UDOMIJU v. STATE
(2021)LCN/15746(CA)
In the Court of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, December 03, 2021
CA/B/46C/2019
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Between
THANKGOD MARSON UDOMIJU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WAYS THE PROSECUTION CAN ESTABLISH THE OFFENCE OF ARMED ROBBERY
Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of Armed robbery rests squarely on the shoulders of the Prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as corollary to the above, is the fact and from which the Prosecution gets a modicum of succor that in all criminal trials, the Prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012. PER OHO, J.C.A.
THE POSITION OF LAW ON THE WEIGHT TO BE ATTACHED TO A CONFESSIONAL STATEMENT
On the question of weight to be attached to a confessional statement, the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved? PER OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Edo State High Court sitting at Benin City (hereinafter referred to as “the Court below”) delivered by R. IRELE-IFIJEH, J on the 29th day of July, 2018 wherein the Appellant as an accused person stood trial on a 4 count charge of conspiracy to commit Armed Robbery and Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.
In proof of its case against the Appellant at the Court below, the Prosecution called four (4) witnesses and tendered four (4) Exhibits including the extra-judicial statement of the Appellant. At the end of the trial, the Court below evaluated the evidence of the Prosecution and that of the Defence and the learned trial Judge found the Appellant guilty on three (3) counts to wit; Armed Robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.
The Appellant was however discharged and acquitted in count four (4) for the offence of Armed Robbery against one Ifeanyi Dominic. Upon the Appellant’s conviction, he was accordingly sentenced to death by hanging. Dissatisfied, the Appellant has come before this Court vide his Notice of Appeal.
The Appellant nominated a sole issue for the determination of this appeal, thus:
“Whether the Prosecution has proved the two (2) counts charge of Conspiracy to commit Armed Robbery and Armed Robbery respectively against the Accused person beyond reasonable doubt as required by law?”
The Respondent also and predictably for that matter also nominated a sole issue for the determination of this appeal, thus:
“Whether the Prosecution was able to prove the offences for which the accused was convicted beyond reasonable doubt?”
A close perusal of the issues raised across board shows that the parties are clearly ad idem in being mainly concerned with the issue of proof; whether the Prosecution succeeded in establishing the counts of the charge filed against the Appellant sufficient enough to enable the Court below convict and sentence him as the Court did.
That being the position, this Court shall resolve this appeal based on the sole issue nominated by the Appellant. Suffice this to say, Counsel for both sides addressed Court extensively in their briefs of Argument, citing a plethora of decided cases in support of their arguments.
The Appellant’s brief of Argument dated the 18th day of February, 2020 and filed on the same date, but deemed filed on the 6th of May, 2021 was settled by R. O. ISENALUMHE, ESQ.,
On the part of the Respondent, the brief of Argument was settled by P. T. IDIENUMAH, ESQ.,. The Respondent’s brief of Argument dated 17th day of June, 2020 and filed same date but deemed filed on 21st September, 2021. At the hearing of the appeal on the 21st day of September, 2021 learned Counsel adopted the briefs of their clients and urged the Court to decide the appeal in favour of their sides.
SUBMISSIONS OF COUNSEL FOR THE PARTIES:
APPELLANT:
SOLE ISSUE:
“Whether the Prosecution has proved the two (2) counts charge of conspiracy to commit Armed Robbery and Armed Robbery respectively against the Accused person beyond reasonable doubt as required by law?”
In his opening arguments on the sole issue, learned Appellant’s Counsel began with the charge of Conspiracy, count one (1) of the charge filed against the Accused person turned Appellant before this Court. The contention of Counsel is that the Appellant, with another, was charged with the offence of conspiring among them to commit the offence of Armed Robbery on the 21st day of October, 2013.
Counsel took to the definition of conspiracy as done in the BLACK’s LAW DICTIONARY, 9th Edition pg. 351, where it is defined as an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective. Counsel further relied on the case of POSU. & ANOR vs. THE STATE (2011) VOL. 193 LRCN where the apex Court stated firmly that; “conspiracy means meeting of the mind of the conspirators” and which consists of the intention of two or more persons and agreement by them to do an unlawful act or to do lawful act by unlawful means”.
In the instant appeal, learned Counsel contended that the Prosecution has failed to establish that the accused person conspired with anybody to commit the offence of Armed robbery against the PW1, on the 21st day of October, 2013 either by direct evidence of witnesses before the Court or by circumstantial evidence, which the reasonable man of sound mind could draw an inference as to whether conspiracy could be inferred by the Court. Counsel added that the very essence of the offence of conspiracy is the agreement between the parties on a course of conduct and that what is required to be proved by the Prosecution is a compact which may be manifested by writing, words or deeds. In other words, the parties must have reached a decision to perpetrate the unlawful object.
In this case, Counsel contended that the Prosecution did not lead evidence by whatever means to show that the Appellant and another or anybody, manifested either by writing, word or deed, the possibility of committing the ulterior offence and had come to a definite decision to do so. According to Counsel, the Actus Reus of the offence of conspiracy is that, there was an agreement between two or more persons to do an unlawful act or to do lawful act by an unlawful means. Counsel further contended that in this case, the Prosecution did not show any evidence that the accused person and with another had agreed by any means or had an intention to commit an unlawful act or did a lawful act by unlawful means. As a result of this, Counsel urged this Court to hold that nothing amounting to conspiracy was proved in this case as the required element of the offence was not established. He cited a number of decided authorities some of which are the cases of BRIGHT vs. THE STATE (2012) 5 NWLR (PT. 1311) 297 AT 320 (SC); OLADEJO vs. THE STATE (1987) – 2 NSCC 1025; PATRICK NJOVENS &: ORS VS THE STATE (1973) NWLR 76 AT 96-97.
As far as Counsel is concerned, the only thing linking the accused with the alleged crime is the purported confessional statement (Exhibit “A”), which was objected to on grounds of involuntariness but which the trial Judge wrongly admitted and heavily relied upon and thereby came to a wrong decision. Counsel however, urged this Court to reverse the decision of the trial Judge by holding that the Prosecution failed to prove the offence of conspiracy against the Appellant.
For the offence of armed robbery to be established, the following elements must be proved:
1. That there was a robbery<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
2. That the accused person was one of the robber(s)
3. That the robbery was done while armed with offensive weapon.
It was the contention of Counsel that the aforementioned elements were judicially highlighted in the case of STATE vs. PETER ADEWUMI (1999) 2 LRCNC (252). It was further contended by Counsel that from the totality of the evidence led by the Prosecution, there is nothing that can be believed that the Appellant committed any offences charged. He said that PW1 is one Kabakwu Samuel, who testified on the 10th November, 2015 and stated that on the 21st October, 2013 at about 12:30 am, he was reading his PDF on his Laptop and that as soon as he finished, he went to bed and later heard his door being broken and he saw someone walk into his room with a touch-light pointed on his face; that the person ordered them (PW1 & 2) to lie down and hand over their phones and Laptop and that they complied. Again, he said that PW1 said one of the robbers took his friend to the parlour, while one stayed in the room with him and that was how he knew they were more than one.
He added that after the robbers left, he discovered his wristwatch and money was missing. According to Counsel, PW1 told the Court that the next day he went to Ologbo Police Station where he reported the matter and also made a statement; that under cross-examination, PW1 informed the Court that he did not know the accused person and he only met him the day he was arrested; that the PW1 also added that he did not see the accused person on the day of the alleged robbery because the robbers pointed torchlight on his face. He further told the Court he heard a bang on his door, but admitted he did not live alone as other people live in the same compound with him.
With PW2, one Obose John, Counsel said that he told the Court he did not know the accused person before, but only saw him the day he was arrested; that PW2 told the Court that on the 21st October, 2013 around 12:15 am, he was lying down when he heard a tap on his back; he woke up and was asked to put his face down and bring out all his money; that he told the Court he was with his friend (PW1) in the room at the time of the robbery. He further said that he pointed at his bag on the wall where he kept some money and the robbers made away with his handset and clothes; that it was the next day he went to Ologbo Police Station where he made a statement and the Police followed him. See pages 17-18 of the Record. Under cross-examination, Counsel said that PW2 re-affirmed to the Court that the incident took place at midnight and did not see the accused person because he was asked to lie and face down.
As with PW3, one Miss Obose Juliet Adesuwa, she testified before the Court below on the 12th January, 2016 when she told the Court that she knows PW1 and 2 only knows the Appellant by name and not facially. Again, that PW3 stated before the Court that she got the information on the 21st October, 2013 that her brother (PW1) was robbed along with his friend (PW2) of their blackberry phones and other valuables. Then on the 28th October, 2013 she received a whatsapp chat from the Blackberry phone alleged to have been stolen from her brother (PW1); that the same person also went ahead to call her and introduced himself as Mr. Goodluck from Asaba and both of them established a relationship. Meanwhile, under cross-examination PW3 informed the Court that she saw the accused person for the first time when he was arrested by the Police; that she admitted she does not live in the same house with her brother (PW1) who told her he was robbed. In addition, that PW3 also told the Court she only received a whatsapp chat from someone, but did not know whom she was chatting with and that she would be surprised to know that the wrong person was arrested, but that all her chat and conversation was on phone with one Mr. Goodluck by name; that PW3 further admitted all she told the Court were not contained in her statement to the Police.
Counsel further stated that one Inspector Arise Samuel testified before the Court on the 23rd June, 2017 as PW4 and told the Court that he knows the Appellant and also PW1; that he knows one Inspector Abaka Musa, who was their team Commander at Ologbo Police Division, but now deceased. In addition, that PW4 told the Court that on 21st October, 2013 PW1 & 2 came to Ologbo Police Station and reported a case of burglary and stealing but they mistakenly recorded armed robbery. According to PW4, the said Inspector Abaka Musa recorded the statement and also read it over to the complainant and witnesses, and thereafter, proceeded to the scene of crime, but that no arrests was made and no Exhibits recovered. Also that PW4 said that information later came that the Blackberry phone stolen from the complainant was used to chat with the complainant’s younger sister in Abraka. According to Counsel, questions were put to the girl and she told them the pin number was the same with her brother’s pin number. PW4 said that they told the girl to schedule an appointment with the person at Abraka and investigation commenced. He stated further that on the 30th of November 2013, Inspector Musa and P. C. Thomas went to Abraka where a suspect was arrested; that PW4 said the suspect was cautioned in English Language, charged for the offence of burglary and stealing and he made statement admitted as Exhibit “A”. More so, when search warrant was executed, Exhibit “B” was recovered, but that the suspect told them he did not know anything about Exhibit “B”. The witness also tendered Exhibits “C”, “D” and “D1 “, which were admitted in evidence.
Counsel however, urged this Court to disregard the evidence of the PW4 and treat same as hearsay pursuant to Section 39 of the Evidence Act, 2011. He said that PW4 did not carry out investigation and that none of the witnesses came to Court with a concrete proof of ownership/evidence that Exhibits C, D & D1 belongs to him.
Arising from the foregoing, Counsel contended that it is clear, that the Prosecution cannot be said to have proved its case beyond reasonable doubt as required by the law, as none of the witnesses was able to convince the Court that the Appellant was one of the persons that committed the alleged crime. Counsel added that PW1 & 2 who claimed to have been the victims of the alleged robbery, categorically informed the Court that they were robbed at midnight around 12:30 am and they did not see the suspects because the robbers pointed torchlight on their faces and they were equally asked to put their heads down. Based on this, Counsel argued that the only reasonable conclusion that can be drawn here is that the identity of those who actually robbed on the said date (if any) is in doubt. Counsel therefore, submitted that where their identity is in doubt, the Prosecution must fail. He cited the case of NDIDI vs. STATE (2007) ALL FWLR (381) 1617.
Counsel further submitted that PW3 seriously contradicted herself in both her oral testimony in Court and also in her statement to the Police; that she admitted all she told the Court was not contained in her statement to the Police. Again, that PW3 told the Court she received a message via whatsapp having the same Blackberry pin number with her brother’s stolen phone; and that the person that sent the message and whom she also communicated with is one Mr. Goodluck from Asaba. Counsel contended that the name of the accused person in this case is MR. THANKGOD MARSON IDOMlJU and not Goodluck.
Learned Counsel further contended that the said Blackberry pin number in issue was never mentioned in the statement of any of the witnesses and was also not made available to the Court for scrutiny. The submission of Counsel is that the contradictions in the written statement and oral evidence of PW3 ultimately made her evidence unreliable and that the trial Judge erred when he relied heavily on the said evidence. He said that it is clear from this case that the evidence of the Prosecution’s witnesses has not in any way linked the commission of any crime to the Appellant. He argued that there was no proper identification of who actually robbed PW1, 2 & 3 in this case. See ARCHIBONG vs. STATE (2004) NWLR (PT. 855) 488 @ 496 RATIO 3. Counsel finally submitted that the purported confessional statement of the Appellant ought not to have been relied upon by the trial Judge. He urged this Court to resolve the only issue in favour of the Appellant.
RESPONDENT:
In arguing this issue, learned Respondent’s Counsel submitted that the Prosecution in criminal matters is enjoined by the law to discharge the burden of establishing the guilt of an accused person in either of three (3) ways, thus;
(1) Direct Evidence of an eye witness.
(2) Circumstantial Evidence.
(3) Confessional Statement.
On Count 1 of the charge, which is the offence of conspiracy to commit Armed Robbery, Counsel submitted that the Prosecution was able to prove that the Appellant was guilty of the offence and that to secure conviction in a charge of conspiracy the Prosecution has to prove that there was;
(a) An agreement
(b) By at least 2 persons to do or cause to be done;
(i) An unlawful act
(ii) A lawful act by an unlawful means.
Against the backdrop of the foregoing, Counsel contended that under the law, a charge of conspiracy can be proved either by leading direct evidence in proof of the common criminal intention between the suspects or it can be inferred from the commission of the substantive offence, which in this case is Armed Robbery. Counsel cited the cases of STATE vs. SALAWU (2011) LPELR–8252; OMOTOLA vs. THE STATE (2011) VOL 9 LRCNCC 72 AT 103 and OGBU vs. THE STATE (2008) VOL 6 LRCNCC 16 AT 190 in support and in which the apex Court held that “on common intention, it may be inferred from circumstances described in the evidence led before Court and that it needs not be provable only by the express agreement of the Accused person.
Counsel argued that the common denominator in the above cited cases is “circumstantial evidence” as the Courts have so often and rightly held that the offence of conspiracy is often hatched in secrecy, thus making it difficult to prove and therefore may be inferred from circumstances described in the evidence led before the Court.
In the instant case, Counsel submitted that PW1 and PW2 testified in Court that they were attacked by some men who were armed with cutlasses and battle axes; robbed of their laptop, blackberry mobile phone, money and other belongings and that PW3 testified that shortly after the robbery, she received some messages from her brother’s stolen blackberry phone that was robbed. She informed the Police and a meeting was arranged with the messenger (one Goodluck) in Asaba; where the messenger, after being arrested, disclosed that he purchased the phone from the Appellant and led the Police to arrest the Appellant.
The contention of Counsel is that the inference drawn from the evidence of all the Prosecution witnesses is that the Appellant along with others now at large, conspired to arm themselves and rob PW1 and PW2 of their belongings and that from the totality of evidence adduced at the trial Court, the essential ingredients of conspiracy to commit Armed Robbery was proved and Counsel urged this Court to affirm the decision of the trial Court.
Counsel further contended that in Counts 2 and 3 of the charge, offences of Armed Robbery, the law requires the Prosecution to prove the following ingredients of Armed Robbery thus:
1. That there was a robbery.
2. That the robbery was done while armed.
3. That the accused was the robber or one of the robbers. See EMENEGOR vs. STATE (2010) ALL FWLR (PT. 511) 884 AT 915. Also, see the Supreme Court in ONYENYE vs. THE STATE (2012) VOL 212 LRCN 107 AT 112 RATIO 2.
On the first ingredient, Counsel argued that the Appellant in his statement (Exhibit A) admitted to being an Armed Robber while naming other members of his gang and vividly narrating his participation/involvement in the armed robbery of the victims. Counsel also submitted that the confessions made in the extra-judicial statement of the accused are in line with the evidence of PW3 in Court wherein she told the Court how the accused was arrested with the aid of one Goodluck to whom he (the Appellant) sold the blackberry phone robbed from Obose John. Counsel added that the confessions made in the extra-judicial statement of the Appellant are also in line with the evidence of PW4 wherein he told the Court the investigations himself and his team carried out in respect of this case.
Accordingly, Counsel further argued that it is clear that the prosecution discharged the burden of proof in the instant case, adducing cogent evidence through PW1, PW2, PW3 and PW4 in proof that there was an Armed Robbery on the 21st of October, 2013 wherein the victims (PW1 and PW2) were robbed of their laptop, blackberry phone and other belongings.
In addition, Counsel contended that the Prosecution adduced cogent evidence linking the Appellant to have participated in the said Armed Robbery. Indeed, that the Appellant admitted in his statement before Court that he and others attacked the victims herein and robbed them of their laptop and blackberry phone, narrating that during the robbery, himself and his gang were armed with battle axes and cutlasses.
In response to the Appellant’s contention that the confessional statement of the Appellant ought not to have been relied upon by the trial Judge, Counsel contended that the guilt of an accused in a criminal trial can be proved by either of the following ways;
a. The evidence of an eye witness of the crime
b. Circumstantial evidence
c. The confessional statement of the accused person
See the case of MBANG vs. STATE (2010) 7 NWLR (PT. 1194), 453 PARAS D on the issue where the Court has held that: “Confession in criminal Procedure is like admission in civil procedure, and is the strongest evidence of guilt on the part of an accused person… stronger than the evidence of an eye witness because the evidence comes out from the horse’s mouth who is the accused person.” See also the cases of MOSES JUA vs. STATE (2010) 4 NWLR (PT. 1184) 249 and EMEKA vs. STATE (2005) 4 LRCNCC 187.
Perhaps, the highlight of the submissions of Counsel is when he stated that the Appellant’s confession about the cutlass he wielded during the Armed Robbery operation was kept by him in his father’s house; and that it was from there that same was recovered by the Police. Counsel submitted that the said Exhibit A (the confessional statement of the Appellant as found in pages 11-13 of the Record of Appeal), is in line with the evidence of PW3 who told the Court how the Appellant was arrested with the aid of Goodluck to whom he (Appellant) sold the blackberry phone. In the same vein, Counsel argued that the said confessional statement of the Appellant also aided PW4 and his team to recover the laptop robbed and the cutlass the Appellant used in carrying out the Armed Robbery.
On the question of whether the confessional statement of the Appellant is a clear admission of guilt and whether it is compelling, cogent, positive and consistent with the evidence adduced by the Prosecution through PW1, PW2, PW3 and PW4, Counsel argued that the guiding principles in the cases of NWAEBONYI vs. STATE (1994) 17 LRCN, 103, which reinstated the laid down tests in R vs. SYKES 8 C.R.I, APP. R. 233 AT 236-238, applied with full force to the facts and circumstances of this case. For instance, in paragraph (i), of her statement to the Police, PW3 clearly stated how she lured Goodluck to be arrested by the Police at which time Goodluck led the Police to arrest the accused person who sold the robbed phone to him (Goodluck). Counsel argued that Exhibit A (confessional statement) is in line with the independent evidence of PW3 as the Appellant in his statement, confessed that he sold the blackberry phone to the said Goodluck.
Again, in page 68 to 69 of the Record of Appeal, Counsel drew attention to the observation of the Court below where the Court stated that a good example of something outside the statement to show that it was true is that PW1 and PW2 testified that they were robbed in PW1’s house behind Waynos Hotel Ologbo and that one of the robbers was armed with a cutlass; whereas the Appellant in Exhibit A stated that he and two other persons met at about 10.00 pm on the 20-10-2013 and perfected their plans to rob; that when it was 12.00 am they went to a house near Waynos hotel, where they robbed two men. As far as the Court below was concerned, this piece of evidence shows that Exhibit A is true; that PW1 and PW2 were robbed at about 12.00 am on the 21-10-2013 by the Appellant and other persons at large.
Furthermore, Counsel contended that the evidence of PW1, PW2, PW3 and PW4 contains representation of facts as those in Exhibit A with regards to the narration of the robbery incidence wherein their laptop, mobile phone and other belongings were robbed; what with the PW4 adduced evidence to show that the laptop which was robbed from PW1 (Exhibit D) was recovered from the Appellant. Not only this, Counsel argued that the Prosecution adduced evidence through PW4 which showed that the weapons used in the Armed Robbery of the victims was found in the house of the Appellant’s father just as stated in Exhibit A.
On the question of whether Exhibit A is corroborated, Counsel referred to the printed records at page 69, where the learned trial Judge held that the Exhibit is corroborated in that the evidence of PW1 and PW2 were narrative and listed the items robbed from them to include phones and that PW3 in her evidence told the Court that, her brother informed her that he had been robbed; that after a few days someone was chatting with her, with her brother’s blackberry phone that was stolen and that with the help of the Police, the person was arrested and the blackberry phone was recovered from him and that this led to the arrest of the Accused.
Another corroborative material, Counsel enthused is that the Appellant admitted in Exhibit A that after the operation, he took the laptop and one blackberry handset; which corroborates the evidence of PW2 and PW3, that the said blackberry phone was robbed from PW2, and that the Appellant sold it to the person from whom it was recovered as narrated by PW3.
On the issue raised by the Appellant that PW4 did not investigate that matter and all he told Court was hearsay, Counsel submitted that PW4 in his evidence before the Court stated that he and his team investigated the matter jointly and that it was members of his (PW4) team that went to Abraka to arrest the Appellant, brought him to the Police station where Appellant’s statement was taken in the presence of PW4. Apart from this, that PW4 and his team together with the Appellant went to the Appellant’s father’s house where Exhibit B was recovered.
Counsel urged this Court to hold that Section 39 of the Evidence Act, 2011 does not apply in this circumstance as it applies to admissibility of certain statements, whether written or oral of facts in issue or relevant facts made by a person who cannot be reached; thus, that the provision of Section 39 of the Evidence Act, makes the evidence of PW4 admissible, especially as the team leader Inspector Barka Musa, who led PW4 and other members of the team in the investigation, recovery of Exhibits and arrest of the Appellant died.
Counsel urged this Court to find and to hold that Prosecution was able to sufficiently link the Appellant with the commission of the crime as Exhibit A (confessional statement) having passed the six way tests of admissibility provided by law was duly admitted.
RESOLUTION OF APPEAL:
In resolving this appeal, there may be the need to state the facts of this case, which are largely uncontested between the parties as the foundation of the analysis about to be made by this Court to foster a better appreciation of the issues raised between them. The Appellant as an accused person stood trial on a 4 count charge of conspiracy to commit Armed Robbery and Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.
On or about the 21st day of October, 2013 the Appellant and others now at large were said to have conspired among themselves, attacked and robbed one Kabaka Samuel and Obose John; dispossessing them of their phones, laptop, money, wristwatch, clothes and a satellite decoder at their house at Ologbo, Edo State while armed with cutlasses and battle axe. A few days after the robbery attack, one Obose Juliet Adesuwa, Sister to Obose John (one of the victims of the robbery attack) received a blackberry message on her phone from the blackberry messenger of her brother’s phone which was stolen during the robbery operation.
Curious and eager to know the identity of the messenger, Obose Juliet engaged in a chat with the messenger, who seemed more to be interested in a relationship with her. She later informed her brother (John Obose) and the Police of the development and eventually they set up a meeting with the mystery messenger at Abraka, Delta State.
On the day of the meeting, Obese Juliet went ahead with the Police, and upon confirming the identity of the mystery messenger and who had engaged her in a chat, using her brother’s stolen phone, the said person (one Goodluck) was arrested by the Police and taken-in for questioning. Upon his arrest, Goodluck promptly disclosed that the blackberry mobile phone he used in chatting with Obose Juliet was sold to him by the Appellant; narrating further, he disclosed that he was yet to complete payment for the phone.
Expectedly, the Police instructed Goodluck to put a call across to the person who sold to him (the Appellant) telling him that he (Goodluck) was now ready to make the outstanding payment for the phone and setting up a meeting between the Appellant and himself (Goodluck). The meeting was duly arranged as agreed. It was during the meeting between Goodluck and the Appellant, that the Appellant was arrested for the offence of armed robbery of Kabaku Samuel and Obose John (the victims of the armed robbery attack.)
In proof of its case, the Prosecution called four (4) witnesses and tendered four (4) Exhibits including the extra-judicial statement of the Appellant. At the end of the trial, the Court below evaluated the evidence of the Prosecution and that of the Defence and the learned trial Judge found the Appellant guilty on three (3) counts to wit; Armed Robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. The Appellant was however discharged and acquitted in count four (4) for the offence of Armed Robbery against one Ifeanyi Dominic. Upon his conviction, he was accordingly sentenced to death by hanging.
The Appellant’s defence consisted of the usual refrain in matters of this nature. It was the Appellant’s denial that he did not make the confessional statement voluntarily and that although he was arrested, he did not know why and that he was not one of the robbers. The evidence of the Respondent’s witnesses and the Exhibits tendered, however fixed the Appellant to the scene of the crime and to the commission of the crime. In the course of the trial, the learned trial Judge admitted the confessional statement of the Appellant into evidence and held that the statement was voluntarily made and admitted same as Exhibit “A”, more so when no objection to its admissibility was made.
Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of Armed robbery rests squarely on the shoulders of the Prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as corollary to the above, is the fact and from which the Prosecution gets a modicum of succor that in all criminal trials, the Prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.
At page 11 of the printed records of appeal, a reproduction of excerpts of Exhibit “A” of the Appellant’s extra-judicial statement to the Police reads as follows;
“On 19-10-2013, which was a Saturday, Giwa called me to come to Ologbo that there is a place we were going to steal. I in turn called on Harrison ‘m’ who lived near Ughelli in Delta State to pass the information to him. On Sunday being 20-10-2013 at about 2000 hrs the three of us met in my Father’s house…where we perfected our plans. When it was 0000 hrs all of us went out. I took a battle axe, Giwa took a Cutlass while Harrison followed with empty hand. We arrived at a house near Waunos Hotel. Giwa and I forcefully bursted the door open with our foots and we gained entry into the house. We saw two men in the room and we commanded to lie face down and submit all their belongings.
One of them handed over N2000.00 cash to Giwa. I took the laptop and the decoder while Giwa took the two handsets. None of us hold gun except battle axe I posed with as a gun…after the operation I took the laptop and one Blackberry handset. Harrison took the decoder and two handsets while Giwa took one handset…I sold the Blackberry phone to one boy called Lucky Oria in Abraka at the rate of N5000.00 but he made part payment of N1,500.00. he promised to pay the balance. The boy is not among us not followed us…”
Learned Appellant’s Counsel had contended very vigorously that there was no credible confessional statement warranting the trial Court to have convicted the Appellant. It would be recalled however, that Exhibits “A” was in the course of trial admitted as confessional statements when there was no objection to the tendering and admittance of the Exhibit. Section 27(1) of the Evidence Act, 2011 (As amended) defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”
It is further provided in Sub-section 2 that:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”
On the question of weight to be attached to a confessional statement, the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?
In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case, it is desirable for the trial Judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. Perhaps, the question to address here is whether there are any such corroborating circumstances, which makes the confessions true in this case?
The learned trial Judge at pages 69, 70 and 71 of the printed records from lines 3 of page 69 to the end is replete with instances of corroboration of what the Court believed to have confirmed the story in the confessional statement, too numerous to reproduce in this judgment. However, excerpts of a few cogent and relevant portions are reproduced here, thus:
“On whether Exhibit A is corroborated; The evidence of PW1 and PW2 were narrative and they listed the items robbed from them to include phones. PW3 in her evidence told Court that her brother informed her that he had been robbed; and after some days, someone was chatting with her, with her brother’s Blackberry phone that was stolen and with the help of the Police, the person was arrested and the Blackberry phone was recovered from him, which led to the arrest of the accused.
The accused stated in Exhibit A and I quote:
“I sold the blackberry phone to one boy called Lucky at Oria Abraka at the rate of N5,000 but he made part payment of N1,500 he promised to pay the balance in the later date.”
The accused also admitted in Exhibit A and I quote:
“After the operation, I took the laptop and one Blackberry handset.”
These pieces of evidence extracted from Exhibit A corroborate the evidence of PW2 and PW3 that the said blackberry phone was robbed from the PW2 and the accused sold it to the person from whom it was recovered as narrated by PW3.
On the question of whether Exhibit A is consistent with other facts which have been ascertained and proved? The Court was of the view that from the evidence of PW1 and PW2 it has been established that they were robbed on the 21-10-2013 at about 12.15 am; that the robbers were armed with Cutlass. In Exhibit A the accused admitted thus; “we arrived at a house near Waynos Hotel, Giwa and I forcefully bursted the door open with our foots (sic) and we gained entry.” Still in Exhibit A he admitted and I quote: “none of us hold gun except the battle axe I posed with as gun and Giwa hold Cutlass which we used to threaten them before we stole their properties.”
The confession by the accused shows that the accused was part of those who robbed PW1 and PW2 on the 21-10-2013.
On the question of whether the Prosecution proved beyond a reasonable doubt the allegations of armed robbery against the Appellant, the Court below further observed, thus;
“The accused and his Counsel were in Court when PW3 and PW4 testified he was arrested at Abraka upon the call he received from one Goodluck to whom he sold Exhibit C (PW2’s Blackberry phone) asking him to come and collect the balance payment for the form. He did not cross-examine PW3 and PW4 to counter the place of his arrest. He waited till his defense to say he was arrested in Benin Presco Junction and not Abraka.”
This appeal is clearly without substance as it is moribund and it is accordingly dismissed. The judgment of the High Court of justice, Criminal Division, sitting at Benin Judicial Division, Coram: R. IRELE-IFJEH, J and delivered on the 20th day of July, 2018 is hereby affirmed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft, the lead judgment in this appeal and agree with my learned brother, Frederick O, Oho, JCA. that the appeal has no merit.
The evidence led at the trial Court was convincing, inclusive of the corroborated Confessional Statement of the Appellant.
The trial decision is affirmed.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded in advance copy of the leading judgment just delivered by my lord. Dr. Frederick Oziakpono Oho, JCA, and I am in complete agreement with the lucid reasoning and the impeccable conclusions reached therein. I adopt it as mine and I have nothing more useful to add.
Appearances:
R.O. ISENALUMHE, ESQ. For Appellant(s)
P.T. IDIENUMAH, ESQ. (Ministry of Justice, Edo State) For Respondent(s)
