SAMODU DAROPALE V. THE STATE (2013)

SAMODU DAROPALE V. THE STATE

(2013)LCN/6736(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of April, 2013

CA/I/137/2004 (2)

RATIO

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

In this case the prosecution has a duty to prove its case beyond reasonable doubt. The essential ingredients of the offence of armed robbery are:

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

(b) That the robbery or each robbery was an armed robbery; and

It is settled law that for the prosecution to succeed in proving the offence of armed robber there must be proof beyond reasonable doubt of the above ingredients. Where there is any doubt, the accused person must be given the benefit of the doubt. See State vs. Emine (1997) NWLR part 256 page 658 at p.674. Per OBIETONBARA DANIEL-KALIO, J.C.A

WORDS AND PHRASES: CONFESSION

WHETHER A CONFESSION MADE BY ONE ACCUSED PERSON IS A RELEVANT FACT AGAINST ANY OTHER PERSON THE CONFESSION MAY IMPLICATE

Furthermore the position of the law is well established that a confession made by one accused person is a relevant fact against the person making it only and not against any other person the confession may implicate, save where the other person adopted the statement by words or conduct. See Section 27(2) of the Evidence Act and Emeka v. State (2001) 6 SCNJ 259, Igago v. State (1999) 11 & 12 SCNJ 140. Per ADAMU JAURO, J.C.A

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEMJustice of The Court of Appeal of Nigeria

ADAMU JAUROJustice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIOJustice of The Court of Appeal of Nigeria

Between

SAMODU DAROPALEAppellant(s)

AND

THE STATERespondent(s)

OBIETONBARA DANIEL-KALIO, J.C.A: (Delivering the Leading Judgment): This appeal is over a criminal matter – conspiracy to commit armed robbery and armed robbery, to be precise. Before the High Court of Ogun State in charge No. HCJ/2c/2001, the appellant faced 4 out of a 6 count charge. Charged along with him were two other accused persons. Following the escape from custody of the 1st accused, the only one that faced all 6 counts in the charge, trial of the appellant and the remaining co-accused continued. The charges against the appellant indicate that the appellant along with two others on or about the 15th day of February 2000 at Ayegbami Ago-Iwoye in Ijebu-Igbo Judicial Division of the Ogun State High Court conspired together to commit armed robbery and also robbed some named persons while armed with a gun, of various items including clothes, confection dry, rechargeable lantern, wrist watch, perfume, toothpaste etc and some cash. After taking appellant’s plea, hearing the prosecution witnesses and the appellant as well as counsel on both sides, the learned trial Judge found the appellant guilty on the counts of conspiracy to commit armed robbery, and armed robbery. He sentenced him to death. The sentence was handed down on the 10th of April, 2003. Dissatisfied with the verdict, the appellant promptly filed a Notice of Appeal dated 15th April, 2003 i.e. five days after the verdict. He subsequently filed an Amended Notice of Appeal on 9/8/11. The same was deemed filed on 20/3/12. The Grounds of Appeal and Particulars of error in the Amended Notice of Appeal read as follows:-
1. That the decision of the High Court is unreasonable and cannot be supported, having regard to the weight of evidence.
2. The learned trial Judge erred in law in holding that the prosecution proved its case beyond reasonable doubt against the appellant when the so called professional (sic) statement of the appellant relied upon by the learned trial Judge did not irresistibly point to the appellant as one of the perpetrators of the crime charged.
Particulars of Error
(a) The appellant neither confessed to the crime charged nor admitted same in his defence;
(b) There is nothing outside the so-called confessional statement linking the appellant with the crime charged;
(c) No corroborative evidence in the co-accused professional (sic) statement (Exhibit B) which the appellant failed to adopt at their trial;
(d) PW4, the investigating police officer failed to investigate the so-called professional (sic) statement of the appellant;
3. The learned trial Judge erred in law when he convicted the appellant of the crime charged when all the ingredients of the crime charged were not proved beyond reasonable doubt by the prosecution as required by the law and thereby came to a wrong decision which has occasioned a grave miscarriage of justice to the appellant.
Particulars of Error
(a) None of the prosecution witnesses adduced evidence linking the appellant with the crime charged;
(b) All items recovered from the appellant and tendered as Exhibit F by PW4 were not linked in any way with the crime charged;
(c) The appellant was at Ijebu-Ode at the time of the alleged robbery incident;
(d) There is no eye-witness account of the robbery incident and the appellant was not circumstantially linked in any way with the crime charged.
I wish to make a little comment by the way, Counsel as a matter of the ethics of the profession, owe it to their clients to be punctilious in preparing processes filed in court, Editing and vetting of such processes is a necessary chore and must not be overlooked. There is no doubt that what was stated in the Amended Notice of Appeal as “professional statement” was meant to read “confessional statement”. The mere omission or addition of the word “not” in a sentence for example, can give an opposite meaning to what is actually meant and can be quite ruinous. A little time devoted to reading over a process could be all that it takes to win or lose a case. Seriousness and dedication is called for in all cases, more especially in criminal matters. See the dictum of Oputa JSC in Udofia vs. State (1988) NWLR part 84 page 533.
The appellant’s brief of argument dated 8/8/2011 was filed on 9/8/11 but deemed filed by an order of this court granted on 20/3/12. Following the Respondent’s failure to file a Respondent’s Brief, appellant’s counsel on 14/9/12 filed a Motion on Notice pursuant to Order 18 rule 4(1) and Order 18 rule 10 of the Court of Appeal Rules 2011 seeking an Order of this court setting down the appeal for hearing on the appellant’s brief alone. The order sought was granted on 3/12/12. As a consequence, this appeal will be considered on the appellant’s brief alone.
Appellant’s counsel, Adebayo Ojo Esq. identified the following two issues for determination in this appeal, viz –
1. Whether the learned trial Judge was right or justified in his decision that Exhibit ‘G’ and G1, the alleged confessional statement of the appellant was direct, positive and unequivocal and same together with surrounding circumstances was sufficient to sustain the appellant’s conviction (Ground 2 of the Notice of Appeal).
2. Whether having regard to the totality of evidence before the court, the learned trial Judge was right to have returned a verdict of guilt against the appellant on the three counts of conspiracy to commit armed robbery and armed robbery (Ground 1 and 3 of the Notice of Appeal).
On issue 1, learned counsel referred to Section 27(1)(2) and (3) of the Evidence Act which deal with the definition of a Confession, when confessions are relevant, and the effect of confessions on a co-accused. He submitted that the learned trial Judge relied heavily on the appellant’s confessional statement, Exhibit G and G1 in convicting the appellant of the crime charged. He submitted that for a confession to lead to a conviction, it must be shown to be positive, direct and unequivocal as to the admission of guilt for the offence for which the accused was charged. He reproduced in extenso the English version of the confessional statement of the appellant and submitted that the statement shows that it was a confession to some past robbery incidents and not in respect of the alleged robbery incidents of 15th February, 2000 at Ayegbami Quarters, Ago-Iwoye, the subject matter of the charge before the lower court upon which the appellant was convicted. He cited Nigerian Navy vs. Lambert (2007) 18 NWLR part 1066 page 300 at 314; Oche vs. State (2007) 5 NWLR part 1027 at 214.
Learned Counsel submitted that the appellant as DW2 before the lower court retracted the confessional statement and maintained his innocence. He contended that the reliance by the prosecution on the confessional statement of the appellant’s co-accused, Exhibit B, in order to give credence to the alleged confessional statement of the appellant cannot be justified in law upon a critical examination of the alleged confessional statement of the appellant. He referred the court to the case of Nsofor vs. State (2004) 18 NWLR part 905 page 292 at 315 – 316.
Learned Counsel submitted that the evidence of PW1 – PW4 failed to connect or link the appellant with the crime with which he was charged. He further submitted that there is nothing outside the alleged confessional statement which destroys appellant’s denial of the crime or his retraction of the confessional statement. He referred to Emeka vs. State (2001) 14 NWLR part 734 page 668 at 683.
Learned Counsel argued that the fact that the appellant lied about his mode of arrest by PW4 and that the trial Judge believed that the PW4 arrested the appellant is not conclusive proof that the appellant participated in the robbery incidents of 15/2/2000. He referred to Ogidi vs. State (2005) 5 NWLR part 918 page 286 at 318.
Learned Counsel submitted that the appellant’s alleged confessional statement Exhibit G and G1 not being a confessional statement relating to the crime charged and for which the appellant stood condemned, and there being no other evidence be it direct or circumstantial save Exhibit B linking the appellant to the crime, this court should uphold appellant’s appeal.
On issue 2, Learned Counsel submitted that by Section 138(1) of the Evidence Act, the prosecution has a duff of proving a charge against an accused person in a criminal trial beyond reasonable doubt. He submitted that the essential ingredients of the offence of armed robbery are that there must be a robbery or series of robberies, the robbery or each robbery was an armed robbery and that the accused was one of those who took part in the armed robbery. All the three ingredients or elements he submitted would have to be proved, otherwise the accused would be discharged and acquitted. He cited Afolalu vs. State (2011) 11 SCNLR p.1 at p.21; Bolin vs. State (1985) 2 NWLR part 8 page 465; Omopupa vs. State (2008) All FWLR part 445 page 1648.
Learned Counsel referred to the evidence of PW2 and PW3, the victims of the robberies that took place at Ayegbami Quarters on 15/2/2000. He submitted that neither the evidence of PW2 nor that of PW3 linked the appellant to the robbery that took place on the said 15/2/2000 at Ayegbami Quarters.
With respect to the element that the robbery must be an armed robbery, learned counsel referred to the evidence of PW2, PW3 and PW5 that some dangerous weapons including a locally made pistol were recovered by the police from the scene of crime and handed over to PW4. PW4 while giving evidence he submitted, failed to remember those weapons but specifically remembered items such as a face cap, bunch of keys, belt, perfume, tins of sardine, audio cassette, rechargeable lamp and items of clothing. Those remembered items he noted, were kept in a bag by PW4 and the items in the bag collectively admitted in evidence and marked as Exhibit ‘C’.
Counsel submitted that the locally made pistol, live cartridge, 7 expended cartridges and one chisel were vital weapons that should not have escaped the record of the trial Judge in view of the evidence of PW1 and PW3 who were the victims of the crime.
Learned Counsel argued that it would be dangerous and unsafe to assume that the vital weapons aforesaid which were omitted by PW4 and which also escaped the notice of the learned trial Judge were among the contents of the bag tendered and collectively marked as Exhibit ‘C’. He urged the court to apply the provision of Section 149(d) of the Evidence Act which enjoins the court to presume that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it. Section 149(d) of the Evidence Act it has to be noted, has been re-enacted as Section 167(d) of the Evidence Act 2011.
Learned Counsel submitted that apart from the fact that the 1st accused who made Exhibit B mentioned the name of the appellant therein as a member of his gang and also led PW4 to Ijebu-Ode to arrest the appellant, there is nothing in Exhibit ‘B’ that suggests that the appellant was one of those who took part in the robbery incidents as framed in counts III-V of the charge against the appellant. Besides he submitted, the 1st accused retracted his confessional statement in his defence and throughout his defence, made no mention of the appellant. Furthermore he argued, the appellant did not adopt Exhibit B as his own statement either by words or by conduct as required by law.
Learned Counsel submitted that suspicion however strong does not constitute proof of a criminal offence. He contended that the evidence of the prosecution witnesses only raised some suspicion which suspicion cannot take the place of legal proof.
Counsel argued that if the evidence before the court suggested a line of defence, the trial court had a duty to consider it whether or not the accused or his counsel expressly raised that defence. He submitted that the prosecution failed to put any question to the appellant on his whereabouts on 15/2/2000, the appellant having raised a subtle alibi in his defence which alibi the pw4 failed to investigate.
Learned counsel submitted that the trial court had a duty to consider the defence open to the appellant as disclosed by the evidence on record but failed to do so. He urged the court to allow the appeal.
As will be recalled, the first issue for determination is whether the learned trial Judge was right or justified in his decision that Exhibit G and G1, the alleged confessional statement of the appellant was direct, positive and unequivocal and same together with surrounding circumstances was sufficient to sustain the appellant’s conviction.
This issue calls for a scrutiny of the decision of the trial Judge with regard to the appellant’s confessional statement.
In the Judgment of the lower court at page 97 of the record, the learned Judge concluded with regard to the confessional statement of the appellant as follows:-
“The 2nd accused in Exhibit ‘G’ and ‘G1’ gave the names of members of his gang who included the 1st accused and others. He too narrated the modus operandi of the gang. The name in Exhibit G and G1 and the details supplied therein are in substance the same or similar to Exhibit B. Both in Exhibit G and G1 and his oral evidence, the 2nd accused gave the name of his boss as one Taju. He also gave the names of his siblings as Abiodun and Taiwo Daropale. There are acts within the exclusive knowledge of the 2nd accused Person and which he volunteered to the police. These and other reasons made me to conclude that Exhibit G is true, positive and direct. The statement satisfied the test in Idowu vs. The State (supra). Due weight therefore ought to be placed on Exhibit G and G1.”
Was the learned trial Judge justified in holding as he did in the above passage of his judgment? In giving an answer to this question, I consider it pertinent to consider the confessional statement of the appellant in question. The relevant portion which I will quote verbatim, reads:
“I was introduced into robbery by Wale when we met at hot spot at Folagbade Street, Ijebu-Ode sometime last year. On Tuesday 9/2/2000 self and the rest of my syndicate member together in our usual spot at around 8.30pm. Wale instructed us again that we are to go to Ago-Iwoye today to rob. We all agree together. Before our departure from Ijebu-Ode, Wale bought some packet of knock out for the gangs to use in our operation. Wale is the one who use to fire the knock out. The sound used to resemble gun. We all left for Ago-Iwoye, On reaching Ago Iwoye we hid ourself inside the bush just to allow the day dark. When it was around 10pm we both came out from the bush we hide to one two story building to robbed.
When we got to the house Wale fired some of the knock out before we enter the building Adekeji enter into the house while self Wale and Waheed remain outside the building watching the movement of people. We robbed the occupant of the building some amount of money. We did not take anything inside the house apart from money. After we finished operation along the road we share out loot. The total sum of One Thousand Five Hundred Naira (N1,500.00k) was share to me. I use my share to buy food…”
The above statement written in passable English is quite clear and understandable by an average Nigerian conversant with pidgin English. Does it qualify as a confessional statement? My straightforward answer is No. The word confession has a meaning ascribed to it under the Evidence Act. It has a technical meaning there. A confession that does not come within that technical definition cannot be accepted as a confession under the Evidence Act.

A confession is defined in Section 28 of the Evidence Act 2011 as an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime. See also Section 27(1) of the Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004. See also Henry Odeh vs. Federal Republic of Nigeria (2008) 13 NWLR part 1103 page 1 also reported in (2008) 3 – 4 SC 1147.
The heist that the appellant was accused of having committed as shown in the charge sheet (see at page 2-3 of the record) is the one committed on 15/2/2000. It is in respect of that armed robbery that a confessional statement can be used to convict the appellant and not in respect of a different armed robbery incident. The appellant did not confess to the crime of 15/2/2000. His confession, Exhibit G, therefore does not come within the ambit or scope of Section 28 of the Evidence Act. If the trial court had tested the confessional statement as to the truth of when the crime took place, it would not have acted on the confessional statement. Nwachukwu vs. State (2002) 12 NWLR part 782 page 543 at p.572 reported also in (2002) 7 SC part 1 page 124 is an authority of the Supreme Court that says that a confessional statement which is direct and positive and properly proved is enough to sustain a conviction but the court should not act on the confession without first testing the truth thereof. See also Jafiya Kopa vs. State (1971) 1 ALL NLR 150. The truth of the confession Exhibit ‘G’ is that it relates to a robbery that took place on 9/2/2000, not the one that took place on 15/2/2000. I agree with the submission of appellant’s counsel that the confessional statement did not relate to the crime for which the appellant was charged and convicted. I resolve issue 1 in the appellant’s favour.
I now turn to issue 2 which is whether having regard to the totality of evidence before the court, the learned trial Judge was right to have returned a verdict of “guilty” against the appellant on the three counts of conspiracy to commit armed robbery and armed robbery.
In this case the prosecution has a duty to prove its case beyond reasonable doubt. The essential ingredients of the offence of armed robbery are:
(a) That there was a robbery or series of robberies;
(b) That the robbery or each robbery was an armed robbery; and
(c) That the accused was one of those who took part in the armed robbery.
It is settled law that for the prosecution to succeed in proving the offence of armed robber there must be proof beyond reasonable doubt of the above ingredients. Where there is any doubt, the accused person must be given the benefit of the doubt. See State vs. Emine (1997) NWLR part 256 page 658 at p.674.
In the portion of his judgment devoted to a consideration of the case against the appellant, the learned trial Judge gave a correct view of the law when he held in his Judgment at page 94-95 of the Record as follows:-
“Without much ado, the law is settled that confessions are only relevant and admissible against the maker and any statement in an extra-judicial confession which incriminates a co-accused is no evidence against the co-accused unless the latter adopts same. See section 27(3) Evidence Act, My duty therefore is to look beyond Exhibit B to ascertain whether or not there is evidence linking the 2nd accused to the offence charged.”
Exhibit B is the confessional statement of the 1st accused.
Having properly guided himself to go beyond Exhibit B to see if there is evidence that links the appellant to the crime since the appellant (the 2nd accused) did not adopt Exhibit B, the learned trial Judge surprisingly went back to Exhibit B to find evidence linking the appellant to the crime, This is what the trial Judge said in his Judgment at page 97 of the Record:
“The names in Exhibit G and G1 and the details supplied therein are in substance the same or similar to those in Exhibit ‘B’.”
The trial Judge then went on to hold thus:
“These and other reasons made me to conclude that Exhibit G is true, free, positive and direct. Due weight therefore ought to be placed on Exhibit G and G1.”
The corroborative evidence that the trial Judge found in Exhibit ‘B’, he had no business to find.
I have earlier held that the confessional statement does not relate to the crime for which the appellant was charged and convicted and that it is not a confession within the definition of the word in the Evidence Act.
Let me also say that I agree with the appellant’s counsel that the trial Judge did not consider some of the defences available to the appellant such as the failure to consider that the alleged weapons used to carry out the crime were not among the items collectively admitted as Exhibit C. Issue No. 2 is resolved in favour of the appellant.
In the final analysis I am satisfied that the conviction and sentence of the appellant by the lower court constitute a miscarriage of justice, The Judgment cannot be allowed to stand. The conviction and sentence of the appellant by the trial court is hereby set aside. In its place, the appellant is discharged and acquitted.

MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother Daniel-Kalio, JCA that this appeal has merit.
A retraction of a confessional statement by an accused person is not a good ground to demolish the case of the Prosecution. Most accused persons always attempt to retract even the most graphic of confessional statements. The peculiar circumstance of the situation under review is that in addition to the retraction, no other evidence has linked the Appellant with the alleged crime. Not even circumstantial evidence situates the appellant in the offence for which he was condemned. Like a drowning man, the Prosecution hung on to the alleged confessional statement of a co-accused to make a case against the Appellant! Worst still, the said co-accused was not available for cross-examination.
The learned trial Judge correctly stated the law when his lordship found that:-
“Without much ado, the law is settled that confessions are only relevant and admissible against the maker and any statement in an extra-judicial confession which incriminates a co-accused is no evidence against the co-accused unless the latter adopts same. See section 27(3) Evidence Act. My duty therefore is to look beyond Exhibit B to ascertain whether or not there is evidence linking the 2nd accused to the offence charged.”
However, rather than apply the said principles of law, the learned trial Judge found some reason to hang the Appellant nonetheless. We cannot support such perverse decision. This appeal therefore succeeds and the conviction and sentence of the Appellant is hereby set aside.

ADAMU JAURO, J.C.A: I have been afforded the opportunity of reading the lead judgment of my learned brother, O, Daniel-Kalio, JCA, just delivered, I am in agreement with the reasoning and conclusion contained therein.
The appellant in Exhibit G confessed to the offence of robbery committed on 9th February, 2000. The offence for which the appellant was tried and convicted was armed robbery committed on 15th February, 2000. The confession made in relation to the offence committed on 9th February, 2000 is only relevant to that offence and does not relate to the crime for which the appellant was charged and convicted. Furthermore the position of the law is well established that a confession made by one accused person is a relevant fact against the person making it only and not against any other person the confession may implicate, save where the other person adopted the statement by words or conduct. See Section 27(2) of the Evidence Act and Emeka v. State (2001) 6 SCNJ 259, Igago v. State (1999) 11 & 12 SCNJ 140.
For the above and fuller reasons contained in the lead judgment which I adopt as mine, the appeal is meritorious and is hereby allowed by me. The conviction and sentence of the appellant is hereby set aside. In its place, I return a verdict of discharge and acquittal in favour of the appellant.

Appearances

counsel are absentFor Appellant

AND

counsel are absentFor Respondent