OKIKI FALEYE V. THE STATE (2012)

OKIKI FALEYE V. THE STATE

(2012)LCN/5767(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of December, 2012

CA/I/179/2009

RATIO

WORDS AND PHRASES: MEANING OF ROBBERY

Firstly, S.15(1) of the Robbery and Firearms (Special Provisions) Act CAP 398 Laws of the Federation, 1990 and now under section 11(1) of the Robbery and Firearms (Special Provisions) Act CAP R11 Laws of the Federation of Nigeria, 2004 which is in pari material with the earlier provision, defines robbery as follows:

“Robbery means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” (underlining mine for emphasis). PER CHIDI NWAOMA UWA, J.C.A.

WORDS AND PHRASES: MEANING OF FIREARMS AND OFFENSIVE WEAPON

Under section 15(1) of the Robbery and Firearms (Special Provisions) Act (supra) and section 11(1) of the Robbery and Firearms (Special Provisions) Act (supra) under which the appellant was charged, “firearms” has been defined as follows:

“”Firearms” includes any canon, gun, rifle, carbine, machine-gun, cap-gun, flint-lock, gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces.”

While under the same subsection of the Act “offensive weapon has been defined as follows:

“”Offensive Weapon” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.”

CRIMINAL LAW: WHETHER AN ACCUSED PERSON COULD BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

The law is clear, that an accused person could be convicted solely on his confessional statement, see IKEMSON VS. THE (1989) 3 NWLR (PT.110) 445 at 468-469, NWACHUKWU VS. THE STATE (2007) ALL FWLR (PT. 390) 1380, (2007) 12 SCMPJ 2 PAGE 447 at 445. PER CHIDI NWAOMA UWA, J.C.A.

EVIDENCE: TESTS FOR THE VERIFICATION OF CONFESSIONAL STATEMENTS BEFORE EVIDENTIAL WEIGHT COULD BE ATTACHED TO THEM

The Apex Court in DAWA VS. THE STATE (1980) 8-11 SC 236 while relying on the old English case of R. VS. SKYES (1913) 18 CR APP REPORTS and KANU VS. KING (1952) 14 WACA 30 gave the six tests for the verification of confessional statements before any evidential weight could be attached to them. The tests are as follows:

1. Is there anything outside the confessional statement to show that it is true?

2. Is it corroborated?

3. Are the statements made in it of facts as far as they can be tested?

4. Was the prisoner one who had the opportunity of committing the offence?

5. Is his confession Possible?

6. Is it consistent with other facts which have been ascertained and which have been proved? PER CHIDI NWAOMA UWA, J.C.A.

JUSTICES

M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

OKIKI FALEYE – Appellant(s)

AND

THE STATE – Respondent(s)

CHIDI NWAOMA UWA, J.C.A., (Delivering the Leading Judgment): The appeal is against the judgment of M.A. Dipeolu, J of the Ogun State High Court delivered on 31st October, 2008.

In the trial court, the Appellant with two others were arraigned on a three count charge of conspiracy to commit Armed Robbery contrary to Section 6(b) and Section 1(2)(a) respectively of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004.

The three count charge is as follows:

“COUNT I

STATEMENT OF OFFENCE

CONSPIRACY to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act (CAP.R II), Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

COUNT II

STATEMENT OF OFFENCE

ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (special Provisions) Act (CAP. R II), Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

OKIKI FALEYE (m), IDOWU OLOJEDE (m), BABATUNDE ADELANI (m) and others now at large on or about the 15th day of April, 2003 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division while armed with offensive weapons to wit: guns cutlasses and axe robbed one Bamidele Ogunbiyi (m) of one Video Cassette recorder, Rechargeable Lantern, Video Cassettes, one Nokia mobile phone, one travel bag, wrist watches, some clothes, a sum of N32,000 (thirty two thousand Naira) and CFA 50,000 cash.

COUNT III:

STATEMENT OF OFFENCE

ARMED ROBBERY contrary to Section 1(2)(a) the Robbery and Firearms (special Provision) Act (Cap.RII), Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

OKIKI FAKEYE (m), IDOWU OLOJEDE (m), BABATUNDE ADELANI (m) and others now at large on or about the 15th day of April, 2003 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division while armed with offensive weapons to wit: guns cutlasses and axe robbed one Bamidele Ogunbiyi (m) of one Video Cassette recorder, Rechargeable Lantern, Video Cassettes, one Nokia mobile phone, one travel bag, wrist watches some clothes, a sum of N32,000 (thirty two thousand Naira) and CFA 50,000 cash.

COUNT III:

STATEMENT OF OFFENCE

ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act (Cap. RII), Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

OKIKI FALEYE (m), IDOWU OLOJEDE (m), BABATUNDE ADELANI (m) and others now at large on an about the 15th day of April, 2003 at Agbonselu quarters Ayetoro in the Ilaro Judicial Division while armed with offensive weapons to wit: guns cutlasses and axe robbed one Rasidatu Ogunbiyi of Jewellery and Wrist watches.

The appellant as 1st accused pleaded not guilty to the three count charge. At the close of the prosecution’s case, the appellant rested his case on that of the prosecution. In a considered judgment, the Appellant and two others were found guilty as charged in respect of the three counts and were sentenced to death by hanging.

Aggrieved by the decision, the appellant initially filed a Notice of appeal on 11th November, 2008 containing the omnibus ground of Appeal only. With the leave of this court he subsequently filed an amended Notice of Appeal containing six grounds of appeal. In compliance with the rules of this court he filed the appellant’s brief dated 17th May, 2011 on 18th May, 2011. In reaction thereto the respondent filed a brief of argument dated 15th May, 2012, on 23rd May, 2012, deemed as properly filed and served on 31st May, 2012. The appellant’s reply brief dated 4th June, 2012, filed on 4th October, 2012, was deemed as properly filed and served on 18th October, 2012.

The background facts are that, it was alleged that the appellant conspired with his co-accused and other persons at large to and did rob one Bamidele Ogunbiyi who testified as PW1 at the trial, while armed with dangerous and offensive weapons.

In proof of its case the prosecution called eight witnesses who testified to the complicity of the appellant and the other accused persons in the commission of the offences for which they stood trial.

Bamidele Ogunbiyi, pw1 one of the star witnesses for the prosecution gave account of how he was robbed by the appellant and the steps he took thereafter to ensure the appellant and others were arrested.

As stated above, at the close of the prosecution’s case, the appellant did not call any evidence but rested his case on that of the prosecution. At the close of the trial the appellant was found guilty as charged and sentenced to death. In convicting the appellant, the learned trial judge placed reliance on the evidence of the PW1 and the confessional statement said to have been made by the appellant amongst other things.

The learned trial judge found that the appellant could be convicted for armed robbery despite the failure of the prosecution to tender in evidence the weapon or firearm allegedly recovered from the Appellant.

At the hearing of the appeal, O.O. Ogungbade Esq., learned counsel to the appellant adopted and relied on the appellant’s brief and reply brief highlighted earlier in this judgment in urging us to allow the appeal.

F.E. Bolarinwa Adebowale (Mrs.) Principal State Counsel, Ogun State Ministry of Justice adopted and relied on the respondent’s brief and urged the Court to dismiss the appeal.

The appellant formulated the following issues for determination:

(i) “Whether the admission of Exhibit “A” (the Appellant’s confessional statement) and subsequent reliance on same by the learned trial Judge did not occasion a miscarriage of justice particular regard being had to the evidence of PW5 on the circumstances in which it was obtained? Ground 2.

(ii) Whether the evidence before the court was sufficient to establish the guilt of the Appellant beyond reasonable doubt?

(iii) Whether the conviction of the Appellant for Armed robbery, despite the failure of the prosecution to tender in evidence the gun(s) or other offensive weapons allegedly utilized in the commission of the crime was not erroneous? Ground 4.”

The respondent formulated a sole issue for determination, that is:

“Whether from the totality of evidence adduced at the trial, the prosecution has proved the offences of conspiracy to commit armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.”

The prosecution in proof of its case against the Appellant, tendered the appellant’s confessional statement which was admitted in evidence after a trial within trial following the objection of learned counsel to the appellant who challenged the voluntariness of the statement, PW5 who recorded the statement testified at the trial within trial to establish the voluntariness of the statement which was admitted as Exhibit ‘A’.

The learned counsel to the appellant submitted that the learned trial judge at pages 46-47 of the records stated the correct position of the law in which the evidence of the PW1/IPO in the trial within trial was referred to, but made an erroneous finding which occasioned a miscarriage of justice in holding that the statement was voluntarily made. It was argued that the evidence called by the prosecution showed that Exhibit ‘A’ was not made voluntarily and that there are aspects of the trial within trial which cast doubt as to the voluntariness of Exhibit ‘A’, since it was in evidence in the trial within trial that the accused was brought to the PW5 naked and bleeding from a gun shot injury. It was submitted that the circumstances under which Exhibit ‘A’ was obtained were sufficient to create a doubt as to its voluntariness and the doubt should have been resolved in favour of the appellant. We were urged to resolve the appellant’s issue one in favour of the appellant and hold that Exhibit ‘A’ was not voluntarily made.

The appellant’s second issue is whether the evidence before the court was sufficient to establish the guilt of the Appellant beyond reasonable doubt?

It was the submission of the learned counsel to the appellant that the judgment occasioned a serious miscarriage of justice to the Appellant. It was argued that the fact that some of the stolen items were recovered in the vehicle in which the appellant and others were riding cannot in law amount to possession of the items in that the appellant and others conspired to rob the PW1 of the said items. It was argued that the items were not found on the physical person of the Appellant or on any of the other occupants of the vehicle. Further, that while the PW1 and PW3 testified that the stolen items from PW1’s house were recovered at the police check point, the PW5 in his testimony, at page 48 of the printed records testified that he executed a search warrant on the house of the appellant at Ayetoro and recovered some of the stolen items, such as one Nokia handset, Video Machine, Cassettes, hand chain, two wrist watches, two stabilizers as well as one automatic pistol. It was the contention of the learned counsel to the appellant that there were contradictions as to where the items were recovered and that the recovered items cannot therefore form the basis of a conviction for an offence as grave as armed robbery. See, Sunday vs. State 2010 All FWLR Pt. 548, 874. The learned counsel to the appellant argued that there is an error as to the point where the stolen goods were recovered, the finding of the learned trial judge at page 101 of the printed records was referred to, also page 105 to the effect that the appellant who escaped from the check point was later arrested at Lafenwa, Abeokuta with a pistol and some of the stolen items when stopped at the check point where the appellant was seen in the vehicle with some of the stolen items. The learned counsel to the appellant faulted the identification parade and submitted that the PW1 had several opportunities of seeing the Appellant prior to the identification parade, at the check point, and at Ayetoro police station, pages 33-34 of the records, Further, that the pw1 did not identify the occupants of the car at the check point as the robbers but, for the stolen items seen in the vehicle. We were urged to resolve this issue in favour of the appellant for the contradictions in the prosecution’s case.

The appellant’s third issue is whether the conviction of the Appellant for Armed Robbery, despite the failure of the prosecution to tender in evidence the gun(s) or other offensive weapons utilized in the commission of the crime was not erroneous?

The learned counsel to the appellant submitted that the PW3 did not state that any gun or toy gun was recovered at the police check point; pages 35-37 of the printed records. While the PW4 testified that a service pistol was recovered from the vehicle after the search at the check point, the PW5 on his part testified that no pistol was found on the appellant when he was arrested and the PW7 the patrol team leader that stopped the starlet car for a search at Iyana Ijale, pages 54-57 particularly at page 55 testified that during a mini search on the vehicle a toy gun was discovered, which he confirmed under cross examination, at page 57 of the records.

It was further argued that the circumstances of the case necessitated that the weapon used for the alleged armed robbery be produced, more so where there is no evidence that any cutlass or axe was ever recovered from the Appellant or any of the other accused persons.

It was submitted by the PW7 that the toy gun found in the vehicle with all the recovered items were handed over to the DCB office, page 57 of the records. The learned counsel to the appellant argued that either no weapon, toy gun or not, cutlass or axe was recovered or the items were recovered and with held by the police, therefore that Section 149(d) of the Evidence Act ought to have been invoked against the prosecution.

The respondent on his part distilled a sole issue for determination, that is:

The learned counsel in her brief of argument listed what ought to be proved by the prosecution. It was argued that the PW1 and PW2 gave account of how they were robbed on the day of the incident. It was contended by learned counsel that the evidence of the PW1, PW2 and PW3 showed that the robbers who robbed the PW1 and PW2 on that day were armed with guns, cutlasses and axe, reference was made to pages 32 and 35 of the printed records. It was submitted that the evidence of the PW1 at page 35 and page 37 of the records showed that the appellant was one of the armed robbers that robbed the PW1 that night. The PW2 testified that the Robbers who attacked them were not masked.

It was further submitted that some of the stolen items were recovered from the Toyota Starlet car which the appellant was in before he escaped, the appellant at the time of his arrest was also found with the handset (mobile telephone) and wrist watch belonging to the PW1, reference was made to the cases of YANGO VS. COP (1990) 5 NWLR (PT.148) 103 AT 116-117, AREMU VS. STATE (1991) 7 NWLR 9 (PT.201) AT P.1. It was argued that the trial court was justified in holding that the appellant was one of the armed robbers who robbed PW1 and PW2 on 15/4/03, reliance was also placed on Exhibit ‘A’ the appellant’s confessional statement which it was submitted was voluntarily made and confirmed by the trial court’s trial within trial. Reliance was also placed on Exhibit ‘F’ tendered by the PW8, another statement made by the appellant.

It was argued that the appellant had the opportunity to put up his defence before the trial court but chose to rely on the prosecution’s case. Further, that the identification parade cannot be faulted as it was properly conducted and the pw1 properly identified the appellant as one of the robbers.

On the non tendering of the gun that was recovered from the appellant, it was submitted that the non tendering of the gun used in the robbery is not fatal to the prosecution’s case, see OLAYINKA VS. STATE VOL. 3 C.A.C. 273, in that once the prosecution proves the ingredients required of the offence charged beyond reasonable doubt, failure to tender the offensive weapon cannot result in an acquittal of the accused person.

The learned counsel to the respondent argued that the offence of conspiracy can be inferred from the circumstances of the case contrary to the arguments of learned counsel to the appellant that it was not proved, SEE NWOSU VS. STATE (2004) 15 NWLR (PT.897) PAGE 486 PARAGRAPH F-H, KAZA VS. THE STATE (2008) 5 SCM 70 AT 104 AND UPAHAR VS. THE STATE (2003) (PT.81) 6 NWLR PAGE 230 – 239.

The evidence of the pw1 and pw3 which the appellant’s learned counsel argued were contradictory and conflicting concerning how the vehicle found with the stolen items from the house of PW1 was stopped and how the passengers were ordered to alight, was argued not to be sufficient to raise doubt as to the guilt of the appellant, reliance was placed on the cases of IKO VS. STATE (2001) 14 NWLR PT. 733 PAGE 221 AT 240.

Further, that how the occupants alighted from the vehicle is not material but, proof of the ingredients of armed robbery which are: that there was a robbery, and that the appellant was one of those who took part in the robbery.

We were urged to dismiss the appeal in that the prosecution proved the conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt, and affirm the decision of the trial court.

In his reply brief, the learned counsel to the appellant submitted that irrespective of the failure of the appellant to testify during the trial within trial, the burden of proving the voluntariness of Exhibit “A” remained cast on the prosecution which was argued to have been appreciated by the learned trial judge in his Ruling. It was argued that the physical state of and the injury on the appellant were sufficient to infer that Exhibit ‘A’ was not voluntarily obtained.

The learned counsel to the appellant submitted that on reliance upon the Supreme Court decision in OLAYINKA VS. STATE (supra) urged that it be distinguished from this case in that no weapon was recovered from the accused person and that there was no contradiction in the evidence of the prosecution as to what weapon was recovered from the accused, real or toy.

We were urged to discountenance the arguments of the respondent and allow the appeal.

I would utilize the sole issue distilled by the respondent in determining this appeal, as resolution of same would resolved the three issues formulated by the appellant. I would reproduce same once again, that is:

“Whether from the totality of evidence adduced at the trial, the prosecution has proved the offences of conspiracy to commit Armed Robbery and Armed Robbery against the appellant beyond reasonable doubt.”

S.138 (1) of the Evidence Act, CAP 112, Laws of the Federation of Nigeria, 1990 Provides as follows:

(1) “If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) the burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 141 of this act on the person who asserts it whether the commission of such is or not directly in issue in the action.”

The resultant effect is that in this case, the offence of armed robbery and conspiracy to commit same for which the appellant was charged being a crime, the burden lies squarely on the prosecution to prove same and proof which must be beyond reasonable doubt, see the case of NWOSU VS. THE STATE (1998) 8 NWLR (PT.562) 433 at 444 where it was held that:

“In all criminal trials, the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused. Failure to do so will automatically lead to the discharge of the accused. The burden never changes.”

This burden was elaborated upon by the Apex Court in the case of AIGBADION VS. THE STATE (2000) 7 NWLR (PT.666) 686 at 704 where it was held thus:

“Even where an accused in his statement to the police admitted committing the offence the prosecution is not relieved of that burden”

The question now is: Has the prosecution proved or discharged this burden from the totality of evidence adduced at the trial in proof of conspiracy to commit armed robbery and armed robbery for which the appellant was tried, convicted and sentenced to death by hanging along with his co-accused persons? The learned counsel to the appellant at page 9 of his brief of argument put it thus:

“In order to secure a conviction of the accused on the offence charged, the prosecution had a duty to establish the following:

(a) That there was an agreement or conspiracy between the convict and others to commit the offence of robbery;

(b) That in furtherance of the agreement or conspiracy the accused took part in the commission of the offence of robbery or series of robberies;

While the respondent at page 8 of his brief put it this way:

“For the prosecution to succeed in the proof of the offence of armed robbery against the Appellant, the following ingredients must be established beyond reasonable doubt;

(i) That there was a robbery or series of robberies;

(ii) That the robbery or each robbery was an armed robbery;

(iii) That the accused person was one of those who took part in the robbery.

Both learned counsel have stated clearly what the requirements are in respect of the offence of armed robbery. These requirements have judicial backing in the following cases: ALABI VS. THE STATE (1993) 7 NWLR (PT.307) 511 at 523, PARAGRAPH F-H, BOZIN VS. THE STATE (1985) 2 NWLR (PT.8) 465; OKOSI VS. A.G. BENDEL STATE (1989) 1 NWLR (PT.100) 642 and BOLANLE VS. THE STATE (2005) 7 NWLR (PT.925) 431 at 541.

In this case was there a robbery? Firstly, S.15(1) of the Robbery and Firearms (Special Provisions) Act CAP 398 Laws of the Federation, 1990 and now under section 11(1) of the Robbery and Firearms (Special Provisions) Act CAP R11 Laws of the Federation of Nigeria, 2004 which is in pari material with the earlier provision, defines robbery as follows:

The PW1, Bamidele Ogunbiyi testified as follows: (pages 32 -33 of the printed records:

“My name is Bamidele Ogunbiyi, I am a motor dealer, I live at Ogbonselu Quarters, Ayetoro. …………………………..On 15/4/03 at about 1.00 a.m. I was attacked by armed robbers in my house. They woke me up, pointed a gun at my ear and demanded for money, saying they would kill me. The armed robbers were about six, the accused persons were some of them. I told them I had no money in the house. They locked me up in the toilet, later they brought me out and told me that they could not find any money in my house and so they would kill me.

I pleaded with them, saying one of my workers, living four houses away from my house had some money with him, I was led there by the armed robbers holding guns, cutlass and axe. My worker’s name is Biodun Otunde. On getting there, I was instructed to tell him to come out with the money with him. I did and Biodun brought out the money N32.000.00 and CFA 50,000.00. I took the money from Biodun and handed it over to them. Then they led me back to my house. There they sat down, ordered me into the toilet and locked me up there.”

The evidence of the PW2 Rashidat Ogunbiyi at pages 34-35 of the records is as follows:

“I remember 15/4/03; I was attached (sic) in the middle of the night by armed robbers. They forced open the door to my flat, surrounded my bed holding guns and cutlasses, one of them said “Emperor’s wife, we have killed your husband.” I jumped out of the bed, they ordered me to lie down and one of them pointed a gun at my ear. I started pleading with them. They said they were going to rape me. I pleaded saying I was nursing a child, they said they would slaughter the child. I was just pleading. Meanwhile, one of them forced open my wardrobe, and took all my jewelleries.

The accused persons were the people that attacked me. They were not masked. They also took my clothes, locked me in the toilet, later I was locked in one room. They asked me where my husband kept his money; I told them I did not know.”

Under cross examination the PW2 testified as follows:

“When the robbers entered my room, I was terrified, but I was able to look at their faces, the lights were on. They did not ask me to lie face down on my bed. I was on the bed when my wardrobe was forced open.

I was looking at the armed robbers surrounding my bed. The wardrobe is in front of my bed.”

The PW3 on his part at page 35 of the printed records testified as follows:

“I remember 15/4/03. On the said day I was sleeping when I heard PW1 calling me at about 2.30.a.m. I got out of bed, opened the door, he told me to come out with the money he kept with me. I then handed over the sum of N32,000.00 and CFA 50,000,00 to him and he handed it over to the accused persons who I saw with guns, cutlasses and axe then they left with PW1.”

Exhibit ‘A’ is the Appellant’s confessional statement, the appellant stated therein as follows:

“………Idowu only has in his hand one toy pistol with torch light. While Michael was holding cutlass and torch light, at about 12 midnight, we arrived Emperor house, we gained entrance to Emperor’s house by using an empty drum in climbing the fence of the building, we all entered the room with the instrument mentioned above. Emperor was met and he was asked to surrender all he has. He only said that, he did not have money at home and that we should be lead (sic) to one of his boy staying around, hence he did not want to be killed. We both led him to one of his boy. I did not know the person. We collected the sum of thirty thousand Naira from him through Emperor, and some amount of CAF currency, but I cannot be specific.”

From the definition of ‘robbery’ and the evidence of the PW1, PW2 and PW3 and Exhibit. ‘A’ highlighted above, the prosecution has proved that there was a robbery, that is, a threat to use violence as defined in S.11(1) (supra).

This takes us to the second ingredient or requirement as to whether the robbery as established in this case was an armed robbery.

“”Firearms” includes any canon, gun, rifle, carbine, machine-gun, cap-gun, flint-lock, gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces.”

While under the same subsection of the Act “offensive weapon has been defined as follows:

Under Section 11(1) of the same Act, 2004 (supra) the word “arms”, includes “firearms and offensive weapon”. In the present case “arms” and/or “offensive weapon” include cutlass, guns, axe contained in the charge as the weapons used by the appellant and two others in the commission of the offence. The PW1 in his evidence at page 32 of the records said “they woke me up, pointed a gun at my ear and demanded for money, saying they would kill me.” The witness stated further:

“I pleaded with them, saying one of my workers, living four houses away from my house had some money with him. I was led there by the armed robbers holding guns, cutlasses and axe.”(Underlining mine)

PW2 at page 34 of the records testified concerning offensive weapons that:

“They forced open the door to my flat surrounded my bed holding guns and cutlasses, one of them said “Emperor’s wife, we have killed your husband.”…………………………………..

One of them pointed a gun at my ear. I started pleading with them. They said they were going to rape me. I pleaded saying I was nursing a child, they said they would slaughter the child.” (underlining mine).

While the PW3 at page 35 of the records concerning arms testified as follows:

“I then handed over the sum of N32, 000’00 and CFA 50,000.00 to him and he handed it over to the accused persons who I saw with guns, cutlasses and axe. They left with PW1.” (Underlining mine)

In the appellant’s confessional statement Exhibit ‘A’, he said,

“Idowu only has in his hand one toil (sic) pistol with torch light. While Michael was holding cutlass and torch light.”

In the evidence of the PW4, Ajiboye Sunday Sgt No. 171726, one of the police men at the check point where the vehicle in which the appellant was, was stopped for searching, he testified as follows (pages 38 of the records)

“Inside the vehicle were six young men, they were ordered to alight the vehicle and lie down. The vehicle was then search, a service pistol, video cassette recorder, video cassettes, wrist watch, jewelleries and some clothes were recovered.” (underlining mine)

The PW5, Adetayo Idamakin, Sgt. No. 138662 at the time of the incident attached to Nigeria police Ayetoro, at page 48 of the printed records of appeal testified as follows:

“I executed search warrant on the house and premises of the 1st accused at Ayetoro and the following items were recovered (i) one automatic Pistol……….” (underlining mine for emphasis)

The search warrant with which the house of the appellant was searched was admitted in evidence as Exhibit “B”‘

It is clear that the PW1, PW2, PW3, PW4, PW5 and the confessional statement of the Appellant mentioned the use of the following weapons cutlasses, axe, gun, service pistol and automatic pistol while the PW7 testified at page 55 of the records that a toy gun was recovered at the check point from the car the appellant and the others were seen in.

The PW7 talked of a toy gun that was recovered from the car the appellant’s and others were seen in at the check point, (page 55 of the records) but, a toy gun does not qualify as firearms or offensive weapon from the earlier definition of same in this judgment.

A toy gun not being included in the list of “firearms” or “offensive weapon” it is obviously excluded, worse still the toy gun said to have been seen in the vehicle the appellant and the others were in was not tendered even though recovered. See, the case of NWACHUKWU VS. STATE (1985) 3 NWLR (Pt., 11) 218 at 225 paragraphs C-F.

The burden on the prosecution to prove the charge of armed robbery for which the appellant stood trial that is the proof of every essential ingredient of the offence which includes the fact that the Appellant was armed with an offensive weapon within the provisions of the Robbery and Firearms Act and as contained in the charge, never shifts.

The PW1, PW2 and P23 testified about guns, cutlasses and axe used by the robbers, PW4 testified about a service pistol seen in the vehicle, PW5 testified as to an automatic pistol recovered from the house of the appellant while the PW7 saw a toy gun in the vehicle. The appellant took his plea with two others allegedly having been armed with guns, cutlasses and axe. On the learned counsel to the appellant, challenging the non-tendering by the prosecution of the weapons used, the learned trial judge at page 102 of the printed records held that:

“Issue I raised by the learned defence counsel is challenging failure of the prosecution to tender the weapon used in committing the offence of armed robbery. I do not think there is any principle of law requiring the tendering of the weapon of the alleged robbery to establish the guilt of the accused person. Whether or not the prosecution needed to have tendered the weapons with which the accused allegedly committed the robbery depends, by and large on the character and circumstances of the case.” (Underlining mine for emphasis)

I agree with the learned trial judge that the need to tender by the prosecution the weapons the accused allegedly committed the robbery depends on the character and the circumstances of the case. Where some of the victims are killed in course of the robbery and witnessed by some of the other victims who testify as to the type of arms used say guns, and the bodies recovered, if recovered with gunshot wounds or the victims died from machete cuts and machete cuts could be seen on the dead bodies would it be necessary to have recovered and tendered the weapons used in a case of armed robbery? I think not’ In such circumstances the prosecution would not necessarily need to tender the gun or cutlass whatever the case may be. See a recent decision of this Court, Akure Division, CA/B/76C/07 Peter Adewumi vs. The State (unreported) delivered on 30/10/12, as per Kekere-Ekun J.C.A., where the armed robbery was conceded in course of appellant’s counsel’s address where two of the victims were found dead and the other rushed to hospital. Even where some of the victims are not killed but get wounded by the robbers from the weapons they had during the operation, some get caught and some escape with the weapons, would it be a requirement that the weapons used to inflict such injuries be tendered, would the case fail because some of the robbers escaped with the weapons and probably threw them into a pit toilet, buried some or even threw them away after the operation? Under these circumstances the prosecution would not be required to tender the weapons with which the accused person allegedly committed the offence, but, in the present circumstances, the cutlasses, axe and guns the witnesses PW1, PW2 and PW3 talked about were not tendered. The service pistol, the pistol the PW4 mentioned as recovered was not tendered, PW5 talked about automatic pistol, it was not tendered even though recovered. PW7 saw a toy gun (whether real or toy) it was not tendered. There is no evidence that the axe and cutlass were recovered from the appellant or the other two accused persons. It is the duty of the prosecution to prove that the appellant was, or that fateful day armed with an axe, cutlass and gun as contained in the charge while carrying out the robbery. The prosecution failed to discharge this burden’ worse still, the PW4 and pw5 testified that a service pistol and automatic gun respectively were recovered, these were not tendered. The question that comes to my mind is: if these guns were recovered why were they not tendered? In my humble opinion the learned trial judge was wrong or in error to have held that the failure of the prosecution to tender the weapon used would not hinder the prosecution from establishing the guilt of the appellant in the present circumstances of this case. The reliance of the learned trial judge on the evidence of the PW1 and PW2 that the robbers were armed with guns, cutlasses and axe was not enough to find the appellant guilty of armed robbery, See, page 102 of the records. The prosecution failed to produce any weapon, and also failed to give any explanation as to why they could not be produced. The prosecution was silent as to whether the cutlasses and axe were recovered or not.

Further at the same page 102 of the records, the learned trial judge held concerning the weapons:

“On the issue of the weapons of the alleged robbery, prosecution witnesses 1, 3, 4 and 7 testified that when the vehicle in which the accused persons were travelling was searched, a toy gun was recovered. Also there is evidence that a short gun was found with the 1st accused person. The victims of the robbery, prosecution witnesses 1 and 2 testified that those who robbed them were armed with guns, cutlasses and axe. It seems to me that with the circumstances under which the accused persons were arrested the weapons used need not be produced.”

The prosecution witnesses 1 and 2 testified that those who robbed them were armed with cutlasses, guns and axe; there was no evidence or proof that they had injuries inflicted on them or anybody else by these weapons. The appellant and the others were arrested at the check point where the toy gun was seen in the vehicle, there is no explanation from the prosecution why the toy gun (real or not) seen at the point of arrest was not tendered in evidence, and why the gun said to have been recovered was not also tendered, no cutlass or axe was produced or tendered in evidence. The learned trial judge was in error to have held that the circumstances the appellant and the two accused persons were arrested (shortly after the incident) the weapons used need not be produced. On the contrary, under those circumstances where there was not much time lag in between the time of the commission of the offence and time of arrest, the appellant if armed with cutlasses and axe had no time to dispose of these while retaining the toy gun, and the automatic rifle and pistol that were recovered but not tendered. Even though, as I stated earlier in this judgment, use of offensive weapons could be proved without production but, that is not the case in the present circumstances where the supposedly recovered weapons were not tendered as well as the toy gun, cutlasses and axe. Even with the confessional statement of the appellant Exhibit ‘A’ the prosecution was duty bound to produce the weapons recovered for a conviction for armed robbery. See, AWOSIKA VS. STATE 2011 ALL FWLR (PT.560) 1237 at 1262 – 1263 H – F. The learned trial judge was wrong to have convicted the appellant of armed robbery as contained in the charge. I am also in disagreement with the argument of the learned counsel to the respondent while relying on OLAYINKA VS. STATE VOL. 3 C.A.A. 273 that the prosecution need not tender the weapons of an alleged robbery to establish the guilt of an accused.

In my humble view, the prosecution has not discharged its burden of proving that there was an armed robbery beyond reasonable doubt. In the case of AIGBADION VS. THE STATE (Supra) at page 704, paragraph B, the Supreme Court as to such burden said:

“In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. See Ameh v. The State (1978) 6-7 SC 27.”

On the third ingredient or requirement for proof of armed robbery offence, the issue as to whether the accused person was one of those who took part in the robbery.

The PW1 and PW2 were victims, The evidence of the PW1 at page 34 of the records was as follows (under cross examination):

I could identify the accused persons because the lights in the house were on. I identified them to the police immediately they alighted the vehicle. The vehicle was a commercial vehicle. The 2nd and 3rd accused persons never said they were passengers in the vehicle. The six armed robbers led me to Biodun’s house. I was at Police Station, Ayetoro when the 1st accused was taken there.

Re-Examination: NIL.

Cross-examination by Court: They were arrested between 4.00 and 5.00 a.m. The armed robbers that came to my house were not masked.”

The evidence of the PW2 at pages 35 and 37 of the records shows that the appellant was one of the robbers that robbed him on the 15/4/2003. The witness had ample opportunity of seeing his assailants including the appellant as rightly argued by the learned counsel to the respondent. The evidence of the PW2 at page 35 under cross examination was:

“When the robbers entered my room I was terrified; but I was able to look at their faces the lights were on. They did not ask me to lie face down on my bed. I was on the bed when my wardrobe was forced open.

I was looking at the armed robbers surrounding my bed. The wardrobe is in front of my bed.

I did not see the armed robbers again after the incident until they were charged to court. I saw them for the first time on the day of the incident. I recognised the accused persons.”

From the evidence of the PW2 the robbers who attacked them were not masked and was present when the robbers ripped open the wardrobe, it was therefore easy to identify the appellant as one of their assailants.

The PW8 confirmed that an identification parade was conducted at the police station in which the complainant identified the appellant as one of the robbers. Further, some of the items that the victims of the robbery were dispossessed of were found in the Toyota Starlet Car the appellant was in with others at the check point before his escape from the scene.

Thereafter, when the appellant was arrested shortly after his escape he was found with PW1’s handset, wrist watch in his pocket as well as some of the items found in the vehicle he and the others were in at the check point shortly after the incident. The appellant had no explanation for the items found in the vehicle he was in and the items found on him when he was arrested, also those recovered from his house. PW7 at pages 55-56, 57 of the records testified as to the recovered items, wrist watch, some jewelleries, the sum of N2,500. The appellant was arrested at the check point in the car where some of the items were recovered and escaped at the stop and search spot at the check point. The PW5 enumerated the items he recovered from the appellant’s house with a search warrant, Exhibit ‘B’, some of the items are one automatic pistol, one Nokia hand set, video machine, some cassettes, hand chain, two wrist watches, two stabilizers. Under cross examination the PW5 at page 49 testified thus:

“The complainant identified and claimed ownership of video machine, chain, video cassettes and wrist watches as his properties; from the items recovered from 1st accused’s house when search warrant was executed.”

The witness went on:

“1st accused was later arrested with chains and wrist watches in his Pockets.”

The recovered items were released to the complainant after identification with a bond, Exhibit ‘L’. There was therefore no doubt that the items belonged to the complainant, see page 62 of the records. Some of the items were recovered from the vehicle the appellant was in a few minutes after the robbery. Section 167(a) of the Evidence Act, 2011 provides that:

“(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he, can account for his possession;” (Emphasis mine)

In the present case, the appellant has not explained in any way how he came about the items found on him which the complainant identified as some of the items he was dispossessed of on 15/4/2003, or the items found in the vehicle he was in shortly after the incident. In my humble view he was one of the robbers.

The learned trial judge was therefore right to have held that the appellant was one of those that (now found to be robbers) robbed PW1 and PW3 on the 15/4/2003, See, YANGO VS. COP (1990) 5 NWLR (PT.148) 103 AT 116-117; AREMU VS. STATE (1992) 7 NWLR (PT. 201) AT PAGE 1.

This brings us to Exhibit ‘A’ where the appellant also admitted being one of the robbers and mentioned also what was recovered from him, some of the money stolen from the victims’ house, The learned counsel to the appellant in the course of the trial had objected to the voluntariness, of Exhibit ‘A’ the appellant’s statement to the police. The learned trial judge as required when such a statement is said not to be voluntarily made rightly and promptly conducted a trial within trial after which the court ruled that the statement was voluntarily made. In addition to this, the appellant also made another statement which the appellant wrote by himself, that is Exhibit ‘F’. It is noteworthy that the appellant chose not to testify at the trial within trial, maybe he would have thrown more light on how he sustained the injuries highlighted by the learned counsel to the appellant in course of the trial to the effect that the statement was induced by force that caused the injury and the naked state the appellant was in when he was at the station. In the same manner, the appellant rested his case on the prosecution’s case as clearly stated in the case of ALI & ANOR VS. STATE (1988) 1 NWLR (PT.68) at 18, OPUTA, JSC cited and relied upon by the learned counsel to the respondent, it is indeed a risky thing to do. In respect of the injury on the appellant and his state of nakedness the court can not speculate on the explanation the accused would have given concerning his condition. On the other hand the accused could have sustained the injury while escaping from the check point and was later re-arrested, he could have removed his clothing to conceal his identity from the time of the encounter of stop and search and his arrest after the escape from the scene, he could be identified by his clothes. These are speculations and probabilities which have no place at this point. The accused in the trial court decided not to assist the court by placing facts before it other than those of the prosecution, through evidence led. This only means that the accused did not wish to explain any fact or clear any allegations or presentation concerning his case. The learned trial judges’ finding that Exhibit ‘A’ the confessional statement of the appellant was voluntarily made cannot be faulted. The appellant chose not to put his defence before the trial court and cannot expect the trial court or this court to imagine what could have happened in order to assist his case. It cannot be done.

The appellant admitted he participated in what I have found to be robbery as opposed to the armed robbery charged. The law is clear, that an accused person could be convicted solely on his confessional statement, see IKEMSON VS. THE (1989) 3 NWLR (PT.110) 445 at 468-469, NWACHUKWU VS. THE STATE (2007) ALL FWLR (PT. 390) 1380, (2007) 12 SCMPJ 2 PAGE 447 at 445.

1. Is there anything outside the confessional statement to show that it is true?

2. Is it corroborated?

3. Are the statements made in it of facts as far as they can be tested?

4. Was the prisoner one who had the opportunity of committing the offence?

5. Is his confession Possible?

6. Is it consistent with other facts which have been ascertained and which have been proved?

In my humble opinion the appellant’s confessional statement Exhibit ‘A’ passed or conformed with these tests and the learned trial court was right to have relied upon same, there is nothing to show that there was a miscarriage of justice.

The learned counsel to the appellant faulted the identification parade conducted arguing that the PW1 had seen the appellant at the police check point when he was stopped with five others and had also testified that he was at Ayetoro police station when the Appellant was taken there.

In line with the submissions of the learned counsel to the respondent, the best identification of an accused person is by the victim of the crime or a witness to the crime where as in this case persons of similar stature and features of the accused were lined up with the accused before the victim or witness was brought out to identify the criminal. There was no evidence that the victims were aided in course of the identification of the appellant, shortly after the robbery incident and in the surrounding circumstances of this case where some of the items the victims were dispossessed of were found on the appellant on his arrest and also in the vehicle he was in as well as from his house shortly after the incident, these are pointers that he was one of the robbers. With the various pieces of evidence earlier highlighted in this judgment the learned trial judge at page 105 of the records rightly held that the PW1 identified the 1st accused as one of those who robbed him, which the court held to by direct evidence, and rightly so, This finding cannot be faulted.

On the issue of contradictions in the evidence of PW1 and PW3 as opposed to that of pw 5 as to the recovered items, in that the PW1 and PW3 stated that they were recovered at the police check point while the pw 5 testified that he recovered some of the items with a search warrant at the appellant’s house. It was argued that the evidence led is contradictory and cannot form the basis of a conviction.

It was also argued that the learned trial judge found that some of the items were found on the appellant on his arrest, page 101, and 105 of the records. Also that the PW5 at page 49 of the records testified that the appellant was arrested with chains and wrist watches in his pocket, and that no pistol was found on him when he was arrested.

The law is settled on the contradictions or discrepancies in the evidence of the prosecution witnesses as submitted by the learned counsel to the respondent, only contradictions in respect of material facts would make the evidence before the court doubtful. Where the alleged contradictions are not material to the fact in issue, no explanation is required, see, IKEMSON. VS. THE STATE (1989) 3 NWLR (PT.110) 455 AT 474 H; (1989) 6 SCNJ PT. 1 PP.54 AT 71-72. IKO VS. STATE (2001) 14 NWLR (PT.733) P.221 AT 240 AND ARCHIBONG VS. THE STATE (2004) 1 NWLR (855) AT 488. In the above cases, it was held that what is material depends on the facts and circumstances of the particular case. I am at one with the argument of the learned counsel to the respondent that the evidence of the PW1 and PW3 did not contradict that of the PW5 and or each other as to whether there was a robbery or that the appellant was one of the robbers since I have earlier found in this judgment that the prosecution did not establish what took place was an armed robbery. The learned counsel to the appellant has not argued that the some of the recovered items were not found on the appellant, the vehicle he was in and his house shortly after the robbery incident took place. The appellant’s statement to the police also supports the fact that he had some of the items the victims were dispossessed of on his arrest, which statement has been held to be voluntarily made by this court. The important thing is that some of the items stolen from the PW1’s house were recovered from the appellant, and there is no doubt about it. It is trite that for contradictions of evidence (or discrepancies) of witnesses to affect conviction, they must be serious, material or sufficient to raise doubt as to the guilt of the appellant. Minor discrepancies in the evidence of the prosecution witnesses that does not affect the ingredients of the offence as in this case, are not sufficient to entitle the appellant to an acquittal and not fatal to the case of the prosecution, the contradiction must be material. In this case the discrepancies are not material.

Learned counsel to the appellant contended that the prosecution failed to prove the offence of conspiracy. Conspiracy can be defined to be a meeting of the minds of the conspirators. It consists mainly of the intention of two or more persons to do an unlawful act or a lawful act by unlawful means and conviction is usually based on circumstantial evidence as in the case of PATRICK NJOVENS VS. THE STATE (1973) 5 SC 17, the court may infer conspiracy from the circumstances of each case. The mere agreement to commit an offence is enough. With the pieces of evidence, the court can rightly infer that the offence of conspiracy has been committed. In the present case the evidence of the prosecution witnesses made it clear that the appellant conspired with other persons to commit robbery, he was not alone, he was charged along with the other two persons. See, NWOSU VS. STATE (2004) PT. 897 P. 486 PARAGRAPH F-H, UPAHAR VS. THE STATE (2003) FWLR (PT.139) 1512 (2003) 6 NWLR (PT.816) 230 AT 239, KAZA VS. THE STATE (2008) 5 SCM 70 AT 104, ODENYE VS. STATE (2001) 2 NWLR (PT.697) 311 AT 324 UTUYORUME VS. STATE (2011) ALL FWLR (PT560) P.1265 AT 1288 AND BLACK’S LAW DICTIONARY, 8TH EDITION AT PAGE 329 where conspiracy is defined as:

“An agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s objective.”

In my view and confirming the view of the learned trial judge, the prosecution proved its case of conspiracy beyond reasonable doubt, and I so hold.

It is the law that where the evidence adduced by the prosecution supports the conviction for a lesser offence than that for which an accused is charged, an appellate court can convict for such lesser offence, see Section 20(2) of the Court of Appeal Act, 2004. I hold that the appellant is guilty of the lesser offence of conspiracy to commit robbery and robbery as opposed to conspiracy to commit armed robbery and armed robbery for which the appellant was charged, convicted and sentenced. Section 1(1) of the Robbery and Firearms (Special Provisions) Act CAP, R11 Laws of the Federation of Nigeria, 2004 under which the appellant was charged, provides that:

“Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.”

In the circumstances, I set aside the conviction and sentence to death of the appellant by Dipeolu, J. of the Ogun State High Court, Ilaro, on 31st October, 2008 and in its place convict and sentence the appellant to 21 (twenty one years) imprisonment on each of the counts, sentences to run concurrently, which shall begin from 15th April, 2003 being the date of arrest and incarceration of the appellant.

M.B. DONGBAN-MENSEM, J.C.A.: (DISSENTING JUDGMENT) This is an appeal from the Judgment of the Honourable Justice M.B. Dipeolu of the High Court of Ogun State delivered on the 31st day of October, 2008 by which the Appellant and 2 other persons were convicted of armed robbery and sentenced to death.

I agree with the reasoning and conclusion of my learned brother Honourable Justice C, N. Uwa JCA who prepared the lead Judgment to the extent that this appeal lacks merit and should be dismissed.

However I do not agree with the decision of my learned brother on the Consequences of the non-production at trial, of the exhibits by the Prosecution and for which reason the sentence of death imposed by the learned trial Judge was reduced to 21 years imprisonment.

In the lead Judgment, at page 25, my learned brother Uwa JCA held as follows:

“In my humble opinion the learned trial Judge was wrong or in error to have held that the failure of the Prosecution to tender the weapon used would not hinder the Prosecution from establishing the guilt of the appellant in the present circumstances of this case. The reliance of the learned trial Judge on the evidence of the PW1 and PW2 that the robbers were armed with guns, cutlasses and axe was not enough to find the Appellant guilty of armed robbery. see page 102 of the records. The Prosecution failed to produce any weapon, and also failed to give any explanation as to why they could not be produced. The Prosecution was silent as to whether the cutlasses and axe were recovered or not”.

I differ, with utmost respect to my learned brother, on this point. My humble opinion is that the learned trial Judge was right in holding that the failure of the Prosecution to tender the weapon used would not hinder the Prosecution from establishing the guilt of the Appellant.

Indeed the non-production of the exhibits did not in any way hinder the Prosecution from discharging the burden which lies with it to establish the guilt of the Appellants.

I do not agree with lead Judgment on the effect of none tendering of the gun- toy or real, cutlasses and axe used in the robbery.

It is no doubt abhorrent that the Police failed to tender the said exhibits. That failure could be for numerous reasons including connivance to reduce to a lesser offence the punishment for the perpetrators of this heinous crime of armed robbery. Contrary to the submission of the learned Counsel for the Appellant, which is upheld in the lead Judgment, the circumstance of the arrest of the Appellant are such that the non-tendering of the exhibits should not under mind the positive oral evidence of the victims. The PW1 and PW2 were confronted face to face by armed men who invaded, and disturbed their privacy and assaulted and intimidated them with the threat of death in their home where they should feel safest, secure and relaxed. Further, there was Exhibit ‘A’ – the Confessional Statement of the Appellant which gave a graphic account of the armed robbery activities of the Appellants. Six men were arrested in the dark of the night all travelling in one vehicle, they did not meet by coincidence, and it turned out that they knew each other and were indeed, partners in crime!

After denying that Exhibit ‘A’ was made voluntarily, the Appellant refrained from testifying at the trial within trial – Nafiu Rabiu v. The State (1980) 1 SC 1 a la carte!

As rightly stated in the lead Judgment, the Appellant declined to explain the injuries he sustained which could have given an insight to the circumstances under which his statement was recorded. At Page 46 of the printed records, the Judge held as follows:-

“Now, what is the effect of the accused person’s failure to give evidence? It is my view that failure of the accused person to give evidence is not fatal, since the law does not place any burden on him, he has no burden to discharge. The onus is on the prosecution to prove beyond reasonable doubt that the confessional statement made by an accused person was free and voluntary. See Emeka v. The State; Obidiozo v. The State (1987) 4 NWLR (Pt. 67). Consequently, I hold that failure of the accused person to adduced evidence in the trial within trial is not fatal to his case.”

The learned trial Judge did not therefore place any burden of proof on the Appellant. The Appellant is said to have taken flight from the Police-check point where the fleeing armed robbers were accosted but was eventually arrested.

The Prosecution always bears the burden of proof. Here is one clear case where there were victims who testified as to being harassed and intimidated in the security of their own home; which was forcefully broken into. The victims were not on the high way, some of the items forcefully collected from them at gun point were recovered from their armed assailants including the Appellant! What further evidence is required in the presence of a Confessional Statement and exhibits recovered from the Appellant?

It has been well demonstrated in the judgment of the trial court that the learned trial Judge was well equipped by positive oral, circumstantial and confessional evidence and was properly guided by good precedent in finding and holding that the Appellant is guilty of armed robbery. Part of the evidence put before the learned trial judge went thus;

The PW1, Bamidele Ogunbiyi testified as follows: (Pages 32-33 of the printed records):

“my name is Bamidele Ogunbiyi, I am a motor dealer, I live at Ogbonselu Quarters, Ayetoro. …………………………………………

On 15/4/03 at about 10.am. I was attacked by armed robbers in my house. They woke me up, pointed a gun at my ear and demanded for money, saying they would kill me. The armed robbers were about six, the accused persons were some of them. I told them I had no money in the house. They locked me up in the toilet, later they brought me out and told me that they could not find any money in my house and so they would kill me.

I pleaded with them, saying one of my workers, living four houses away from my house had some money with him. I was led there by the armed robbers holding guns, cutlass and axe. My worker’s name is Biodun Otunde. On getting there, I was instructed to tell him to come out with the money with him. I did and Biodun brought out the money N32,000.00 and CFA 50,000.00. I took the money from Biodun and handed it over to them. Then they led me back to my house. There they sat down, ordered me into the toilet and locked me up there.”

The Confessional Statement of the Appellant is re-produced at page 20 of the records for this appeal. In the said statement, the Appellant declared that he was a member of an armed robbery gang. He was the one who gave the instructions for the armed robbery exercise on that faithful day said he [on Pg 20-21]:

“Where I went to him we started made an arrangement of travelling to Ayetoro where we wanted to go and rob one Mr, Idowu and Michael who is our gang leader to travelled to Ayetoto. I also asked Ayo Obaleye to join the operations I and Tunde Adelani went to Ilaro to join Idowu Fatade. I have my own cutlass with me and Michael hold.

The toy gun and others carrying cutlasses and Axe. At about 1 a.m. we got to the house (where we) of Mr. Emperor where we use drum to climb the fence and jump into the compound. We entered his house through kitchen to his room. The kitchen door and the door leading to his room were not locked five of us myself and Idowu, Ayo, Michael and Tunde entered his bedroom. All of us and we asked him where he kept his money and he said he has no money with him, and we asked him if he failed to bring out the money we will kill him. And Michael took him to the toilet where he was locked up and we went to his wife room to collect (1) Wrist watch (2) Jewelries (3) Videos and some cloths we collected a rechargeable lamp in his sitting room. We also collected a Nokia hand set. We also led him to one room at gunpoint where we collect his video cassettes and the bags.”

Oseni v. The State (2012) 5 NWLR Pt. 1213 p.35 @ 382, is authority which says that a free direct positive and voluntary confessional statement is enough to ground a conviction.

At page 102 of this appeal his lordship found that:

“the victims of this robbery’ prosecution witnesses 1 and 2 testified that those who robbed them were armed with guns, cutlasses and axe. It seems to me that with the circumstances under which the accused persons were arrested the weapons used need not be produced.”

I would rather say the weapons used for the robbery need to be and should have been produced. However, their non-production does not in any way devalue the positive evidence of the victims who were divested of their possessions under the force of arms-real or toy! Further, some of the items so forcibly taken were recovered from the Appellant.

Oputa JSC had stated in clear terms, the high evidential value of direct circumstantial and Confessional evidence. In fact the erudite Jurist of the Apex court declared that direct oral evidence of witnesses who “saw ‘ and, heard” once believed, constitute proof beyond reasonable doubt. In this appeal, the learned trial Judge believed the direct oral evidence of the victims and found accordingly.

It was in the case of Adio v. The State (1985) 2 NWLR (Pt.24) where my Lord Oputa JSC declared that;

“A case can be proved by direct oral evidence. If the testimonies of the witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. The local case of Joseph Ogunbayode & Ors v. The Queen (1954) 14 W.A.C.A 458 (Otherwise known as the Apalara case) is an excellent example of proof beyond reasonable doubt based purely on inference from circumstantial evidence. It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt. But far and above these two methods of proof is the voluntary confession of an accused person himself. A free and voluntary confession of guilt by an accused person, if it is direct and positive and satisfactorily proved, should occupied the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction. And there cannot be such a conviction unless the trial court is satisfied that the case has been proved beyond reasonable doubt.”

(See also Emeka v. The State (2001) 6 SC P. 227 & Egbohonome v. The State (1993) 7 NWLR (Pt.306) at p.383Under the circumstances we operate presently Judicial Officers must be more circumspect and always use their 3rd eye to pierce through omissions of officials in the performance of their duties as such omissions or commissions could be orchestrated. Where the facts are clear cut, positive and compelling and fit squarely into the tested precedent as in this appeal the omissions of the Prosecution must not override the positive direct oral evidence of the victims of a crime. In the peculiar circumstances of this appeal there is the confessional statement of the Appellant which can ground a conviction (See per Oputa in Adio v. The State (supra) Oseni v The State (supra) see also Kopa v The State (1971) 1 All NLR 150) There is also the direct oral evidence of witnesses who were the direct victims which were further strengthened by the recovery from the Appellants of some of the items snatched from the victims at gun point with the threat of being killed What further evidence is required?

The decision to sentence the Appellant for armed robbery is therefore not pervasive and should not be tempered with. The learned trial Judge was well guided in the decision when his Lordship held (at pages 105-106 of the records) that;

“it seems clear, therefore that in the case of the 1st accused the prosecution relied on all the three ways to prove the charge against the 1st accused when the law is that one of the ways will suffice. I am satisfied with all the evidence adduced by the prosecution in proof of the charge against the 1st accused person. I accordingly hold that the prosecution have proved the charge of conspiracy and armed robbery against the 1st accused person”

Accordingly I hereby affirm the sentence as pronounced by the learned trial judge.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment pronounced by my learned brother, Chidi Nwaoma Uwa, J.C.A., that the court below should have convicted the appellant of the lesser offence of robbery simpliciter having regard to the evidence that a toy gun was used at the time of the robbery, (though not tendered) which is not a firearm or offensive weapon as defined in section 15 of the Robbery and Firearms (Special Provisions) Act (Cap.R11) Laws of the Federation, 2004, (the Act) under which the appellant was prosecuted by the respondent at the court below. See John Nwachukwu v. The State (1985) 3 NWLR (Pt.11) 218 at 224 – 226 and affirmed by the Supreme Court, sub-nom John Nwachukwu v. The State (1986) 2 NWLR (pt.25) 765.

There was also the sharply conflicting evidence of two of the respondent’s witnesses whether an automatic pistol was used in the robbery which cast doubt on the weapon used in the robbery see Okonji v. The State (1987) 1 NWLR (Pt.52) 659. The doubt would have been cleared if the weapon recovered was tendered in evidence. No reason was given by the respondent for withholding the recovered weapon. I give the appellant the benefit of the doubt.

Accordingly, I invoke section 20(2) of the Court of Appeal Act, 2004, to substitute conviction for the lesser offence of mere robbery under section 1(1) of the Act pursuant to which the appellant is sentenced to twenty-one (21) years imprisonment, to run from the date the appellant lost his liberty on account of te offence on 15-4-2003.

Appearances

O. O. Ogungbade Esq.For Appellant

AND

F. E. Bolarinwa Adebowale (Mrs) Principal State Counsel, Ministry of Justice, Ogun StateFor Respondent