UBGEREM v. STATE OF LAGOS
(2021)LCN/15718(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, September 23, 2021
CA/LAG/CR/806/2019
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
VICTOR UBGEREM APPELANT(S)
And
THE STATE OF LAGOS RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CRIMINAL CASES
It is well settled that the burden of proving the guilt of an accused person in a criminal trial must be discharged by the prosecution beyond reasonable doubt; Ogundiyan v. State [1991] 1 NSCC 448; The State v. Azeez (2008) 4 S. C. 188; Shande v. State (2005) 12 MJSC 152; John Agbo v. State (2006) 1 S.C. (PT. II) 73; Udo v. State (2006) 7 S.C. (PT. II) 83. See also Section 135 of the Evidence Act, Laws of the Federation of Nigeria, 2011.
‘Proof beyond reasonable doubt’ does not mean proof beyond a shadow of doubt; Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373, cited with approval inJohn Agbo v. State (supra). ‘Proof beyond reasonable doubt’ would have been attained in a criminal trial when there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. Indeed, the law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v State (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Idiok v. State (2008) 6 MJSC 36. Thus, the evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required.
It is also well settled that while the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. An accused person is presumed to be innocent until his guilt of the offence is established. This dispensation is constitutionally guaranteed by Section 36(5) Constitution of the Federal Republic of Nigeria, 2011, as amended. See also: Orungua v The State (1970) LPELR-2780(SC); Afolalu v The State (2010) LPELR-197(SC). Where all the ingredients of an offence have been clearly established and proved by the prosecution, the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348 (SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1)59. PER OTISI, J.C.A.
WAYS TO ESTABLISH THE GUILT OF AN ACCUSED PERSON
The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement. A free and voluntary confession alone is sufficient without further corroboration to warrant conviction; Mustapha Mohammed v. State (2007) 11 NWLR (PT 1045) 303, (2007) LPELR-1894(SC), (2007) 4 S. C. (PT. I) 1; Stephen v The State (2013) LPELR-20178(SC).
2. Circumstantial evidence. A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. For circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that murder had been committed and that it was committed by the accused person; Mustapha Mohammed v. State (supra); Yongo v C.O.P (1992) LPELR-3528(SC); Ijioffor v The State (2001) LPELR-1465(SC); Igabele v The State (2006) LPELR-1441(SC).
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder; Ilodigwe v The State (2012) LPELR-9342(SC); Agu v The State (2017) LPER-41664(SC); Ogedengbe v The State (2014) LPELR-23065(SC). PER OTISI, J.C.A.
THE CRIMINAL OFFENCE OF ARMED ROBBERY
Section 295(1), (2) (a) and (b) provide: –
1. (i) Any person who commits the offence of robbery shall on conviction be sentenced to imprisonment for not less than twenty-one years.
2. Where –
(a) any offender mentioned in subsection (1) of this Section is armed with any firearms or any offensive weapon or any obnoxious substance or chemical material or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery, the said offender wounds or uses violence on any person, the offender shall be sentenced to death.
In order to secure conviction for the offence of armed robbery, prosecution must prove beyond reasonable doubt, the following elements of the offence:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery.
See: Dawai v. State (2017) LPELR-43835(SC); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC). All these elements must co-exist to ground a conviction; Ugboji v. State (2017) LPELR-43427(SC). It is now to see if these elements were proved by the Respondent as required by law. PER OTISI, J.C.A.
WHETHER OR NOT A WEAPON USED IN ARMED ROBBERY MUST BE TENDERED TO PROVE THE OFFENCE AND SECURE CONVICTION
The particular dagger or knife was not recovered or tendered. Notwithstanding, there is no principle of law requiring that the weapon used in armed robbery must be tendered to prove the offence and secure a conviction; Adisa v The State (2018) LPELR-46340(SC); Awosika v The State (2018) LPELR-44351(SC); Sadiku v The State (2011) LPELR-4912(CA); Esene v The State (2013) LPELR-20699(CA). If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, cannot be basis of acquittal; Olayinka v The State (2007) LPELR-2580(SC); John v. The State (2019) LPELR-46936(SC). The evidence must be such that there is cogent, reliable and authentic oral and documentary evidence which the Court believes and admits; Simon v State (2017) LPELR-41988(SC); Adeyemo v State (2010) LPELR-3622(CA). PER OTISI, J.C.A.
TESTS TO BE APPLIED TO DETERMINE THE ISSUE OF WEIGHT TO BE ATTACHED TO A CONFESSIONAL STATEMENT
Tests to be applied and/or followed in determining the issue of weight to be attached to confessional statements were laid down in the case of R v Sykes (1913) 8 Cr. App R 233 and approved in Kanu v R (1962/55) 14 WACA 30. By these tests, the judge must ask himself these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved?
The trial judge ought to be satisfied with the answers to these questions, whether or not the confessional statement was retracted; Mbang v. State (2012) 6-7 MJSC (PT 1V) 119 at 148; Osetola v. State (2012) 6-7 MJSC (PT 11) 41. If the confessional statement passes these test questions satisfactorily, a conviction founded on it is invariably upheld, unless there are other grounds of objection. If the confessional statement fails to pass the tests, no conviction can properly be founded on it; Edet Obosi v The State (1965) NMLR 129; Jimoh Yesufu v The State (1976) 6 SC 167; Egboghonome v State (1993) 7 NWLR (PT 306) 383; Lasisi v. State (2013) 2-3 MJSC (PT 11) 172 at 148. PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the judgment of the High Court of Lagos State, Ikeja Judicial Division, Coram O.A. Ipaye, J., delivered on February 2, 2018 in Charge No: ID/1342C/2015 in which the Appellant and another were convicted for Conspiracy to commit Armed Robbery and Armed Robbery and sentenced to death by hanging.
The facts of the case can be summarized in this manner: On 13/4/2014, the complainant, Professor Abiodun Oluwole, a retired Professor Emeritus of Physics who lives at M.K.O Abiola Gardens Estate, Alausa, Ikeja Lagos State, returned from a journey from Akure with his driver and one Mary Paul (a.k.a. Blessing), who was the 2nd defendant in the lower Court, and who had been his employee for about a month. He dismissed his driver and retired to his bedroom to relax and to watch a football match. While watching the match, he instructed the 2nd defendant to make him a cup of tea, which she brought and left his room. He alleged that a few minutes later, the Appellant entered his room with a knife and began to threaten him. He was ordered to lie on the floor and was blindfolded him with a cloth. He decided to co-operate, as the Appellant was a strong young man and could not be overpowered. The Appellant ransacked his room and stole two phones, an iPad, cash in sum of N20,000, as well as $500 US Dollars and £150 Pounds Sterling. The Appellant left the Complainant gagged, tied up and blindfolded. He was found hours later in that state by his driver in the company of police officers and rescued. Upon his rescue, the 2nd defendant was found to have absconded. Upon investigation, the police were able to trace the 2nd defendant through the Agent who helped her secure employment at the Complainant‘s house as a maid, and she was arrested. Police investigations also led to the arrest of the Appellant. The Complainant immediately identified him as his assailant on seeing him at the police station.
At the trial, the prosecution presented four witnesses who testified as PW1-PW4 through whom Exhibits 1, 2(a)-(c), 3-5, 6(a) and (b), 7-9 were tendered. Upon the objection of the Appellant on the voluntariness of his statement, which was confessional, a trial within trial was conducted. The lower Court held that the statements of the Appellant and 2nd defendant were obtained in accordance with due process and were voluntarily made to the Investigating Police Officer. The said statement and that of the 2nd defendant, were admitted as Exhibits 8 and 9. At the conclusion of hearing, the trial Court convicted the Appellant and the 2nd defendant of conspiracy to commit armed robbery and armed robbery.
Aggrieved by the judgment of the Court, the Appellant lodged a Notice of Appeal against the decision on 24/4/2018 on five grounds of appeal, pages 195 – 199 of the Record of Appeal.
In line with the Rules of Court, the parties filed Briefs of Argument. The Appellant’s Brief was filed on 8/7/2020 but deemed properly filed and served on 8/7/2021. The Respondent filed their Brief on 8/9/2020 but deemed properly filed and served on 24/9/2020. At the hearing of the appeal on 8/7/2021, the Briefs were respectively, adopted by S.A. Aiboni, Esq., for the Appellant, and by Adeniyi Uthman, Esq., for the Respondent.
The Appellant distilled five issues for determination:
1. Whether the learned Trial Judge of the Court below was right to have relied on a wrongfully admitted extrajudicial statement of the Appellant dated 18 April 2014 as Exhibit 9; and found the Appellant’s guilty and sentenced them to death by hanging on same. (Ground one of the Notice of Appeal).
2. Whether the lower Court rightly drew inference from the circumstances of this case to come to a wrong conclusion that death sentence is the appropriate punishments to be handed on the Appellant assuming but not conceding that the Appellant was rightly found guilty of conspiracy and armed robbery as alluded by the prosecution (Ground two of the Notice of Appeal).
3. Whether the lower Court was right by wrongly evaluating the weight of the evidence (Ground three of the Notice of Appeal).
4. Whether the lower Court relied on a wrong evaluation based on sentiment and sympathy to come to a wrong conclusion that the prosecution proved the offences of conspiracy and armed robbery against the appellant beyond reasonable doubt. (Ground four of the Notice of Appeal)
5. Whether the lower Court erred in law when the Court relied on the inadmissible confessional and extra judicial statement of the Appellant Exhibit 8 and the spontaneous identification of the Appellant whom Mary Paul (2nd Defendant) testified his face was covered and to which the Court below alluded; to wrongly hold that there was no need for police identification and to make a wrong finding that the Appellant was guilty of armed robbery and liable to be sentenced to death by hanging.
For the Respondent, two issues were distilled:
A. Whether in the light of the evidence led in this case at the Court below, both oral and documentary and the entire circumstances of this case, the Court below rightly convicted and properly sentenced the Appellant for the offences charged. This relates to grounds 2, 3, 4, and 5 of the grounds of appeal.
B. Whether the Court below was right to rely on the confessional statements made by the Appellant and admitted as Exhibits D1-7 in this case. This relates to ground 1 of the ground of appeal.
In my considered view, the contentions of the Appellant can be subsumed under a sole issue, which I couch in these terms:
Whether in the light of the evidence led in this case at the lower Court, both oral and documentary and the entire circumstances of this case, the prosecution had proved its case beyond reasonable doubt, and whether the Appellants were rightly convicted and properly sentenced for the offences charged.
I shall consider alongside all the arguments by the parties.
Arguments
The Appellant’s Counsel referred to the decision of the learned trial Judge on the statement of the Appellant, Exhibit 8, which was admitted and relied on as confessional, to submit that the decision was not in line with the position of the Supreme Court inState v Olashehu Salawu (2011) LPELR 8252; Tanko v State (2008) 16 NWLR (PT 1114) 594 at 628-629; Isah v State (2007) 12 NWLR (PT 1049) 592; Nsofor v State (2004) NWLR (Pt 905) 292. It was submitted that the extra judicial statement of the Appellant was admitted and relied upon in error to find the Appellant guilty. Though it is a settled principle of law that a confessional statement once properly proved and admitted in evidence can be sufficient to warrant the conviction of an accused person, the trial Court is bound to have corroborative evidence, evaluate and take cognizance of the circumstances that make it true and correct, citing the provisions of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, as well as Usufu v State (2007) 1 NWLR (Pt 1020) 94 at 112; Onochie v Republic (1966) NMLR 307; R v Kanu (1952) (incomplete citation).
The Appellant was charged on a two-count charge for the offence of conspiracy to armed robbery and armed robbery. It was argued that the learned trial Judge erred in law when he held that the death sentence was appropriate for an offence that was not proved against him. Reliance was placed on the decision in Olatunde v State (2018) LPELR-46797(CA) to submit that every doubt should be resolved in favour of the Appellant in a criminal trial. Counsel argued that the offence of armed robbery was not substantiated as the Appellant was never armed with Fire Arm or other dangerous or offensive weapon at the time of the robbery, citing Section1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11 Vol.14 Laws of The Federation, 2004; Lawal Abubakar (Dan Lawal) v The State (2015) LPELR -25961. Failure to prove an essential ingredient of an offence is fatal to the case, relying on Sa’dau Deriba (Driver) v. The State (2016) LPELR-40345.
It was further submitted that the trial Court misinterpreted the provisions of Sections 294, 297, and 295 of the Criminal law of Lagos State, 2011 leading to a miscarriage of justice against the Appellant, citing Okotie-Eboh v. Manager (2004) 18 NWLR (PT. 905) 242 at 280; Agbeje v Ajibola (2002) 2 NWLR (PT. 750) 127 at 145.
The Appellant in defence denied writing the statement, Exhibit 8, but admitted that he signed it. The trial Court conducted the trial within trial to verify the voluntariness of the statement of the Appellant, and held the said statement was obtained in accordance with due process and therefore admissible. Counsel relied on Bernadine Ochiabutoenweren v Alhaji Abubakar & Anor (no citation) to argue that a wrongfully admitted piece of evidence is not sacrosanct but can be scrutinized by the Appellate Court in order to expunge any evidence that may have been wrongfully admitted. Okonji v Njokanma (1999) LPELR-2477 S.C was also cited and relied on. Where inadmissible evidence is admitted in error, it ought to be expunged, or the case be decided on the basis of the legally admissible evidence, citing Abubakar v Chuks (2007) VOL MJSC 190 217; Owoniyi v Omotosho (1961) ALL NLR 304; Alashe v Ilu (1964) 391 (incomplete citation); IBWA v Imano Ltd (2001)3 SCNJ 160 at 177; Glencore Energy UK Ltd v FRN (2018) LPELR 4380 (CA); Ogisugo v State (2015) ALL FWLR (PT 792)1602.
On the issue of identification, reliance was placed onNdidi v State S. CRT 128 2005 to submit that whenever the case of an Accused person depends wholly or substantially on the correctness of the identification of the defendant, a trial Judge must weigh such evidence with others adduced by the prosecution before convicting the defendant on reliance on the correctness of the identification. Reliance was also placed onR v. Turnbull & Ors (1976) 3 A.E.R 549, cited with approval in Ikemson v. The State (1989)6 S.C. (Pt.5) 1 14. The identity of the Appellant was not conclusive as the 2nd Defendant testified that the face of the robber was covered.
The Court was urged to allow the appeal, and set aside the judgment of the lower Court as the case against the Appellant was not proved without reasonable doubt.
For the Respondent, it was argued that the Appellant was properly convicted and sentenced by the lower Court. It was conceded that in criminal proceedings, the prosecution had the burden of proving its case beyond reasonable doubt. On what was implied by proof beyond reasonable doubt reliance was placed on Dibie v State (2007) 9 NWLR (Pt. 1038) 30 at 26-27; Alabi v The State (1993) 7 NWLR (Pt. 307) 51 at 523. When the prosecution establishes all the essential ingredients of the offence, the charge is said to have been proved beyond reasonable doubt.
Counsel relied on the evidence adduced by the prosecution to submit that the established ingredients of the offence were proved beyond reasonable doubt, citing Idowu Okanlawon v The State (2015) LPELR-24838 (SC); Agboola v The State (2013) LPELR-20652 (SC). He posited that the lower Court had, on the evidence adduced by the prosecution rightly found the offence proved.
The evidence of the complainant, PW1, was not challenged under cross examination. Unchallenged evidence is deemed admitted and can be acted upon by the Court in making a finding, citing Ada v The State (2008) LPELR 67 SC. In addition to the direct eye witness account of the robbery given by the PW1, DW2, the 2nd defendant, also admitted under cross examination that there was indeed a robbery incident on the day in question. The Court was urged to hold that the evidence led by all the prosecution witnesses was not controverted. The Court was urged not to disturb the findings of the lower Court.
On the issue of the statements made by the Appellant and the other defendant, Exhibits 8 and 9, it was submitted that these statements were admitted in evidence after the lower Court found, following the trial within trial, that the statements were voluntarily made. The lower Court also considered factors that suggested that the statement was voluntarily made. Further, that outside the confessional statements, the lower Court found that there were other pieces of evidence which suggested the inference that the Appellant conspired with the 2nd defendant to rob and indeed robbed the Complainant. The decision in Alarape v The State (2001) 5 NWLR (PT 705) 79 was also relied on.
The Court was urged to hold that the lower Court had properly evaluated the evidence before reaching its decision. The Court was urged to dismiss the appeal and affirm the decision of the lower Court.
Resolution
It is well settled that the burden of proving the guilt of an accused person in a criminal trial must be discharged by the prosecution beyond reasonable doubt; Ogundiyan v. State [1991] 1 NSCC 448; The State v. Azeez (2008) 4 S. C. 188; Shande v. State (2005) 12 MJSC 152; John Agbo v. State (2006) 1 S.C. (PT. II) 73; Udo v. State (2006) 7 S.C. (PT. II) 83. See also Section 135 of the Evidence Act, Laws of the Federation of Nigeria, 2011.
‘Proof beyond reasonable doubt’ does not mean proof beyond a shadow of doubt; Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373, cited with approval inJohn Agbo v. State (supra). ‘Proof beyond reasonable doubt’ would have been attained in a criminal trial when there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. Indeed, the law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v State (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Idiok v. State (2008) 6 MJSC 36. Thus, the evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required.
It is also well settled that while the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. An accused person is presumed to be innocent until his guilt of the offence is established. This dispensation is constitutionally guaranteed by Section 36(5) Constitution of the Federal Republic of Nigeria, 2011, as amended. See also: Orungua v The State (1970) LPELR-2780(SC); Afolalu v The State (2010) LPELR-197(SC). Where all the ingredients of an offence have been clearly established and proved by the prosecution, the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348 (SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1)59.
The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement. A free and voluntary confession alone is sufficient without further corroboration to warrant conviction; Mustapha Mohammed v. State (2007) 11 NWLR (PT 1045) 303, (2007) LPELR-1894(SC), (2007) 4 S. C. (PT. I) 1; Stephen v The State (2013) LPELR-20178(SC).
2. Circumstantial evidence. A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. For circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that murder had been committed and that it was committed by the accused person; Mustapha Mohammed v. State (supra); Yongo v C.O.P (1992) LPELR-3528(SC); Ijioffor v The State (2001) LPELR-1465(SC); Igabele v The State (2006) LPELR-1441(SC).
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder; Ilodigwe v The State (2012) LPELR-9342(SC); Agu v The State (2017) LPER-41664(SC); Ogedengbe v The State (2014) LPELR-23065(SC).
The Appellant was charged with criminal conspiracy and armed robbery under Section 297 and 295 of the Criminal Law, Lagos State, 2011. Section 297 provides:
Any Person who conspires with any person to commit an offence under Section 294 of this Law, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded again and punished accordingly.
Section 295(1), (2) (a) and (b) provide: –
1. (i) Any person who commits the offence of robbery shall on conviction be sentenced to imprisonment for not less than twenty-one years.
2. Where –
(a) any offender mentioned in subsection (1) of this Section is armed with any firearms or any offensive weapon or any obnoxious substance or chemical material or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery, the said offender wounds or uses violence on any person, the offender shall be sentenced to death.
In order to secure conviction for the offence of armed robbery, prosecution must prove beyond reasonable doubt, the following elements of the offence:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery.
See: Dawai v. State (2017) LPELR-43835(SC); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC). All these elements must co-exist to ground a conviction; Ugboji v. State (2017) LPELR-43427(SC). It is now to see if these elements were proved by the Respondent as required by law.
That there was a robbery
The evidence of the complainant, PW1, which was not controverted under cross examination, was that he was robbed in his bedroom at about 2pm after returning from a journey from Akure with his driver (PW2) and the 2nd defendant, his domestic staff, who had been his employee for about a month. He dismissed his driver and retired to his bedroom to relax to watch a football match. While watching the match in his bedroom, he instructed 2nd defendant to make him a cup of tea. She brought the tea and left his room. PW1 said that a few minutes later, an intruder (the Appellant) entered his room with a dagger. PW1 said that the intruder ordered him to lie on the floor, then he was blindfolded him with a cloth, and tied his hands behind his back. The intruder demanded for money, and stole the complainant’s telephones, Ipad, the sum of N20, 000.00, $2,000.00 and about 120 pounds sterling and money including some foreign currency. PW1 said he was left blindfolded and tied up by the robber until he was rescued by his driver, PW2, and some policemen.
PW2 testified that the 2nd defendant (DW2) telephoned to tell him that there was a robbery going on in the premises of PW1, her employer, but that she had escaped. He instructed her to go and report to the security at the premises gate. He went back to the premises with a security man, but on finding the house quiet, they did not enter. They lodged a report at the Alausa Police Station and went back with the police. He said, page 81 of the Record of Appeal:
“…we searched everywhere and found no one we got to Prof’s door it was locked from outside. I entered the room and saw him on the floor tied hands and blindfolded and gagged rolling in his urine…Prof was immediately rescued and taken to hospital.”
His evidence was also not controverted under cross examination.
PW3, who was Corporal Augustine Adeyemi, attached to the Alausa Police Station also testified that upon the report made to their Station: “A team of Policemen and myself was(sic) despatched to the residence of Prof Oluwole. On getting there we met him in the sitting room lying down, his hands were tied behind him. He was blindfolded with a wrap paper and face towel. His eyes and nose were covered. The old man was gasping for air. We immediately untied him and rushed him to medical facility at Toll gate for attention.”
See pages 59 – 60 of the Record of Appeal.
The 2nd defendant, who testified as DW2 also said that there was an intruder in the house on the material day. She admitted that she telephoned PW2 to alert him that there was a robbery going on at the victim’s premises. There was therefore a robbery.
That the robbery was an armed robbery
Armed robbery means simply stealing plus violence, used or threatened. The offence of armed robbery is committed when the offender is armed with any firearms or any offensive weapon or is in company with any person so armed; or at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person; Aruna v. The State (1990) 6 NWLR (Pt.155) 125: Tanko v. State (2009) LPELR-3136(SC).
An offensive weapon has been described as any article made or adapted for use for causing injury to the person being robbed or intended by the person having it for such use by him; State v. Fadezi (2018) LPELR-44731(SC); Sowemimo v. State (2010) LPELR-4972(CA). The prosecution is required to prove that a weapon capable of causing grievous harm was involved in the robbery. See also Section 300 of the Criminal Law, Lagos State, 2011.
The evidence of PW1 was that the robber was armed with a dagger. A dagger is a sharp pointed knife for stabbing; Merriam-Webster Dictionary, 2021. It was an offensive weapon. Again, his evidence was not discredited under cross examination.
The particular dagger or knife was not recovered or tendered. Notwithstanding, there is no principle of law requiring that the weapon used in armed robbery must be tendered to prove the offence and secure a conviction; Adisa v The State (2018) LPELR-46340(SC); Awosika v The State (2018) LPELR-44351(SC); Sadiku v The State (2011) LPELR-4912(CA); Esene v The State (2013) LPELR-20699(CA). If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, cannot be basis of acquittal; Olayinka v The State (2007) LPELR-2580(SC); John v. The State (2019) LPELR-46936(SC). The evidence must be such that there is cogent, reliable and authentic oral and documentary evidence which the Court believes and admits; Simon v State (2017) LPELR-41988(SC); Adeyemo v State (2010) LPELR-3622(CA).
PW1 was the victim and only eye witness of the incident. His evidence was not controverted in cross examination. On this element of the offence, I am on the same page with the learned trial Judge who held, page 179 of the Record of Appeal:
“In the instant case, I am persuaded by the testimony of PW1. I believe in full, his account of the incident. He comes across as credible. There were no inordinate embellishments to his account. The fact that the incident happen(sic) in broad daylight in the afternoon in his bedroom whilst he was awake and alert watching a football game supports the fact that PW1, was well aware of his surroundings and what was going on. He may be an elderly man but he certainly was not feeble of mind. He still had his wits about him. He did not put his life in danger by trying to resist the invader. He was aware enough to recall all the items stolen from him including his ipad, iphones, cash sums in local and foreign currency and he clearly saw the kitchen knife in the hands of his assailant. This Court must thus come to the summation that the evidence before me establishes clearly that the robbery incident on…which took place in the home of the complainant on the Sunday afternoon of 13/04/14 about 2pm was an armed robbery and I so hold.”
I agree with this conclusion. The robbery incident was an armed robbery.
That the defendant was the robber or one of those who took part in the armed robbery
The prosecution must also prove that the accused person was the robber or one of those who took part in the armed robbery. This is a fundamental requirement, because while there may have been a robbery in which the robber(s) was armed, if the accused person was not proved to have been one of the armed robbers, he cannot be lawfully convicted.
The 2nd defendant, who notified the driver, PW2, about the robbery incident disappeared thereafter and switched off her phone. PW3, the IPO, testified that they traced her through the agent who introduced her to the victim. The agent said he knew the 2nd defendant through her boyfriend, the Appellant herein. He was arrested. PW3 said, page 60 of the Record of Appeal:
“A search was conducted on him and an Ipod(sic) was recovered from him. He was brought to the Station with the Ipad. The following day the Prof was invited to the Station. He immediately recognized the 1st Defendant and shouted that yes this man came into my house with a knife and yes this is my Ipad…The Ipad was released to the Prof on Bond.”
PW4 was Inspector Izuka Ezeigbe attached to SARS Ikeja, to which the case against the Appellant and the 2nd defendant had been transferred from Alausa Police Station. PW4 was part of the team of Supol Solomon Arotire, Inspector Taofeek Ajao, and Corporal Olayinka Oloko, who recorded the Appellant’s statement. The confessional statements of the Appellant and the 2nd defendant were endorsed by a Superior Police Officer. Upon an objection raised to the tendering of the statements by PW4, the trial Court conducted a trial within trial.
At the trial within trial, PW4 testified that the statements were voluntarily made and denied that there was any torture of the Appellant or the other defendant. That they voluntarily made the statements and signed. The Appellant admitted the signatures on both the statement made at the Alausa Police Station and the one made at the SARS office were his signature but that he signed them under torture. The 2nd defendant also admitted she signed the statement. The learned trial Judge evaluated the evidence and ruled that the statements were admissible. They were admitted as Exhibits 8, for the Appellant, and Exhibit 9, for the 2nd defendant.
The Appellant as DW1 had denied committing the offence. But he admitted under cross examination that he knew the 2nd defendant and admitted that he introduced her to the agent who got the job for her with the victim.
The confessional statement of the Appellant was admitted as Exhibit 8 after a trial within trial was conducted. The Court is however encouraged, and it is always desirable, to have outside the defendant’s confession to the police, some evidence no matter how slight, of the circumstances which made it probable that the confession was true; Emeka v. State (2019) LPELR- 48810(SC); Adisa v The State (2018) LPELR-46340(SC); Akpan v. State (2008) 4-5 S.C. (PT. II) 1; Galadima v. State (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement.
Tests to be applied and/or followed in determining the issue of weight to be attached to confessional statements were laid down in the case of R v Sykes (1913) 8 Cr. App R 233 and approved in Kanu v R (1962/55) 14 WACA 30. By these tests, the judge must ask himself these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved?
The trial judge ought to be satisfied with the answers to these questions, whether or not the confessional statement was retracted; Mbang v. State (2012) 6-7 MJSC (PT 1V) 119 at 148; Osetola v. State (2012) 6-7 MJSC (PT 11) 41. If the confessional statement passes these test questions satisfactorily, a conviction founded on it is invariably upheld, unless there are other grounds of objection. If the confessional statement fails to pass the tests, no conviction can properly be founded on it; Edet Obosi v The State (1965) NMLR 129; Jimoh Yesufu v The State (1976) 6 SC 167; Egboghonome v State (1993) 7 NWLR (PT 306) 383; Lasisi v. State (2013) 2-3 MJSC (PT 11) 172 at 148.
The Appellant described the 2nd defendant as his girlfriend. In Exhibit 8 which was taken on 18/4/2014, he confessed that he planned the robbery with the 2nd defendant, who he called Blessing. He stated:
“On 13th of April 2014 at about 2pm, Blessing called me on phone that I should come to the place she works at Abiola Gardens, Alausa, Lagos. I immediately left my place to Blessing’s place of work. On getting to the house, I met the gate open so I immediately went into the house. So I met the Housegirl already waiting for me to come in. The moment I got into the house Blessing gave me a kitchen knife, a rope and a wrapper, she asked me to go to a particular room, that her Boss was inside there that I should go and tie the man up. So the moment I got to the place the man was, I just told him I was here to rob and kill him. I pointed the knife with me at him, that I will stab him if he doesn’t go down. The man immediately lied(sic) down. I used the rope with the wrapper to tie the man, I tied both his hands and legs. I also tied his mouth so that he cannot shout. I started searching the whole house, myself and Blessing searched everywhere in the house, at the end of the day we stole the cash sum of twenty thousand Naira, one Apple Ipad, two mobile phones from the house. That was how we took off after the robbery, myself and Blessing went and slept at my place. The next morning we share the loot. I took only the Ipad, Blessing took the money and the two phones…I also took the cash sum of one hundred and twenty pounds…”
Now, certain facts regarding this unfortunate incident tie up with the statement of the Appellant. In the first place, his statement on how the victim, PW1, was approached, tied up and robbed synchronizes with the evidence of PW1 on his ordeal. Secondly, upon his arrest, an Ipad was found with the Appellant. PW3 testified that he took a picture of the Appellant and the Ipad recovered from him, Exhibits 6(a) and (b). DW1 admitted that Exhibit 6 was his picture holding an Ipad. The Ipad found with the Appellant was identified by PW1 as the same Ipad that he was violently dispossessed of. DW1 gave no plausible explanation as to how he acquired the stolen Ipad.
Further, the Appellant was unequivocally identified at the police station by the victim, PW1. It is true that there was no identification parade. An identification parade is necessary to ensure proper identification of the culprit; Agboola v The State (2013) LPELR-20652(SC); Alufohai v The State (2014) LPELR-24215(SC). An identification parade is not sine qua non to conviction; Ikpo v The State LPELR-40114(SC); Adekoya v The State (2017) LPELR-41564(SC). Where a witness who gave evidence of a visual identification was not shaken under cross examination, the trial Judge may accept and act on his evidence;Adeyemi v The State (1991) LPELR-168(SC); Orimoloye v The State (1984) LPELR-2763(SC); Thomas v The State (2017) LPELR-41735(SC).
The Appellant was identified by the victim, PW1, and placed at the locus criminis as his assailant. The evidence of PW1 was unshaken in cross examination. The only conclusion to reach is that the Appellant was properly identified as the perpetrator of the crime.
The law is clear and settled on the point that for a confessional statement to attract and support a conviction, It must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, was described in Mustapha Mohammed v. State (supra), per Tobi, JSC, at page 14 of the E-Report, as occupying:
“…the highest place of authenticity when it comes to proving beyond reasonable doubt. “
See also: Dawa v. State (1980) 8-11 SC 236; Osung v. State (2012) 6-7 MJSC (PT 11) 1; Galadima v. State (2012) 12 MJSC (PT 111) 190; Fatai v. State (2013) 2-3 MJSC (PT 1) 145.
The confession of the Appellant in Exhibit 8, was consistent with the uncontroverted evidence of the prosecution witnesses and prove, beyond reasonable doubt, that the guilt of the Appellant for the offence of armed robbery. I therefore agree completely with the finding and conclusion of the learned trial Judge that the offence of armed robbery was proved against the Appellant.
The Appellant was also charged along with the 2nd defendant with the offence of conspiracy to commit armed robbery. Generally, conspiracy is an agreement between two or more persons to plan an unlawful act or carry out a legal act through illegal means. It is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful act coupled with intent to achieve the objective of the agreement; State v Salawu (2011) LPELR-8252(SC); Adeleke v State (2013) LPELR-20971(SC); Bouwor v State (2016) LPELR-26054(SC); Kayode v State (2016) LPELR-40028(SC); Oduneye v State (2001) LPELR-2245(SC); Okoh v. The State (2014) LPELR-22589(SC); Adepoju v. The State (2018) LPELR-44355(SC).
Black’s Law Dictionary, Ninth Edition, page 351, defines conspiracy as:
An agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and…action or conduct that furthers the agreement; a combination for an unlawful purpose.
A charge of conspiracy is a totally separate offence from the completed offence. Thus, the offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted; Taiye v. State (2018) LPELR-44466(SC).
As is the case in all criminal trials, the burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence. The charge can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence; Orisa v State (2018) LPELR-43896(SC). The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person; Orisa v State (supra). Recognizing the difficulties that could be encountered in proving conspiracy, Peter-Odili, JSC inKayode v State (supra) at page 67 of the E-Report commented: “It is because of the uniqueness of conspiracy and the fact that it is near impossible at times to establish it by direct evidence that it is usually proved through inference of the facts and circumstances of each case.”
The Appellant herein was alleged to have conspired with the 2nd defendant to commit the offence of armed robbery. His extra judicial statement, Exhibit 8, as well as the extra judicial statements of the 2nd defendant, Exhibit 9, were admitted in evidence after a trial-within-trial was conducted. The said extra judicial statements were relied upon by the lower Court.
In her statement, Exhibit 9, the 2nd defendant stated:
“So in the month of April, 2014, the first week to be precise, I travelled to Akure, Ondo State, with professor, so we came back after two days at Akure, Ondo State. Victor my boyfriend of two years, kept calling me on phone. He was asking me if the professor was with money. I told him I don’t know if the professor was having money. Victor also asked me what are we going to do now. I told him I don’t know. So when we got to Lagos at about 1.30pm I called Victor on phone that we have arrived in Lagos. I told Victor on phone that it was me and the professor that was at home. He told me that he was coming and he hung up. So after about some minutes Victor showed up at the house of the professor. He asked me where is the professor. I told him that the professor was upstairs in his room. I also described the room in which professor was before Victor went upstairs. Victor entered the kitchen and he took the knife. I asked him what do you want to do with the knife. Victor told me he wanted to use the knife to threaten the professor. So Victor asked me to get him rope, I brought the rope from the backyard and I gave it to Victor. That was how Victor moved upstairs. I moved after Victor. When I got to the corridor I stopped. I saw Victor taking a wrapper from the treadmill at the door of the room of the professor. That was how Victor entered the room, at that moment I had already packed all my clothes into my bag. So the moment Victor finished from the room of the professor we left together. Although Victor told me he was going into the room of the professor to rob him, I did not go into the room with Victor. While both of us were in a commercial bus going to Bariga, Victor instructed me to call the driver to professor. I called the driver to professor and told him robbers were in the house and I hung up.”
The graphic details provided by the Appellant in his statement, Exhibit 8 made on 18/4/2014, and by the 2nd defendant in her statement, Exhibit 9, made on 3/6/2014, are totally similar and describe the same incident. In evidence, PW1, the victim, testified that after the arrest of the Appellant:
“1st Defendant was asked to trace his footsteps in my house he did successfully and ended up in my bedroom.”
He was not controverted under cross examination. See page 78 of the Record of Appeal.
Ingredients of the offence of criminal conspiracy, which the prosecution must establish are:
1. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy.
The confessional statements and other pieces of evidence adduced by the Respondent reveal the element of agreement between the Appellant and the 1st defendant to commit the crime, and the level of their participation.
I must observe that the wickedness demonstrated by the evil act of the duo is even more grievous when one considers the humane interest shown by the victim to improve the lot of the 2nd defendant. The victim, PW1, had testified that he took note of the fact that the 2nd defendant was articulate and advised her to prepare to further her education in NCE or Nursing. The 2nd defendant also testified that PW1, her boss, had encouraged her to return to school to further her education in order to become a nurse. She had earlier trained as an auxiliary nurse, and returned to work as an auxiliary nurse before she was arrested. Unknown to PW1, however, she had other despicable plans.
I agree with the learned trial Judge that the Respondent established the offence of conspiracy to commit armed robbery against the Appellant and the 2nd defendant, beyond reasonable doubt. The issues arising for determination in this appeal are therefore resolved against the Appellant.
This appeal is without merit. It fails and is hereby dismissed. The conviction and sentence of the Appellant by the lower Court in Charge No: ID/1342C/2015 is hereby affirmed.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: Section 300(b) of the Criminal Law of Lagos State 2011 defines offensive weapon in verbatim terms to mean any article or object apart from a firearm made or adapted for use for causing injury to the person or intended by the person having it for such use by him or some other person and includes an air gun, air pistol, bow and arrow, spear, cutlass, machete, dagger, cudgel or any piece of wood, metal, glass or stone capable of being used as an offensive weapon. A knife is a dagger vide Oxford Advanced Learner’s Dictionary (New 9th Edition) page 382.
The compelling evidence in the instant case is clear that the appellant was armed with a dagger or knife with which he threatened violence on the victim at the time the victim was robbed. It was thus an established case of armed robbery under Section 297(2) (a) of the Criminal Law of Lagos State. The evidence disclosed that, the appellant was found in recent possession of one of the robbed items, an iPod (a small piece of equipment that can store information taken from the internet vide Oxford Advanced Learner’s Dictionary (supra) at page 832), belonging to the victim of the armed robbery who identified it as one of the robbed items belonging to him without the appellant giving satisfactory account on the balance of probability on how he came to be in possession of the robbed item. Therefore, the discovery of the said robbed item in the recent possession of the appellant in the circumstances identified the appellant as the armed robber vide the case of Banjo v. State (2013) 16 NWLR (Pt. 1381) 455 where the Supreme Court placed reliance on the cases ofMadagwa v. State (1988) 5 NWLR (Pt. 92; R. v. Sunday (1960) LLR 192; R. v. Opara (1961) WNLR 127; Kolade v. COP (1971) 1 NMLR 109; Salami v. State (1988) 3 NWLR (Pt. 85) to hold that where an accused is found with a robbed item and he cannot explain how the goods got to him, there is a presumption that the accused was one of the robbers or that he participated in the robbery; and that in that case, there would be no need to conduct any identification parade.
It was further held by the Supreme Court in Banjo v. State (supra) that being in possession of a stolen or robbed item is prima facie evidence that the accused participated in the robbery. And, that that being the case, the onus is on the accused to give satisfactory account, on the balance of probability, as to how the goods got to his possession, failing which the Court would be right, as in this case, to convict the accused of robbery, or armed robbery as was the case here. See also Section 167(a) of the Evidence Act 2011 read with the cases ofEze v. State (1985) 12 SC 4 or 3 NWLR (pt. 13) 429; Sadiku v. State (2013) 11 NWLR (Pt. 1364) 191; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468.
It is for these reasons and the more elaborate reasons contained in the judgment prepared by my learned brother, His Lordship, Onyekachi Aja Otisi, J.C.A., in which I concur, that I too find no merit in the appeal and hereby dismiss it and affirm the conviction and sentence of the appellant for the offence of armed robbery by the Court below.
ABUBAKAR SADIQ UMAR, J.C.A.: I was privileged to read in advance a draft copy of the lead judgment of my learned brother, ONYEKACHI AJA OTISI, JCA, in which he dismissed this appeal. Having proved beyond reasonable doubt, the offence of conspiracy to commit armed robbery and armed robbery by the Appellant, the appeal is therefore devoid of merit, the appeal is hereby dismissed and the judgment of the lower Court is affirmed.
The conviction and sentence of the appellant is upheld.
Appearances:
S.A. Aiboni, Esq. For Appellant(s)
Adeniyi Uthman, Esq. For Respondent(s)