OLASHEHU SALAU V. THE STATE
(2010)LCN/4128(CA)
In The Court of Appeal of Nigeria
On Monday, the 13th day of December, 2010
CA/IL/C.27/2010
RATIO
PROOF OF ARMED ROBBERY: WHAT ARE THE ELEMENTS THAT MUST BR PROVED TO SECURE A SECURE A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY
In proof of the elements constituting an offence such as armed robbery contrary to Section 1(2) (a) of the Robbery and Fire Arms (Special Provision) Act CAP 398 Laws of the Federation of Nigeria 2004, the elements are:- i. There was robbery ii. It was a robbery carried out with the use of offensive weapons. iii. The accused person participated in the robbery. SEE FATA OLAYINKA VS. STATE (2007) 2 NCC 505 and NWACHUKWU vs. STATE (1986) 2 NWLR (Pt.25) 765 @ 776. The above elements can be proved by direct evidence, circumstantial evidence and or by confessional evidence. See EMEKA VS. STATE (2002) 14 NWLR (pt. 734) 666 @ 683. PER SOTONYE DENTON-WEST, J.C.A.
CONFESSIONAL STATEMENT OF AN ACCUSED: NATURE OF A CONFESSIONAL STATEMENT THAT WILL BE RELEVANT AND ADMISSIBLE FOR THE CONVICTION OF AN ACCUSED PERSON; TESTS THAT A CONFESSIONAL STATEMENT MUST BE SUBJECTED TO, TO TEST THE TRUTHFULNESS AGAINST OTHER AVAILABLE EVIDENCE
It is however, trite that for a confession to be relevant and therefore admissible for conviction of an accused person, it must be direct, positive and unequivocal in the sense that it points irresistibly to the guilt of the accused or leave no reasonable doubt in the mind of the Court or reasonable persons that the accused committed the offence. See MUSTAPHA MOHAMMED VS. STATE (2007) 2 NCCS 574. Though an accused can be convicted solely on his confessional statement even without corroboration, it is desirable to seek for corroborative evidence outside the confessional statement. However, such confessional statement must be subjected to baptism of fire to test the truthfulness against other available evidence in order to determine whether: i. There is anything outside the confession to show that it is true. ii. It is corroborated iii. The statements made in it are in fact true as far as they can be tested. iv. The prisoner had the opportunity to commit the offence. v. The confession is possible. vi. It is consistent with other facts which have been ascertained and proved. See ONOCHIE VS. THE REPUBLIC (1965) NMLR 107 and RE OSAKWE (1994) 2NWLR (pt. 326) 273. PER SOTONYE DENTON-WEST, J.C.A.
CONFESSIONAL STATEMENT OF AN ACCUSED: WHETHER THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON CAN BE USED TO CORROBORATE AN INCIDENT
Putting the record straight, the alleged confessional statement of an accused person cannot be used to corroborate an incident. See Folorunsho Kazeem v. The State and Udosen v. State (2007) NCC 409. PER SOTONYE DENTON-WEST, J.C.A.
IDENTIFICATION OF AN ACCUSED: FACTORS THE COURT MUST TAKE INTO CONSIDERATION IN ENSURING THE CORRECTNESS OF THE IDENTIFICATION OF AN ACCUSED WHICH DEFENCE ALLEGES TO BE MISTAKEN
On the mode of identification of the appellant, I will say it is very ridiculous for a victim who claimed that he had never seen the appellant before to turn round and say he can recognise and even identify him when he had already given evidence that there was no street light. At this stage, I will not be hesitant to say that evidence are shared up to ensure the appellant was convicted. See ADEREMI (RTD) JSC in NMM VS STATE (2007) 2 NCC 598 @ 611 opined thus:- “Generally, in criminal cases’ the crucial issue is not ordinarily, whether or not the offence was committed, More often than not, the controversy always over the identification of the person or persons alleged as the actual perpetrators of the offence charged. It follows therefore, that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. To ascribe any values to the evidence of an eye witness identification of a criminal, the Courts in guarding against cases of mistaken identify must meticulously consider the following issues.” (1) Circumstances in which the eye witness saw the suspect. (2) The length of time the witness saw the suspect or defendant. ” (3) The listing conditions. (4) The opportunity of close observation. (5) The previous contact between the two parties. Our Courts have been warned to warn themselves, and to be very cautious on correctness of the identification of an accused which defence alleges to be mistaken. See the English Case of R V TURNBULL & ORS. (1976) 3 A.E. 547 AND IKEMSON VS. STATE (1989) 6sc (PT.5) 114, The above guidelines should constitute what the judge must sum up for the conclusion to be reached. ESO JSC held inter-alia in FELIX NWOSU vs. STATE (1986) 4 NWLR 342 @ 359 thus: “A Judgment sending a man to the gallows must be seen to be the product of logical thinking, based upon admissible evidence, which the facts lending to conviction are clearly found, and the legal deduction there from, carefully made. It can not he allowed to stand if founded upon scraggy reasoning or perfunctory performance. It is so in all cases, and more so, in criminal case; and particularly in capital offence.” See also GODWIN IGBEBELE II VS. STATE (2007) 2 NCC 125 @ 136 and DANIELS VS. THE STATE (1991) 8 NWLR (Pt.212) 713 @ 732. PER SOTONYE DENTON-WEST, J.C.A.
CALLING OF WITNESSES: WITNESSES THE PROSECUTION HAS A DUTY TO CALL
On another salient point of whether the Prosecution in criminal cases is bound to call a certain number of witnesses. It is trite that the Prosecution is not bound to call every witness to testify. All that the law requires are testimonies of witnesses who are necessary to prove its case beyond reasonable doubt. See OKPULAR VS. STATE (1990) 7 NWLR (pt.164). However, the Prosecution is bound to call all conceivable witnesses, and vital witnesses, in order to succeed in his case. See STATE V. AZEEZ (2008) 4 SC, 188 and STATE v. NNOLIM (1994) 5 NWLR (PT.345) 394 @ 406. PER SOTONYE DENTON-WEST, J.C.A.
JUSTICES
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
OLASHEHU SALAU Appellant(s)
AND
THE STATE Respondent(s)
SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Hon. Justice I. B. Garuba, delivered on 14/10/2008, sentencing the Accused/Applicant to six months imprisonment for conspiracy to commit an offence, contrary to Section 97 of the Penal Code and Death by hanging for offence of Armed Robbery, contrary to Section 1(2) of the Armed Robbery and Firearms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.
First Charge:-
That you, OLASHEHU SALAWU and five others at large on or about 08/05/2007, at 2 Adeta Round-About in Ilorin, Kwara State within the Jurisdiction of this Honourable Court’ conspired to commit a criminal offence, to wit Rob one Mr. Suleman Alafara while armed with dangerous weapon at Adeta Roundabout, Ilorin, and you thereby committed an offence contrary to Section 97 of the Penal Code.
Second Charge
That you, OLASHEHU SALAWU and five others at large on or about 08/05/2007 at Adeta Round-about in Ilorin Kwara State within the jurisdiction of this Honourable Court while armed with dangerous weapon did Rob one Mr. SULEMAN ALAFARA of his car Honda Bullet with dealer number KWD K12, AC NURU MOTORS, and you thereby committed an offence contrary to Section – 1(2) (a) of Robbery and Fire Arms (Special Provision) ACT CAP R11 LAWS OF THE FEDERATION OF NIGERIA 2004.
As earlier on stated, the appellant was convicted for the two charges. It will be apt at this stage to survey the proceedings that culminated in the said conviction and sentence.
The two charges were read to the appellant and interpreted to him in Yoruba, and he pleaded not guilty to the two count witnesses and tendered five exhibits which were admitted as exhibits 1, 2, 3, 3a, and 4. PW1 was the Exhibit keeper. His only involvement was that he kept the Exhibits – i.e. the release bond and a Nokia set, and he also tendered same. But under cross examination, he could not remember anything about the car.
PW2 was the complainant. According to him, he was attacked and robbed by the assailants, and he was sandwiched among five of them, in his car, but he miraculously escaped and he thereafter saw a Nokia phone which he believes belongs to the assailants.
He said the robbers were armed with clubs, axe, and that he was hit with the axe on his waist by one of the assailants more than four times. That when the appellant was arrested from Lagos and brought to Ilorin, the appellant identified him as the person from whom the vehicle was snatched. The car in question could not be described by the witness.
Under cross-examination, he claimed that there was no street light where he was robbed, and that he had never seen appellant before except when the appellant identified him at state C.I.D. He admitted that though he was struck with an axe on his hand more than four times, he received treatment from a medical dispenser.
PW3 Sanni Taiwo an investigator revealed that he induced a call through the phone that was brought to him by PW.2, and one Muritala, whom he claimed was the brother of the appellant assisted in the arrest of the appellant.
PW4 a police investigating officer’ told the Lower Court that she was part of the team that went to Lagos on 17/05/2007 to effect the arrest of the appellant through the Nokia handset that was said to have been recovered from the scene. The statement of the appellant was tendered and admitted as Exhibit 4 through this witness. That five people were arrested, but through the assistance of Muritala, the appellant was brought to Ilorin. She admitted that the name of the appellant or Muritala was not the phone. Upon the close of the prosecution case, the appellant entered his defence. He (the appellant) said he has no brother at all, and he was the only child of his family. That he was arrested in connection with one Shittu Abdullahi, and that was contained in the First Information Report as filed at the Magistrate Court, that he was later taken to the IGP, but he was ordered to be released since he was not culpable, and he made above five different statements and thumb printed all. That when he was brought back from Abuja, five people that dressed like Alhaji, and he was asked to identify from whom he robbed. That the PW2 never identified him as one of the robbers that robbed him. He further stated that his phone never got missing as same was with him when he was arrested in Lagos. The two parties filed their address, and later the appellant was convicted. As shown earlier, the appellant was dissatisfied with the judgment of the Lower Court. He filed four grounds of Appeal and formulated two issues for determination. On its part, the state adopted the two issues as formulated by the appellant.
The issues are:
(1) Whether in the light of evidence adduced at the trial Cout, the learned Trial Judge was right to have held that the Prosecution proved the offence of Armed Robbery against the appellant beyond reasonable doubt.
(2) Whether the learned trial Judge was right when he convicted the appellant for the offence of conspiracy to commit an offence.
Issue One:
Whether the learned trial judge was right when he held that the prosecution proved the offence of Armed Robbery against the appellant beyond reasonable doubt. When the appeal came up for hearing on the 10th day of November, 2010, Counsel to the appellant – Olalekan Yusuf announced appearance for the appellant, whilst the respondent was represented by J. A. Munini Esq., Director of Public Prosecution, Kwara State. Olalekan Yusuf adopted the appellant’s brief of argument dated 12th day of April, 2010, and filed same date, and prayed the Court to allow the appeal’
J. A. Mumini Esq., too adopted his brief dated 12/05/2010, and filed same date, urged this Court to dismiss the appeal.
The appellant’s Counsel Olalekan Yusuf Esq. argued that in all criminal cases, the respondent has the onerous responsibility to prove the offence preferred against the accused person beyond reasonable doubt, and that if there is any doubt, it will be resolved in favour of the accused person. He referred this Court to the cases of ODENEYE vs. STATE (2001) 2 NWLR (part 697) 311 @ 328, OKPULAR VS. STATE (1990) 7 NWLR (part 164) 581, and Section 138 (1) of the Evidence Act, TANKO vs. STATE (2008) 16 NWLR (part 1114) 597 @ 632, HASSAN vs. STATE (2001) 6 NWLR (part 709) to buttress his argument.
He argued further that in discharging the burden of proof the Prosecution is required to produce plausible and credible evidence. The proof by the ‘Prosecution must be of such a nature as to render the presumption of innocence of the accused person useless, and pin him down to the offence. He referred this Court to the cases of USUFU VS. STATE (2007) 1 NWLR (PART 1020) 94 @ 112, ALABI vs. STATE (1993) 7 NWLR (part 307) 51 SOLOLA VS. STATE (2005) 11 NWLR (Part 937) 460.
In his elaboration over this issues, appellant’s Counsel drew the Court’s attention to the fact that the Prosecution ought to prove these three essential ingredients of Armed Robbery – i.e.
i. That there was Robbery
ii. That the Robbery was an Armed Robbery
iii. That the accused was one of those who robbed.
He referred this Court to the cases of ANI VS. STATE (2003) 11 NWLR (part 830) 142 @ 161, BELLO VS. THE STATE (2007) 70 NWLR (part 1043) 554 @ 566 – 567, and NWACHUKWU vs. STATE (1985) 1 NWLR (part 11)) 218. He contended that the three ingredients must be proved independently to co-exist before an accused can be adjudged guilty, failure to do this, the accused will be discharged and acquitted.
He then submitted that the Prosecution did not establish beyond reasonable doubt that there was a Robbery, nor did it establish that any weapon or arms was used, nor showed that the appellant partook in the Robbery. That all the Prosecution was able to offer as evidence was a retracted statement of the appellant and a bunch of circumstantial evidence which was neither cogent, complete, unequivocal, compelling nor leads to the irresistible conclusion that the appellant took part in any Robbery. He concluded by submitting that the totality of the evidence put forward by the Prosecution showed that there was no Robbery of any kind.
He thereafter argued this issue under three sub-heading:
1. That there was Robbery.
The appellant counsel contended that PW.2, whose Honda Bullet car was snatched by a six person robbery which he claimed the appellant was one of them could not give detailed description of the car that was allegedly robbed. That the witness alleged that the car was not registered, and that the colour, engine number of the car could not be given under Oath. When he was asked to produce the car, he said it has been sold. Counsel for the Appellant submitted that, the offence of Armed Robbery necessarily connotes that an identifiable object or thing has been robbed from the owner with the use of force.
That failure of the Prosecution to prove that an item was stolen tacitly connotes that there was no Robbery.
ii. That the Robbery was Armed Robbery:-
He argued that since the Prosecution could not identify any item as having being stolen, that means there was no robbery. He argued further that no weapon was tendered. But that the respondent gave evidence under Oath that his assailants were armed with clubs and axe used on his hand four times, he only visited a local medical dispenser.
On another line, he argued that while the respondent claimed that axe and clubs were used on him. the alleged appellant confessional statement mentioned three guns for the operation. That the trial Judge should have treated that piece of evidence with caution.
iii. That the accused was one of those who robbed
The appellants counsel argued that the Prosecution witness disclosed that the appellant was not apprehended on the scene of crime in Ilorin, but was arrested in Lagos, 9 clear days after the crime was alleged to have been committed. He then contended that the Prosecution must irrevocably link the appellant with the offence by way of a positive and convincing identification. He cited the cases of ARCHIBONG VS. STATE (2006) 14 NWLR (part 1600) 349 @ 371 and IBE VS. STATE (1992) 5 NWLR (Part 244) 642.
(a) Where the victim’ due to time and circumstances might not have seen accused before, and his first acquaintance with him is during the commission of the offence.
(b) Where the victim was confronted by the offender for a very short time, and,
(c) Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.
He referred this Court to the case of IKEMSON vs. STATE. He argued further that a proper identification parade ought, to take info consideration the followings:-
(a) The description of the accused person given to the police shortly after the commission of the offence.
(b) The opportunity the victim had for observing the accused.
(c) The features of the accused noted by the victim and communicated to the police which marks him out from other person.
He relied on the case of IKEMSON v. STATE (1989) NWLR (Pt.110).
He referred this Court to the definition of identification parade as defined in Black Law Dictionary, 6th Edition.
He further contended that the mode of identification adopted in this case is alien to identification parade procedure. That it was the appellant that was asked to identify the victim and not the other way round. That the mode of identification is a gross violation of appellant’s constitutionally guaranteed right of appellants presumption of innocence. Thus meaning the appellant was presumed guilty even before the trial.
That the Prosecution in other to link the appellant with the offence said a Nokia phone belonging to the accused was recovered from the scene of crime, and that one Muritala alleged to be the brother of the appellant was called on the phone whose information led to the arrest of the appellant is suspicious. The mysterious Muritala was never called to give evidence, since it was his evidence that aided the police to arrest the appellant. That he “Muritala’s surname Address, Occupation and other detailed Information were never volunteered.
He argued that though a prosecutor is not compelled to call all his witnesses or compel a specific witness to give evidence, the prosecution must not fail to call a material witness, failure to do so will be fatal to the prosecution case because it will raise serious doubt which should be resolved in favour of the accused. He referred this court to the case of USUFU Vs. STATE supra. The learned counsel submit that the trial judge ought to have held that the non calling of the said Muritala couple with bastardization of the identification parade is fatal to the case of the prosecution.
Appellant counsel contended that evidence reveal that the appellant was arrested in connection with the shooting of one SHITTU ABDULLAHI, General ADANGBA son as buttressed in the First Information Report filed at the Magistrate court but that it was when they met a brick wall that the offence of Criminal Conspiracy and Armed Robbery was framed against the Appellant.
He stated further that to shore up evidence to debunk the appellant’s evidence that none of the witnesses that gave evidence on 17/05/2007, she and her team went to Lagos and came back from Lagos that same day in the morning when each of the trip span about 4-5 hours coupled with the fact that ridiculous that under cross examination, PW.4 admitted that the appellant was brought to her. He stated further that the so called confessional statement tendered through PW4 was in the very least to suit the whims and caprice of the over zealous police officer.
Appellant’s counsel then submitted that in criminal case, where the evidence adduced by the prosecution is inadequate to implicate an accused person, the accused should be given the benefit of the doubt. He referred this court to the cases of UBANI vs. STATE (2003) 18 NWLR (Pt.851) 224 AT 250 AND BAKARE VS. STATE (1987) 1 NWLR (Pt.52) 579.
He concluded that the prosecution failed to bring the accused within the confine of the particulars of the offence citing AMADI v. STATE (1993) 8 NWLR (Pt.314) 644 at 44 and he prayed this court to resolve this issue in his favour.
The learned Director of Public Prosecution, J. A. Mumini on issue one, aligned himself with the appellant on the position of law on the burden of proof imposed on the prosecution, but with a caveat to that burden that a prosecution is not obliged to prove its case beyond every shadow of doubt. He referred this court to the case of AWOPEJO vs. THE STATE (2000) 6 NWLR (PT.659) at 22. The learned DPP submitted that what the prosecution is expected to do is prove the offence charged with certainty of criminal law, that certainty is that an offence has been committed and that no other person but the accused, on the evidence before the court committed the offence. That once the two vital ingredients are conclusively established, then the prosecution is said to have proved the case beyond reasonable doubt. He cited the case of MUFUTAU BAKARE v. STATE (1987) 3 SC 1 at 5 to buttress his submission.
Likewise the DPP agreed with the ingredients of Armed Robbery to be proved as highlighted by the appellant. And that the learned trial judge rightly came to conclusion when it held that the prosecution has proved his case beyond reasonable doubt.
On another point, the DPP countered the appellant’s argument in the non production of the car which was the subject matter of the Robbery operation was sufficient to create doubt in the mind of the court. The respondent counsel argued that PW1 an Exhibit keeper attached to the State Criminal Investigation department tendered before the court, a bond releasing the said car, a Honda Bullet car marked as exhibit 1.
He thereafter submitted that the issue of tendering it does not arise as the accused was not in any way misled nor was there controversy that the appellant was robbed. He thereafter submitted that there was no way that the-tendering or non tendering of that car could har4e changed the facts before the court thus the DPP urged us on this point to nullify the argument.
On the confessional statement the learned counsel argued that the confessional statement of accused (exhibit 4) stated unequivocally the brand of the car as Honda Bullet, that this reinforces the fact that no doubt was occasioned by the mere fact that the car which was the robbed item was not tendered. On the point of improper identification, the learned DPP argued that the issue of identification parade was superfluous. He stated that the accused statement was a confessional statement which was not challenged before the trial court as exhibit 4. That in exhibit 4 the appellant himself admitted committing the crime along with other members of his gang and how his handset fell during the robbery operation when the victim struggled with the robbery gang.
The DPP submitted that, this piece of evidence is sufficient to ground a conviction as admission of crime remains the best evidence. He cited the case of NWACHUKWU V. THE STATE (2002) 7sc pt.1 124 at 140-141. Moreover he stated that the PW3 claimed that he identified the accused at the police station and that the accused too identified him. Thus the issue of improper identification does not arise.
On the ground that one Muritala, the younger brother of the appellant with whose phone number the appellant was arrested, constituting any serious damage to the case of the prosecution, the DPP submitted that the prosecution is not bound to call every witness present at the locus criminals. That the prosecution is only to call relevant evidence in proof of its case. He cited the case of IZIREN v. THE STATE (1995) 5 NWLR (Pt.420) 385 at 390. The DPP submitted further that the calling of a witness or the refusal to call same in criminal trial of this nature must be premised on whether or not the calling will be useful in sustaining an essential ingredients of the offence charged or not. That in the present case the said Muritala has no purpose to serve in establishing the offence for which the appellant was charged and he prayed the court to so hold.
‘On the content of Exhibit 5 which is an FIR and which partly, states that the appellant was arraigned at the lower court in respect of the attack on the son of Retired General Abdullahi Adangba on 12/05/2007. The DPP argued that it was an earlier event to the present crime. That it is common knowledge that when a criminal is arrested, the police would in the course of investigation inquire into whether similar offences have been committed in the past by the same offender and that was what happened in this case coupled with the fact that the prosecution witnesses were never cross examined on this that the appellant waited until when he was giving defence making it improper procedure in law.
The DPP submitted that the refusal of the appellant to cross examine the prosecution’s witnesses on this issue, this argument goes to no issue. He then submitted that the evidence adduced by the prosecution in the case is cogent, compelling and direct as to leave no one in doubt to the guilt of the appellant and he urged the Court to so hold.
In deciding issue 1, lots of salient points will be considered to enable us come to a conclusion. The two parties agreed that in criminal cases, the prosecution must prove its case beyond reasonable doubt and most especially proof the ingredient of a particular offence, it is only after this has been done that the prosecution would be said to have discharged the burden place on it by law. See NWACHUKWU VS. STATE (2007) 2 NCC 107.
In proof of the elements constituting an offence such as armed robbery contrary to Section 1(2) (a) of the Robbery and Fire Arms (Special Provision) Act CAP 398 Laws of the Federation of Nigeria 2004, the elements are:-
i. There was robbery
ii. It was a robbery carried out with the use of offensive weapons.
iii. The accused person participated in the robbery.
SEE FATA OLAYINKA VS. STATE (2007) 2 NCC 505 and NWACHUKWU vs. STATE (1986) 2 NWLR (Pt.25) 765 @ 776.
The above elements can be proved by direct evidence, circumstantial evidence and or by confessional evidence. See EMEKA VS. STATE (2002) 14 NWLR (pt. 734) 666 @ 683. I am in tandem with the DPP that a confessional statement of crime is admissible against the person. see Section 27(1) of the Evidence Act cap. 112 Laws of the Federation 2004, defines a confession as
“an admission made anytime by a person charged with a crime; stating or suggesting the Inference that he committed that crime Section 27(2) states that.
“Confession if voluntary are deemed to be relevant facts as against the person who make them.”
It is however, trite that for a confession to be relevant and therefore admissible for conviction of an accused person, it must be direct, positive and unequivocal in the sense that it points irresistibly to the guilt of the accused or leave no reasonable doubt in the mind of the Court or reasonable persons that the accused committed the offence. See MUSTAPHA MOHAMMED VS. STATE (2007) 2 NCCS 574.
Though an accused can be convicted solely on his confessional statement even without corroboration, it is desirable to seek for corroborative evidence outside the confessional statement. However, such confessional statement must be subjected to baptism of fire to test the truthfulness against other available evidence in order to determine whether:
i. There is anything outside the confession to show that it is true.
ii. It is corroborated
iii. The statements made in it are in fact true as far as they can be tested.
iv. The prisoner had the opportunity to commit the offence.
v. The confession is possible.
vi. It is consistent with other facts which have been ascertained and proved.
See ONOCHIE VS. THE REPUBLIC (1965) NMLR 107 and RE OSAKWE (1994) 2NWLR (pt. 326) 273.
The only alleged corroborative evidence to support statement of the accused would have been the alleged stolen car. But it calls for serious caution, because none of the prosecution witness could give a detailed description or analysis of a stolen item. The colour, chassis and engine number is not known, even the alleged dealers number could not be ascertained. However, in the DPP’s argument, he said the statement of the accused was never objected, and that the contest in it was corroborate the fact that a car was stolen.
Putting the record straight, the alleged confessional statement of an accused person cannot be used to corroborate an incident. See Folorunsho Kazeem v. The State and Udosen v. State (2007) NCC 409. Contrary to the respondent’s Counsel argument above the appellant’s Counsel never objected to the voluntariness of the Statement at the trial court, this wrong on pages 44-61, the proceedings of the trial within trial was raised, and the appellant gave a graphic narration of how the statement was obtained from him. But he was over-ruled by the trial Court, that what hen did was a retraction and to test the voluntariness of the statement.
It is unfortunate that the trial Court refused to rule on the trial within trial, but rather claimed that the appellant retracted his statement. Though, the appellant never argued on this point, but just by the way. A trial judge is expected to rule on trial within trial.
In correcting the respondent’s claim that the statement was not objected to, this is false and misinforming in all its ramification. The appellant objected to it at the right time, but was never considered.
In view of the above, and the fact that when the appellant gave his defence, he retracted his statement. The trial court should have invoked the six baptismal fire test to test or verify the truthfulness of the statement. See Egbehanora v. The State (1993) 7 NWLR (Pt.306) 382.
But, this was not done. In effect Exhibit 5, which is the appellant extra judicial statement, cannot be used to corroborate any other evidence. On the argument of the Counsel, while we have it in the extra judicial statement that guns were used, the victim himself gave evidence under Oaths that he was attacked by clubs and axe, not guns. At this stage, I would be right to say that something fundamental is wrong, more so, when the victim alleged under Oath that the axe was used to strike him more than four times, however, he neither stitched the hand nor visited a standard hospital. At this stage, will any Court, tribunal or person believe that a human being who was struck by an axe four times, would not require serious medical attention such as stitching to stop profuse bleeding?
To the point at hand, what are we to believe, the guns in the Exhibit or the statement of the victim under Oath, (which was never tested). This is a great contradiction, and is fundamentally fatal to the case of the Prosecution.
On the mode of identification of the appellant, I will say it is very ridiculous for a victim who claimed that he had never seen the appellant before to turn round and say he can recognise and even identify him when he had already given evidence that there was no street light. At this stage, I will not be hesitant to say that evidence are shared up to ensure the appellant was convicted. See ADEREMI (RTD) JSC in NMM VS STATE (2007) 2 NCC 598 @ 611 opined thus:-
“Generally, in criminal cases’ the crucial issue is not ordinarily, whether or not the offence was committed, More often than not, the controversy always over the identification of the person or persons alleged as the actual perpetrators of the offence charged. It follows therefore, that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. To ascribe any values to the evidence of an eye witness identification of a criminal, the Courts in guarding against cases of mistaken identify must meticulously consider the following issues.”
(1) Circumstances in which the eye witness saw the suspect.
(2) The length of time the witness saw the suspect or defendant. ”
(3) The listing conditions.
(4) The opportunity of close observation.
(5) The previous contact between the two parties.
Our Courts have been warned to warn themselves, and to be very cautious on correctness of the identification of an accused which defence alleges to be mistaken. See the English Case of R V TURNBULL & ORS. (1976) 3 A.E. 547 AND IKEMSON VS. STATE (1989) 6sc (PT.5) 114, The above guidelines should constitute what the judge must sum up for the conclusion to be reached. ESO JSC held inter-alia in FELIX NWOSU vs. STATE (1986) 4 NWLR 342 @ 359 thus:
“A Judgment sending a man to the gallows must be seen to be the product of logical thinking, based upon admissible evidence, which the facts lending to conviction are clearly found, and the legal deduction there from, carefully made. It can not he allowed to stand if founded upon scraggy reasoning or perfunctory performance. It is so in all cases, and more so, in criminal case; and particularly in capital offence.”
See also GODWIN IGBEBELE II VS. STATE (2007) 2 NCC 125 @ 136 and DANIELS VS. THE STATE (1991) 8 NWLR (Pt.212) 713 @ 732.This case is a bit unique, this is a case where the accused is asked to identify his victim. This is against the accused constitutional right to remain silent. Another constitutional right breached is that at the police station, the presumption of innocence against the accused is now changed to inquisitorial system rather than the acquisitorial system we practice in Nigeria. At this point, the trial judge should have found his footing rather than pushed into the jungle of absurdity and confusion.
On another salient point of whether the Prosecution in criminal cases is bound to call a certain number of witnesses. It is trite that the Prosecution is not bound to call every witness to testify. All that the law requires are testimonies of witnesses who are necessary to prove its case beyond reasonable doubt. See OKPULAR VS. STATE (1990) 7 NWLR (pt.164). However, the Prosecution is bound to call all conceivable witnesses, and vital witnesses, in order to succeed in his case. See STATE V. AZEEZ (2008) 4 SC, 188 and STATE v. NNOLIM (1994) 5 NWLR (PT.345) 394 @ 406.
The life wire or the gamut of the ProsecutIon case is Muritala, whom the PW3 said she led them to the accused. Exhibit 5, the Nokia phone does not have the name of the accused on it, and he denied being the owner of the phone. Failure of the Prosecution to call Muritala is very fatal to their case. That singular link would have unbolted most of the knotty issues. For whatever reason, the failure to call the said Muritala in my view is fatal to the Prosecution’s case.
In the appellant’s defence on page 64 of the record he said, “I don’t have any brother, be it elder or younger brother”. And this piece of evidence was never contradicted by the Defence contrary to the Prosecution claim that it was one Muritala, the brother of the accused that led them to him.
The learned trial Judge failed to consider the defence raised by the accused more especially that he was arrested and brought to Ilorin for the shooting of one Mohammed, and that the I.G. had since ordered that he be released. That, however the police and the trial Court refused to release him. That the officers who should have shown more care and caution by not mixing real information with speculation were allegedly overzealous and may have conjured evidence. All these issues are what “Muritala” would have come to cure.
Unfortunately, the trial court did not advert his mind to the salient point and defence raised by the defence nor allowed the retracted of extra judicial statement of the appellant be tested by baptism of determining the truth of the statement, rather, he opined for a cavalier approach to the protestation of the accused person in the manner, he was framed up. What is even more amazing, is that the Prosecution did not put their house in order nor utilize all avenue open to them to cross examine the appellant and dismantle his claim of police brutality to the dignity of his person.
The court was clearly in error, therefore, when it preferred to view the accused person as an untruthful person. Unfortunately, there was no evidence before the Court that supports this inference. Just by way of digression’ the victim said five assailants with clubs attacked him however in exhibit 3, It stated that there were three assailants. In all, I hold that in the circumstances of this case, the Lower Court was not right in convicting the accused person on the strength of the Prosecution’s evidence when there is a lot of lacuna.
The issue one is hereby resolved in favour of the appellant against the respondent that their case against the appellant was not proved beyond reasonable doubt as required by law.
Issue Two:
Whether the learned trial judge was right when he convicted the appellant for the offence of conspiracy to commit an offence.
At this stage, this issue will become academic, since the main issue was been resolved, however, it shall be considered on the merit.
Olalekan Yusuf Esq., Learned Counsel to the appellant argued that a charge of Conspiracy purports an agreement formed by two or more minds with the intention to do an agreed, but unlawful act. That before an accused is found guilty of the offence, it must show that his actus reus is referable to common criminal design, and it is the prosecution primary duty to lead evidence to establish the existence of the conspiracy. He referred this Court to the Cases of AMACHREE VS. NIGERIAN ARMY (2003) 3 NWLR (PT.807) 281; Nwosu Vs. State (2004) 19 NWLR (pt.897) 466, He then added that the following must be proved.
i. that there was an agreement or confederacy between the convict and others to commit the offence of Armed Robbery.
ii. that in furtherance of the agreement or confederacy, the part in the commission of the robbery or series of robberies.
iii. that the robbery or each robbery was an armed robbery.
See USUFU Vs. STATE (supra).
He further argued that the Prosecution failed to show by evidence that the appellant actus reus is referable to any common criminal design; neither did it lead any independent evidence to prove the ingredients of the offence of Conspiracy mentioned above.
He thereafter submitted that, the evidence led in proving the substantive offence must not only be cogent, convincing, compelling and direct, it must also be positively ascertained that the accused is irrevocably tied with the commission of the substantive offence. He further added that the evidence adduced by the Prosecution to prove the substantive offence of armed robbery at the Lower Court fell below the standard set by the Law. He finally anchored this submission that where the Prosecution relies on the commission of the substantive offence by an accused person and in other to infer conspiracy and the accused person is convicted for the substantive offence, the conviction of conspiracy will fail, if conviction for the substantive offence is set aside.
He referred this Court to the of AMACREE vs. NIGERIAN ARMY (SUPRA), USUFU V. STATE (SUPRA) AND NJAVENS VS. NJAVENS. He finally urges this court to resolve this issue in favour of the appellant.
The learned DPP, on his own argued that the Prosecution proved the offence of conspiracy, and the Lower Court was right to have convicted the accused for the offence. He urged this Court to rely of the confessional statement, and it means the confessional statement stands – i.e. Exhibit 1
He thereafter submits that Conspiracy as an offence can be a matter of inference, and that conspirators even in some cases need not meet to agree that the Court can infer from the circumstances of the case that there is conspiracy, he added the case of ODUNEYE vs. THE STATE (2001) 1 SC 1 AT 15 to buttress his position, and that the statement of the accused was used to corroborate the evidence of the victim and he prayed this Court to resolve this issue in favour of the respondent.
Shun of all embellishments, it is trite that the extra judicial statement obtained from an accused person will not be used to corroborate the evidence of the Prosecution.
Consequently the prosecution’s stance that the court should infer conspiracy in this case does not hold water, in view of their reliance on the case of ODUNEYE VS THE STATE (2001) 1 S.C @ 15. I say so because the learned Justice of Supreme Court who delivered the lead, judgment in that case did not fail to point out the intricacies and difficulties that could be envisaged in securing a conviction in conspiracy when he observed in the said case thus “A conviction for conspiracy is not without its inherent difficulties. First the offence of conspiracy is not defined under the criminal or Penal Code. But perhaps, more importantly, a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is “evidence not of the fact in issue but of other facts from which the fact in issue can be inferred; See F. Nwadialo, Modern Nigerian Law of Evidence., (Ethiope Publishing Corporation) 1981, P.3, Aguda, in his Law of Evidence in Nigeria 2nd ed., P.14 has put it more tersely as “evidence offered to the existence of a fact in issue”. Evidence in this connection must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused.
How then does one identify the offence of conspiracy? Willes, J. in the House of Lords’ decision offered the generally accepted definition of the offence of conspiracy in Mulcahy v. R (1868) 3 H.L. at 317 where he stated as follows:-
“A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do all unlawful act, or to do a lawful act, by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.” (The emphasis is mine).
See also Patrick Njovens & Ors. v. The State (1973) 5 S.C. 17; Deboh & Anor v. The State (1977) 5 S.C. 197 and Erim v. State (1994) 5 NWLR (Pt.346) 522. What is being chorused by these authorities, simply put, is that for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally, since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose.”
See FOLORUNSHO KAZEEM VS. STATE (supra). Without being immodest and to avoid repetition but for clarity, the appellant in the extra judicial statement that was retracted said, he is in a gang of four with guns, while the victim under oath said it was a gang of five with clubs and axe. The salient question is what is corroborating what.
The fact that the armed robbery charge cannot be proved against the appellant by the prosecution in the first issue which is resolved in favour of the appellant and the series of Acts, and Omissions connected to the armed robbery cannot be grounded. It is therefore impossible for the Act of conspiracy to succeed simpliciter. In ENAHORO VS THE STATE (1969) NSCC 98, IDIGBE JSC bring the issue to the fore when he commented thus “Those cases simply decide that where the evidence sought to be relied upon in support of a count charging a substantive offence is the same as that to be given in support of a court charging a conspiracy to commit the same offence, it is undesirable to include a charge of conspiracy in the same Information with another charge for the substantive offence since such a course might, (1) produce the result of complicating and lengthening the trial unduly, and (2) bring intolerable strain on both the court and the jury, and (3) lead to a situation where evidence otherwise properly admissible in proof of the conspiracy charge may be improperly applied in proof of the charge for the substantive offence (See also R. v. Dawson and Wenlock (1960) 1 W.L.R. 163 at 170). For the reasons given above these grounds of appeal fail.”
Since the issue one is resolved in favour of the appellant, this issue two that is a subsidiary one will also go in favour of the appellant.
This court frowns seriously at the menace that armed robbery has created in our society. Though it may seen that the accused/appellant is walking away scot free having succeeded in this appeal due to the prosecution’s inability to prove one or more ingredient(s) of the offence.
Armed robbery is one of the ills our society, is grappling with today. The insecurity created by this violent and threatening behaviour reduced our citizens to prisons in their homes and vehicles.
This court wishes to sound a strong note of warning that it takes a serious view to armed robbery and will not hesitate to ensure that justice is meted out to any would be armed robber that would come before this court.
Under the Nigerian Criminal Jurisprudence, before an accused can be set to the gallows, there must not be any reasonable doubt in the mind of the court, and all links should be connected, circumstantial evidence; in order to be sufficient to support conviction, it must be completely unequivocal, compelling and lead to the irresistible conclusion that it was the accused person, and no one else committed the offence he was charged with.
I find that there is merit in this appeal and I hold that the conviction by the Lower Court of the appellant is null and void, and therefore, the death penalty has no effect and significance on the appellant. I accordingly set aside the conviction of the appellant by the Lower Court, and order that the appellant be released from custody forthwith.
TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Denton-West JCA setting aside the decision of the lower court in this matter.
I agree with my Lordship that there is merit in this appeal and same should be allowed. For support and emphasis. I add a few words.
It is now settled beyond dispute that in all criminal cases, without exception, the prosecution has the onerous duty to prove the offence preferred against accused beyond reasonable doubt. See Oduneye vs. The State (2001) 2 NWLR (Pt.697) page 311 at 328 paras E – F; Okpulor vs. The State (1990) 7 NWLR (Pt.164) p.581. See also Section 138(1) of the Evidence Act.
It is also settled that the standard of proof is such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See Tanko v. The State (2008) 16 NWLR (Pt.1114) p.497 at 632 paras. D – F and Hassan vs. The State (2001) 6 NWLR (Pt.709) 286.
In order to proof a case of armed robbery against an accused person the law requires the prosecution to prove three essential ingredient, to wit:
a. That there was a robbery
b. That the robbery was an armed robbery
c. That the accused was one of those who robbed.
See Ani v. State (2003) 11 NWLR (Pt.830) page 142 at 161 para. C – E. See also Bello v. The State (2007) 10 NWLR (Pt.1043) PAGE 564 AT 566 – 567; and Nwachukwu v. State (1985) 1 NWLR (Pt.11) page 218.
The above ingredient must be proved independently to co-exist before an accused person can be found guilty of the crime. Where one or more of these ingredients is/are missing, the prosecution would have failed in discharged its duty. In the instant case, the prosecution failed to discharged the duty of proving its case against the Appellant beyond reasonable doubt by failing to establish all the ingredients of the offence of robbery mentioned above.
For this reason and the fuller ones contained in the lead judgment. I too hold the view that the appeal is meritorious and ought be allowed. I allow it and set aside the conviction and sentence contained therein.
IGNATIUS IGWE AGUBE J.C.A.: I agree.
Appearances
Olalekan Yusuf Esq. with him are Ogunluwoye Adeyemi Esq, Chika Muduakolam (Miss.)For Appellant
AND
J. A. Mumini (DPP) with him is A. A. Daibu (SSC) . For the Respondent.For Respondent
