Folorunsho V The State (2014)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Benin Division of the Court of Appeal, delivered on the 23rd day of April, 2012.

The appellant had earlier been charged along with one other, called Sunday Ehimiyein with two counts of conspiracy and armed robbery as follows:-

Count 1: That you, Sunday Ehimiyein (M) and Folorunsho Alufohai (M) on or about the 5th day of January, 1998 at Oluku town in the Iguobazuwa Judicial Division triable in the Benin Judicial Division conspired together and one other now at large to commit felony to wit:- armed robbery and thereby committed an offence, contrary to Section 5(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398, Laws of the Federation of Nigeria, 1990.

Count II: That you Sunday Ehimiyein (m) and Folorunsho Alufohai (m) and one other now at large on the 5th day of January, 1998 at Oluku Junction in Oluku town in the Iguobazuwa Judicial Division triable in the Benin Judicial Division robbed one Raphael Aggi (m) and Mrs. Helen Aggi (f) of their Video machine, valued at N18,000.00; one video Rewinder valued at N3,000.00 only and one 14″ colour Television valued at N23,000.00 and that at the time of robbery, you were armed with offensive weapons to wit: gun, cutlass and acid and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and firearms (Special Provisions) Act Cap 398, of 1990 Laws of the Federation of Nigeria.

Before the trial court, the two accused persons pleaded not guilty to the two counts. The prosecution called a total of five (5) witnesses in support of the charge. Each of the accused testified on oath in defence but called no other witness. In a considered judgment, the trial court, on the 26th day of September, 2005 found each of the accused persons guilty of the two counts, convicted and sentenced them to death by hanging by the neck until each of them shall be certified dead.

Dissatisfied with the judgment of the trial court, the instant appellant appealed to the court below in the Benin Judicial Division on two grounds.

The court below found, upon the evidence of PW3 and PW4, that the appellant was properly convicted of the offence charged and dismissed the appeal.

Being further dissatisfied with the decision of the court below led to the instant appeal upon a sole ground of appeal with a promise to file additional grounds of appeal upon receipt of the record of appeal. But no further ground was filed by the appellant.

When the matter came up for hearing on 23/10/2014, learned counsel to the appellant adopted and relied on the appellant’s brief of argument filed on 27/07/2012 to urge the court to allow the appeal, set aside the conviction of the appellant and the affirmation of same by the court below and to discharge and acquit the appellant.

On the other hand, learned counsel for the State adopted and relied on their amended respondent’s brief of argument to urge the court to hold that the prosecution proved the case on the two counts against the appellant and the co-accused beyond reasonable doubt and urged the court to dismiss the appeal for being unmeritorious.

The gist of this case briefly is that, one Helen Aggi (PW3) and her late husband – Raphael Aggi were on the 5th day of January, 1998 robbed by the appellant and one Sunday Ehimiyein with another, still at large, while armed. They were dispossessed of their electronics, including one video player and a video Rewinder which were both tendered, admitted and marked as Exhibits A and B respectively. That in the course of the robbery, acid was poured on PW1’s face. While at the police station reporting the incident and making statement to the police, PW4, a policeman arrived the station with the appellant and a co-accused with Exhibits A and B, the properties of the complainants recently robbed. On sighting the appellant, he was immediately identified to the police with the stolen properties.

It was in evidence on record that prior to the robbery incident, the police had received information that the appellant and others were planning to dispose of some electronics. Based on the information, in an ambush laid by the police, the appellant and the co-accused were arrested with the said stolen items. The accused were subsequently charged with and convicted of the two counts against them.

Based on a concurrent finding of facts, the court below found the appeal to be unmeritorious and dismissed same. In the subsequent appeal to this court, the appellant in his brief of argument formulated a sole issue for determination as follows:-

“Whether the Court of Appeal was right in affirming the decision of the trial court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.”

In response, the respondent also in its brief of argument distilled a sole issue from the lone ground of appeal filed by the appellant as follows:

“Whether or not the lower court was right in affirming the decision of the trial court convicting the appellant on a two count charge of conspiracy and armed robbery.”

There is no doubt that in the two respective sole issues distilled from the lone ground of appeal filed by the appellant both parties are saying the same thing though slightly couched differently.

In arguing the issue, learned counsel to the appellant referred copiously to the decision of the court below at pages 198-199 and contended that the court was wrong to have held that there was proper identification of the appellant as the person who committed the robbery and that they failed to establish that he was either the thief or the receiver. Learned counsel contended further that in criminal cases, especially armed robbery offence which carry capital punishment, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He relied on Morka v. State (1998) 2 NWLR (Pt. 537) 294 at 301; Section 135 (1) of the Evidence Act, 2011 (as amended) Cyrrascus Ogide & ors v. The State (2005) 1 SCNJ 67 at 85-86. He submitted that the onus is static and does not shift.

Learned appellant counsel referred to the testimony of PW1 – one Ige Aggi, daughter of PW3 who testified that she identified the appellant as the one who poured acid on her face for looking at their faces. He contended that the witness did not give testimony as to how she identified the appellant, in particular, as to what type of clothes the appellant wore and what features on him struck her to identify him as one of the robbers that attacked her family previous night in their house. Learned counsel contended further that from the testimony of PW1 under cross examination to the effect that it was her father on his return from Ekiadolor Police Station that informed her that those who came to their house to rob had been arrested and were at the Police Station, hence she was taken to the Police station to identify the appellant, learned counsel submitted that the testimony of PW1 was an afterthought and should be so held by the court in that, but for the information passed to her by her father she did not by herself identify the appellant as one of the men who had robbed her family.

Learned counsel referred to the testimony of PW2 – one Lucky Natuke, a Police Sergeant No. 149369 and contended that the officer did not mention the appellant in his testimony in court, as he merely tendered the exhibits said to have been recovered in respect of the case. Learned counsel referred to the testimony of PW3 – Mrs. Helen Aggi, the wife of Raphael Aggi that on the day of the incident, her daughter, PW1 had raised alarm that the appellant had poured acid on her face. He contended that PW1 never mentioned in her testimony before the court that it was the appellant who poured acid on her face. Learned counsel contended further that from the testimony of PW3 under cross examination, the only person she could identify any time and any where amongst those who attacked her family was one Emma who was said to be armed with a gun that night of the attack but who had not been arrested.

Learned counsel submitted that the fact that neither PW1 nor PW3 knew the appellant before the day of the incident should have called for proper formal identification of the suspects, by the Police in an identification parade. He relied on Sunday Ndidi v. The State (2007) 41 WRN 1 at 15 (2007) 5 SCNJ 274 at 287-288; Ochiba v. The State (2001) 17 NWLR (1277) 638 at 694-695.

Learned counsel referred to the testimony of PW4 on the recovery from the appellant and his co-accused of the articles robbed but wondered why the television which was part of the properties said to have been stolen was not recovered also from the appellant and the co-accused as the alleged arrest was said to have been done soon after the robbery incident.

Learned counsel contended that it is the duty of the prosecution to prove the guilt of the appellant beyond reasonable doubt and that it does not lie on the appellant to prove his innocence. He submitted that the prosecution failed to discharge its duty in respect of this case. The prosecution did not prove its case against the appellant beyond reasonable doubt hence he urged the court to allow this appeal, set aside the conviction of the appellant by the trial court and the affirmation of the said conviction and sentence by the court below. He finally urged the court to discharge and acquit the appellant.

In responding, learned counsel to the respondent submitted that the decision of the court below is not perverse but borne out of the abundant evidence before the court. He referred to the charge of two counts and the law pursuant to which the appellant was charged and tried. He further referred to the evidence adduced by the prosecution on both conspiracy and the armed robbery. He submitted that conspiracy is a matter of inference from certain criminal acts of the parties done in pursuance to an apparent purpose in common intention from them. He submitted further that the offence of conspiracy can even be inferred from the criminal acts of the accused persons as regards the actual commission of the offence of armed robbery. Learned counsel posited that the appellant in the instant case being in possession of the robbed items immediately after the robbery incident and the positive identification of him by the victims is evidence that he actually committed the crime. He referred to the evaluation, by the trial court, of the evidence adduced by the prosecution vis-Ã -vis the position of the law on conspiracy and its conclusion that the offence of conspiracy was proved beyond reasonable doubt. He submitted that the decision of the trial court was rightly affirmed by the court below and urged the court to hold that the review of the evidence by the trial court was unassailable.

On the second count charge of armed robbery, learned counsel referred to the ingredients the prosecution was expected to prove to attain success. He relied on Bozin v. State (1998) 1 ACLR 1 at 2; Magic v. The State (1999) 1 LRCN 252.

He took the three ingredients one after the other and discussed them with the evidence adduced by the prosecution before the trial court. He contended that the cumulative evidence of PW1, PW3 and PW4 which was neither contradicted nor controverted during cross-examination is that there was robbery incident in the house of PW3 and that the robbers were armed.

On the third ingredient, whether the appellant took part in the armed robbery, learned counsel submitted that the evidence of PW1, PW3 and PW4 positively identified the appellant as one of the robbers that attacked their family and robbed them of Exhibits A and B.

Learned counsel referred to the testimony of PW1 and submitted that her identification of the appellant was based on her personal knowledge of him during the robbery operation.

Learned counsel further referred to the testimony of PW3 and how she positively identified the appellant as one of those who robbed her family. She also gave vivid description of the role the appellant played during the operation. He submitted that the evidence of PW1, PW3 and PW4 linking the appellant with the commission of the crime is clear, positive and compelling. And that the best identification of an accused person in a crime is by the victim or the witness of the crime. Both PW1 and PW3 were victims of the crime of armed robbery.

Learned counsel submitted that the prompt and spontaneous identification of the appellant by PW3 at the Police station where there were many other people is sufficient act of positive identification which does not need any identification parade. He submitted that it is not in every case that an identification parade is necessary to identify culprits.

Learned counsel submitted further that the fact that the appellant was in possession of Exhibits A and B within 24 hours of the robbery incident lends credence to the presumption that he was one of the armed robbers who had robbed PW3’s family.

Learned counsel referred to the confessional Statements of the appellant, admitted as Exhibits F & G wherein the appellant admitted that he did not wear any mask on the night of the robbery, hence he submitted that there was no identity crisis about the true identity of the appellant.

The respondent submitted that under the Nigeria administration of criminal justice system, the identity of an accused person is not limited to an identification parade but can be established in other different ways. He relied on Adamu v. State (1991) 4 NWLR (Pt. 187) 530.

Learned counsel submitted that the appellant failed woefully to discharge the burden on him to move the court to set aside the concurrent findings of fact of the two courts below. The appellant has not shown that the verdict is in any way perverse. He finally urged the court not to disturb the verdict but dismiss the appeal for want of merit and affirm the judgment of the two courts below.

As stated earlier, the appellant distilled a sole or lone issue from the single ground of appeal he had filed against the judgment of the court below. The respondent also, though couched slightly differently, formulated a sole issue. I like to rather put the issue arising from the sole ground of appeal on pages 203-204 of the record as follows:

“Whether the court below was right in affirming the decision of the trial court which found the appellant guilty and convicted as charged.”

First and foremost, it is interesting to note from the submissions of the appellant’s counsel that the main complaint of the appellant was that he was not properly identified by the alleged victims of the robbery incident. In other words, it was contended that the Police ought to have conducted or carried out a formal identification parade to get the victims to identify those who robbed their family on the said 5th January, 1998. I shall come back to the issue of Identification parade anon.

In the very well considered judgment of the trial court delivered on 26/9/2005, the trial Judge had, inter alia, found and come to the following conclusions.

“PW1 and PW3 positively identified the 2nd accused person as the armed robber who poured acid on her face when she looked at him and then raised an alarm.

………………………………………

I hold that the prosecution has also proved the offence of armed robbery in count 2 of the charge, beyond reasonable (doubt).

Finally and on the totality of the evidence adduced in this case before me, I have come to irresistible and inevitable conclusion that the prosecution has proved the quilt of each of the 1st and 2nd accused persons beyond reasonable doubt pursuant to Section 138(1) of the Evidence Act.

…………………………………….

The 1st and 2nd Accused persons are a bunch of heartless criminals who took delight in torturing and maiming their helpless victims as shown by the manner in which acid was poured on the face of the PW1 by the 2nd accused person while they (were) armed with guns and offensive weapons to wit: acid and a cutlass.

………………………………………

I believe the credible evidence of the Prosecution in its entirety and I accept it. I disbelieve the evidence of the 1st and 2nd accused persons and consequently reject their testimonies, which I regard as tissues of lies and afterthought. I believe that the accused persons were armed with guns, a cutlass and acid at the time of the armed robbery. I believe that Exhibits A and B were recovered from the 1st and 2nd accused persons by the Police soon after the robbery.

………………………………………

Finally, in the result and in view of the foregoing, the conclusion that I have reached in this case is that I find each of the 1st and 2nd accused persons guilty of the offences of conspiracy to commit armed robbery in count 2 as charged and I hereby convict each of them accordingly.” (Bracket supplied)

It is pertinent and a proper approach to an indictment which contains a charge of conspiracy and a substantive charge to deal with the latter, that is the substantive charge first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See; Osetola & Anor v. The State (2012) 2 SCM (Pt. 2) 347; (2012) 17 NWLR (Pt. 1329) 251; (2012) 50 (2) NSCQR 598; (2012) 6 SC (Pt. IV) 148.

Conspiracy is an agreement between two or more persons to do an unlawful act. It is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly are ever confined to one place. Therefore, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is, in itself a separate and distinct offence, independent of the actual offence conspired to commit. See; Balogun v. A-G Ogun State (2002) 4 SCM 23; (2002) 2 SC (Pt. 11) 89; (2002) 2 SCNJ 196.

The law is trite and has long been settled, that for the prosecution to establish an offence of armed robbery against a suspect, the followings are required to be proved.

(i) That there was in fact robbery incident;

(ii) That the robbery was an armed robbery; and

(iii) That the accused person, in particular, was the armed robber.

See; Bozin v. State (1985) 7 NWLR (Pt. 8) 465 at 467; Alabi v. State (1993) 7 NWLR (Pt. 307) 551; Olayinka v. State (2007) 4 SC (Pt. 1) 210; (2007) 9 NWLR (Pt. 1040) 561; (2007) 8 DV/m 193.

To prove and establish the charge against the appellant in this case the prosecution relied on the testimony of PW1, PW3 and PW4 and the confessional statements made by the appellant at two different Police Stations where the matter was treated.

As clearly shown on the record, the trial court had found in evidence from the PW1 and PW3 – Ige Aggi and Helen Aggi – daughter and mother respectively, who were the victims of the robbery incident, that on the 5th day of January, 1998 the appellant and two others – the 1st accused before the trial court and one Emma who was at large, were armed with guns, cutlass and acid. They attacked their house through the back door which they broke with a wooden mortar which was admitted as Exhibit C. They robbed their victims of some electronics some of which were admitted as Exhibits A and B with a colour television which was not recovered, being with the Emma who was at large.

The trial court found that PW1 corroborated the testimony of PW3 – her mother, in material particulars. She had narrated the part played by each of the accused, in particular, the appellant who poured acid on the face of PW1 as the armed robbers were escaping with their robbed items.

At dawn on the following day of the incident, as PW3 and her late husband were at the Ekiadolor Police station to lodge complaint and report the robbery incident, PW4 – Sgt Ola Jonathan – a Police Officer who investigated the crime came into the Station with the appellant and the co-accused with Exhibits A and B. PW3 and her late husband immediately recognized and identified both men to the Police as the armed robbers who had robbed their family of Exhibits A and B, the previous night.

It is equally in evidence that PW4 and another Police Officer, one Sunday, who later died, had received information from an informant on 4th January, 1998 that certain persons were planning to rob in the neighbourhood and then dispose off by sale, their robbed electronics. The informant had given detail description of the area being planned to be robbed. The policemen laid ambush in the early hours of the day and succeeded in arresting the appellant and the other co-accused with the robbed electronics- Exhibits A & B right in their possession. They were then immediately taken to the Police Station where they were identified by the PW3 and her late husband. Later, PW1 also went to the Police Station at the request of her late father to identify both the appellant and their loot – which are her family properties.

It is on record, that the confessional statements of the appellant were admitted by the trial court, even though there was a retraction, which led to conduct of a trial within trial. At the end, the trial court found that the statements were voluntarily made, hence the objection to the admissibility of the statements was overruled and same were admitted and marked, Exhibits F and H respectively. Exhibit F was the voluntary statement of the appellant made to the police on 6/01/1998, few hours after the robbery operation he was alleged to be part of, at the Ekiadolor Police Station. While Exhibit H was his statement made on 12/01/1998 voluntarily, to the Police at the State CID. The trial court noted in its judgment that the appellant, at the earliest opportunity, had made his statement voluntarily and made a clean breast of the planning and the commission of the offence of armed robbery. The trial court further noted that the appellant and his co-accused had the opportunity of committing the offences with which they were charged. The court finally held that the confessional statements were true and duly corroborated.

Now, on the way the appellant was identified at the Police station. Whether or not the Police ought not to have conducted a formal identification parade. Generally, identification parade, otherwise known as “line-up” is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See; Agboola v. State (2013) 8 SCM 157; (2013) 11 NWLR (Pt. 1366) 619; (2013) 54 NSCQR (Pt. 11) 1162; (2013) All FWLR (Pt. 704) 139.

Generally, identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. Therefore whenever the trial court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the court was the person who actually committed the offence with which he is standing trial. See; Patrick Ikemson v. State (1989) 1 CLRN 1; Agboola v. State (supra).

It is trite law, that identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an accused person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.

In the instant case, there is clear evidence on record that without being prompted, the victims of the alleged armed robbery immediately identified the appellant on being sighted, couple of hours after the incident. What is more, the properties of the victims that were said to be carted away by the armed robbers were readily found in possession of the appellant. It is interesting to note that, no explanation was given for the alleged stolen electronics that were found in possession of the appellant neither did he claim ownership of same.

I am not in the slightest doubt that the appellant was properly identified by the victims and there was no need for any formal identification parade any longer. In Mathew Orimoloye v. The State (1984) 10 SC 138, this court in a case almost in all fours had stated as follows:-

“It is not in every case that a parade is necessary to identify culprits. The appellant was identified by PW1 as soon as the latter saw him at the Police Station and even before he was asked to identify him.”

In the same case, this court went further as follows:-

“It is necessary to point out that the spontaneous reaction towards the recognition of the appellant in respect of the offence committed 6 hours earlier is a more acceptable identification of the appellant than a programmed identification.”

In the case on hand, it was clear from the evidence that the victims – PW3 and her late husband did not go to the Police Station for the purpose of identifying the appellant. They merely went to lodge complaint to the police of the attack on their family. In the result, the appellant was properly identified by PW1 and PW3, hence identification parade was rightly dispensed with by the Police. It was not necessary any longer.

Furthermore, as earlier noted, the appellant was said to have made statements to the police. These statements upon retraction were tested in a trial within trial but were found to have been made voluntarily. The said statements were found to be positive and unequivocal and amounted to an admission of guilt.

In criminal trials, the law is that the guilt of an accused person for the commission of the offence charged can be established by any or all of the following:-

(a) The confessional statement of the accused;

(b) Circumstantial evidence;

(c) Evidence of an eye witness.

In the Evidence Act, the procedural law, in particular, Section 27(2) recognizes the relevance of confessional statements in criminal proceedings if such statements are made voluntarily.

A confession is described as a criminal suspect’s oral or written acknowledgement of guilt, often including details about the crime.

In other words, a confession is an acknowledgment in express words by the accused in a criminal case, of the truth of the main fact charge or of some essential part of it. See; Agboola v. State (supra).

In the Evidence Act, Confession is said to be an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. See; Section 27(1) Evidence Act. Akpan v. State (2001) 7 SC (PH) 124; Nwachukwu v. State (2002) 12 SCM 143; (2002) 7 SC (Pt.1) 124.

It is clear from the confessional statements of the appellant that he actually participated in the alleged robbery. He had given so much detail of the role he and the others played on the night of the robbery, that one holds no hesitation in the slightest to agree with the trial court that the retraction from the confessional statement during trial was an afterthought. The statements were correctly admitted as being true and voluntarily made by the appellant at the trial court and the affirmation of the decision by the court below was rightly arrived at.

It is trite law that where an extra judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt regardless of the fact that the maker resiles therefrom or retracted it altogether at the trial. See; Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383.

In the instant case, there was practically nothing left for the prosecution to prove to establish the charge at the trial court. The prosecution proved the charge against the appellant from the evidence adduced both oral and documentary. There was no iota of doubt left in favour of the appellant.

Upon the preponderance of evidence adduced by the prosecution and the concurrent findings of fact by the court below, which made it affirm the decision of the trial court, this court will not in any way interfere with the findings. The appellant had failed woefully to show that the decision of the court below was perverse in any form or has led to miscarriage of justice.

In other words, the prosecution in this case discharged the burden on it and proved the case against the appellant beyond reasonable doubt. That rightly led to the conviction of the appellant by the trial court which decision was correctly and properly affirmed by the court below.

The sole issue in this case is resolved against the appellant.

Accordingly, for lacking in merit, this appeal is liable to dismissal. It is dismissed. The decision of the court below which affirmed the conviction and sentence of the appellant is hereby affirmed.

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SC.233/2012