2 are material and relevant in establishing the offence of conspiracy and robbery.
In arguing issue 1, learned counsel referred to the submission of the appellant on the admissibility of Exhibit A2 and submitted that the appellant failed woefully to adduce any judicial authority in support of his argument that a confessional statement tendered through a police officer other than the officer who took the statement directly from the accused would be rendered inadmissible. He emphasized that the cases relied on by the appellant are wholly inapplicable to the appeal, in that, the cases relate to situations where an accused person made statement to the police with the aid of an interpreter. For instance, where a statement is made in a language other than English Language and an interpreter is engaged to translate the statement to English language. In those cases, the court had set aside the conviction on the ground that the confessional statements were improperly admitted, the interpreter not having been called to testify in evidence.
Learned counsel contended that in the instant case, the confessional statement was taken directly, as an interpreter was not required, given that the appellant is literate. He contended further that the appellant volunteered his confessional statement as contained in Exhibit A2 in English language. He submitted that the said appellant’s statement was properly admitted, notwithstanding that it was tendered through a police officer other than the officer who recorded the statement directly from the accused person. He relied on John Vs. State (2011) 12 SC (Pt.5) 130
Learned counsel contended that it was clear in the evidence before the trial court that it was not reasonably practicable to secure the attendance of the Police Officer who took the statement directly from the appellant. The whereabouts’ of the officer who directly recorded the statement – Exhibit A2 was given by PW3, another Police officer, that, it was impracticable to secure the attendance of the said police officer and since the said statement was clearly relevant to the determination of the issue before the trial court, he submitted that the trial court was right to have admitted the statement through PW3, another police officer. He relied on Magaji Vs. Nigerian Army (2008) All FWLR (Pt. 420) 613 at 639.
Learned counsel contended that the evidence before the court is that the appellant volunteered two confessional statements to the police, marked Exhibits A and A2. While an objection was raised to the admissibility of Exhibit A2, no objection was raised to the admissibility of Exhibit A as it was duly tendered by the police officer who recorded the statement. He contended further that it is not in dispute that the court can solely convict an accused on his confessional statement. He therefore submitted that Exhibit A being a confessional statement of the appellant is also sufficient to sustain the conviction. He contended that where a party is alleging that a piece of evidence admitted ought not to have been admitted, in, the first place, such a party has an additional burden to show that, had the inadmissible evidence not been admitted, the conviction could not have been made. He relied on Akpan Vs. The State (1994) 9 NWLR (Pt. 368) 347. He submitted that the appellant has failed woefully to discharge this obligation. Learned counsel submitted further that, Exhibit A2 being a relevant piece of evidence was properly admitted in evidence by the trial court. He urged the court to discountenance the contention of the appellant, uphold the decision of the court below in affirming the judgment of the trial court.
On its issue No.2, learned counsel referred to the contention of the appellant that the alleged confessional statements – Exhibits A and A2 were not corroborated by any other evidence adduced at the trial, as such the court below was wrong in affirming the conviction of the appellant on the basis of the confessional statements.
He referred to the alleged inconsistencies in the evidence adduced by the prosecution, in particular, the testimony of PW1 and PW2. He submitted that the said alleged inconsistencies are not material to warrant the setting aside of the appellant’s conviction. He relied on Oluwatoyin Abokokuyanro Vs. The State (2016) LPELR 40107 (SC).
Learned counsel submitted that the alleged inconsistencies raised by the appellant are minor which are not material and should not form the basis for a reversal of the decision. He contended that the fact that no money was found on the accused persons upon arrest is irrelevant in the face of the clear and unequivocal statement of the appellant that the accused persons took’ the money from PW1. Also, the question of whether the money was taken from the glove compartment of the car or underneath the carpet of the car is not a material difference to warrant the reversal of the conviction. He submitted that the fact which is clearly not in dispute was that money was stolen from PW1’s car being driven by the PW2. And that the appellant and the co-accused were subsequently chased until they were arrested.
Learned counsel contended that the facts that are material include, that the appellant and the co-accused took the money from PW1’s car under the guise that they were police officers on patrol. And this critical piece of evidence was not controverted or disputed by the appellant. Also, the question whether the appellant was arrested by the Police or handed over to the police by the villagers is clearly not a material discrepancy to warrant the reversal of the conviction.
Learned counsel submitted that the appellant clearly has no defence to the case made out by the prosecution. He submitted further that the confessional statements have been established and the court below was right to affirm the decision of the trial court convicting the appellant on the basis of his confessional statement. He submitted that the confessional statements have been adequately proved and conviction based on those statements is sufficient in law. He relied on Dibie Vs The State (2007) 9 NWLR (Pt. 1038) 30 at 51; FRN Vs Iweka (2012) LPELR 9350; Onwumere Vs. State (1991) 4 NWLR (Pt. 186) 428 at 440. He submitted that the court below was right in upholding and affirming the conviction of the appellant based on the confessional statements admitted as Exhibits A and A2.
Learned counsel further submitted that it is not the law that the evidence led in corroboration of the confession must match the confession verbatim. It is sufficient for the prosecution to show that the confessional statement is consistent, in the material respect with other cogent and convincing evidence, led in the case which established the guilt of the appellant.
Learned counsel contended that: the evidence led by the Prosecution witnesses, PW1 and PW2 on the manner the robbery attack was conducted, to wit, the fact that the appellant and the co-accused pretended to be police officers, pulled over their bus and robbed them of their money is consistent with the confessional statement of the appellant. The evidence led by the Prosecution also corroborated the account contained in the confessional statement on the date and place of the robbery incident and, in material regard, how the appellant was arrested.
Learned counsel referred to the confessional statement of the appellant made on 1st of May, 2008, the day of the commission of the offence and arrest, and contended that the testimony of PW1 and PW2 before the trial court corroborated the account contained in Exhibits A and A2.
Learned counsel contended that there is no basis to interfere with the concurrent finding of the two lower courts on the unambiguous corroboration of the facts contained in Exhibit A, the confessional statement made at Agbara Police Station which was tendered and admitted without any objection and Exhibit A2 made at the State Criminal Investigation department and the evidence adduced by the Prosecution through PW1 and PW2. He contended further that the appellant failed to demonstrate that the concurrent findings of the two lower courts were perverse or not consistent with the evidence led. He urged the court to affirm the concurrent findings of the lower courts and dismiss the appeal.
Learned counsel contended that the fact that the trial court .found that armed robbery was not established beyond reasonable doubt is not sufficient to impugn the credibility of the prosecution witnesses. He submitted that the appellant has failed to demonstrate why the evidence of PW1 and PW2 on the offence of robbery should not be believed. But that the said evidence was clearly corroborated by the facts contained in the appellant’s confessional statements admitted in Exhibits A and A2. He urged the court to resolve the issue against the appellant and affirm the decision of the court below.
On the third issue of the respondent, whether the alleged contradiction in the evidence of PW1 and PW2 are material and relevant in establishing the offence of conspiracy and robbery, learned counsel referred to the contentions of the appellant that the court below erred in upholding the conclusion reached by the trial court that the Prosecution had proven the offence of robbery beyond reasonable doubt having rejected the only piece of evidence on the fact of threat of violence, to wit, the use of a pistol during the attack. He contended that the appellant’s position on that issue is misconstrued for the reason that the trial court only disregarded the evidence adduced by the PW1 and PW2 with regard to the identity of which of the accused persons pulled the gun in the course of the robbery. Learned counsel contended further that it is not in dispute that the appellant and his co-accused approached PW1 and PW2 as Police Officers and was subsequently ordered to lie down flat while a search was being carried out in the vehicle. He referred to the findings of the trial court to the effect that the Prosecution had not proven the offence of armed robbery because there was reasonable doubt in respect of one of the elements of the offences, that is, possession of a firearms or offensive weapon, hence the conviction for the lesser offence of robbery. He contended that unlike armed robbery, a pistol or weapon is not necessary to establish robbery. It is sufficient that the victim is placed in a state of helplessness whereby the victim had no option but to comply with the commands of his assailant. He relied on Otti Vs. State (1993) 4 NWLR (Pt. 290) 675.
Learned counsel further contended that the trial court convicted the appellant primarily on the basis of the confessional statements which court found to be consistent with the other evidence presented by the prosecution. And that the contradictions in the testimonies of PW1 and PW2 were only in relation to the identity of the person who welded the gun during the robbery operation and was the sole factor responsible for the trial court reaching the conclusion that the offence of armed robbery had not been established. But that the trial court had found that there was sufficient evidence against the appellant and the co-accused to ground conviction for conspiracy to commit robbery and robbery.
Learned counsel submitted that the court will not ordinarily interfere with the concurrent findings of; the two lower courts on the evaluation of the evidence adduced against the appellant and the decision reached thereof where such findings have been properly reached after a thorough appraisal of the evidence led by the parties. He relied on Ogunyade Vs Oshunkeye (2007) All FWLR (Pt. 389) 1179 at 1192, Nwarube Vs. State (1995) 3 NWLR (Pt. 384) 385 at 409; Omoregie Vs State (2008) 12 SC (Pt. 111) 80 at 97. He urged the court to resolve this issue against the appellant and hold that the Prosecution led credible and convincing evidence vide the testimony of PW1 and PW2 which corroborated the confessional statements of the appellant – Exhibits A and A2. He finally urged the court to dismiss the appeal in totality.
However, as I earlier stated, the appellant filed a reply brief of argument to the respondent’s brief of argument. As clearly stated in the said reply brief, it is based on the submissions of the respondent on the admission of Exhibit A2 through PW3 and the reliance placed on the decision of this court in John V. State (2011) 12 SC (Pt.1) 130. Learned counsel for the appellant submitted that the facts and circumstance of this case are completely different from the already decided case cited. He contended that tendered Exhibit A2 did not give evidence of his positive identification of the hand writing of Sgt. Njoku or that he was familiar with him and his signature, as in the case of John Vs. State. He contended further that in this case, the appellant’s counsel at the trial court raised an objection to the admissibility of the said Exhibit A2 unlike in the case cited – John Vs. State (supra) where there was no objection to the statement being admitted as Exhibit. He referred to Section 36 of the Evidence Act, 1990 and contended that even though the above provisions of the Evidence Act was not the pivot of the decision of the court in the cited case, learned counsel submitted that the terms of the said judgment is in consonance with the provisions. He concluded that the said case is not applicable to the instant case. He urged the court to dismiss the argument of the respondent.
As I had earlier noted in this judgment, this appellant and one other were jointly arraigned and charged with conspiracy to commit armed robbery and armed robbery. The other accused person was one Sunday Adoba. Both were found guilty for a lesser offence of conspiracy to rob and robbery and were accordingly sentenced to the terms of imprisonment. His subsequent appeal to the court below was found to be lacking in merit and was accordingly dismissed. His conviction and sentence for conspiracy and robbery were affirmed to run concurrently.
I shall deal with Issues 1 and 2 together as they are related and on the same statements of the appellant.
Conspiracy generally is an agreement between two or more persons to do an unlawful act, or to carry out a lawful act by unlawful means. This is however said to be a matter of inference to be deduced from certain criminal acts of the suspects, which were carried out in pursuance of an apparent criminal purpose in common between the parties, which are hardly ever confined to one place. Therefore, failure to prove a substantive offence does not, ordinarily make conviction for conspiracy, in any way, inappropriate, being a separate and distinct offence in itself. In other words, conspiracy is independent of the actual offence said to have conspired to commit. See; Kaza Vs. The State (2008) 5 SCM 70; (2008) 7 NWLR (Pt. 1085) 125, (2008) 1-6 SC151; Balogun Vs Attorney General, Ogun State (2002) 2 SC (Pt.1) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196; Folorunsho Aliufohai Vs. The State (2014) 12 SCM (Pt. 2) 122, (2015) 3 NWLR (Pt. 1445) 172; (2015) All FWLR (Pt. 765) 198.
After examining the testimony of the appellant, and his co-accused and their respective extra judicial statements, the trial court had found that both the oral evidence and the statements really confirmed and corroborated the critical aspects of the prosecution’s case in the following terms:-
“*That the accused persons, and one Lanre Ogunlana, now at large, set out from Sango on an illicit adventure on the day in question.
• That in the course of their journey to Sango from Owode-Yewa, along Idiroko Road, the accused persons, driving a Nissan Bluebird car overtook and intercepted the PW1’s bus and forced the driver to stop, impersonating to be policemen on patrol duty.
•That after their encounter with the PW1 and her people, the accused persons drove toward Agbara direction in order to escape after the operation.
•That at least one of the accused persons produced a Nigeria Police I.D. Card as a camouflage for the notorious operation.
•That the accused persons operated in a Nisan Bluebird car on the day of the operation as alleged by the prosecution.
•That the two accused persons were arrested in a village along Agbara Road on the same day while the 3rd member of their group escaped.
•That the accused persons volunteered the confessional statements marked as Exhibits A, A2, B and B2″
The trial court further found that in the oral testimony and their extra judicial statements, the appellant and his co-accused, in almost every material particular confirms that case of the prosecution. The trial court was therefore satisfied that the prosecution had proved beyond reasonable doubt that there was a robbery involving the PW1 and PW2 on 01/5/2008 and that the appellant and his co-accused were amongst the robbers who attacked the PW1 and PW2 on the day in question. The trial court was further satisfied that the prosecution proved the two counts of conspiracy and robbery against the appellant and his co-accused, beyond reasonable doubt. The court held as follows:
“The evidence tendered by the prosecution is overwhelming and credible. There is no substance in the defence put up by the accused that their friend, now at large only arrested the PW2 and ordered him to follow him at Agbara Police Station………..”
The appellant and the co-accused were each found guilty of the offences of conspiracy and robbery and wire accordingly sentenced to the respective terms of imprisonment as earlier stated.
In the judgment of the court below the following findings were made:
“The appellant in his sworn testimony in court which is at pages 28-31 of the records for this appeal was unequivocal in his whereabouts on the day of the incident. The appellant did not deny having anything to do with the victims, PW1 and PW2. For the avoidance of speculation, the relevant part of the appellant’s testimony is hereby reproduced”
DW1- “Sworn on Holy Bible and states in English Language that My name is Michael Oloye, I live at 59, Adenekan Street, Abikuko, Lagos State. I am a Contactor to the FAAN. My Company name is Adnat Company Ltd. I remember 1/5/2008. On that day at about 8.30am my neighbour told me he wanted me to accompany him to Idiroko. I followed him but when we got to Idiroko we did not meet his officer friend from whom he wanted to collect some items. We decided to return to Sango market so that my friend could buy the materials at Sango market. On our way back to Sango on getting to Onibuku village, one Lietace Bus a “Tokunbo” overtook our car. My neighbour said that vehicle must be a smuggled bus so he gave the bus a chase. He was able to stop the bus. I sat at the back of the car. My neighbour came out of his car and went to meet the driver of the bus. He directed the driver to meet him at Agbara Police Station. My friend returned to his car and drove towards Agbara while the driver of the bus followed him behind in his own car. Along the way at Odugbe village there was a Police check point. We stopped there for about 5 minutes because the bus was no longer behind us. My friend went inside the bush to ease himself and that was the last we saw him. Shortly after that, the bus arrived and the owner told the police officers on duty at the road block that the driver of our car had collected money from him.
The Police then took me and the 2nd accused to Agbara Police Station.”
“Additionally, the confessional statement of the appellant admitted in evidence, as Exhibit A, and Exhibit A2 are clearly corroborated by the narration of the PW1 and PW2 as to their ordeal in the hands of the appellant and his cohorts. Again, the appellant did not deny any knowledge of the victims. The fact that he tried to vary his own story from theirs is not surprising.”
Upon review of the oral testimony of the appellant, and the admitted confessional statements – Exhibits A and A2, the court below found that the trial court was right in relying on the appellant’s confessional statements in convicting and sentencing him. The court therefore affirmed the decision of the trial court in convicting and sentencing the appellant for the offences of conspiracy and robbery.
Issue No.1 distilled by the appellant is whether the Honourable Justices of the Court of Appeal erred in law to hold that Exhibit A2 was admissible as a confessional statement when the recorder of the statement – Sgt. Njoku Peters was not called as witness to tender the statement in evident. And Issue No.2 is related to the 1st issue and shall be treated together. The two issues are on the two statements made to the police by the appellant.
As clearly shown on the records, the appellant was the 1st accused person of the two accused that stood trial before the Ogun State High Court holden in Ota. He was said to have made two statements to the police. One was made on 1/05/2008 while the other was made on 9/5/2008. The latter one was admitted without objection and marked Exhibit A while the earlier statement was admitted after the court had overruled the objection, and marked Exhibit A2. It is noteworthy that Exhibit C was made on 5/5/08 by Sgt. Njoku Peters who took the statements of the appellant but was j tendered by PW3, then Inspector Gideon Ogunlabi, who was also an Investigation Police Officer (IPO) in the case. Exhibits A and A2 were held to be confessional statements of the appellant. In particular, Exhibit A2, inter alia, reads thus:
“I am a native of Amai in Kwale Delta State. I attended my Primary School at ICC Primary School, Oke Bola, Ibadan in 1976. When transfer took my father to Akure, I attended my Secondary School at Oyemekun Grammar School and completed my school Certificate in 1986. I equally attended Technical School at Ijero Ekiti.”
From the above, it is clear that the appellant is literate and surely made his statement to the police in English Language as recorded. In the said Exhibit A2, the appellant gave graphic details of how the robbery incident was planned and carried out by him and his cohorts.
The said statement when found to be confessional in nature, the maker – the appellant was taken along with the statement to a superior Police Officer by Sgt. Njoku Peters for attestation, which reads thus:
“Today 5th May, 2008 at about 0700hrs, the suspect named Michael Oloye (m) was brought to me by the IPO Sgt. Njoku for the attestation of the statement. I read over the statement to the hearing and understanding of the suspect and he agreed that he made the statement to the Police without duress.
SUSPECT 5/5/08DSP 05/5/2008”
It is noteworthy that Exhibit A which was made by the appellant on 9/5/2008 was obtained by PW3 who tendered both statements made by the appellant. Both statements contain the same detail facts of what transpired on the 01/5/2008 and corroborated the allegation of PW1 and PW2 on how they were robbed.
There was no need to have called Sgt Njoku to whom the appellant made his confessional statement, which was not made through an interpreter. The appellant spoke English and gave his statement in the language of the court. The case of Nwaeze Vs The State cited by the appellant’s counsel is inapplicable, as no interpreter was required and used in this case to obtain appellant’s statement. The law is clear that whenever an interpreter is used in obtaining the statement of an accused^ such a statement will be inadmissible unless the interpreter is called as a witness in the tendering of the statement. That was not the situation in this case.
What is more, it has long been established in law that ordinarily, a free and voluntary confession of guilt by an accused person, whether judicial or extra judicial, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction even without any corroborative evidence. The most important thing is that the court must be satisfied that the said confession is direct and positive and is properly proved, before acting on it without corroboration. Yet, the trial court is enjoined to test the truthfulness thereof. See; R. Vs. Sykes (1913) 8 Cr.App. Rep. 233; Jafiya Kopa Vs. The State (1971) 1 All NLR 150.
In the instant case the two statements were found satisfactorily proved to be voluntary confession of the appellant and duly corroborated. Indeed, there was no retraction by the appellant. As earlier noted, Exhibit A was admitted without objection while Exhibit A2, which is replica of Exhibit A was only objected on the basis of proper custody. That it was not being tendered by the Police Officer who took the statement. That point was misconceived and is of no moment in this case.
Without any further ado, I am satisfied that the court below was right to have held that Exhibits A & A2 were confessional statements voluntarily made by the appellant to the police and were rightly admitted as Exhibits by the trial court. The absence of Sgt. Njoku Peters who obtained Exhibit A2 was explained away and his own statement Exhibit C, covered, any gap, if at all, in prosecution’s case. In other words, Exhibits A and A2 being confessional statements voluntarily made by the appellant, were no doubt corroborated and indeed consistent with the other evidence of the prosecution to proof the offences of conspiracy and robbery. As a result, Issues 1 and 2 are resolved against the appellant.
The 3rd issue is whether the court below erred in law to hold that contradictions in the evidence of PW1 and PW2 are not material and relevant to the proof of the ingredients of the offences charged.
This issue was considered in the sister case of the co-accused – Sunday Adoga in which judgment was delivered by this court on 23rd March, 2018 in Appeal No.SC.430/2014. In that case this court had, inter alia, held as follows:
“It is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. It is only when discrepancies or contradictions are on material point or points in the prosecution’s case which creates some doubt that the accused person is entitled to benefit therefrom. Minor contradictions in the evidence of the prosecution witnesses cannot be fatal to the case of the prosecution.”
In this case, differences as to where the money was kept in the victims’ car from where it was taken away by the appellant and the co-accused, and whether or not the appellant was arrested by the villagers or the police at the check point cannot be said to be material contradictions to entitle the appellant to acquittal. Minor discrepancies between a previous written statement and subsequent oral testimony will not destroy the credibility of a witness. See; Ayo Gabriel Vs. The State (1989 5 NWLR (Pt. 457) 468 at 4691 Jerry Ikpenikan Vs. The State (2011) 2 NWLR (Pt. 1229) 449. The 3rd issue is to be and is hereby resolved against the appellant.
In the circumstance, as we held in the sister case of the appellant’s co-accused, this appeal is devoid of any merit. It deserves to be dismissed. Accordingly, it is dismissed. The judgment of the court below delivered on 27th February, 2014 which affirmed the judgment of the trial court given on 15th December, 2010 is affirmed.
KUMAI BAYANG AKAAHS, JSC: I read before now the judgement of my learned brother, Ariwoola JSC dismissing the appeal as lacking in merit. I am in total agreement that the appeal is devoid of merit and therefore stands dismissed.
The argument by learned counsel for the appellant that Exhibit A2 (the confessional statement) which nailed the appellant was inadmissible in evidence because it was not tendered by the recorder who is the maker of the Exhibit does not represent the true position of the law. The maker of the statement is the accused.
The objection taken by the counsel that only the recorder of the statement can tender it is misleading. The only occasion where a valid objection can be considered is where the statement of an accused is recorded through an interpreter and the accused makes his statement in his mother tongue which is recorded and later translated into English. In such a situation before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into English must be called to testify; otherwise the translated version of the statement will at best be treated as secondary evidence while the one recorded in the mother tongue is taken to be primary evidence See: R v. Zakwakwa of Yorro (1960) 5 FSC 2.
Another submission of learned counsel for the appellant that must be debunked is that the pulling out of a gun on a victim without physically assaulting the victim will not amount to an act of violence or a threat to use violence which is an essential element in the offence of robbery. By bringing out the gun, the appellant intended to instil fear into the victim’s mind so that the victim will forcefully obey whatever instructions the appellant issues to the victim. It is therefore not necessary to physically assault the victim with the weapon; the mental agony and torture experienced by the victim is enough to ground a conviction for robbery. See: Otti v. State (1993) 4 NWLR (Pt. 290) 675.
It is with these few comments that I agree with my learned brother, Ariwoola JSC that the appeal lacks merit and it is hereby dismissed.
AMINA ADAMU AUGIE, JSC: I had the preview of the lead judgment delivered by my learned brother, Ariwoola, JSC, and I agree with him that this appeal is devoid of any merit and it is accordingly dismissed. The judgment of the court below delivered on 27th February, 2014 which affirmed the judgment of the trial court given on 15th December, 2010 is affirmed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: I have had a preview of the judgment of my learned brother, Olukayode Ariwoola, JSC just delivered. I agree entirely with the exhaustive reasoning and conclusion that the appeal lacks merit and should be dismissed.
The prosecution relied inter alia, on the appellant’s confessional statements. The statements were sufficient, without more, to convict him of the offences with which he was charged. The trial court however went further by considering other credible evidence outside the statements, which corroborated the contents thereof, in reaching its conclusions. I agree with His Lordship that the confessional statements, Exhibit A & A2, shown to have been voluntarily made, and corroborated by the evidence of PW1 and PW2 were rightly relied upon by the learned trial Judge whose decision was affirmed by the court below, in convicting the appellant.
This is a sister appeal to Appeal No SC.430/2014: Sunday Adoba Vs The State, which was dismissed by this court on 23/3/2018. The appellant in this appeal has not persuaded me that there is any justification for interfering with the concurrent findings of fact by the two lower courts. I maintain my position in the sister appeal that there were no material inconsistencies in the evidence of the prosecution witnesses to warrant the judgment of the lower court, which affirmed the judgment of the trial court, being set aside. I am satisfied that the prosecution established the offences of conspiracy to commit robbery and robbery against the appellant beyond reasonable doubt.
This appeal is devoid of merit. It is accordingly dismissed. The judgment of the court below is affirmed.
PAUL ADAMU GALINJE, JSC: I have had the privilege of reading in draft, the judgment just delivered by my learned brother OLUKAYODE ARIWOOLA, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother has commendably restated the law related to voluntary statement of an accused person, which is direct, positive and is satisfactorily proved. This court has in a myriad of decision held that such a confessional statement alone can sustain a conviction of the accused.
See Bature vs State (1994) 1 NWLR (Pt. 320) 267: Onuoha vs State (1987) 4 NWLR (Pt. 65) 331: Achabua vs State (1976) 12 SC 63: State vs Ironsi (1969) 1 NWLR 2003:
The learned trial judge was satisfied that Exhibits A and A2 were voluntarily made and their contents were positive, direct and truthful and that finding was affirmed by the trial court. Clearly such a concurrent finding by the two courts below can only be interfered with if learned counsel for the Appellant has shown exceptional and/or special circumstance. I have combed through the record of this appeal and the argument of learned counsel for the Appellant in support of the three issues submitted for determination of this appeal and I have failed to find such exceptional and/or special circumstance that would warrant an interference with the concurrent finding of the trial court and the Court of Appeal.
I therefore agree with my learned brother Olukayode Ariwoola JSC that this appeal is completely devoid of any merit.
Accordingly same shall be and it is hereby dismissed by me as well.
FEMI ONIBALUSI ESQ with for the Appellant.|MARK MORDI. ESQ with Cophas Caleb Esq for the Respondent.|