SUNDAY ABIODUN V. THE STATE
(2011)LCN/4940(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of November, 2011
CA/I/127/2010
RATIO
CONFESSION: WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
In law, where an accused person confesses to a crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See: Akpa vs. State (2008) 4 – 5 SC (Pt. 11) 1 at 15; Milla vs The State (1985) 3 NWLR (Pt. 11) 190; Queen vs. Obiasa (1962) 1 All NLR 691; Achabua vs. The State (19761 12 SC 63; Mohammed & Anor vs. State (20071 4 SC (Pt.1) 181 at 194 and Egbigbonome vs. State (1993) 7 NWLR (Pt.306) 383. PER ADZIRA GANA MSHELIA, J.C.A.
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROVING THAT A PERSON HAS BEEN GUILTY OF A CRIME OR WRONGFUL ACT
The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See section 138(1) and (2) of the Evidence Act cap 112 Laws of the Federation of Nigeria 1990 (as amended); Adamu vs. A.G. Bendel State (1986) 2 NWLR (Pt. 22) 284; Akpan vs. The State (1990) 7 NWLR (pt. 160) 101. The burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt. This burden never shifts. See Alabi vs The State (1995) 7 NWLR (Pt.307) 511 at 531 paras A-C; Solola vs The State (2005) 5 SC (Pt. 1) 135; Mufutau Bakare vs. The State (1987) 3 SC 1 at 32; Bolanle vs The State (2005) 7 NWLR (Pt.925) 431 and Udosen vs. State (2007) 4 NWLR (Pt. 1023) 125. PER ADZIRA GANA MSHELIA, J.C.A.
PROOF BEYOND REASONABLE DOUBT: MEANING OF “PROOF BEYOND REASONABLE DOUBT”
Oputa, JSC in the case of Mufutau Bakare vs. The State (supra) at page 32 defined “proof beyond reasonable doubt in the following words:- “Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice” In the case of Okere vs. The State (2001) 2 NWLR (Pt. 697) 397 at 415-416 paras H-A this court had this to say on the meaning of proof beyond reasonable doubt:- “Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.” PER ADZIRA GANA MSHELIA, J.C.A.
EVIDENCE OF A SINGLE WITNESS: WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON THE EVIDENCE OF A SINGLE WITNESS
It is therefore settled that an accused person can be convicted on the evidence of a single witness, if the offence for which he is being charged is not one that requires corroboration and the evidence of such a single witness is material enough to be capable of being believed. PER ADZIRA GANA MSHELIA, J.C.A.
OFFENCE CONSPIRACY TO COMMIT ARMED ROBBERY AND ARMED ROBBERY : FACTORS THAT THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT TO SUSTAIN A CONVICTION FOR THE OFFENCE CONSPIRACY TO COMMIT ARMED ROBBERY AND ARMED ROBBERY
For the prosecution to succeed, it must prove beyond reasonable doubt, the following ingredients of conspiracy to commit armed robbery and armed robbery as follows:- 1. That there was an agreement or confederacy between the convict and others to commit the offence of robbery. 2. That in furtherance of the agreement or confederacy the accused took part in the commission of the offence of robbery or series of robberies. 3. That the robbery or each robbery was an armed robbery. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
SUNDAY ABIODUN – Appellant(s)
AND
THE STATE – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Ogun State High Court of Justice, Ijebu-Ode judicial division, delivered by Ogunsanya, J. on 23rd December, 2009. The appellant and two others were arraigned before the High Court of Justice Ogun State and tried on a two counts charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to section 6(b) and 1 (2) (a) of the Robbery and Firearms (Special provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004.
The case for the prosecution at the trial court was that on 7/5/2007 at about 9.30 p.m., the PW1, who was the managing Director of FAO Construct Petroleum at Ilese, Ijebu-Ode closed for the day at the filling station. He took the day’s proceed the sum of three hundred and fifty seven thousand one hundred and fifty naira (N357,150) in his car with one of his staff. While driving along the road, he saw a motorcycle with three men coming behind his vehicle. The motorcycle overtook his car and blocked his vehicle in the front. The three men rushed down from the motorcycle, attacked him, gave him serious beating, injured him with a broken bottle and went away with the money and two mobile phones in the vehicle. His staff that was in the vehicle with him was able to escape, He was later assisted by two people around, who also pursued the robbers without success. They returned to the scene of the crime where (PW1’s) brother Leke Osiyemi informed him that he saw the 1st accused person around the filling station that day. The case was thereafter reported to the police. The Police arrested the first accused person and upon his arrest he confessed and mentioned the name of the Appellant as one of the armed robbers. This resulted to the arrest of the Appellant who also confessed to the crime and stated the role he played before and after the robbery incident. Following the arrest, the Appellant and two others were arraigned and tried on a two counts charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to section 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004. At the trial prosecution called two witnesses and tendered nine exhibits. The appellant being the 3rd accused gave evidence in his own defence and denied the charge, and objected to the admissibility of his statement dated 12/5/2007. The statement was later admitted as exhibit H after a trial within trial was conducted. In a well considered Judgment the learned trial Judge convicted the appellant and two others for the offences they were charged and sentenced them to death.
The appellant who was the 3rd accused being dissatisfied with judgment consequently appealed to this court against his conviction vide his Notice of Appeal dated 30th December, 2009. On 4th October, 2010 leave was granted to the appellant by this court to amend his notice of appeal and same was deemed amended on 23rd June, 2010 having been duly filed. The amended notice of appeal contained 4 (four) grounds of appeal.
In accordance with the Practice of this court parties exchanged briefs of arguments. Appellant’s brief filed on 28/10/2010 was deemed properly filed and served on 20/01/2011. While the respondent’s brief of argument filed on 20/6/2011 was deemed properly filed and served on 21/6/2011. At the hearing of the appeal Appellant’s counsel adopted the appellant’s brief of argument and urged the court to allow the appeal and set aside the conviction and sentence ordered by the trial court. Respondent’s counsel similarly adopted the respondent’s brief and urged the court to affirm the decision of the lower court.
The Appellant formulated two issues for determination in this appeal as follows:-
i. Whether the trial court was right in admitting Exhibit H (the alleged confessional statement of the appellant) in evidence and/or attaching any or much weight to the said exhibit H and convicting the appellant based on the said exhibit H?
ii. Whether the respondent proved the offences of conspiracy to commit armed robbery and robbery against the appellant beyond reasonable doubt?
Respondent on its part adopted the two issues raised by the appellant with slight modifications, The two issues read thus:-
1. Whether the trial court was right in admitting exhibit H (the confessional statement of the appellant) in evidence and attaching evidential weight to it and using same in convicting the Appellant.
2. Whether the respondent proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.
In determining this appeal I will adopt the two issues formulated by the appellant. As earlier noted the respondent adopted appellant’s issues with slight modifications.
Issue No.1 is distilled from ground two of the Notice of Appeal. Exhibit H is the alleged confessional statement made by the appellant at Atan Police Station, Ijebu-Ode. See: pages 33 to 38 of the record. The alleged confessional statement was tendered in evidence by the prosecution through PW2, the Investigating Police Officer attached to Area Command, Ijebu-Ode who investigated the case against the appellant. The contention of the appellant is that exhibit H ought not to have been admitted by the trial court as same was obtained under duress. The Appellant denied making the statement when he testified in the trial within trial conducted by the trial court. That the appellant who is not literate in English language volunteered a statement in Yoruba language yet his statement which was not read over to him was recorded in English language. Tha this alone is enough to put the trial court on the alert regarding the weight to be attached to Exhibit H after it had been wrongly admitted. The trial court in admitting Exhibit H in evidence as having been made voluntarily relied on inter-alia with the regularity of the signature on the said Exhibit H and the fact that there was no blood stain on the document. It was contended that it is unrealistic to expect to see blood stains on Exhibit H.
Furthermore, appellant contends in his brief of argument that there was no information in Exhibit H which could not have been available to PW2. More importantly what was in issue in the trial within trial was the voluntariness or otherwise of the extra judicial statement of the appellant and not necessarily whether or not the appellant made the statement. Reliance was placed on section 28 of the Evidence Act. Appellant’s contention is that the trial court should have been wary in rushing to a conclusion that Exhibit H, was voluntarily given and therefore ought not to have admitted Exhibit ‘H’ in evidence. A confession induced by threat is inadmissible in evidence. See: Ozaki vs. State (1990) 1 NWLR (Pt. 124) 92 at 112. That there was no evidence outside Exhibit ‘H’ which made it probable that the purported confessional statement was true and correct. Exhibit ‘H’ was not corroborated. See: Ikpo vs. State (1995) 9 NWLR (Pt. 421) 540 at 554. The factors to be considered while determining the weight to be attached to a confessional statement whether or not retracted are laid down by the Supreme Court in the case of Nwaebonyi us. State (1994) 5 NWLR (Pt. 343) 138 at 150.
It was further submitted that the learned trial Judge failed to consider the evidence of the appellant that he was hit with a cutlass in the course of being tortured and indeed showed the court the scar on his back. Appellant contends that the lower court acted on Exhibit ‘H’ as a confessional statement without testing the truth thereof contrary to the decision in Ikpo vs. State (supra). That the trial court attached undue weight to Exhibit ‘H’ in total disregard of the requisite factors to be considered as enumerated by the Supreme Court in Nwaebonyi vs. State (supra). Appellant concluded his submission by saying that the trial court was wrong to admit Exhibit ‘H’ in evidence and to attach any or much weight to the said Exhibit H and convicting him on that basis. Appellant urged the court to resolve issue 1 in his favour.
In response, the Respondent submits that it is trite law that a trial court can rely solely on the confessional statement of the accused person to convict him. This has been well settled by the Supreme Court in plethora of cases. Reliance was placed on the cases of Akpa vs. State (2008) 8 SCM page 68 at 70 and Adebayo vs. Attorney-General of Osun State (2008) 5 SCM page 1 at 15. It was contended that the trial court did what is required of it under the law by conducting a trial within trial to determine the voluntariness of Exhibit ‘H’. See: Akpa vs. State (supra) at page 84. Respondent urged the court to uphold the finding of the lower court in this respect. That the lower court found exhibit H consistent with the facts of this case as testified to by the prosecution witnesses.
Furthermore, it was contended that the trial court could rightly convict the 3rd accused/appellant based on his confessional statement. Reliance was placed on the case of Nwachukwu vs. State (2007) 12 SCM pt. 2 page 447 at page 455. That the contents of Exhibit H was obtained after appellant was cautioned in English language and the said contents are only within the knowledge of the appellant because only him knows the details of the role he played in the incident and he vividly stated it. He even went further to explain how the operation was carried out. See: page 34 of the record.
Respondent finally submits that the trial court was right in admitting exhibit H and attaching weight to it while convicting the Appellant.
There are two points to be determined under this issue. The first point to determine is whether Exhibit ‘H’ was voluntarily made by the appellant. The second point is whether the learned trial Judge wrongly attached weight to Exhibit ‘H’ in convicting the appellant.
Issue 1 deals with Exhibit H, the confessional statement made by the appellant.
“Section 27(1) of the Evidence Act defines confession as follows:-
27(1) A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.”
Subsection (2) of S.27 goes on to state that:-
“Confessions if voluntary are deemed to be relevant facts as against the person who made them only”
As regards the voluntariness of Exhibit H, I have myself perused through the evidence on the issue and I am satisfied that it was voluntarily made by the appellant. At the trial when the prosecution sought to tender appellant’s confessional statement (Exhibit H) in evidence through PW2 the investigating Police Officer PC Babalola Solomon, the appellant objected that same was not voluntarily made. A trial within trial was conducted and in a considered ruling the learned trial Judge overruled the objection and admitted the statement on the ground that it was voluntarily made. The contents of Exhibit ‘H’ was obtained after appellant was cautioned in English language and the said contents are only within the knowledge of the appellant because only the appellant knows the details of the role he played in the incident and he vividly stated it. Appellant even went further to explain how the operation was carried out. PW2 also confirmed in his evidence that he read over the statement to the 3rd accused in English language as the 3rd accused (appellant) passed out from Ijele High School which means he could communicate in English. In law, where an accused person confesses to a crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See: Akpa vs. State (2008) 4 – 5 SC (Pt. 11) 1 at 15; Milla vs The State (1985) 3 NWLR (Pt. 11) 190; Queen vs. Obiasa (1962) 1 All NLR 691; Achabua vs. The State (19761 12 SC 63; Mohammed & Anor vs. State (2007) 4 SC (Pt.1) 181 at 194 and Egbigbonome vs. State (1993) 7 NWLR (Pt.306) 383.The learned trial Judge found exhibit ‘H’ consistent with the facts of this case as testified by the prosecution witnesses. In testing the truth of exhibit ‘H’ the court also relied on facts and circumstances outside the confession that made the confession true. The guiding rules are stated in case of Nwaebonyi vs. State (1994) 5 NWLR (Pt. 342) 138 at 150. It is therefore my considered view that the trial court rightly admitted exhibit ‘H’ and also attached weight to it while convicting the Appellant. Issue 1 is therefore resolved in favour of the Respondent.
Issue No. 2 is whether the Respondent proved the offences of conspiracy to commit armed Robbery and armed robbery against the appellant beyond reasonable doubt. This issue is distilled from grounds one, three and four of the Notice of Appeal.
In arguing this issue Appellant’s counsel referred to the definition of conspiracy stated in the Supreme Court case of Obiakor vs. State 10 NWLR (Pt. 776) 612 at 628. Learned counsel submitted that the learned trial judge relied solely on the unreliable, unsubstantiated and uncorroborated testimonies of PW1 and PW2 to conclude that the accused persons were all working in concert. That the prosecution failed to adduce any credible and/or cogent evidence before the lower court to establish beyond reasonable doubt that the appellant committed the offence of conspiracy to commit armed robbery. It was also his contention that the trial court wrongly discountenanced and rejected the evidence of the appellant that he had nothing to do with the robbery or planned robbery with the other accused persons.
As regards proof of armed robbery counsel referred to the ingredients the prosecution must establish to secure a conviction as laid down in the cases of Alabi vs. State (1993) 7 NWLR (Pt.307) 511 at 52 and Bozin vs. State (1985) 2 NWLR (Pt. 8) 465. Failure of the prosecution to prove beyond reasonable doubt the stated ingredients is fatal to the prosecution’s case. Counsel submitted that in proof of the offence of armed robbery prosecution relied solely on the oral evidence of PW1 the victim of the robbery. Learned counsel submitted that prosecution merely relied on the alleged confessional statement by the appellant which was denied and was not corroborated by any other piece of evidence without establishing the case beyond reasonable doubt. That the testimonies of PW1 and PW2 are unbelievable. Counsel contended that prosecution failed to call PW1’s attendant which is fatal to prosecution’s case. See Usufu Vs. The State (2007) 1 NWLR (Pt.1020) 94.
It was further argued that the robbery was not an armed robbery. That the evidence of PW1, that he was robbed and stabbed with a broken bottle is an obvious lie. That the testimony was not corroborated. The learned trial judge placed undue reliance on Exhibit ‘H’ which was not voluntarily made. Counsel further contended that prosecution was unable to prove that the appellant was one of those who took part in the robbery. Once the court attached no probative value to Exhibit H then there is nothing before the court to suggest that the appellant was one of the alleged robbers. That there was nothing outside of Exhibit H to link the appellant with the alleged robbery. PW2 confirmed that none of the items that were allegedly stolen from PW1 was recovered from the appellant. As to the burden of proof in criminal cases reliance was placed on the Supreme Court case of Udosen vs. State (2007) 4 NWLR (Pt. 1023) 125 at 150 and Alonge vs. IGP (1959) 4 FSC 203 at 204. Learned counsel urged the court to hold that prosecution has failed to prove the offence of armed robbery beyond reasonable doubt.
The response of the Respondent is as stated under issue 2. The Learned Deputy Director Public Prosecutions Mr. Omotosho submitted that it is trite law that the burden of proof on the prosecution is beyond reasonable doubt, and is not beyond any shadow of doubt. See Dibie vs. The State (2007) 7 SCM page 107 at 105. Learned counsel contended that the appellant made confessional statement wherein he confessed to have conspired with others to rob the victim (PW1). He re-iterated that a confessional statement is the best evidence in criminal procedure and that once a confessional statement is admitted in evidence, it becomes part of the prosecution’s case which the trial court is bound to consider. On the nature of the offence of conspiracy, it was held in the case of Kaza vs. The State (2008) 5 SCM 70 at 104 among other things that ——conspiracy is meeting of two or more minds to plan to carry out an unlawful or illegal act which is an offence and that bare agreement to commit an offence is sufficient. See also Upahar us. The State (2003) NWLR (Pt.230) 230 at 239. Counsel further submitted that in criminal matter it is difficult to have direct evidence in support of the offence of conspiracy. Conspiracy is usually inferred from the facts and circumstances of each case. He said the complainant (PW2) gave evidence how three men rushed down from a motorcycle and robbed him. The confessional statement Exhibit H also corroborates this evidence. Also in Exhibit H the Appellant stated how the conspiracy was carried out.
On the issue of armed robbery counsel submitted that prosecution is required to establish the following:-
i. That there was a robbery or series of robberies
ii. That the robbery was an armed robbery.
iii. That the appellant was one of those who took part in the robbery.
See Bozin vs. State (1985) 2 NWLR (Pt. 8) 465. Learned counsel referred to the testimony of PW1 which was corroborated by Exhibit H the confessional statement of the Appellant. Counsel argued that PW1’s testimony and Exhibit ‘H’ confirmed the involvement of the appellant in the commission of the offence of robbery. Learned counsel submitted that prosecution has proved beyond reasonable doubt that the Appellant was one of the robbers. He urged the court to dismiss the appeal and affirm the conviction of the Appellant.
The law is settled that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See section 138(1) and (2) of the Evidence Act cap 112 Laws of the Federation of Nigeria 1990 (as amended); Adamu vs. A.G. Bendel State (1986) 2 NWLR (Pt. 22) 284; Akpan vs. The State (1990) 7 NWLR (pt. 160) 101. The burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt. This burden never shifts. See Alabi vs The State (1995) 7 NWLR (Pt.307) 511 at 531 paras A-C; Solola vs The State (2005) 5 SC (Pt. 1) 135; Mufutau Bakare vs. The State (1987) 3 SC 1 at 32; Bolanle vs The State (2005) 7 NWLR (Pt.925) 431 and Udosen vs. State (2007) 4 NWLR (Pt. 1023) 125.
Oputa, JSC in the case of Mufutau Bakare vs. The State (supra) at page 32 defined “proof beyond reasonable doubt in the following words:-
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice”
In the case of Okere vs. The State (2001) 2 NWLR (Pt. 697) 397 at 415-416 paras H-A this court had this to say on the meaning of proof beyond reasonable doubt:-
“Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.”
It is therefore settled that an accused person can be convicted on the evidence of a single witness, if the offence for which he is being charged is not one that requires corroboration and the evidence of such a single witness is material enough to be capable of being believed.
Now turning to the instant appeal, has the prosecution proved the case beyond reasonable doubt as to warrant a verdict of guilt against the appellant? The appellant was charged with an offence of conspiracy to commit armed Robbery and armed Robbery.
For the prosecution to succeed, it must prove beyond reasonable doubt, the following ingredients of conspiracy to commit armed robbery and armed robbery as follows:-
1. That there was an agreement or confederacy between the convict and others to commit the offence of robbery.
2. That in furtherance of the agreement or confederacy the accused took part in the commission of the offence of robbery or series of robberies.
3. That the robbery or each robbery was an armed robbery.
The prosecution in its quest to establish the guilt of the appellant beyond reasonable doubt called two witnesses and tendered the confessional statement of the appellant in evidence and this was admitted as exhibit ‘H’ after trial within trial was conducted. The trial court had a duty to consider the totality of the evidence before it in determining whether the burden on the prosecution has been discharged. The Judgment of the learned trial judge showed that the totality of the evidence was considered in arriving at his decision.
On the issue of conspiracy to commit robbery, the trial court said:-
“In this present case, the evidence of PW1 as to how he was attacked by three men and robbed is in consonance with all the confessional statements the accused persons have made together with the fact that the material items of the PW1 as contained in his evidence were also mentioned in the statements of the Accused persons as having been stolen during the attack on PW1.
The evidence of PW2 also corroborates Exhibit G to the extent that the handset of the PW1 was found in the 2nd Accused when he was arrested. All these pieces of evidence make Exhibits C, E, F, G and H the confessions true and also most probable. It is for these reasons I do not believe the cock and bull story of the three Accused persons that it was the Police who asked them to name, each other as Conspirators of all the people 1st accused knew, why was it 2nd and 3rd Accused he mentioned? Why was the handset found with 2nd Accused and part of the money found with 1st Accused. The only inference is that they were all working in concert. I therefore hold that the Accused persons were ad dem (sic) in their common intention to commit the offence of conspiracy to commit Armed Robbery as charged in count 1 and in law where common intention to prosecute an unlawful purpose is established the Accused persons are jointly liable. See Nwankwoale vs. State (2006) 14 NWLR (Pt. 1000) 663.
I therefore find the count of conspiracy to commit Armed Robbery proved against each of the 1st, 2nd and 3rd Accused person and I find each of them guilty as charged.”
In proving the offence of conspiracy, the prosecution bears the burden of establishing the element of agreement to do an unlawful act or to do a lawful act by unlawful means. However, because the offence of conspiracy is difficult to prove by direct evidence because it is more often than not hatched in secrecy, reliance in most times is placed on circumstantial evidence. In Obiakor vs. State (2002) 6 SC (Pt. 11) 33; (2002) 10 NWLR (Pt. 774 – 776) 612 at 628- 629, the apex court, per Kalgo JSC discussed the nature of the offence of conspiracy thus:
“Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. But where persons are charged with conspiracy and with offence committed in pursuance of it as in the instant case, care must be taken in considering the evidence relevant to conspiracy and keep the several issues clear. See Onachie & Ors vs. The Republic (1966) NMLR 307″.
See also Imotola & 4 Ors. Vs. State 2009 2-3 SC (Pt.11) 196 at 241. In the instant case the learned trial judge clearly inferred conspiracy on the part of the convicts from the evidence in the case. The actual agreement alone constitutes the offence. The testimony of PW1 which is corroborated by Exhibit H the confessional statement of the appellant clearly supports the finding of the learned trial Judge that prosecution has proved, beyond reasonable doubt the offence of conspiracy to commit armed Robbery. Considering the circumstances of the case I am of the considered view that the finding is unassailable as such this court has no reason to interfere with the conclusion arrived at by the learned trial Judge.
As regards the substantive offence of armed robbery the prosecution is equally required to prove same beyond reasonable doubt. It is necessary to consider the evidence led at the lower court by the parties.
PW1 is Niyi Oshiyemi the alleged victim of robbery. In his oral evidence, he said:-
“I remember 7/5/07. as I was going along Ilese road, I saw a motorcycle coming behind me with three persons on it. The bike drove past my vehicle overtook my vehicle and blocked me in the front. The three men rushed down from the bike and they opened the door of my vehicle, attacked me and dragged me into the bush while beating me and slapped me and stabbed me with a broken bottle they were holding…. The accused persons took away my money I mentioned earlier and my two handsets.”
This statement quoted above is corroborated by Exhibit H, the statement of the appellant. See pages 42 lines 25-40 of the record of appeal.
PW2, Babalola Solomon was the Investigating Police Officer who recorded the statement of the appellant at Atan Police Divisional crime branch Head quarters. Before recording the statement of the appellant, he had recorded the statement of the complainant, (PW1). The statement of the appellant was admitted exhibit ‘H’ after a trial within trial was conducted. The appellant alleged that he did not make the statement voluntarily; but the court ruled that the confessional statement was voluntarily made. Through the information he obtained from PW1, 1st accused was arrested. As a result of his arrest the names of 2nd and 3rd accused/appellant were mentioned, as cohorts in the Armed Robbery on PW1.
It is clear from the testimony of PW1 Niyi Oshiyemi (complainant) that on 7th May, 2007 he was robbed and in the process suffered stab wounds for which he was treated. The evidence of the PW1 is graphic and categorical in this regard. None of the defence counsel asked question under cross examination which would suggest that a robbery never took place on the day in question. It is also established from the testimony of PW1 that he was stabbed with a broken bottle. A bottle is an offensive weapon within the contemplation of the definition of offensive weapon in section 11 of the Robbery and Fire arms Special Provision Act of 2004. As held in the case of Mohammed Sele v. State (1993) 1 NWLR (Pt. 269) 276 it is the use which a weapon is put to which make it offensive. The robbery committed was therefore an armed robbery. The failure of the prosecution to tender the weapon used is not fatal to the prosecution’s case. See Fatai Olayinka vs. The State 30 NSCQR 149 at 162-163. Appellant in his brief of argument had argued that the failure of the prosecution to call PW1’s attendant who was with him at the time of the incident was fatal to the Prosecution’s case. I do not agree that the failure of the prosecution to call the attendant as witness is fatal to the prosecution’s case. It is settled that prosecution is not bound to call hosts of witnesses in proof of its case. A conviction can be sustained on the testimony of a single witness once the evidence is accepted as credible and cogent. As to whether appellant participated in the commission of the offence of armed robbery his confessional statement exhibit ‘H’ clearly implicated him. As earlier resolved under issue one exhibit ‘H’ was voluntarily made and so the trial court rightly attached weight to it. It is trite that an accused can be convicted on his confessional statement if properly proved and circumstances make it probable. The confessional statement must also be direct and positive. See Adio vs. State (1986) 2 NWLR (Pt. 245) 81 and Ojedele vs. State (1984) 1 NSCC 276. In exhibit ‘H’ appellant gave vivid story of how the robbery was committed and how he took part. From the totality of the evidence adduced in the printed record, I am satisfied that the prosecution has proved beyond reasonable doubt that appellant committed the offences of conspiracy to commit armed robbery and armed robber.
Having accepted the truth of the confession contained in exhibit ‘H’ the learned trial judge was perfectly justified in finding the appellant guilty on the two count charges of conspiracy to commit armed robbery and armed robbery. The finding of the learned trial judge cannot in the circumstances be faulted. Issue 2 therefore fails and is dismissed along with grounds one, three and four which are tied to the issue.
In the final analysis, I hold that this appeal is devoid of merit. It is hereby dismissed. The decision of the court below delivered on 23rd December, 2009 is affirmed.
STANLEY SHENKO ALAGOA, J.C.A: I have read before now the lead judgment of my learned brother, Mshelia J.C.A. just delivered. I agree with his reasoning and conclusion that this appeal lacks merit and it is dismissed. I dismiss same and also affirm the decision of the lower court delivered on 23rd December, 2009.
MODUPE FASANMI, J.C.A: I had the privilege of reading in advance the judgment just delivered by my learned brother, A.G. MSHELIA J.C.A.
I agree entirely with her reasoning and conclusions. She has painstakingly dealt with the issues involved.
The appeal lacks merit and it is accordingly dismissed. The decision of the court below delivered on the 23rd of December 2009 is hereby affirmed.
Appearances
Ikenna Okoli For Appellant
AND
J.K. Omotosho DDPP Ministry of Justice Ogun State For Respondent
