OLORUNFUNNIBI AKINTOMIDE v. THE STATE
(2015)LCN/7774(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of February, 2015
CA/AK/126C/2013
RATIO
CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; WHAT THE PROSECUTION MUST PROVE TO SECURE A CONVICTION FOR ARMED ROBBERY
To secure a conviction for armed robbery the prosecution must prove the following: (a) that there was an armed robbery. (b) that the accused was armed and (c) that the accused while with the arms participated in the robbery. Once the prosecution proves the above ingredients beyond reasonable doubt failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to destroy evidence against him. See Olayinka v. State (2007) 9 NWLR (Pt 1040) 561. per. JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHETHER CIRCUMSTANTIAL EVIDENCE IS SUFFICIENT TO GROUND CONVICTION OF AN ACCUSED
Circumstantial evidence is sufficient to ground conviction only where the inferences drawn from the whole history of the case point strongly to the commission of the crime by the accused person. Before circumstantial evidence can form the basis for conviction, the circumstances must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender. The circumstances relied upon should point unequivocally positively, unmistakably and irresistibly to the fact that the offence was committed and that the accused committed it. See Nwaeze v. State (1996) 3 NWLR (pt.428), Akinmoju v. State (2000) 12 SC (Pt.1). Adepetu v. State (1998) 9 NWLR (Pt.568) 185 and Yango v. COP (1992) NWLR (pt.257) 36. per. JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER THE PROSECUTION IS NOT RELIEVED OF THE BURDEN OF PROVING THE GUILT OF THE ACCUSED WHERE THE ACCUSED PERSON IN HIS STATEMENT TO THE POLICE ADMITTED THE OFFENCE
Where an accused person in his statement to the police admitted committing the offence the prosecution is not relieved of the burden of proving the guilt of the accused person beyond reasonable doubt, the slightest doubt raised by the accused shall lead the Court to resolve the doubt in his favour. See Igabele v. State (2006) 6 NWLR (Pt.975) 100 and Ifejirika v. State (1999) 3 NWLR (Pt 593) 59. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
OLORUNFUNNIBI AKINTOMIDE Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State sitting at Ondo delivered on the 15th May, 2012. The Appellant and two others were in that court tried for conspiracy to commit armed robbery and armed robbery contrary to sections 1(2)(a) and 5(b) of the Robbery and Firearms (Special Provisions) Act Cap 11 Vol. 14 Laws of the FRN 2004.
The facts of the case for the Respondent at the trial included the following:
On the 6th January, 2005, at about 2:00am, one Yaya Suberu (Pw1) heard the voice of one of his boys who was sleeping in the passage that leads to pw1’s room. He asked who was in the house talking to his boy at that time of the night. While he was walking towards the boy with his torch-light, he saw somebody at the passage. The person ran down the stair-case. Pw1 shouted “thief, thief.” Then two other people opened the door to the house – and came upstairs. The three people were masked. They threatened to shoot Pw1 and the boy with him. They demanded for money. They ransacked the whole house looking for money. They took all the money in the house and led the Pw1 to his office downstairs. They took with them two hand-sets and N150,000.00 (One Hundred and Fifty Thousand Naira). They also took jewelries worth N72,000 (Seventy-Two Thousand Naira).
The people came with an axe, knife and a torch-light.
When the Pw1 reported the incident to the police, he told them that he did not identify the people because they were masked and he did not suspect anybody.
According to Pw2, P. C. Ganiyu Tunde, on the 13th of January, 2005 information came to the police that “a gang of boys that robbed Pw1 was in town.” A team of policemen went to Odo Ile Street, Ile-Oluji where they arrested the Appellant and others.
Although the Respondent tendered an extra judicial statement in which the Appellant purportedly claimed that they had had a couple of other exploits apart from going to the house of the Pw1 on 6/1/05 at 200 am from where they made away with N85,000 and two Nokia handsets; his defence in Court was a complete denial of offence.
In his defence in Court he denied robbing the Pw1. He was arrested in his house at No 10 Oke Otunba Street, Ile-Oluji on 13th January, 2005. The police told him that the Pw1 said he suspected him as one of the robbers because he once worked with the Pw1. At the time he was arrested the police did not conduct any search in his house. After the arrest, he was taken to SARS (Special Anti – Robbery Squad).
It was just once he made a statement at SARS. That was on 14th January, 2005. He made a statement to police at Ile – Oluji Police Station.
After hearing evidence and addresses of learned counsel for the parties, the Appellant and two others were found guilty of armed robbery, convicted and sentenced to death.
The Appellant filed a notice of appeal on 14th June, 2012 containing the omnibus ground. By order of this Court the Notice of Appeal was amended. The Amended Notice of Appeal filed on 18/3/14 contains three grounds of appeal from which the Appellant presented the following issues for determination:
1. Whether the learned trial Judge was right in convicting the Appellant Olorunfunnibi Akintomide, having regards to his retracted confessional statement Exhibit M and the surrounding corroborating evidence.
2. Whether from the totality of the evidence before the trial court, the prosecution was able to prove the charge of armed robbery against the Appellant beyond reasonable doubt contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.
The Respondent adopted the two issues formulated by the Appellant.
Arguing issuel 1, it was submitted that the Appellant denied making Exhibit M and denied committing the offence of robbery. It was submitted that where an accused person retracts a confessional statement, the Court should look for corroborative evidence outside the retracted confessional statement before convicting on it. We were referred to Ubieko v. State (2005) ALL FWLR (Pt.254) 804, Nwachukwu v. State (2007) ALL FWLR (Pt.390) 1380. It was submitted that there was no corroborative evidence which the Lower Court acted upon apart from the retracted confessional statement.
It was submitted that before a confessional statement could result in the conviction of an accused person, it must be unequivocal in the sense that it leads to the guilt of the maker. It was submitted that where a confessional statement is capable of two interpretations in the area of guilt and non-guilt, a trial Court will not convict the accused person but give him the benefit of the doubt. The Court was referred to Solola v. State (2005) ALL FWLR (Pt.269) 1751 at 1401 B – D.
It was submitted that the Lower Court failed to test the truthfulness of the retracted confessional statement Exhibit M as required by law.
It was further submitted that the Lower Court erred in law when it relied heavily on Exhibit M even though it did not form part of the proof of evidence even though the Appellant denied making it.
On issue 2, it was submitted that the burden of proof was on the Respondent and the Standard of proof had to be beyond reasonable doubt. We were referred to Nwosu v. The State (1998) 8 NWLR (Pt.562) 433 at 444 and Utoyorume v. State (2011) ALL FWLR (Pt.560) 1265 at 1280.
The prosecution, it was submitted must prove the following:
a) That there was robbery.
b) That the robbery was an armed robbery
c) That the accused took part in the robbery. We were referred to Awosika v. State (2011) ALL FWLR (Pt.560) 1237 at 1257.
The Court, it was submitted, must scrutinize the evidence led by the prosecution to see if the witnesses came in contact or saw or had any dealing or encounter with the armed robbers. We were referred to Suberu v. State (2010) ALL FWLR (Pt.520) 1236 at 1286 C – D and Okoh v. State (2009) ALL FWLR (Pt.453) 1358 at 1399.
It was submitted that there was no evidence to prove beyond reasonable doubt that there was actually an incident of robbery carried out against the Pw1. All the police witnesses who testified only told the Court what Pw1 told them at the police station. It was submitted that the evidence of the Pw2 – Pw6 was hearsay evidence and ought to have been treated as such by the Lower Court. That Pw1 said that at the time of the robbery there was a boy sleeping at the passage. There was also his wife. His children and workers were there. None of these people was called to corroborate the evidence of Pw1. The Court was referred to the contradiction by Pw3 under cross-examination that it was a case of stealing that was reported at the Police Station Ile – Oluji and not armed robbery.
It was submitted that any doubt in the prosecution’s case must be resolved in favour of the accused person. We were referred Ubani v. State (2004) FWLR (Pt 191) 1533.
The Appellant, it was submitted, was charged with being in possession of stolen electronic equipment but the owners were not stated neither were the makers and types stated.
It was the submission of the Respondent’s counsel that the Court can convict on the voluntary confession of an accused person regardless of the fact that the maker has made a u – turn or retracted the statement.
The Appellant, it was submitted made Exhibit “M” his confessional statement.
It was submitted that the Lower Court considered other corroborative facts both direct and circumstantial before making the finding of guilt of the Appellant and others.
The prosecution, it was submitted, had proved the offence of armed robbery beyond reasonable doubt.
In my view the only issue for determination is whether the prosecution has proved the offence beyond reasonable doubt.
To secure a conviction for armed robbery the prosecution must prove the following: (a) that there was an armed robbery. (b) that the accused was armed and (c) that the accused while with the arms participated in the robbery. Once the prosecution proves the above ingredients beyond reasonable doubt failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to destroy evidence against him. See Olayinka v. State (2007) 9 NWLR (Pt 1040) 561.
In the instant case, the Pw1, the alleged victim of the armed robbery clearly stated that the robbers were masked and he had no inkling as to who they were. Pw2 – Pw6 were all police witnesses. Pw2 gave a clue as to why the Appellant and the others were arrested. According to him information came to the police that a gang of boys that robbed the Pw1 were in town. So the police arrested them and brought them to the police station. The informant did not testify. So there was a missing link.
PW3 who in evidence in-chief-claimed that the Pw1 was robbed turned round under cross-examination to say that the Pw1 reported a case of stealing. This is what he said.
..Pw1 came to report a Case of stealing at the station…”
Inspite of the above straight forward evidence of the Pw3 under cross-examination, the Lower Court at page 244 -245 of the record of appeal in its judgment came to the conclusion that it was a case of armed robbery that was reported and not a case of stealing. This is what the Lower Court stated:
“Counsel for the 1st accused person argued that the complaint lodged by Pw1 at the Police Station, Ile – Oluji was theft not armed robbery. Besides, counsel for the 2nd accused person argued that the weapons purportedly used by the accused persons to commit the offence were not tendered in court.
I have considered these points raised by counsel. Apart from assertion made by defence counsel, no effort was made by the accused persons to establish the facts by way of calling evidence to support it. It is trite law that whosoever that asserts must prove that assertion. Since the accused persons did not adduce evidence with a view to proving that Pw1’s complaint to the police was that of stealing and not armed robbery. I want to believe that it was the complaint of armed robbery that was laid at the station by the Pw1. From the evidence adduced by the prosecution, I am of the view that it has been established by the prosecution that robbery was armed.”
It appears to me from the foregoing findings of the Lower Court, that it completely missed the essence of a criminal trial. In a criminal trial, the burden is on the prosecution throughout and it never shifts except in a few exceptional cases which I need not state here. If the prosecution alleged armed robbery against the Appellant and others and they turned somersault at the trial to say it was a case of stealing that was reported, without showing how stealing metamorphosed to robbery, then the finding of the Lower Court that the robbery was armed robbery was perverse. It did not matter that armed robbery can be proved even where the weapon was not tendered. Apart from this, Lower Court failed to realize that a criminal trial has nothing to do with the faith or belief of the trial judge. The Lower Court was wrong in believing that the complaint made by Pw1 was that of armed robbery. His faith was irrelevant. A criminal trial is a mere matter of evidence. The Lower Court was entitled to look for evidence establishing that the complaint was that of armed robbery. He did not look for that evidence. The evidence that stared him in the face was that the complaint made by the Pw1 was that of stealing. He closed his eyes to this glaring evidence reproduced above and relied on faith to find that the complaint made was for armed robbery. The Lower Court was also wrong to find that the Appellant and other accused persons failed to show that the complaint made by the Pw1 was that of stealing. On the glaring admission of Pw3 under cross-examination that Pw1 reported a case of stealing I wonder what other evidence the Appellant and others were expected to lead in proof of the fact that what the Pw1 reported was a case of stealing and not armed robbery.
In my view the evidence Pw3 under cross-examination reproduced above was a death wound to the case of the prosecution. What else could it be when the Appellant and others were charged with the offence of armed robbery and it turned out at the trial that what the alleged victim of the purported robbery reported was stealing. The Lower Court should have found that the case of the prosecution was demolished under cross examination instead of proceeding to find the offence of armed robbery proved beyond reasonable doubt and proceeding to convict and sentence the Appellant to death.
Under cross-examination, the Pw3 stated thus:
“I found electronics in the house of the 2nd accused person. Electronics did not form part of the items Pw1 said were stolen from him.”
The 2nd accused is the Appellant in this court. The above piece of evidence was exculpating. No incriminating evidence was led against him.
At page 247 of the record of appeal, the Lower Court was surprised that the three accused persons once worked for the Pw1. This is what it said:
“There is something that strikes my imagination in this case. It is the fact that these three accused persons had at one time or the other worked for Pw1 in his bakery where the armed robbers came to attack him. The cumulative effect of all these pieces of evidence is what Olorunfemi Esq. relies upon as circumstantial evidence in this case.”
Circumstantial evidence is sufficient to ground conviction only where the inferences drawn from the whole history of the case point strongly to the commission of the crime by the accused person. Before circumstantial evidence can form the basis for conviction, the circumstances must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender. The circumstances relied upon should point unequivocally positively, unmistakably and irresistibly to the fact that the offence was committed and that the accused committed it. See Nwaeze v. State (1996) 3 NWLR (pt.428), Akinmoju v. State (2000) 12 SC (Pt.1). Adepetu v. State (1998) 9 NWLR (Pt.568) 185 and Yango v. COP (1992) NWLR (pt.257) 36.
What the Lower Court found to be circumstantial evidence pointing to the guilt of the Appellant was simply the fact that the Appellant knew the 1st accused and that all three accused had worked for the Pw1. With due respect to the Lower Court the above facts by no means suggest that the Appellant committed the offence. In any case, I have stated elsewhere in this judgment that the (prosecution) respondent did not prove the commission of the offence of armed robbery. This is because the Pw3 demolished the prosecution’s case when he admitted under cross-examination that what the Pw1 reported to the police was a case of stealing.
The Lower Court also relied heavily on Exhibit M, the statement of the Appellant to police to convict the Appellant of the offence of armed robbery.
There is no evidence stronger than a person’s own confession or admission of guilt. Such confession is admissible in evidence. Although an accused person can be convicted solely on his confessional statement it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Dibie v. State (2007) 9 NWLR (Pt.1038) 30.
The incriminating portion of Exhibit M relating the offence of armed robbery for which the Appellant was found guilty, convicted and sentenced to death, reproduced immediately hereunder reads as follows:
“The last operation before our arrest was at Yaya Bakery which was also lead (sic) by Dele Akinbola and we made away with the sum of N85,000 and two Nokia handset.”
Making away with the sum of N85,000 and two Nokia handsets could have been done by stealing. It does not point to armed robbery for which the Appellant was found guilty, convicted and sentenced to death. As I pointed out earlier, the electronics found in the house of the Appellant were not some of the items reportedly stolen from the Pw1’s house. None of the Nokia handsets mentioned in Exhibit M was found in the house of the Appellant. The Appellant did not confess to commission of robbery. Even if he did, there was nothing outside the confession which would make it probable that the confession was true as the Pw1 whose money and Nokia handsets the Appellant and others stole did not report a case of armed robbery but that of stealing. There was therefore nothing outside the confession of making away with Pw1’s money and Nokia handsets to show that the confession was true.
Where an accused person in his statement to the police admitted committing the offence the prosecution is not relieved of the burden of proving the guilt of the accused person beyond reasonable doubt, the slightest doubt raised by the accused shall lead the Court to resolve the doubt in his favour. See Igabele v. State (2006) 6 NWLR (Pt.975) 100 and Ifejirika v. State (1999) 3 NWLR (Pt 593) 59.
In his defence in court the Appellant stated that he was arrested in his house and that the police told him that the complainant said he suspected him because he (Appellant) once worked for the complainant.
The Appellant was not cross-examined on this vital piece of evidence. It should therefore be taken as admitted by the Respondent. I have shown earlier in this judgment that the Lower Court relied on the fact that the Appellant and the others once worked for the Pw1 to find them guilty.
This was wrong. No offence is proved by the fact that somebody once worked for the victim of the alleged offence.
From what I have shown above, I do not hesitate to resolve the lone issue formulated by me in favour of the Appellant; I accordingly resolve it in favour of the Appellant.
The conviction and sentence of the Appellant to death for the offence of armed robbery are hereby quashed by me.
The Appellant is discharged and acquitted.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the Judgment Delivered by my learned brother James Shehu Abiriyi, JCA.
I agree with the conclusion and I also abide with the consequential orders.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
Appearances
Isiaka Abiola Olagunju Esq.For Appellant
AND
A. O. Adeyemi – Tuki (Mrs)For Respondent
