OMUGHELE v. STATE
(2020)LCN/15474(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, December 18, 2020
CA/AS/618C/2018
RATIO
EVIDENCE: WHETHER THE CONFESSIONAL STATEMENT OF A CO-ACCUSED PERSON CAN BE CORROBORATIVE OF THAT OF AN ACCUSED PERSON
It would appear that though the general position of the law is to the effect that the confessional statement of a co-accused person cannot be corroborative of that of an accused person (see the cases of STATE V. GWANGWAN (2015) LPELR-24837(SC) and AJAEGBO V. STATE (2018) LPELR-44531(SC) amongst others), this position is however not applicable to cases of conspiracy. In this regard, see the old case of MUMUNI V. STATE (1975) LPELR-1926(SC) wherein the Supreme Court stated thus:
“We observed that conspiracy as a crime is complete upon agreement, and it is not necessary in order to complete the offence that anyone thing should be done beyond the agreement. See …..
Also, once a conspiracy has come into existence, other conspirators may join in it at a later stage – See R. v. Murphy – 173 E.R. p. 505. Moreover, anyone of the conspirators may not know the other parties but only that there are other parties, and anyone may not know the full extent of the scheme to which he attaches himself – See R. v. Griffiths -49 C.A.R. p. 279.
In a conspiracy trial, evidence of what one accused says in the absence of other conspirators is rendered admissible against such others on the basis that, if they are all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it was said in the absence of the other conspirators. This is said to be an exception to the hearsay rule – See R. v. Luberg & Ors 19 C.A.R. p. 133.
Although the rules as to admissibility of evidence generally would appear to be relaxed when a charge of conspiracy is tried along with other substantive charges, the prosecution initially has a duty to lead distinct evidence of the existence of the conspiracy and the involvement of each conspirator in it.
An Australian Judge recommended the following approach in his direction to the jury in a case before him:
“Each accused is entitled at the outset to have the evidence properly admissible against him considered alone, and it is only when after such evidence so considered you find him to be a party to the conspiracy, if any, that the acts of the other conspirators can be used against him” – PER CUSSEN J. in R. v. ORTON – (1922) VICTORIAN LAW REPORTS at p. 474. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CRIMINAL PROCEEDING: OFFENCE OF CONSPIRACY: MENS REA AND ACTUS REA
In the offence of conspiracy, the mens rea is not easy to locate as it is mostly, if not invariably, buried in secrecy. And so, the actus reus of the offence which is easier to locate can draw the mens rea to the open, and make it possible for the Court to find inculpatory evidence.
From the above, I sift the following ingredients of the offence of conspiracy:
(i) There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds.
(ii) The persons must plan to carry out an unlawful or illegal act, which is an offence.
(iii) Bare agreement to commit an offence is sufficient.
(iv) An agreement to commit a civil wrong does not give rise to the offence, …
(v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
(vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective…” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF CONSPIRACY
The offence of conspiracy having regard to decided cases lie in the agreement between two and more persons to commit an unlawful act or to carry out a lawful act by unlawful means. This position of the law in my considered view was brought out very clearly in the case of KAZA V. STATE (2008) LPELR-1683(SC) wherein the Supreme Court stated thus: –
“Black’s Law Dictionary defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. See Black’s Law Dictionary (Sixth edition) page 309.
This most comprehensive definition says it all. The bottom line of the offence is the execution of an unlawful purpose by an unlawful means. And that unlawful purpose is the criminality involved.
While the words “combination” and “confederacy” may in general parlance generally convey the same meaning with conspiracy, the latter parts ways with the former in one basic respect and it is the doing of an unlawful or an illegal act. While I concede that the unlawful or illegal nature of an act could also be found in combination and confederacy, that is better reserved to conspiracy in criminal law, as an agreement between two or more persons to behave in a manner that will invariably or automatically constitute the commission of an offence by two persons or by at least one of them. The offence of conspiracy can only be committed if there is a meeting of two or more minds. The offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WORDS AND PHRASES: CONSPIRACY
Indeed, it is now settled law, that the offence of conspiracy is simply the meeting of minds of the conspirators. It consists of the intention of two or more persons to do an unlawful act or to do a lawful act by an unlawful means. The term conspiracy is defined in the Black’s Law Dictionary 5th edition page 329 as:
“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective”.
Thus in ABDULLAHI V. STATE (2008) VOL. 164 LRCN 96, the Court opined that to establish the offence of conspiracy, the State must lead evidence in proof of the following:
(a) That there was meeting of the accused persons.
(b) That the meeting must be for the purpose of committing a felony or to do any act which is a felony,
in this case, to commit the offence of armed robbery.
It has also been settled by a plethora of judicial authorities, that the ingredients of conspiracy are to be inferred from the evidence. It is settled Law that the prosecution can prove its case against an accused using any of the following modes:
(i) Direct eye witness testimony
(ii) Confessional statements by the accused and
(iii) Circumstantial evidence. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
EVIDENCE OMUGHELE APPELANT(S)
And
THE STATE RESPONDENT(S)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 19/7/2018 by the High Court of Delta State sitting at Isiokolo Judicial Division presided over by Hon. Justice E.N. Emudainohwo (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively). The Appellant as 2nd accused person and one other – Ituje Job, as 1st accused person were arraigned before the lower Court on a three count Information for the offences of conspiracy to commit armed robbery; armed robbery; and assault occasioning harm. By a ruling delivered on a no case submission, the lower Court on 2/11/2017, discharged the accused persons on the charges of armed robbery; and assault occasioning harm. The lower Court however called upon the accused persons to enter their defence to the charge of conspiracy to commit armed robbery, and after evidence had been adduced and evaluated, convicted them of the said offence of conspiracy to commit armed robbery; and sentenced each of them to death pursuant to “the provisions of Section 1(2)(a), Section 6(b) and (c) of the Robbery and Firearms (Special Provisions) Act Cap. R 11, Vol. 14, Laws of Federation Nigeria, 2004.”
Aggrieved with the decision of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 19/10/2018, a notice of appeal dated 17/10/2018. The notice of appeal contains 4 grounds of appeal. The grounds of appeal with their respective particulars read: –
“GROUNDS OF APPEAL:
Ground 1
The learned trial Judge erred in law when he failed to inquire into the voluntariness of the extra-judicial statement of the Appellant and thereby occasioned a grave miscarriage of justice against the Appellant.
PARTICULARS OF ERROR
1. There is evidence on record that the Appellant signed his extra-judicial statement under duress when the police threatened to shoot his leg if he fails to sign same.
2. There is evidence on record that the Investigating Police Officer (IPO) showed the Appellant a photograph of a person that was shot and threatened to shoot the Appellant if he did no (sic) sign his extra-judicial statement.
3. The conviction and sentence of the Appellant based on the extra-judicial statement is not supportable by other evidence on record.
4. The failure of the learned trial Judge to inquire into the voluntariness of the extra-judicial statement of the Appellant and his conviction thereby occasioned a grave miscarriage of justice against the Appellant.
Grounds 2
The learned trial Judge erred in law when he failed to test the truthfulness of the extra-judicial statement of the Appellant after he retracted same and thereby occasioned a grave miscarriage of justice against the Appellant.
PARTICULARS OF ERROR
1. There is evidence on record that the Appellant retracted the extra-judicial statement ascribed to him during his evidence in the witness box.
2. The learned trial Judge ought to have tested the truthfulness and veracity of the extra-judicial statement ascribed to the Appellant after he retracted same.
3. The conviction and sentence of the Appellant based on the untested and unverified extra-judicial statement occasioned miscarriage of justice against the Appellant.
4. The failure of the learned trial Judge to test the truthfulness and veracity of the extra-judicial statement ascribed to the Appellant after he retracted same and his conviction thereby occasioned a grave miscarriage of justice against the Appellant.
Ground 3
The learned trial Judge erred in law when he failed to discharge and acquit the Appellant for failure of the prosecution to prove its case beyond reasonable doubt.
PARTICULARS OF ERROR
1. The learned trial Judge ought to have discharged and acquitted the Appellant for failure of the prosecution to prove its case beyond reasonable doubt.
2. The learned trial Judge relied on the extra-judicial statement of the Appellant to convict him without ascertaining its voluntariness, truthfulness and veracity.
3. There is no other legally admissible evidence on the record to support the conviction of the Appellant.
4. The evidence of the prosecution witnesses do not support the conviction of the Appellant for conspiracy to commit armed robbery.
Ground 4
The Judgment is against the weight of evidence.”
The relief the Appellant seeks from this Court is that the decision of the lower Court dated 19/7/2018, be set aside and to enter in its place, judgment discharging and acquitting him (Appellant).
The appeal was entertained on 5/10/2020. Learned counsel, Jonathan Ekperusi in urging this Court to allow the appeal, adopted and relied on Appellant’s brief of argument dated 7/1/2019 and filed on the same date. Learned Assistant Director, Department of Appeals, Delta State (ADDA), P.A. Okoh leading two other Law Officers, in urging the Court to dismiss the appeal adopted and relied on the brief of argument of the Respondent dated 21/8/2019 and filed on 22/8/2019, but deemed as properly filed and served on 25/6/2020.
Two issues were formulated for the determination of the appeal in the Appellant’s brief of argument and they are: –
“1. Whether the prosecution proved its case against the Appellant beyond reasonable doubt. (Grounds 3 and 4 of the Notice of Appeal).
2. Whether the lower Court was right in failing to test the truthfulness and veracity of the extra-judicial statement of the Appellant. (Ground 2).”
The Respondent formulated a sole issue for the determination of the appeal in its brief of argument. It reads thus: –
“Whether the trial Court was right when it held that in view of the evidence adduced particularly exhibit “B” and “D” the prosecution proved the offence of conspiracy to commit armed robbery against the appellant beyond reasonable doubt.”
I consider it more appropriate to determine the instant appeal on the issues formulated by the Appellant even though the second issue would appear to be somehow subsumed in his issue 1, as it relates to admissibility of evidence and proper evaluation.
Dwelling on his issue 2, the Appellant submitted that from the facts and circumstances of this case, the lower Court was not right in failing to test the truthfulness and veracity of his (Appellant’s) extra-judicial statement. The Appellant submitted that whilst it is true that a Court can convict solely on a confessional statement; it is now settled law that Courts must be wary of convicting an accused person solely on his confessional statement to the Police. This is so because there is now a growing juridical approach to confessional statements obtained by the Police from accused persons. The Appellant submitted that in a criminal trial, whenever the accused person raises a defence however stupid, bogus, incongruous or unpalatable it may be, the trial Court is legally bound to look at the defence and come to a decision, one way or the other. It is the stance of the Appellant that his extra-judicial statement ought to have been verified by the lower Court before relying on same to convict and sentence him to death. It is also the position of the Appellant that whereas he gave his address in his oral testimony as “Forseca, Ghana, Sapele”; Exhibit ‘D’, puts his address and facts suggesting his commission of the offence, as “Eko Amukpe Sapele”. That the lower Court in its judgment realized that there were contradictions between his (Appellant’s) oral evidence and that of the 1st accused person, Ituje Job, and what was recorded in his (Appellant’s) alleged confessional statement and that of ltuje Job. The Appellant submitted that as the lower Court found that there is a problem with the alleged location, as between “Eko Amukpe” and “Ghana, Sapele”, it ought to have resolved the doubt in his (Appellant’s) favour in the circumstance and was wrong to have held that his (Appellant’s) extra-judicial statement was corroborated by Exhibits ‘E’ and ‘E1’, which are illustrative photographs taken by the Police after the alleged offences had been committed. The Appellant further submitted that the lower Court was wrong in relying on Exhibits ‘E’ and ‘E1’ as corroborative of his extra-judicial confessional statement, to convict and sentence him. That Exhibits ‘E’ and ‘E1’ could not have corroborated Exhibit ‘D’ as they are photocopies of the illustrative photographs taken after his arrest and tending to illustrate that he (Appellant) committed the offences he was charged with. This is because, the law is settled that photographs taken after an incident has already occurred, as in the instant case, are evidentially valueless. That the evidence of PW1, who is the eye-witness and victim of the crimes he (Appellant) was charged with, did not support Exhibits ‘E’ and ‘E1’, as PW1 did not locate the Appellant at the scene of the crimes. That the entire evidence of PW1, only mentioned the 1st accused person – Ituje Job as the person who wanted to rob him. That PW1 did not link the Appellant with the crimes. Thus, that there was no basis for the lower Court to have relied on photocopies of the merely illustrative and speculative photographs (admitted as Exhibits ‘E’ and ‘E1 ‘) as corroborative evidence against him (Appellant). The Appellant submitted that Exhibits ‘E’ and ‘E1’ being photographs taken by the Police during investigation are in the nature of expert evidence. That the law is trite that where expert evidence is based on hearsay, as in the instant case, the Court should safely reject same, even if not challenged under cross-examination. That the Investigating Police Officer (i.e. IPO), in his evidence informed the lower Court that he took the photographs (Exhibits ‘E’ and ‘E1 ‘) based on the narrative as told to him by PW1, the victim of the crimes. That it is therefore strange that Exhibits ‘E’ and ‘E1’ could be relied upon by the lower Court as corroboration against him (Appellant) when PW1 did not mention the Appellant throughout his evidence. It is the stance of the Appellant that having found discrepancies in Exhibit ‘D’ (i.e. Appellant’s statement), the lower Court ought to have resolved the doubts in his favour. That indeed, the lower Court ought to have found that the prosecution did not prove its case against him (Appellant) as there is no evidence against him. The Appellant urged this Court to resolve issue 2, in the negative, and hold that from the facts and circumstances of this case, the lower Court was not right in failing to test the truthfulness and veracity of his (Appellant’s) extra-judicial confessional statement.
Appellant’s issue 1, is as to whether the prosecution proved its case against him beyond reasonable doubt. It is to be noted that the argument of the Appellant on the issue is essentially the same as was canvassed on his issue 2. It is the stance of the Appellant that the Respondent did not prove its case against him beyond reasonable doubt. The Appellant dwelling on this issue thereafter proceeded to engage in an analysis, of the evidence adduced by the prosecution in the proof of its case to support his position that his conviction has no legal basis. Amongst the argument the Appellant canvassed under this issue is the non-endorsement of his confessional statement Exhibit ‘D’ by a superior Police Officer and which omission he submitted that this Court should resolve against the prosecution. This is more so as the Appellant in the circumstances of the instant case has successfully set up a plea of non-est factum and did not merely resile from or retract Exhibit ‘D’. That it was wrong of the lower Court to have treated his (Appellant’s) defence of non-est factum as a mere retraction of Exhibit ‘D’. The Appellant urged this Court to resolve issue 1, in his favour and hold that the prosecution did not prove its case against him beyond reasonable doubt.
Dwelling on its sole issue, the Respondent submitted to the effect that it proved its case against the Appellant beyond reasonable doubt. That it is settled law that it can do this by (i) direct evidence of eye witness(s); (ii) circumstantial evidence; and (iii) admissions and confession of the accused person(s). Stressing that proof beyond reasonable doubt does not mean that the prosecution must prove its case beyond any shadow of doubt, the Respondent submitted that it proved the essential ingredients of the offence of conspiracy which basically is not only the intention of two or more persons to do an unlawful act but in the agreement to do a lawful act by unlawful means, beyond reasonable doubt. It is the position of the Respondent that in order to establish the offence of conspiracy to commit armed robbery, it must prove (a) the meeting of the mind of the accused persons or conspirators; and (b) that the meeting of the minds was for the purpose of committing an unlawful act or lawful act by an unlawful means; and that it established these ingredients by the confessional statements of the Appellant and the 1st accused; and also by circumstantial evidence. It is the position of the Respondent that the confessional statement of the Appellant – Exhibit “D” was properly admitted in evidence by the lower Court and aside from the evidence of PWs 1 and 2, it was corroborated by Exhibit “B” the confessional statement of the 1st accused which manifestly showed that the confession is true. That since the charge is woven round conspiracy to commit armed robbery, the evidence adduced by the Appellant should be examined to see if there is a linkage between it and the admission of his co-accused. It is the position of the Respondent that Exhibit “D” was properly admitted in evidence as its voluntariness was not challenged at the appropriate time and there was no irregularity in its admission by the lower Court. That consequently Exhibit “D” was a free and voluntary confession of guilt by the Appellant and was fully consistent in itself; and was also fully corroborated by the evidence of prosecution witnesses which clearly and manifestly showed that the confession is true. The Respondent submitted that where a confessional statement has all the essential elements of an alleged offence and shows unequivocal, direct and positive involvement of the accused in the alleged crime, the Court can safely rely on it and convict the accused person.
It is the position of the Respondent that the inconsistency rule does not apply to cases where an accused person’s confessional statement is in conflict with his oral testimony under oath. Therefore, that the Appellant having by Exhibit ‘D’ admitted and confessed to the crime of conspiracy to commit armed robbery with the 1st accused, but later resiled from his earlier statement, does not make the confessional statement, inadmissible. That the inconsistency rule is not applicable to exclude a confessional statement properly proved to be voluntary and admitted in evidence. Dwelling on the non-endorsement by a superior Police Officer of the extra-judicial confessional statement of the Appellant, the Respondent submitted that Exhibit “D” as contained in the records was properly attested to by a superior Police Officer. That the singular fact that the attestation form was not tendered in evidence does mean that Exhibit “D” was not attested to. It is also the submission of the Respondent that it is settled law that failure to attest to a confessional statement by a superior Police Officer does not render the confessional statement unreliable. Therefore, that the practice of taking an accused person who made a confessional statement to a superior Police Officer for attestation, is a mere administrative practice which is not a legal requirement; and if not complied with, will not render such confessional statement inadmissible and unreliable.
Dwelling on whether the Appellant successfully set up a plea of non-est factum and that he did not merely resile from or retract Exhibit “D” and that it was wrong for the lower Court to have treated the defence of non-est factum as a mere retraction of Exhibit “D”, the Respondent submitted that the Appellant should not hide under the illusion that non-est factum amounts to involuntariness.
In resolving whether or not the lower Court was right in finding the prosecution to have proved the count of conspiracy to commit the offence of armed robbery against the Appellant beyond reasonable doubt, I consider it expedient to re-produce portions or parts of the judgment of the lower Court (which spans pages 110-119 of the records) now on appeal, that go to expose the reasoning of the lower Court in convicting the Appellant and Ituje Job; and to underline portions or parts thereof that are germane to the Appellant. It goes thus: –
“On the 5th of June, 2013 the two accused persons were arraigned before the High Court on a three count information of conspiracy to commit armed robbery, armed robbery and assault occasioning harm. By a ruling delivered on a no case submission, the Court on the 2nd of November, 2017, discharged the accused persons on the charges of armed robbery and assault occasioning harm, but called upon them to enter their defence on the charge of conspiracy to commit armed robbery.
The State called two witnesses in proof of the charge against the accused persons and tendered their extra-judicial statement through the PW2 they are marked exhibits “B” and “D”. It is pertinent to state that the extra-judicial statements of both accused persons were tendered by the State through the PW2 they are marked exhibit “B” and “D” while exhibit “B”, the extra-judicial statement of the 1st accused was admitted after a trial-within-trial, the statement of the 2nd was admitted in evidence without any objection from the defence. It is also pertinent to state that the State tendered the document attesting to exhibit “B”, it is exhibit “C’ in this proceeding, while the photographs are exhibits “E” and “E1”.
In his defence to the charge of conspiracy to commit armed robbery, the 1st accused admitted that he knows the 2nd accused when both of them were inmates at the Federal Prisons Sapele. The 1st accused testified that the 2nd accused was released before him from the Federal Prisons and after his release; he went in search of the 2nd accused. It is the evidence of the 1st accused that he succeeded in tracing the residence of the 2nd accused in Ghana Area Sapele. According to the 1st accused, to celebrate their reunion, the 2nd accused took him to a beer parlor called “Clear 19”. It is the testimony of the 1st accused that as they were drinking in the beer parlor, he noticed a police patrol van on a raid and when the police officers entered the beer parlor, they held him and put him in their van. It is the evidence of the 1st accused when that (sic) the police officers entered the beer parlor he turned in search of the 2nd accused but did not see him. It is the further evidence of the 1st accused that they were between twelve and thirteen persons in the police van and they were taken to the police station and asked to bail themselves by offering money to the police. The 1st accused testified that he told the police that he had no money and had only gone to visit a friend when the police arrested him during the raid. The 1st accused further testified that when the police demanded that he should take them to the residence of his friend, he took them to the residence of the 2nd accused and the police arrested the 2nd accused. The 1st accused also testified that after the 2nd accused had been arrested, the police told them that a woman had lodged a complaint of stealing but in the evening of that day he was surprised to hear that the complainant was a man. He denied knowledge of the crime charged against him. The 1st accused told the Court that he made a statement at the police station in Sapele but when he was shown exhibit “B”, he denied it was the statement made by him. According to the 1st accused, he thumb printed the statement recorded by the I.P.O. but exhibit “B” has no thumb impression. He denied exhibit “B” as the extra-judicial statement made by him to the I.P.O. (PW2). The 1st accused also testified that the PW2 did not read the contents of his statements to him.
The 2nd accused also testified in his defence and denied the charge of conspiracy to commit armed robbery. The 2nd accused admitted knowing the 1st accused person when both of them were in custody at the Federal Prisons Sapele. The 2nd accused further testified that he was in his Aunty’s house when he was arrested by policemen. According to the 2nd accused, he met the 1st accused in the police van after his arrest. The 2nd accused testified further that when he inquired from the 1st accused the reason for his arrest, 1st accused told him that he was arrested while drinking beer at “Clear 19” during a police raid. The 2nd accused testified further that the 1st accused told him that he mentioned the name of the 2nd accused to the police as the person he came to visit and also brought the police to his house to identify to them the person he came to visit on the day that the bar was raided. The 2nd accused testified that he signed his extra-judicial statement under duress when the police threatened to shoot his leg if he fails to sign. After the accused persons closed their case, learned counsel for the State and the defence filed written addresses which were adopted on the 21st of June 2018.
….
Indeed, it is now settled law, that the offence of conspiracy is simply the meeting of minds of the conspirators. It consists of the intention of two or more persons to do an unlawful act or to do a lawful act by an unlawful means. The term conspiracy is defined in the Black’s Law Dictionary 5th edition page 329 as:
“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective”.
Thus in ABDULLAHI V. STATE (2008) VOL. 164 LRCN 96, the Court opined that to establish the offence of conspiracy, the State must lead evidence in proof of the following:
(a) That there was meeting of the accused persons.
(b) That the meeting must be for the purpose of committing a felony or to do any act which is a felony,
in this case, to commit the offence of armed robbery.
It has also been settled by a plethora of judicial authorities, that the ingredients of conspiracy are to be inferred from the evidence. It is settled Law that the prosecution can prove its case against an accused using any of the following modes:
(i) Direct eye witness testimony
(ii) Confessional statements by the accused and
(iii) Circumstantial evidence. See: …. In the instant case, the State tendered the confessional statements of both accused persons which are marked as exhibits “B” and “D” respectively. It is now settled law that the extra-judicial statement of an accused person once admitted in evidence forms part of the prosecution’s case see:
….. In exhibit “B”, the extra-judicial statement of the 1st accused person, he recorded how he met the 2nd accused person while in custody of the Federal Prisons Sapele and after his release, visited the 2nd accused at home who was first released and both of them went to the house of the PW1 to rob him. According to exhibit “B”, the 1st accused recorded that while he held two bottles of coke, the 2nd accused was armed with a cut-to-size gun with two cartridges. However in the process of gaining entry into the house of the PW1, the PW1 and his children apprehended him and handed him over to the vigilante who later handed him over to the police patrol team. The 1st accused also recorded in exhibit “B”, that he led the police to the house of the 2nd accused to arrest him because the 2nd a (sic) person ran away on the night of the incident after the PW1 apprehended him. The 1st accused person further recorded in exhibit “B”, that he was apprehended at the scene of crime before they could rob the PW1. However, in his evidence before the Court the 1st accused person resiled from exhibit “B” and denied that it was the statement he made to the police. He told the Court that he was arrested while at a drinking bar in Ghana with the 2nd accused person and not at the scene of the crime. He described the name of the drinking Bar as “Clear 19”. Thus by his evidence, the 1st accused set up the defence of alibi.
The word “Alibi” actually means “elsewhere”. Therefore, where an accused person’s defence to a criminal charge is Alibi, he is saying that he was at another place at the time material to the charge. See: … It is also settled law that for a defence of alibi to be worthy of investigation, it must be raised timeously by the accused and be precise and specific in terms of the place that the accused was and the person or persons he was with and if possible, what he was doing there at the material time. See …..
In the instant case, the 1st accused did not at any time before his defence raise the issue of alibi that he was arrested from a drinking bar in Ghana called “Clear 19” and not in the house of the PW1, the scene of crime. When the 1st accused was cross-examined why he did not cross-examine the PW2; the I.P.O. to show that he was arrested in Ghana and not in the residence of the PW1, he said: “I did not cross-examine PW2 that I was arrested in Ghana because I was in chains inside the Court”. This evidence of the 1st accused that he did not cross-examine the PW2 to enable him establish his defence of alibi because he was in chains, is clearly an outright falsehood because at no time was the 1st accused in chains in the dock during the proceedings. Furthermore, while the PW2 was testifying, the 1st accused person and the 2nd accused persons were both represented by T.A Efaye Esq, who conducted their defence and cross-examined PW1 and PW2. I will return to the defence of alibi in a trice.
Learned counsel for the 1st accused person submitted while referring to EGBONOGHOME v. STATE (1993) 7 NWLR (PART 306) 383, that the 1st accused person having resiled from his extra-judicial statement in open Court, the Court ought to consider his extra-judicial statement and evaluate it alongside other evidence before the Court. He therefore urged the Court to apply the tests in AFOLABI V. STATE (2013) VOL. 226 LRCN 199.
In EGBONOGHOME V. STATE (supra), the Supreme Court opined that the inconsistency rule does not apply to cases where an accused person’s confessional statement runs contrary to his testimony under oath, as in the instant case. Therefore, the 1st accused in this case who by exhibit “B” admitted and confessed to the crime of a conspiracy to commit armed robbery with the 2nd accused which was truncated because he was apprehended before the offence could be committed but later resiled from his earlier confession by his subsequent evidence under oath when he raised the defence of alibi, does not by that retraction make the confession inadmissible by the decision in EGBOGHONOME’S case. However, the Supreme Court in EGBOGHONOME V. STATE Supra opined that it is desirable, that there is a general corroboration of the important incidents by testing the veracity of the accused retracted confessional statement. In EMMANUEL NWAEBONYI V. THE STATE (1994) 5 NWLR (PART 343) 138 AT 150, the Supreme Court reiterated the test to be followed in assessing the generality of a confessional statement whether retracted or not and they are:
(i) Is there anything outside the confession which shows that it may be true?
(ii) Is it corroborated in any way?
(iii) Are the relevant statements of fact made in it most likely true as far as they can be tested?
(iv) Did the accused have the opportunity of committing the offence?
(v) Is the confession possible?
(vi) Is the alleged confession consistent with other facts that have been ascertained and established?
In exhibit “B”, the 1st accused recorded that he met the 2nd accused person while they were both inmates in the Federal Prisons, Sapele, but the 2nd accused was released before him. While testifying in Court, the 1st accused person also told the Court that he met the 2nd accused person while they were both in custody of the Federal Prisons Sapele but the 2nd accused person was released first. In exhibit “B”, the 1st accused recorded that after his release from prison he traced the 2nd accused to his house at Eko, Amukpe where they reunited and he spent some days in the house of the 2nd accused before they went to the house of the PW1 to commit the armed robbery which was unsuccessful. In his evidence in Court, the 1st accused person admitted that after his release from prison, he went in search of the 2nd accused house, though he stated that the house of 2nd accused is situated in Ghana and not Eko Amukpe as recorded in exhibit “B”. In exhibit “B”, the 1st accused person recorded that he was apprehended by the PW1 at the scene of the crime as he attempted entering the house of PW1 to rob him but the 2nd accused person escaped with the cut-to-size gun that he was holding. The PW1 in his evidence testified that on the night of the incidence, he saw the 1st accused person under the staircase of his house and immediately raised an alarm and grabbed him. In exhibit “B”, the 1st accused person recorded that when he and the 2nd accused person went to the house of the PW1 on the night of the incidence for the purpose of robbing him, he was armed with two bottles of coke which fell on the PW1 when he was struggling with him, while the 2nd accused person was armed with a cut-to-size gun. The PW1 testified that the 1st accused held a bottle on the night of the incidence and in the course of the struggle that ensued between him and the 1st accused person when he wanted to apprehend the accused, the coke bottle fell on his leg. In exhibit “B”, the 1st accused recorded that he was handed over to the vigilante who in turn handed him over to the police and this piece of evidence was also corroborated by the PW1 and the PW2, the I.P.O. In exhibit “B”, the 1st accused person recorded, that after the 2nd accused escaped from the scene of crime, he took the police in search of the 2nd accused at Eko, Amukpe though he was not seen but was subsequently arrested.
It is my humble view, that the contents of exhibit “B” have been sufficiently corroborated by the evidence of PW1, PW2 and the 1st accused person. Although the 1st accused denied exhibit “B” as his extra-judicial statement to the police, I find that it is indeed the statement of the 1st accused person because its contents have been largely corroborated by the PW1 and PW2 and particularly by the evidence of the 1st accused person when there is no evidence that PW2, the I.P.O knew the 1st accused person before exhibit “B” was recorded by him (PW2).
I now return to the defence of alibi raised for the first time by the 1st accused while testifying in chief. It is my humble view that the only reason the 1st accused person raised the defence of alibi for the first time while testifying in his defence is because it is an afterthought. I am fortified in my view that the defence of alibi by the 1st accused person is an afterthought when he testified that he was at “Bar Clear 19” with the 2nd accused person in Ghana Area, Sapele, when the police arrested him during a raid, by the evidence of denial of the 2nd accused. When the 2nd accused was cross-examined on whether he was at “Bar Clear 19” with the 1st accused person when the 1st accused person was allegedly arrested, the 2nd accused person testified thus: –
“It was the 1st accused person that told me that he went to Clear 19 to drink. I did not see him drinking at Clear 19. It is not true that I took the 1st accused person to drink at Clear 19”.
The 2nd accused person like the 1st accused confessed to the crime of conspiracy to commit armed robbery in exhibit “D” his extra-judicial statement when he recorded that he went with the 1st accused person to rob the PW1. It is pertinent to state here that exhibit “D” was admitted in evidence during the trial without any objection from defence counsel. In exhibit “D”, the 2nd accused person confessed that he and the 1st accused person went to the house of the PW1 to rob him. The 2nd accused person recorded that he was armed with a cut-to-size gun while the 1st accused held two bottles of coke. The 2nd accused person also recorded that the 1st accused person was apprehended by the owner of the house as he tried to open the door to his apartment and he escaped from the scene. According to exhibit “D”, the 2nd accused person and the 1st accused person met themselves while they were both inmates at the Federal Prisons Sapele and in his evidence-in-chief, the 2nd accused said “I know the 1st accused person when we were both in custody in Federal Prisons Sapele.”
Although the 2nd accused person like the 1st resiled from his confession in exhibit “D” while testifying in his evidence, the contents of his confessional statement were corroborated not only by the evidence of the 1st accused and PW1 but also by exhibits “E” and “E1”. Exhibits “E” and “E1” are photographs taken by the PW2 illustrating how the accused persons gained access into the building of the PW1 with the 2nd accused in the picture. The defence never at any time
challenged the credibility of exhibits “E” and “E1” which were tendered through the PW2.
Although the 2nd accused person in his evidence under cross-examination denied meeting the 1st accused person as an inmate at the Federal Prisons, Sapele as stated in exhibits (sic) “D”, this evidence of denial contradicts his evidence-in-chief that they were both inmates at the Federal Prisons, Sapele and clearly established that the 2nd accused person is not a witness of truth. I have also observed that though the extra-judicial statement of the 2nd accused person was tendered without the defence counsel challenging its voluntariness, the 2nd accused person testified in Court that he signed his extra-judicial statement under duress because the police threatened to shoot his leg if he refuses to sign same and also showed him pictures of someone that had been shot in the leg. It is now settled law that where an accused challenges the voluntariness of his extra-judicial statement he should do so by objecting to its admissibility on that ground at the point of tendering the statement and not after its admission.
Consequently, I find that the evidence of the 2nd accused person that he signed exhibit “D” under duress is an afterthought and the 2nd accused person having contradicted himself by admitting and later denying that he met the 1st accused person while they were both inmates at the Federal Prisons Sapele, establishes that he is not a witness of truth. Therefore, no credibility can be attached to his evidence denying that exhibit “D” was voluntarily made by him or denying that he went with the 1st accused person to the house of the PW1 on the night of the robbery.
From the totality of the above, I find that exhibits “B” and “D” have passed the veracity test in NWAEBONYI V. THE STATE Supra and I have inferred from both exhibits, an agreement by both accused persons to rob the PW1 on or about the 29th of June, 2012 which was truncated when the 1st accused was apprehended by the PW1. Consequently, both accused persons are convicted as charged on the charge of conspiracy to commit armed robbery.
ALLOCUTUS:
…..Sentence: By the provisions of Section 1 (2)(a), Section 6(b) and (c) of the Robbery and Firearms (Special Provisions) Act Cap R.11, Vol.14, Laws of the Federation of Nigeria, 2004, any person who conspires with another to commit armed robbery, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under the Act.
Therefore, the Court has no discretion in handing out sentences to the convicted persons. Consequently each of the two accused persons is sentenced to death by hanging by the neck till he be dead. May the good Lord have mercy on their souls.”
The Appellant herein was the 2nd accused person before the lower Court. At page 93 of the records is the account of how his statement which was held to be confessional came to be tendered by PW2. It goes thus: –
“…… In the course of my investigation as IPO in the case, the second accused who escaped from the scene of crime, on the 30th of June, 2012, the 2nd accused was arrested and handed over to the police on the 1st July, 2012, the second accused made a confessional statement to the Police under caution in English language which is at page B2 of the case file. This confessional statement was also attested to by S.P.O. ASP Avbunu Benson. A search warrant was also executed in the house and premises of the 2nd accused but nothing was found. I also put up an investigation report touching on the second accused and thereafter transferred the case to State C.I.D., Asaba. I can identify a certified copy of the statement of the 2nd accused and this is the statement.
Tadaferhua Esq. – I seek to tender as an exhibit.
Etaghene Esq. – We have no objection even though the statement is a photocopy.
Court – statement of 2nd accused dated 1/7/2012 is admitted and marked as exhibit D.
PW2 continue – Before I transferred the case to Asaba, I visited the scene of crime and executed a search warrant on the date that I executed the search warrant and visited the scene of crime, the 2nd accused demonstrated how he and the 1st accused climbed into the apartment through an uncompleted store in front of the storey building and while the 2nd accused was doing this illustration, I took photographs of him with the aid of a passerby photographer. I know where the photograph is, it was transferred along with the case to S.C.I.D. Asaba. These are the photocopies of the photographs showing the 2nd accused demonstrating how they climbed into the apartment.
Tadaferhua Esq. – I seek to tender as exhibits.
Efanghene (sic) Esq. – No objection
Photographs are admitted and marked as exhibits E and E1.”
It is pertinent to say that PW2 was not cross-examined in any way suggestive of the fact that the Appellant did not make the statement admitted and marked Exhibit “D”, voluntarily or at all. The cross-examination of PW2 however disclosed that while the originals of Exhibits “E” and “E1” (which he claimed were taken by a passer-by photographer) were in the Police case file, PW2 was only not given the negatives but that he could not say whether or not the photographs were taken by a digital camera.
The Appellant in his evidence in-chief dwelled on how his statement came to be recorded on page 97 of the records. He stated amongst others thus: –
“My name is Evidence Omughele, I lived in Ghana, by Forseca Ending, Sapele before I was remanded into prison custody. …… It is not true that I and the 1st accused conspired to rob. I got to know PW1 when he came to testify in this case. I knew the 1st accused when we were both in custody in Federal Prisons Sapele. On the day I was arrested, I was in the house of my aunty who (sic) I reside at Forseca Ending by Ghana in Sapele. I had just returned from work at about 5:00pm when I saw a van of policemen who warned me not to move. The policemen arrested me and I saw the 1st accused in the police van. As we were driving towards the police station, I asked the 1st accused what happened? 1st accused told me that he was drinking at “clear 19”: when a police van came and raided the area and arrested him. The 1st accused told him that on enquiry from the police, he told them he had come to visit someone and when they asked him for the person he came to visit, he brought the police to my house. We were remanded in the cell at the police station and after two days in police custody, I was brought out of the cell and I repeated to the police what I have just told the Court in my evidence. The police man asked me to sign my statement. I requested that the police officer should read my statement to me but he refused. He cocked his gun and threatened to shot (sic) me in my leg and then showed me the picture of someone that had been shot on his leg. The police officer threatened to shoot me if I do not sign the statement and I was compelled to sign it out of fear. Thereafter, we were taken to Asaba. We were detained at Asaba but after a while, a police officer came and took the 1st accused away. One hour after, the 1st accused was returned and I was taken away. The police at Asaba asked if I had anyone to take me on bail and I told him I will call my mother since my father was deceased. The police called my mother and she promised to come but she did not come. Thereafter, we were remanded in the cell and arraigned before the Court. I did not write any statement at Asaba. I cannot identify the statement I made at Sapele because the police did not show it to me and did not also read it to me. After I was arrested, the police took me to my house and conducted a search but nothing incriminating was recovered.”
Though it is not often that it happens, the issue of non-est factum raised by the Appellant in respect of his extra-judicial confessional statement to the Police (i.e. Exhibit “D”) now raised in the instant appeal, is not new. However, I cannot but say that the principle of non-est factum would appear not to avail the Appellant in the instant case given the evidence as to how the said statement came to be recorded or made, vis-a-vis the illuminating manner in which the Supreme Court enunciated the principle (i.e. non-est factum) in the case of AIGUOREGHIAN V. THE STATE (2004) 3 MJSC 71, cited by the Appellant in his brief of argument. It was stated in the case under reference, thus: –
“Be it noted that it is trite that when a document is sought to be tendered and is objected to by counsel, what counsel objecting does at that stage is no more than a submission on the admissibility of the statement. Thus, as the issue of non-est factum is a matter of fact, the challenge of such a statement is more properly done when the accused or any other witness of his impugns the statement as not being that of the accused from the witness box. I agree with learned counsel for 2nd Appellant therefore that as counsel is not competent to give evidence from the bar and the challenge of a confessional statement on grounds of non-est factum is a matter of fact, the challenge is appropriately made when the accused as witness denies the making of such a statement.
As I had cause to observe in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380, a case identical to the one in hand:
“…Now the voluntary statement of the Appellant which was confessional in nature was received in the proceedings giving rise to this appeal as Exhibits B and B1 and these are part of the prosecution’s case. See Anofi Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101. The Appellant for his defence in rendering his testimony in Court, admitted he never said what was recorded. He thereby sought to retract the statement rather than its involuntariness that was in issue.”
In view of the appropriate attack of the Appellants of the statement (Exhibits ‘A’ and C) as not being their deeds, it was incumbent on the Courts below to have made a finding on whether the said statements were actually made by the Appellants before holding that the statements were retracted or before putting them into any use in convicting the Appellants.
It is noteworthy to stress that the terms “retraction” “resile from” have been used interchangeably in most decisions with the pleas of non-est factum. This is misleading since a statement must first be shown to have been made before it can be said to have been retracted by its maker for, where the very making of the statement is in issue, the retraction cannot arise at that stage. It is in this wise that I agree that where an accused person sets up a defence of non-est factum in relation to a confessional statement what he has done is not a retraction but a denial of the making of the statement.
No finding was made by the two Courts below on the issue of fact as to whether the Appellants made the statements. The application therefore of the rule in Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 and Asanya v. The State (1991) 3 NWLR (Pt. 180) 422, two cases that have been overruled, was therefore prejudicial to the Appellants whose conviction ought not to be allowed to stand. See Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383. What it boils down to is that had the testimony of the 2nd Appellant and his extra-judicial statement (Exhibit C) not been treated as unreliable, the 2nd Appellant would have been absolved of the offence of murder of the deceased based on his defence of alibi which was not investigated. Furthermore, the evidence of PW2 who himself was a victim of the same attack, ought not to have been viewed with as much confidence as the trial Court below did, it being the evidence of a victim.”
I have earlier expressed the view that the principle of non-est factum cannot avail the Appellant. This because all that I understand the Appellant to have stated in the portions of his evidence re-produced above, is that he signed his statement which was admitted as Exhibit “D” without objection, as a result of threat that he will be shot in the leg as had been done before to someone else by a Police Officer. It is not that the confessional statement which he apparently admitted signing and which was admitted in evidence without objection and marked as Exhibit “D”, was concocted by the Police. I have read Exhibit “D”, and in my considered view it is an extra-judicial confessional statement of the Appellant, to the Police. He implicated himself in respect of the offences for which he was charged, in no small measure. I am of the considered view that if the Appellant had any grouse with the means or method by which Exhibit “D”, was obtained from him or how he came to make the same, he ought to have objected to its admissibility at the point when the prosecution sought to tender it through PW2; thereby leaving the lower Court without an option but to conduct a trial within trial to determine if the said statement was made in contravention of any of the provisions of the relevant sections of the Evidence Act, 2011. In this regard, see the provisions of Sections 28-30 of the Evidence Act, 2011 which read thus: –
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
29(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained-
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.
(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.
(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.”
I am therefore of the considered view that the Appellant having not at the lower Court objected to the admission in evidence of Exhibit “D”, and now realising the damaging effect the said statement “standing” as it were, has on his defence, his attack on the said confessional statement predicated on the principle of non-est factum, must fall flat. The Appellant would appear to have lost sight of the fact that the principle of non-est factum is not available to a statement which he initially admitted to have signed and the admission in evidence of which he did not object to. This being the case and as it is settled law that a confessional statement is part of the evidence of the prosecution and that its retraction does not render it not to be so, it becomes obvious that Exhibit “D” having been found to have been made by the Appellant by the lower Court and being confessional in nature was a piece of evidence on which the lower Court could properly convict. This is against the backdrop of the position of the law that a conviction can be sustained on a confessional statement voluntarily made by an accused person where it is shown to be positive, direct and cogent in respect of the offence with which he is charged. See the cases of SAMINU V. STATE (2019) LPELR-47622(SC); MUSA V. STATE (2018) LPELR-43846(SC); and SHUAIBU V. STATE (2018) LPELR-45023(CA) amongst many others.
The offence for which the Appellant was convicted as revealed in the portions or parts of the judgment of the lower Court that have been re-produced hereinbefore, is that of conspiracy to commit the offence of armed robbery. In Exhibit “D” the Appellant fixed himself to the scene at which he and those in whose company he was, intended to carry out the robbery operation they went for and also revealed that some of them were armed. Indeed, in Exhibit “D” the Appellant not only disclosed that he escaped from the scene after one of his confederates was apprehended, but that he escaped with a cut to size gun he brought with him. The lower Court in its judgment in my considered view correctly set out what the prosecution must prove beyond reasonable doubt in order to sustain the charge of conspiracy to commit the offence of armed robbery in respect of which the Appellant was convicted. The offence of conspiracy having regard to decided cases lie in the agreement between two and more persons to commit an unlawful act or to carry out a lawful act by unlawful means. This position of the law in my considered view was brought out very clearly in the case of KAZA V. STATE (2008) LPELR-1683(SC) wherein the Supreme Court stated thus: –
“Black’s Law Dictionary defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. See Black’s Law Dictionary (Sixth edition) page 309.
This most comprehensive definition says it all. The bottom line of the offence is the execution of an unlawful purpose by an unlawful means. And that unlawful purpose is the criminality involved.
While the words “combination” and “confederacy” may in general parlance generally convey the same meaning with conspiracy, the latter parts ways with the former in one basic respect and it is the doing of an unlawful or an illegal act. While I concede that the unlawful or illegal nature of an act could also be found in combination and confederacy, that is better reserved to conspiracy in criminal law, as an agreement between two or more persons to behave in a manner that will invariably or automatically constitute the commission of an offence by two persons or by at least one of them. The offence of conspiracy can only be committed if there is a meeting of two or more minds. The offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy.
In my view, the offence of conspiracy is not necessarily said to be committed only when an accused person in his confessional statement said “I conspired with a co-accused to commit the offence.” He needs not use the exact word, conspire. On the contrary, the offence could be said to be committed by the action or conduct of the accused person. While two or more persons committing the same offence may not always give rise to the commission of the offence, it could be so in a number of cases.
In the offence of conspiracy, the mens rea is not easy to locate as it is mostly, if not invariably, buried in secrecy. And so, the actus reus of the offence which is easier to locate can draw the mens rea to the open, and make it possible for the Court to find inculpatory evidence.
From the above, I sift the following ingredients of the offence of conspiracy:
(i) There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds.
(ii) The persons must plan to carry out an unlawful or illegal act, which is an offence.
(iii) Bare agreement to commit an offence is sufficient.
(iv) An agreement to commit a civil wrong does not give rise to the offence, …
(v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
(vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective…”
It is in my considered view clear from the portions or parts of the judgment of the lower Court re-produced hereinbefore, that the lower Court did not just convict the Appellant on his extra-judicial confessional statement to the Police which the said Court found to have been made by the Appellant. It found corroboration for the confession of the commission of the offence of conspiracy to commit the offence of armed robbery in Exhibit “D”, in the confessional statement of the 1st accused person and from the evidence of PW1 and PW2 and Exhibits “E” and “E1”. It would appear that though the general position of the law is to the effect that the confessional statement of a co-accused person cannot be corroborative of that of an accused person (see the cases of STATE V. GWANGWAN (2015) LPELR-24837(SC) and AJAEGBO V. STATE (2018) LPELR-44531(SC) amongst others), this position is however not applicable to cases of conspiracy. In this regard, see the old case of MUMUNI V. STATE (1975) LPELR-1926(SC) wherein the Supreme Court stated thus:
“We observed that conspiracy as a crime is complete upon agreement, and it is not necessary in order to complete the offence that anyone thing should be done beyond the agreement. See …..
Also, once a conspiracy has come into existence, other conspirators may join in it at a later stage – See R. v. Murphy – 173 E.R. p. 505. Moreover, anyone of the conspirators may not know the other parties but only that there are other parties, and anyone may not know the full extent of the scheme to which he attaches himself – See R. v. Griffiths -49 C.A.R. p. 279.
In a conspiracy trial, evidence of what one accused says in the absence of other conspirators is rendered admissible against such others on the basis that, if they are all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it was said in the absence of the other conspirators. This is said to be an exception to the hearsay rule – See R. v. Luberg & Ors 19 C.A.R. p. 133.
Although the rules as to admissibility of evidence generally would appear to be relaxed when a charge of conspiracy is tried along with other substantive charges, the prosecution initially has a duty to lead distinct evidence of the existence of the conspiracy and the involvement of each conspirator in it.
An Australian Judge recommended the following approach in his direction to the jury in a case before him:
“Each accused is entitled at the outset to have the evidence properly admissible against him considered alone, and it is only when after such evidence so considered you find him to be a party to the conspiracy, if any, that the acts of the other conspirators can be used against him” – PER CUSSEN J. in R. v. ORTON – (1922) VICTORIAN LAW REPORTS at p. 474.
We agree with the learned trial Judge that a confessional statement properly proved is sufficient to sustain a conviction, even when such a statement is subsequently retracted at the trial. The truth of the matters admitted in the statement should, as a rule, be established by some other evidence, no matter how slight.
This test as laid down in R. v. SYKES -8 C.A.R.p. 233 was followed in R. v. KANU & ANOR. 14 W.A. C.A. p. 30.
In view of the foregoing, the 1st appellant’s appeal fails.”
See also the cases of OKOSUN V. AG BENDEL STATE (1985) LPELR-2500(SC) and KAYODE V. STATE (2016) LPELR-40028(SC) amongst many others.
Flowing from all that has been said is that the lower Court having in my considered view rightly found Exhibit “D” to be the confessional statement of the Appellant, and having also properly countenanced the confessional statement of the 1st accused person which not only formed part of the evidence of the prosecution, but also lent credence to the confession of the Appellant that he was at the scene (i.e. home or house or premises of PW1) whereat they went to rob while armed with at least a cut to size gun, but could not accomplish their mission due to the apprehension of the 1st accused person thereat, the position of the Appellant that the prosecution did not prove its case against him beyond reasonable doubt, is simply a figment of the imagination of the Appellant. The confessional statement of the Appellant to the Police (whether or not it was endorsed by a superior Police Officer and which if not done does not go to the admissibility of the said statement) was sufficiently tested by the lower Court against other facts available in the instant case. The lower Court in my considered view however did not need to have relied on Exhibits “E” and “E1” in determining the truth of the confessional statement of the Appellant as the other pieces of evidence I have referred to hereinbefore, were sufficient for that purpose. This is more so as the prosecution never led evidence to show whether or not the said Exhibits “E” and “E1” were such that were made by a camera that does not require negatives for the taking of a photograph and/or failed to tender the negatives of the said Exhibits and or failed to call the Photographer who took the picture to testify. See the case of UKPONG V. CROSS LINES LTD (2016) LPELR-40131(CA) wherein this Court held amongst others to the effect that “photographs are not admissible in evidence under the Evidence Act without its (sic) negatives.
Suffice it to say that the Appellant never established any reasonable doubt in respect of the case the Respondent established beyond reasonable doubt against him at the lower Court; and has also not shown in the instant appeal, any reasonable doubt that should result in the resolution of the issues he has formulated for the determination of the appeal, in his favour. Accordingly, the two issues formulated by the Appellant for the determination of the instant appeal are resolved against him: while the lone issue formulated by the Respondent, is resolved in its favour.
In the final analysis, the instant appeal is lacking in merit. It fails and is dismissed. The judgment of the lower Court as it relates to the Appellant, is affirmed. Likewise, his conviction and the sentence of death passed on him by the lower Court.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be dismissed.
The confessional statement in Exhibit ‘D’ sufficed to found the conviction as entered at the trial Court.
This is more so that the Exhibit ‘D’ was corroborated by the evidence of PW1, PW2. There was no objection as to the voluntariness in the making of Exhibit ‘D’ to warrant a trial -within – trial to be ordered by the trial Court.
The Appellant had fixed himself at the scene of the crime and brought out all the ingredients of the offence charged in his admission thereof.
I concur in dismissing the appeal and abide by the consequential orders entered in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now a draft copy of the judgment delivered by my learned brother AYOBODE OLUJIMI LOKUKO – SODIPE, JCA and I agree with the reasoning and conclusion in the judgment.
Appearances:
Jonathan Ekperusi For Appellant(s)
P.A. Okoh (Assistant Director, Department of Appeals, Delta State) with him, M.U. Dibia (Assistant Chief State Counsel) and O. Eyesio (Senior State Counsel) For Respondent(s)
