MUNTARI ABDULLAHI v. THE STATE
(2019)LCN/12753(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of February, 2019
CA/A/844C1/2017
RATIO
CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OR ARMED ROBBERY
“The Appellant was charged, inter alia with the offences of criminal conspiracy and armed robbery. In order to establish the offence of armed robbery, the prosecution must prove the following ingredients:
(1) That there was robbery
(2) That the accused participated in the robbery
(3) That at the time of the robbery, the accused was armed with offensive weapon or was in the company of someone who was so armed. – Bello v. State (2007) 10 NWLR (Pt.1043) 654 at 564-567, Kekong vs. State (2017) 18 NWLR (Pt. 1596) 108 SC; – Banjo vs. State (2013) 16 NWLR (Pt. 1381) 455.” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
EVIDENCE: WAYS TO PROVE THE GUILT OF THE ACCUSED
“The ways or methods in which the prosecution may employ to prove the guilt of the accused could be in any of the following:
(a) By account of an eye witness, who witnessed the commission of the crime.
(b) By circumstantial evidence which unequivocally points to the guilt of the accused person.
(c) Through voluntary confessional statement of the accused person, admitting the offence charged.
See:Babarinde v. State (2014) 2 NWLR (Pt.139) 298 S.C., Umar v. State (2014) 13 NWLR (Pt.1425) 497 S.C.” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
JUSTICES:
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MUNTARI ABDULLAHI – Appellant(s)
AND
THE STATE – Respondent(s)
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Kogi State High Court of Justice delivered by Hon. Justice A.N. Awulu on 13th October, 2017.
The Appellant, 1st accused at the trial Court, was charged along with two other persons for the offences of conspiracy to commit armed robbery, and being members of unlawful society punishable under Sections 97 (1), 298(C) and 102 of the Penal Code respectively.
At the hearing, the prosecution called two witnesses, PW1 and PW2 and tendered four exhibits, three of which were the Statements of the accused persons, Exhibit P4 being that of the Appellant. The Appellant gave evidence as the sole witness in his own defence, maintaining his innocence and called his brother, Rilwan Abdullai, DW1, to testify for him.
The gist of the Respondent’s case is that on 19/1/2016 the Appellant and his co-accused robbed PW1 (Ahmed Mariam) of her money and One Ekene Eze of his motor-cycle at gun point. PW1 testified that at about 8 p.m on the day in question, she and her sister were returning from her shop when the appellant and the co-accused accosted them, with one of them driving a Motor-cycle. One of them threatened them with a gun and shot in the air and removed her money totaling N223,600 from her bag. In the process of dragging herself and her sister, the blackberry phone of one of the robbers fell and she hid it. She also bit one of them on his face as they were dragging each other. During the incident, one Ekene Eze came along with his Daylong Motor-cycle to help them, and one of the robbers pointed gun at him. He was robbed of his motor-cycle. He ran away. The incident was reported to the police.
PW2, the investigating police officer narrated how on 21/1/2016 Ekene Eze saw the 3rd accused on a motor-cycle, identified him as one of the robbers who attacked him and subsequently invited the police who arrested the Appellant, and the 3rd accused led the police to 1st accused and the Appellant’s place where they were arrested.
The Appellant denied committing the offence and retracted his alleged confessional statement. At the close of the case, the learned trial Judge convicted the Appellant for the offence of criminal conspiracy and lesser offence of robbery, and discharged and acquitted him for the offence of being a member of an unlawful society. The Appellant being dissatisfied with the judgment filed a notice of appeal containing six grounds.
In this Court, the parties filed their respective briefs of argument. In the Appellant’s brief of argument settled by Patrick Oganwu Esq., three issues were distilled for determination namely:
Issue One
Whether the learned trial judge was right when he found that the prosecution (Respondent) had proved the ingredients of the offences of criminal conspiracy and robbery against the Appellant beyond reasonable doubt (Distilled from Ground 1 of the Notice of Appeal).
Issue Two
Whether the failure of the trial Court to properly evaluate and attach probative value to the evidence and testimony of the Appellant occasioned a miscarriage of justice to the Appellant. (Distilled from Ground 5 of the Notice of Appeal)
Issue Three
Whether in view of the fact that the prosecution’s evidence is full of material contradictions, therefore rendering it unsafe to convict and sentence the Appellant. (Distilled from Ground 2 of the Notice of Appeal).
In Respondent’s brief of argument settled by Badama Kadiri Esq, the Acting Director of Civil Litigation of Kogi State Ministry of Justice, two issues were couched for determination thus:
1. Whether the Respondent proved the ingredients of the offences of Criminal Conspiracy and Robbery against the Appellant beyond reasonable doubt at the lower Court. (This issue is distilled from Grounds 1 and 5 of the Notice of Appeal).
2. Whether the case of the Respondent is full of material contradictions therefore, rendering it unsafe to convict and sentence the Appellant. (The issue is distilled from Ground 2 of the Notice and Grounds of Appeal).
It is observed that neither of the parties distilled any issue for determination from grounds 3 and 4. The law is settled that where no issue is distilled from a ground of appeal, the ground of appeal is deemed abandoned and liable to be struck out. See NBC V. UBANI (2014) 4 NWLR (Pt.139 8) 421 S.C. Grounds 3 and 4 are hereby struck out.
On issue one, the learned counsel for the Appellant submitted that the burden of proof required in criminal matters is proof beyond reasonable doubt citing Sani v. State (2015) 15 NWLR (Pt. 1483) at p.547, Igbikis v. State (2017) 11 NWLR (Pt.1575) 126 at p.143. He referred to the findings of the Court at pages 88-89, lines 10-35 of the record of appeal and noted that the Court acknowledged the porous nature of the evidence adduced by the prosecution, yet convicted the Appellant which thereby occasioned a miscarriage of justice. He cited Igbikis v. State (supra) at pp 447 paras B-C, 150 paras C-D, 153 paras B-C where the Supreme Court held that for a witness’s evidence to support and sustain the conviction of an accused, it must be credible, reliable and point irresistibly to no one else but the accused.
Learned counsel submitted that the learned trial Judge erred in law when he relied on the alleged confessional statement of the Appellant where he admitted to have committed robbery contrary to the charge of armed robbery, arguing that where the evidence adduced by the parties is at variance with the charge, it is not the duty of the Court to fill in the hiatus of evidence to convict the accused, citing in support Sani v. State (supra) at p.550 paras B-D, Ibrahim v. State (2015) 11 NWLR (Pt.1469) 164 at 199.
He argued that for an extra judicial Statement to qualify as a confessional statement, the accused must admit clearly, precisely and unequivocally in the statement that he committed the offence he is charged with, and not any other offence. He called in aid the case of Gbadamosi v. State (1992) 9 NWLR (Pt.266) 455 at 478-479.
It is the contention of the Appellant that the learned trial Judge erred when he convicted the Appellant on the alleged retracted confessional statement of the Appellant without any corroborative independent evidence citing Ogudo v. State (2011) 18 NWLR (Pt.1278) 1 at pp 26, 32, 45-47, State v. Ajayi (2016) 14 NWLR (Pt. 1532) 198 at 229. Thomas v. State (2017) 19 NWLR (Pt.1570) 230 at 254. It was further contended that failure to call Ekene Eze, whom he regards as vital witness, to tell the Court how he was robbed amounts to withholding evidence and it is fatal to the prosecution’s case State v. Nnolim (1994) 5 NWLR (Pt.345) 394 at 406, S.167 (d) Evidence Act, 2011.
On conspiracy, the Appellant’s counsel reiterated that the Appellant was convicted for offence of criminal conspiracy solely on the retracted statement of the Appellant, without the requirements stated in Ogudo v. State (supra). He cited State v. Ajayi (2016) 14 NWLR (Pt.1532) 196 at 229 to show that “an accused person cannot be convicted of conspiracy to commit an offence on the strength of his own confession unless there is independent evidence that at least one other person has conspired with him”.
On issue 2, it was submitted that the Court failed to properly consider the evidence of the Appellant on oath and that of his brother at pages 56-59 of the Record of Appeal arguing that when the evidence of the Appellant is juxtaposed with that of the Respondent, the evidence of the Appellant, his brother and Exhibit D2 at pages 56-59 of the record of appeal outweighs that of the Respondent. According to the Appellant’s counsel, the learned trial Judge wrongly placed the burden of proof on the Appellant to prove his innocence contrary to Section 135 of the Evidence Act, 2011 and Section 36 (5) of the 1999 Constitution citing Bozin v. State (supra). He noted that it is better for ten guilty men to be acquitted than to convict an innocent man like the Appellant citing several authorities including Shehu v. State (2010) 8 NWLR (Pt.1195) 112 at 136.
On issue 3, it is the contention of the Appellant that there were irreconcilable contradictions in the evidence of the prosecution, rendering it unsafe to convict the Appellant; noting that the prosecution failed to explain the contradictions as required by law. He called in aid the cases of Akpabio v. State (1994) 7-8 SCNJ (Pt.111) 429, (1994) 7 NWLR (Pt.369) 635; Ubani v. State (2004) FWLR (Pt. 191) 1533, Nnunukwe v. State (2004) FWLR (Pt.201) 1784. Learned counsel noted that though PW1 under cross-examination at page 48 lines 8-9 of the record of appeal claimed that she used to see the 3rd accused person for over fifteen years in Akpan town, at page 46 lines 21-22, she told the Court that she got to know the accused persons upon their arrest and at page 48-49, lines 24-29, she stated that she did not mention the name of the 3rd accused person as she did not know the robbers that attacked her because it was dark.
These, he claimed are contradictory to the evidence of PW2 (IPO) at page 53, lines 8-20. He added that in contradiction to PW1’s earlier evidence at p.48, she said she recognized the appellant on the parade by the bite she gave him on the forehead. According to Appellant’s counsel, it is clear that the prosecution anchored its case on suspicion, submitting that suspicion no matter how strong cannot be sufficient to convict an accused person; citing amongst others,Anyanwu v. State (2012) 16 NWLR (Pt.1326) 221 at 270. In conclusion, he submitted that Appellant in law is not expected to prove his innocence Section 36(5) of the 1999 Constitution and Section 125 (1) of the Evidence Act.
He urged the Court to allow the appeal.
Issue one of the Respondent encompasses Appellant’s issues one and two, while its issue 2 is similar to Appellant’s issue 3.
Responding on its issue one, the learned counsel for the Respondent, submitted that the learned trial Judge was right in convicting the Appellant for lesser offence of robbery in consonance with Section 218 of the Criminal Procedure Code of Northern Nigeria, applicable to Kogi State. He relied on Bogobin v. State (2017) 18 NWLR (Pt.1597) 247 at Pp 269 and 274-275.
He submitted that the ingredients of armed robbery are:
1. That there was robbery;
2. That the robbery was an armed robbery;
3. That the accused was one of those who took part in the armed robbery.
He relied on Bello v. State (2007) 10 NWLR (Pt.1043) 564 at 566-567. It is his contention, placing reliance on Exhibit P2, that the ingredients of the offence of robbery are subsumed in the ingredients of the offence of armed robbery and that the facts and circumstances of this appeal clearly show that the prosecution established the ingredients of robbery.
On the submission that the Respondent’s evidence is porous and lacks credibility and thereby occasioned a miscarriage of justice because the trial Court disbelieved the evidence of PW1 with regard to the use of gun by the Appellant for failure to tender the gun, he submitted that the guilt of the Appellant was established by Exhibit P3, adding that a confessional statement is the best evidence to convict its maker. He relied on Mohammed v. State (2007) 11 NWLR (Pt.1045) 303 at 308-309, Akpa v. The State (2008) 14 NWLR (Pt.1106) 72 at 76.
It is further submission of the Respondent that the Appellant’s oral evidence cannot be used to contradict Exhibit P3, a documentary evidence, which is the best evidence; more reliable and authentic Aiki v. Idowu (2006) 9 NWLR (Pt.984) 47 at 65, INEC V. Oshiomole (2009) 4 NWLR (Pt.1132) 607 at 665.
On the failure to call Ekene Eze to testify, learned counsel submitted that PW1 and PW2 had given sufficient evidence and the prosecution is not bound to call witnesses to repeat the same evidence except such evidence needs corroboration Oforlete v. State (2000) 7 SC (Pt.1) 80 at 94. Further, that failure of the prosecution to tender the statement of Ekene Eze is not fatal as there is no law that compels the prosecution to tender extra-judicial statements of his witnesses.
With regard to the offence of conspiracy, it was submitted that the Respondent, the prosecution, established the ingredients of the offence; by Exhibit P2, at pages 93-96 and the evidence of PW1 and PW2. On assumption without conceding that there is no obvious evidence of any meeting by the Appellants and his co-accused, it is his submission that conspiracy can be inferred from certain acts of the accused persons; relying on Kaza v. State NWLR (Pt.1085) 125 (2008) 7 at 176.
On the contention that the trial Court did not properly evaluate his evidence along with his brothers evidence, counsel noted that Appellant did not call any of his brothers to testify and that the Court properly evaluated, not only his evidence but all the oral and documentary evidence adduced before the Court and the learned trial Judge, having the advantage to watch the demeanour of the witnesses, rightly exercised his discretion in believing the testimonies of the prosecution witnesses as against that of the defence. Learned counsel urged the Court to resolve this issue in favour of the Respondent.
The Respondent’s ISSUE 2 is whether the case of the Respondent is full of contradictions, rendering it unsafe to convict the Appellant. It is the contention of the Respondent that there are no contradictions in the evidence of the prosecution’s case. However, he further argued on assumption, but without conceding, that only contradictions that are material evidence, touching on an essential ingredient of the offence that can exculpate an accused person from criminal responsibility Dibie v. The State (2007) 9 NWLR (Pt.1038) 30 and 50, Uwagboe v. State (2007) 6 NWLR (Pt.1031) 606 at 624.
He urged the Court to resolve this issue in favour of the Respondent. He also urged the Court to dismiss this appeal.
In my view, the real issue for determination is whether the Respondent proved its case beyond reasonable doubt to warrant the conviction of the Appellant.
It is a cardinal principle of our criminal law that the onus of proof is on the prosecution to establish the guilt of the accused person beyond reasonable doubt. The Appellant was charged, inter alia with the offences of criminal conspiracy and armed robbery. In order to establish the offence of armed robbery, the prosecution must prove the following ingredients:
(1) That there was robbery
(2) That the accused participated in the robbery
(3) That at the time of the robbery, the accused was armed with offensive weapon or was in the company of someone who was so armed.
– Bello v. State (2007) 10 NWLR (Pt.1043) 654 at 564-567, Kekong vs. State (2017) 18 NWLR (Pt. 1596) 108 SC;
– Banjo vs. State (2013) 16 NWLR (Pt. 1381) 455.
The ways or methods in which the prosecution may employ to prove the guilt of the accused could be in any of the following:
(a) By account of an eye witness, who witnessed the commission of the crime.
(b) By circumstantial evidence which unequivocally points to the guilt of the accused person.
(c) Through voluntary confessional statement of the accused person, admitting the offence charged.
See:Babarinde v. State (2014) 2 NWLR (Pt.139) 298 S.C., Umar v. State (2014) 13 NWLR (Pt.1425) 497 S.C.
In this case, the prosecution placed its reliance on the extra-judicial statement of the Appellant and the Court also relied on it in convicting the Appellant for the lesser offence of robbery. Records showed that at the point of tendering the extra-judicial Statement of the Appellant, the Respondent objected to its admissibility. However, same was rightly admitted on the basis that it was voluntarily made, in terms of absence of duress, threat or promise, the objection of the Appellant only being that he did not sign the document but thumb printed on it, thereby denying the statement to be his own. He did not contend during tendering the statement that it was obtained involuntarily, either by duress, force or inducement; therefore a trial within trial would be unnecessary, to determine the truth of the extra judicial statement. See: Okoro v. State (1993) 3 NWLR (Pt.282) 425, Nwosu v. State (1998) 8 NWLR (Pt.562) 433; Idowu v. State (2000) 12 NWLR (Pt.608) 48.
In Solola v. State (2005) 11 NWLR (Pt. 937/460, the Court held that:
“Where an accused person denies making a confessional statement, the trial Court is expected to admit the statement in evidence as an exhibit and in the judgment decide whether or not such denial avails the accused person. Thus a confession does not become inadmissible merely because an accused person denies having made it. In this respect, a confession contained in a statement made to the police is not to be treated differently from any other confession. In short the denial of an accused person of making a statement to the police is an issue of fact to be decided in the judgment as the issue does not affect admissibility of the statement. See Kanu v. R (1952) 14 WACA 30; Dawa v. State (1980) 8-11 SC 236″. See: Also Dibie v. State (2007) 9 NWLR (Pt.1038) 30.
I therefore agree with the submission of the appellant that the present state of the law is that once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution, and the next is for the Court to consider its probative value. See Nwachukwu v. State (2007) 17 NWLR (Pt. 1062) at 70. See also Egboghonome v. State (1993) 7 NWLR (Pt.306) 383; Nwangbomu v. State (1994) 2 NWLR (Pt.327) 380.
In the judgment, the learned trial Judge rightly also noted that the extra-judicial statements of the accused persons were truly made. Hear him, at page 16 of the record of appeal
“Having held that the extra-judicial confessions of the accused persons were truly made, I now have to decide if I can convict the accused persons, based on the confessions.”
It is important to note that there was no appeal by the Appellant on this decision. The law is trite that where there is no appeal on a decision of the Court, such a decision is deemed extant, it stands as accepted by the parties. See: Unity Bank Plc. vs. Bouari (2008) 7 NWLR (Pt. 1086) 372 SC; Dabo vs. Abdullai (2005) 7 NWLR (Pt. 923) 181; Ejowhomu vs. Mandilas Limited (1986) 5 NWLR (Pt. 39) 1. It is therefore deemed that the Appellant has accepted that the confessional statement was truly made. Exhibit P2, the confessional statement of the Appellant, even though retracted at the trial before its admission in this appeal is a true, free and voluntary confession of the Appellant.
The issue to be examined in the circumstance of this appeal is whether the trial Court rightly convicted the Appellant on his confession Exhibit P2. The confessional statement of the Appellant is at pages 93-96 of the record of appeal. The Appellant’s confession as to the robbery of the motor-cycle of Ekene Eze is clear, direct and positive.
A perusal of the confessional statement reveals that on the date of the commission of the alleged offences, the appellant, as the 1st accused person, was with the 2nd and 3rd accused person, riding on the latter’s red Daylong motorcycle with registration No. KG 235 MPA which he purchased at N88,000 (Eight Thousand Naira). When the three got to a junction, they met the PW1, Ahmed Mariam, and two other girls, and proposed to them, then a fight broke out among them, whereupon one of the girls bit the 2nd accused on the forehead. In the process the blackberry phone of one of them dropped. Then came along one Ekene Eze on his red Daylong motorcycle, who came to separate them but received a slap from the 3rd accused, and the former left his motorcycle behind, which the 3rd accused took to the house of the 2nd accused. The appellant denied using a pistol, though admitted that their act was an armed robbery.
The confessional statement of the Appellant is direct as to the robbery of the Red Daylong Motorcycle.
The Court “held that the extra-judicial confessions of accused persons were truly made, I now decide if I can convict the accused persons based on the confessions”. (See p.88 of Record of Appeal). I have carefully examined the grounds of appeal filed by the Appellant. There is no appeal against this decision. The decision is therefore extant and binding. What is to be determined now is whether the Court rightly convicted the Appellant solely on his confessional statement.
The law is trite that an accused person can be convicted solely on his confession if the confession is positive and direct in the admission of the offence charged. In other words, voluntary confession of guilt whether judicial or extra judicial, if it is direct and positive is sufficient proof of the guilt and is enough to sustain a conviction, so long as the Court is satisfied with the truth of such a confession Solola vs. State (2005) 11 NWLR (Part 937) 460 at Edhigere V State (1996) 8 NWLR (Part 464) 1.
The strong contention of the Appellant is that the trial Court ought not to have relied solely on Exhibit P2 to convict him without any corroborative evidence particularly the evidence of Ekene Eze who made the statement to the police, but neither testified nor his statement tendered in Court, moreso that the confessional Statement was retracted at the trial.
There is no law that makes it mandatory for a retracted confessional statement of an accused person to be corroborated before a Court can convict on the confessional Statement. A Court can safely convict an accused person on his retracted confessional statement once the confession is positive and direct and the Court is convinced about its veracity. However it is desirable and prudent for such a retracted statement to be corroborated by some other independent evidence, no matter how slight, either by direct or circumstantial evidence, no matter how slight, to establish that the confession was true. See Edhigere vs. State (1996) 8 NWLR (Part 464), Tanko vs. State (2008) 16 NWLR (Pt. 1114) 591 CA, Akpa vs. State (2008) 14 NWLR (Pt. 1106) 72 SC.
In Ihechukwa Okoh vs. The State (2014) LPELR – 225 89 (SC) the Supreme Court, per Mohammed JSC at Page 35 – 36 paragraphs G-C held thusly:
“The law is well settled that an accused can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true”. See Otufale v. The State (1968), N.M.I.R. 261 at 265 and Uluebeka v. The State (2000) 7 N.W.L.R. (Pt. 665) 404″ Per MOHAMMED, J.5.C. (Pp.35-36, paras. G-C) 7 NWLR (part 665) 404.”
See also Isong vs. State (2016) LPELR 40609 (SC).
Judicial authorities have stated the tests for a retracted confession
statement to be as follows:-
i. Anything outside the confession to show that it is true.
ii. Is it corroborated in any way?
iii. Are the relevant statements of fact made in it (most likely to be) true as far as they can be tested?
iv. Did he have the opportunity of committing the offence?
v. Is the confession possible?
vi. Is the alleged confession consistent with other facts, which have been ascertained & established?
See:Ogudo vs. State at 218 (2011) 18 NWLR (Part 1278) 1 at Pages 26, 32, 45, 47. Ubierho Vs. State (2005) 2 SCN3 at 8. Idowu vs. State (2000) 2 SC 114 at 125 & 126.Alarape v. State (2001) 2 SC 114 at 125 & 126, Uluebeka v State. (2000)4 SC (Pt.1) 203 at 218.
I have had a thorough scrutiny of the evidence adduced at the trial. In my view, the testimonies of PW1 and PW2 are strong and compelling and also the extra-judicial statement of PW1, Exhibit P1 and her testimony in Court, which thoroughly corroborate the confessional Statements of the three accused persons, the Appellant inclusive.
Mr. Okpanachi for the prosecution at the trial Court made tacit submissions about the participation of the Appellant at page 70 of the record of appeal thus:
“PW1 told the police she bit one of the assailants on the forehead. Also, she gave the police at Q10 blackberry phone left behind by one of the robbers. PW1 identified 2nd accused at a parade by the wound on the forehead. Her identification got credence by Exhibit P.3 in which the 2nd accused admitted that Pw1 bit him on the forehead. He also claimed ownership of the blackberry phone.
Furthermore, the stolen motorcycle was recovered from the home of the 2nd accused vide the evidence of PW2. There was no single challenge to the evidence of PW2 on the recovery of the motorcycle. This is acceptance. Aside the evidence of PW1, the participation of the accused is proved by Exhibits P2, P3 and P4. Their statements pinned them to the scene of crime”.
The denial of the accused cannot stand in the face of the eye witness account by PW1.”
This submission of the Appellant was captured by the Learned Trial Judge in his judgment at page 84 of the record of appeal. The extra-judicial statement of PW1, Exhibit P1 (pages 91-92 of the record of appeal) narrated clearly how the motorcycle belonging to one Ekene Eze was robbed PW1’s evidence is in line with her extra-judicial statement. They all corroborated the confessional statements of the accused persons. In this appeal they clearly corroborated the confessional statement of Appellant, Exhibit P2. In short, the evidence by PW1 and PW2 are consistent with the contents of Exhibit P2. Their evidence unequivocally corroborated the confession-al statement of the Appellant with regard to the robbery of the motorcycle.
PW2 is the investigating police officer. He testified as to the investigation he carried out in the case. In his evidence in chief he testified inter alia as follows:-
“On 20th January, 2016 a case of conspiracy and Armed robbery was transferred from Ojogobi Police Station to the Divisional Police Office. On 21st January, 2016, Ekene Eze, one of the victims of the robbery at the Corpers Lodge, Ankpa who was robbed of a Day long motorcycle sighted the 3rd and 2nd accused persons on a motorcycle in Ankpa. He alerted the police at Ojogobi and in my company, we pursued them and apprehended the 3rd accused with a Daylong motorcycle. The 3rd accused led the police to the house of the 3rd accused at Ofejikpi area of Ankpa. At the house of the 2nd accused a read Day-long motorcycle was recovered. The second accused was not at home at the time. The motorcycle recovered from the house of the 2nd accused is that of Ekene Eze snatched from him by robbers. The 3rd accused also led the police to the house of the 1st accused on the same 21st January, 2016. He was not at home. We searched his home with a search warrant in the presence of Rilwanu Abdullahi, his elder brother and a revolver pistol and charms were recovered. On 22nd January, 2016, the 3rd accused led the police to the house of one Ahmed. Opposite the High Court, Ankpa and the 1st and 2nd accused persons were apprehended in a room.
On the same date, the police informant, PW1 was invited to the station. She made a statement, the three accused together with five others were paraded at the police station. PW1 identified the 2nd accused because she had bitten him on the forehead. I cautioned the accused persons in English, read and words of caution over to them, they understood and signed. Therefore, the accused persons volunteered their statements which were read over to them. They signed and I countersigned as the recorder. The transfer of the case involved the transfer of the case diary and a blackberry handset. The photographs of 1st and 2nd accused persons were printed from the phone. The 1st accused admitted that the pistol was given to him by his Elder brother Musa who is an airforce officer…” See pages 49 line 26 to page 51 lines 1-2.
Under cross-examination, he stated that:
“It was the 3rd accused that led us to the house of the 2nd accused, the 3rd accused identified the motorcycle at the house of the 2nd accused. The residential address of the 2nd accused is along Mission Street and not Ofejikpi Ankpa. The 3rd accused was arrested, the 3rd day after the incident while the 1st and 2nd accused arrested on the 4th day i.e. 22/01/2016. The police informant identified the 2nd accused by the wound of the biting she gave him and not by blood stains. The 2nd accused was not wearing any blood stained clothes during the identification parade.” (Page 52 line 23 to 53 line 4 of the record of appeal.)
The law is trite that the evidence of an investigating police officer, of facts he personally saw or discovered in the course of his investigation is direct evidence and does not constitute hearsay evidence. In FRN vs. Saraki (2017) LPELR 43392 (CA) Part 63 paragraphs A – C, stated:
“The law is settled that evidence of an investigating police office of facts he personally saw or observed on the course of his investigation is not hearsay evidence to render such facts inadmissible. See Oladejo vs. The State (1994) (Part 348) 101, Kachi vs. The State (2015) 9 NWLR (Part 1464) 213 at 234 – 235.”
See also Brilla Energy Limited vs. FRN (2018) 16 NWLR (Part 1645) 305.
The contention of the Appellant that failure to call Ekene Eze which he regarded as vital witness; to testify and none tendering of his statement is fatal, and amount to withholding evidence pursuant to Section 167 (d) 2011 is untenable. Section 167 (d) provides:
“evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
The wordings of this provision are clear and simple for understanding. The question is whether the evidence of Ekene Eze could be produced or whether Ekene Eze was available to testify. Let me quickly state without much ado, that there is no law that compels the prosecution to tender the extra judicial statement of his witnesses. If it is favourable to the defence, it is his duty to request for it. See the cited case of Rasaki vs. State (2011) 16 NWLR (Part 1278) 251 at 294.
The prosecution explained without any controversy the fact that Ekene Eze could not be traced because he relocated and could not be reached on phone. The inability to call Ekene Eze therefore cannot be said to amount to withholding evidence. Besides, in the circumstances of this case, Ekene Eze is merely a desirable witness and not a vital witness as contented by the Appellant. A vital witness is one whose evidence is crucial to the determination of a case one way or the other. It is a witness whose evidence is indispensable to the success of a case. Failure to call a vital witness is fatal to the prosecution’s case. See State v. Nnolim (1994) 5 NWLR, (Pt.345) 394 at 406. Dogo v. State (2012) ALL F.W.L.R (Pt.613) 1942.
In Friday Smart vs. The State (2016) LPELR 40827 (SC) the Supreme Court, per Rhodes Vivour, JSC defined a vital witness thusly:
“A vital witness is a witness whose evidence is important, since this testimony decides the case either way. It follows that where the prosecution fails to call a vital witness, the prosecutor’s case may crumble like a pack of cards.”
In this case, the evidence of PW1 and PW2 coupled with the confessional Statement is more than sufficient evidence to convict the Appellant. It is also one of the contentions of the Appellant that the evidence of the prosecution witnes is full of inconsistencies rendering it unsafe to convict the Appellant. The learned counsel for the Appellant in the Appellant’s brief of Argument highlighted such contradictions and submitted that the evidence adduced by PW1 and PW2 is very porous and can therefore not corroborate the confessional statement of the Appellant. See paragraphs 6.2 to 6.5 of the Appellant’s brief. Let me note that the only inconsistency canvassed at the lower Court is in respect of the evidence of PW1 concerning the identification parade where the Appellant was identified. The submission specifically in his words are:
“The identification parading (sic) evidence by PW1 is contradictory.
Also, PW2 maintained there was no blood stain on the shirt of the 2nd accused person.” (See p.69 lines 3 to 4 of the Record of Appeal)
This was the only inconsistency pointed out by the Appellant in the lower Court.
The law is trite that an appeal is a continuation of the case in the lower Court. A party will not be allowed, without leave of the Court to canvass an issue not raised in the lower Court. See: Ministry of Defence v. Iyen (2014) 10 NWLR (Pt.1416) 636 C.A. Mbanefo v. Agbu (2014) 6 NWLR (Pt.1403) 238 S.C.
However, the evidence of PW1 concerning the identification parade is not inconsistent, as alleged by the Appellant’s counsel. In her evidence-in-chief, PW1 stated thus: “I bit the robber on the forehead” (page 47 line 17). Further she expatiated as follows
“The following day, we were taken to the Ankpa Police Division where we made statements. At Ankpa Police Station, eight persons were paraded. I recognized the robber I bit on the forehead and pointed him out”. (page p.48 lines 2-5 of record of appeal)
I agree as submitted by the learned counsel for the Respondent that there is no contradiction in the case of the prosecution as alleged by the Appellant. The explanation of PW1 is that she did not mention the name of any of the accused persons including the Appellant, before their arrests in her extra-judicial statement Exhibit P1 because it was dark and therefore would not recognize any of them. PW1 could not therefore have known the accused persons until they confessed to the commission of the crime, while the 2nd accused person was recognized by the injury inflicted on his forehead. PW1’s evidence therefore properly corroborated the confessional statement of the Appellant who confessed in Exhibit P2 that “while I was dragging with me of the girls one were attacking, she bite (sic) one on my face”. (Page 99 lines 20-24 of record of appeal).
Her (PW1) oral testimony is also in consonance with her extra- judicial statement, Exhibit P1 where she stated clearly thus “l can identify the owner of the phone because I bite (sic) him on his face as we were dragging”.
All I have been saying in effect is that the evidence of PW1 and PW2, do not contain any material inconsistency that will be regarded as unreliable and not capable to corroborate the contents of confessional statements of all the three accused persons, the Appellant inclusive. Their evidence conformed with the requirements for the test of a retracted confessional statement as enunciated in the legion of decided authorities some of which have been mentioned in this judgment on the guiding principles for test of a retracted confessional statement. As already analyzed in the foregoing, there were other pieces corroborative evidence, outside the confessional statements which are consistent to the confession and showed that the confession of the accused persons was true. The evidence of PW1 and PW2 also show that the accused persons, Appellant inclusive, had the opportunity of making their statements and committing the offence of which they confessed to and were convicted.
However, let me state on the other hand, assuming but without conceding that the prosecution failed to adduce any independent evidence to corroborate the confessional statement of the Appellant, the law is trite that a free and voluntary confession, which is direct positive, and properly proved, like Exhibit P2 is sufficient to sustain a conviction without any corroborative evidence so long as the Court, like the trial Court in this appeal, is satisfied with its truth.
In Asimi v. State (2016) LPELR 40436 (SC) the apex Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus:
“Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit 4) a Court can convict on it if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular. See Egboghonome v. State (1993) 7 NWLR (Pt. 306) p. 383, Aremu v. State (1984) 6 SC p, 85, Akinfe v. State (1988) 3 NWLR (Pt.85) p.729, Ikemson v. State (1989) 3 NWLR (Pt.110) p.455, Asanya v. State (1991) 3 NWLR (Pt.180) 0 p. 422.” Per RHODES-VIVOUR, J.S.C. (Pp.14-15, Paras E-C). See also Dibie vs. State (2007) 9 NWLR (Pt. 1038) 30.
The confession of the Appellant in Exhibit P2 proved beyond reasonable doubt that the Appellant was one of the robbers that robbed one Ekene Eze of his motor-cycle on the fateful day.
The Appellant has argued vigorously that the trial Court erred in law when it held that the prosecution proved the offences of criminal conspiracy and robbery against the Appellant beyond reasonable doubt when the Appellant was never charged with an offence of robbery. It is settled law that a Court has the power under S. 218 of the Criminal Procedure Code to convict an accused person for a lesser offence which was never charged, if it is of the view that facts proved by the prosecution do not establish the offence charged but constituted the lesser and related offence. See Bogobiri v. State (2017) 18 NWLR (Pt.1597)247 at p. 269; Ezeja vs. State (2008) 10 NWLR (Pt. 1096) 513; Adeyemi vs. State (1991) 6 NWLR (Pt. 195) 1 at p. 42.
The ingredients of the offence of robbery are subsumed in that of armed robbery; the ingredients of armed robbery being (1) That there was a robbery (ii) the accused participated in the robbery (iii) accused was armed while committing the offence. The offence of armed robbery cannot be proved without first proving that there was robbery which is the illegal taking of another’s property by violence or force or with intimidation and that the accused person; participated in the robbery. The only difference between the offences of robbery and armed robbery is that for the latter, the accused person was not armed. It is therefore trite that a person charged with the offence of armed robbery can be convicted for robbery simplicita, even though not charged with robbery if the ingredients of robbery were established in the case. The ingredients of the lesser offence of robbery were proved by the facts of this case, particularly by the confessional statement of the Appellant to the offence of robbery.
In Ezeja v. State (2008) LPELR – 1202 (SC) P 19, (2017) 18 NWLR (Pt.1597) 247 at p. 517 the Supreme Court, per Onnoghen JSC, held thusly:
“It is settled law that the Courts including this Court have the power under Section 218 of the Criminal Procedure Code to convict an accused/appellant of a lesser or an offence for which he was neither charged nor pleaded to.”
Further it was clarified that:-
“The power under which the trial Court proceeded to convict the appellant of the offence for which he was neither charged with nor pleaded to, are contained in Section 218 of the Criminal Procedure Code… “
The Learned Trial Judge rightly captured the principle of law when he held as follows:-
Based on what I have stated above, I hold that the offence of armed robbery was not proved beyond reasonable. However, the accused persons admitted, committing robbery. This is a lesser offence and I am empowered by S. 218 of the Criminal Procedure Code to convict for lesser offences. By forcefully taking the motorcycle of Ekene Eze as admitted b the accused persons, the offence of robbery simpliciter was committed by the accused persons. I so convict them for the offence of robbery punishable under S. 218 (a) of the Penal Code.”
The cases cited by the Appellant are not apposite to the facts of this appeal because the issue of Section 218 was not canvassed in those cases.
I now come to the offence of criminal conspiracy.
The ingredients of the offence of conspiracy under Section 97 of the Penal Code are as follows:-
(i) An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by illegal means;
(ii) Where the agreement is other than agreement to commit an offence, that some act beside the agreement was done by one or more of the parties in furtherance of the agreement;
(iii) Each of the accused participated in conspiracy.
A conspiracy can be inferred from the facts of doing things towards a common end, where there is no direct evidence in support of an agreement between the accused persons. See Abacha v. F.R.N (2006) 4 NWLR (Pt.970) 239, Aje V. State (2006) 8 NWLR (Pt. 982) 349, Aituma v. State (2006) 10 NWLR (Pt.989) 452. Kaza v. State (2008) 7 NWLR (Pt.1085) 125 at 176.
The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the accused persons. See Nwosu v. State (2004) 15 NWLR (Pt.897) 466 CA. The conspirators are guilty of the same offence irrespective of each persons involvement in the execution of the agreement. I am therefore inclined to agree with Mr. Kadiri when he argued that it does not matter who slapped or physically took away the victim motor-cycle. The act of any of the co-accused persons at the trial Court is the act of the Appellant Ubierho v. The State (2005) 2 SCNJ 1 at p.10.
The learned trial Judge properly analysed the principle of law of the offence of conspiracy when he held as follows:
“The offence of conspiracy is committed when two or more persons agree to do an illegal act to do a legal act in an unlawful manner. It is now trite that since direct evidence of such agreement is hardly available, the Court can, inappropriate cases infer such an agreement from proved facts. See Daboh v. State (1977) 5 S.C. 122. I have already held that the accused persons made Exhibits P.2, P.3 and P.4 based on which I convicted them for the offence of robbery. The statement contains facts showing the agreement of accused persons in snatching the motor-cycle of Ekene Eze. I am of the firm view that the offence of conspiracy has been proved beyond reasonable doubt. In consequence, I hereby convict the accused person for the offence which contrary to S.97(1) of the Penal Code.”
In this appeal, it is evident from Exhibit P2, and evidence of PW1 and PW2 that the Appellant conspired and acted in concert with the other accused persons to rob the victim of his motor- cycle.
In the final analysis, I am of the firm view that the prosecution proved the offences of conspiracy and robbery against Appellant and was so properly convicted and sentenced by the trial Court. Consequently this appeal is lacking in merit and it is hereby dismissed. I hereby uphold the judgment of the High Court delivered by Justice A. N. Awulu on the 13th day of October, 2017 in case No: AHC/1C/2017.
PETER OLABISI IGE, J.C.A.: I agree.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, TINUADE AKOMOLAFE-WILSON, JCA.
I agree with the reasoning, conclusions and orders therein.
Appearances:
Patrick Oganwu, Esq. With him, U.O. Sule and Hafsat Usman For Appellant(s)
Badana Kadiri, Esq. (Ag. Deputy Director of Litigation, Kogi MOU) with him, J.U. Omale (Chief L.O), Monday Amen, Esq. (L.O.) For Respondent(s)
