Akinkunmi V. State (2022)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
The appellant, who was the second accused person at the Abeokuta Judicial Division of the High Court of Ogun State, was arraigned alongside three other accused persons, on a four-count charge of Conspiracy to commit Armed Robbery, Armed Robbery and Attempted Armed Robbery contrary to Sections 6 (b), 1 (2)(a) and 2 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.
At the trial, the appellant pleaded not guilty to all charges. The Prosecution called eight (8) witnesses and tendered exhibits in proof of their case. In their defence, the appellant and his co-accused persons testified for themselves and their Counsel addressed the Court. The trial Court, in its judgment delivered on the 19th day of October, 2015, convicted and sentenced the appellant to death by hanging.
Dissatisfied with the judgment of the trial Court, the appellant appealed to the Court of Appeal (“lower Court”). By a judgment delivered on the 6th day of December, 2019, the lower Court affirmed the decision of the trial Court and dismissed the appeal.
Still dissatisfied with the judgment, the appellant appealed to this Court, via an Amended Notice of Appeal filed on the 29th day of January 2020, containing eight (8) grounds of appeal.
The appellant, by his brief of argument, filed on the 29th day of January, 2020 and deemed filed on the 9th day of December, 2021, distilled four issues for determination, to wit:
- Whether the Court of Appeal was right in affirming the trial and conviction of the appellant when it held that the prosecution proved the offence of conspiracy to commit armed robbery, armed robbery and attempted armed robbery against the appellant beyond reasonable doubt?
- Whether the Court of Appeal was right in affirming the trial and conviction of the appellant considering the reliance placed on exhibits 2, 2A and 7, the alleged confessional statements of the appellant and the testimonies of PW1 and PW2 to convict the appellant without any consideration of the defence put forward by the appellant?
- Whether the Court of Appeal was right in affirming the trial and conviction of the appellant when the evidence of PW1 to PW7 are not cogent enough or sufficient to support the charge of armed robbery under the Robbery and Firearms (Special Provisions) Act?
- Whether the Court of Appeal was right in affirming the trial and conviction of the appellant considering the totality of evidence adduced by the Prosecution, the learned Justices ought to have set aside the judgment of the Trial Judge and in its place discharged and acquit the appellant?
In response, the respondent, by a brief of argument filed on the 30th day of October, 2020, and deemed filed on the 9th day of December, 2021, formulated two issues for determination, to wit:
- Whether the lower Court was right in affirming the trial Court’s acceptance of and reliance on the appellant’s confessional statements; and
- Whether the lower Court was right in affirming the trial Court’s conviction and sentence of the appellant.
My Lords, I have closely examined the issues identified in the respective briefs of the parties. I find that the respondent’s issue No. 1 is identical with issue No. 2 of the appellant. The respondent’s issue No, 2 is identical with Issue Nos. 1, 3 and 4 of the appellant. For this purpose, I take the view that the respondents’ two issues are actually determinative of this appeal.
ISSUE ONE
Whether the Lower Court was right in affirming the trial Court’s acceptance of and reliance on the appellant’s confessional statements?
APPELLANT’S SUBMISSIONS
Learned Counsel for the appellant contended that the trial Court failed in its duty to take the evidence of the appellant as a whole in considering the defence open to him, Asanya v State (1991) 3 NWLR (pt. 180) 422, 452. He referred to pages 117 and 118 of the Record of Appeal, wherein the appellant had alleged that he had been trapped and set up to write those statements during trial.
Learned counsel pointed out that there were contradictions in the testimony of PW1 and PW2, adding that on this score alone, it is crystal clear that the identity of the person who purportedly attacked PW1 or victim of 1st June, 2012 was in doubt and the Police ought to have conducted an identification parade to ascertain the veracity of PW1 and PW2’s claim. He argued further that the incident occurred at night when vision cannot be said to be very clear thereby necessitating an investigation as to the real identity of the perpetrator of the alleged offence as required by law in such circumstance. He cited these cases: Eyisi v The State (2000) 12 SC (pt.1) 24; Okosi v The State (1989) 2 SC (pt.1) 126 and Alonge v IGP (1959) SCNLR 15; State v Olashehu Salawu (2011) 12 SC (pt. IV) 191 at 237; Bozin v State (1985) 2 NSCC 1087, 1091.
Arguing further, he submitted that the trial Court erred when it relied on the appellant’s alleged confessional statements, exhibits 2A, 2, and 7, holding that the confessional statements have been freely and voluntarily made without properly considering the defence of the appellant and/or test the truth and make specific findings and pronouncements on same.
He opined that the lower Court erred by affirming the trial and conviction of the appellant based on exhibits 2,2A and 7 as it was erroneous for the trial Judge to hold that the confessional statement of the appellant is corroborative enough with evidence of PW1, PW2 and PW3 that cannot be relied upon, and this has occasioned a serious miscarriage of justice.
Learned Counsel urged this Court to resolve this issue equally in favour of the appellant as the evidence of the appellant before the trial Court was compelling enough to exonerate him from the offences with which he was charged before the trial Court.
RESPONDENT’S ARGUMENTS
On this issue, learned counsel for the respondent first submitted that the confessional statements in issue fall within the definition of a confessional statement. Secondly, he contended that the statements in issue met the conditions for the admissibility of a confessional statement.
With reference to the case of Hassan v The State (2001) LPELR-1358 (SC), learned counsel posited that exhibits 2 and 2A were statements signed by the appellant, adding that in the statement, appellant narrated how the idea of stealing a motorcycle in Abeokuta and selling it in Ibadan was conceived by the third accused person on 27th May, 2012, which in his view, constitutes a confession to Count 1 of the charges against the appellant.
He explained further that, in the said exhibits, the appellant also narrated how, upon executing their plan, the third accused person broke a bottle on PW1’s head while the appellant cut PW1 with a UTC knife to facilitate their escape with the motorcycle. These facts, he submitted, constituted a confession to Count 2.
He further pointed out that the appellant also narrated how the first and third accused persons came back to his house with a gun on Thursday, 31st May, 2012. On 1st June, 2012, the first accused person accompanied him and the third accused person to a junction before returning, adding that this constituted a confession to Count 3.
He stated further that the appellant had narrated how they halted a motorcycle and at their destination, they tried to dispossess the rider of it. He could not shoot the rider because it was his first time handling a gun and as the rider shouted for help, they escaped into the bush before they were eventually caught by civilians in the neighbourhood. These facts, said learned counsel, constituted a confession to count 4. Learned counsel also referred to exhibit 7, signed by the appellant, as also constituting admissions to Counts 1, 2, 3 and 4 preferred against him.
It is the opinion of learned counsel that the statements in issue met the conditions for the admissibility of a confessional statement. In support of this submission, heavy reliance was placed on the case of Ajiboye v F.R.N (2018) LPELR-44468 (SC).
He contended further that on 10th June, 2015, when the Prosecution sought to tender exhibits 2 and 2A, being the confessional statements of the appellant, he raised no objection to same and the Court admitted the statements. Similarly, on 23rd June, 2015, when Prosecution sought to tender exhibit 7, also a confessional statement made by the appellant, no objection was made and same was duly admitted. He added that failure to object to the admissibility of the confessional statements shows that the Prosecution had sufficiently proved that same was voluntary and unequivocal. On this point, learned counsel referred to the case ofIsa v Kano State (without citation).
He referred to pages 117-119 of the Records. Therein, the appellant, during his examination-in-chief, admitted to having written and signed exhibits 2, 2A and 7. He called in aid the case of Tope v State (2019) LPELR-47837(SC). He further stated that the appellant’s testimony therein, could, at best, only constitute a retraction of the statements, which will not affect its admissibility but will only go to the weight or probative value to be given to such evidence, Hassan v The State (2001) LPELR-1358 (SC); Akpan v The State (1992) 6 NWLR (Pt. 248) 439; (1992) 7 SCNJ 22; Galadima v State (2012) LPELR-15530 (SC); Olanipekun v State (2016) LPELR-40440 (SC). Learned Counsel urged this Court to affirm the decision of the Lower Court on this issue.
RESOLUTION OF THE ISSUE
In all criminal cases before a Court of law in this country, there are always two sides: the case for the Prosecution and the case for the defence. Consequently, regardless of where or in what manner an accused person makes his statement to the Police or other law enforcement agents, the attitude of the Courts towards it remains the same. It comes to this. It is a part of the case for the Prosecution, whether or not it is a confessional statement and whether or not the accused person challenges it during the trial, Egboghonome v State (1993) 7 NWLR (pt. 306) 383. The question of its admissibility is a separate issue entirely.
Now, on the issue of admissibility, two factors can affect the admissibility of a confessional statement, that is, where the confessional statement has been found not to be voluntarily made or where the contents of the confessional statement are retracted by its alleged maker. In the former, where an objection is raised, the proper action to take by the Courts is to suspend the substantive suit and immediately commence the conduct of a trial-within-trial to determine the voluntariness or non- voluntariness of the confessional statement.
Whereas, in the latter case, the confessional statement can still be admitted and the issue will go to the evaluation of the statement and the ascription of probative value to be placed on same, Kanu v King (1952) 14 WACA 30; Idowu v State 12 NWLR (pt. 680) 48; Mumuni v State (1975) 6 SC 79; Galadima v State (2012) LPELR – 15530 (SC). The proper time to raise objection on any of these grounds in at the point it is being tendered, Oseni v State (2012) 2 M. J. S. C (pt 11) 98; Effiong v The State (1998) 5 SCNJ 158, 166; Gbadamosi v The State (1992) 9 NWLR (pt 266) 465, 480; Afolalu v State 3 NWLR (pt 11270) 160, 193; Alarape v The State (2001) 5 NWLR (pt 705) 79; Mbang v The State (2009) 8 NWLR (pt 1170) 140; Okaroh v State (1990) 1 NWLR (pt 125) 136.
In the instant case, the confessional statements, exhibits 2, 2A and 7 of the appellant were tendered by the Prosecution. They were admitted in evidence without any objection on any of the aforementioned grounds. It was during trial that the appellant made, as submitted by learned counsel to the respondent and which I so hold, a belated attempt to impeach the voluntariness of exhibits 2, 2A and 7. This, in my opinion could not avail the appellant at this point, Oseni v State (supra); Effiong v The State (supra); Gbadamosi v The State (supra); Afolalu v State (supra); Alarape v The State (supra); Mbang v The State (supra); Okaroh v State (supra).
With regard to the issue of the trial Court’s non-consideration of the defences before it, as alleged by learned counsel for the appellant, I will invite Obaseki, JSC, to respond. In Nwuzoke v The State (1988) 1 NSCC 361, His Lordship explained that:
The adjudication process in this our adversarial system of administration of justice demands that every defence available to the accused (person) on the evidence and facts before the Court must be considered by the Court. To refrain from a consideration of the defence because it is considered weak, far-fetched, foolish, conflicting, unfounded and false is to err seriously in the discharge of one’s duty as a Judge. Where there is no evidence to warrant consideration of the defence, the trial Judge has no duty to consider the defence. It is not the duty of the Judge to scout round for defences where there are none and where the evidence does not suggest one see. R. v. Kwabena Bio (1945) 11 W.A.C.A. 46, 48.
(ltalics supplied for emphasis)
True, indeed, where there is no such evidence, as in the instant case, the Court is not allowed to speculate or to act within the realms of conjecture, Ekpenyong v The State (1993) 5 NWLR (pt 295) 513.
From the record of proceeding before this Court, the learned trial Judge, in his judgment, derided the appellant and other accused persons’ attempt at denying the contents of their confessional statements as a “belated after-thought”. This, in my view, is enough to tell any reasonable and right-thinking person, that the Court does not consider the accused person’s defence as being cogent or strong enough to defeat the Prosecution’s case. It is my humble view, that on this issue, the learned trial Judge cannot be faulted.
It is a general rule that this Court does not make it a habit of disturbing the concurrent findings of two lower Courts, unless shown to be perverse, unsupported by admissible evidence or has occasioned a miscarriage of justice, Kale v Coker 12 SC 252; Mbang v The State (2013) 7 NWLR (pt. 1352) 48; Woluchem v Gudi (1981) 5 SC 291, 326; Ike v Ugboaja (1993) 6 NWLR (pt. 301) 569. In the instant case, I have not been able to locate any of these vices.
I am therefore, of the firm view that the lower Court rightly affirmed the trial Court’s reliance on the confessional statements of the appellant in arriving at its decision. This issue is resolved in favour of the respondent.
ISSUE TWO
Whether the lower Court was right in affirming the Trial Court’s conviction and sentence of the appellant?
APPELLANT’S SUBMISSIONS
It is the position of the learned counsel for the appellant that the Court cannot pronounce the accused person guilty for an offence where the Prosecution has failed to prove common intention to commit a crime by those being charged to Court for such offence, where it is a very important ingredient to establish such offence, Oseni v The State (2012) 4 SCM 150 at 181; Gbadamosi v The State (incomplete citation); Onyenye v The State (2012) 11 SCM 188 at 141.
Learned Counsel submitted further that a case of conspiracy to commit armed robbery, armed robbery and attempted armed robbery was not made out against the appellant as there was no proof of proper identification in which the Prosecution is required to prove that the acts were carried out in broad day light or that the place was lit up. He added that the lower Court erred in affirming the trial and conviction of the appellant by holding that failure of the Prosecution to conduct the identification parade of the appellant is not fatal to the conviction.
He argued further that the trial Court should have rejected the piece of evidence or held that the Prosecution was not able to prove that the appellant and the other accused persons agreed to carry out an unlawful act, placing reliance onAbdullahi v The State (2008) 5-6 SC (pt.1) 1; Ndidi v The State (2007) 13 NWLR (pt. 1052) 633; Olowoyo v State (2012) 17 NWLR (pt. 1329) 346; Bolanle v State (2005) 9 NWLR (pt. 925) 451, paragraphs C-D.
Learned counsel pointed out that the PW1 was not able to establish that any arm or offensive weapon was used. According to him, when the PW1 was being cross-examined, he said that he was attacked by the appellant and the third accused person with a bottle and a machete. However, in a surprising turnaround, he admitted that when he was about to carry them on his motorcycle (having been asked by the appellant and the third accused person), he never saw them with the alleged bottle and machete. He opined that this actually ought to create doubt in the mind of the Court as it will be irrational to claim that when he was about to carry them he never saw them holding anything, as those objects cannot be hidden if they were actually in possession of the purported weapons.
He posited further that the prosecution failed to prove that the armed robbery which appellant was charged with was as a result of the probable consequence of the execution of a joint intention of the appellant and others to carry out the alleged illegal act of 27th May, 2012.
According to learned counsel, the Prosecution failed in the cause of trial to establish that the elements of the offence of Armed Robbery as stipulated in the case of Bolanle v The State (supra) were proved against the appellant, adding that PW1 who was said to be the victim of the alleged armed robbery of the 27th day of May, 2012, was unable to testify as to the type of abusive weapon that was used against him.
Arguing further, he submitted that it was PW2 and PW3 who had arrested the appellant that identified him as the person that attacked one Haruna Akinwande, who is the victim of the purported attack on 1st June, 2012, rather than the victim himself who was never called to testify at the trial. He added that failure of the Prosecution to call the victim of 1st June, 2012 was fatal to its case.
Learned counsel further stated that when the totality of the evidence adduced by the Prosecution was not proved beyond reasonable doubt, the lower Court ought not to have affirmed the trial and conviction of the appellant but acquit and discharge him.
He insisted that the trial Judge’s acceptance of the evidence of PW2, PW3, PW4, PW5, PW6 and PW7 as corroborating the evidence of PW1 is erroneous. He pointed out that the said Prosecution witnesses were not eye witnesses to the incident. They could not have really understood what happened at the scene of the 27th day of May, 2012 when the appellant, along with others, purported to have robbed the PW1 as their own evidence could only establish what happened on the 1st day of June, 2012 to Haruna Akinwande.
He argued further that since the various evidence of the Prosecution witnesses did not pass the true test of what constitutes elements of various offences with which the appellant was charged with, the lower Court ought not to have affirmed the trial and conviction of the appellant. Learned counsel urged this Court to allow this appeal against the conviction of the appellant.
RESPONDENT’S ARGUMENTS
Arguing their issue two, learned counsel submitted that the lower Court was right in affirming the conviction and sentence of the appellant. He fortified this submission by stating that there was more than sufficient evidence at the trial Court to convict the appellant for each count of the charges preferred against him.
Relying on Alao v The State (2019) LPELR-47856 (SC), learned counsel posited that the essential ingredients necessary to prove armed robbery, were proved beyond reasonable doubt.
He explained further that PW1 testified that he was dispossessed of his motorcycle on the night of the 27th day of May, 2012. His testimony was corroborated by PW7’s testimony, that a stolen motorcycle was recovered from Ibadan and released to PW1 on bond. It was in proof of this that exhibits 8 and 9 were tendered through PW7 and admitted into evidence without any objection from the appellant.
He further pointed out that PW1 stated in his testimony that his assailants were armed with a cutlass and had used same to break his head and cut him. This fact of being armed was admitted by the appellant in his confessional statement (exhibits 2 and 2A), where he stated that he had a UTC knife on him which he used to cut the owner of the motorcycle they were robbing on the said day.
This, he submitted, constituted sufficient evidence before the trial Court to prove the fact that the appellant was armed when he robbed and that the production and tendering of the offensive weapons by which the robbery was committed is not a necessity. On this point, learned counsel cited Olayinka v The State (2007) LPELR-2580 (SC).
As to the identity of the appellant as one of those who took part in the robbery, learned counsel submitted that there was no doubt that the appellant was one of the two people who robbed PW1 on 27th May, 2012. He invited this Court’s attention to the testimonies of PW5, the officer on duty when PW1 came to report the incident of armed robbery of his motorcycle; and PW1 who testified that he identified the appellant and the third accused person as his assailants, adding that this fact was corroborated by the testimonies of PW2, PW3 and the appellant himself by his confessional statements in exhibits 2, 2A and 7.
Learned counsel argued further that the issue of identification does not affect admissibility of the evidence of the witnesses but merely goes to the weight to be attached to such evidence. He stated further that an identification parade is only needed in certain circumstances, adding that it is not the only way by which it can be proved that the accused person was positively connected with the alleged crime. Learned counsel strenuously canvassed this issue, citing in support, the following cases, State v Muhammad (2019) LPELR- 48122 (SC); Afolalu v The State (2010) LPELR-187 (SC); Famuyiwa v The State (2017) LPELR- 43836 (SC); Otti v The State (1993) LPELR-2826 (SC); Pius v The State (2016) LPELR-40657 (SC); Eyisi and Ors v The State (2000) LPELR- 1186 (SC).
He therefore, urged this Court to dismiss the entirety of this appeal and affirm the decision of the lower Court.
RESOLUTION OF THE ISSUE
I shall begin the resolution of the arguments by considering issue two first. It is well-known that, in criminal trials, an alleged offence must be proved beyond reasonable doubt, Kofi v Queen (1955) WACA 648; Bode v COP (1970) NMLR 145, 150; Nwaturuocha v State (2011) 6 NWLR (pt. 1242) 170. This does not mean “proof beyond all doubt” or “proof to the hilt”. The Prosecution does not require a magic wand in order to attain this standard of proof.
What the Prosecution is required to do is, simply, to put forth to the Court, evidence so strong, convincing and compelling, such that a reasonable person of ordinary prudence, after the entire consideration of all the evidence, leaves his mind in a condition that he cannot say he felt an abiding conviction, to a moral certainty, of the truth of the charge, Basil Akalezi v State (1993) 2 NWLR (pt 273) 1, 13, paragraphs C-D; Okeke v State (1995) 4 NWLR (pt. 392) 676; Akinyemi v State (1999) 6 NWLR (pt. 607) 499; Osetola v State (2012) 17 NWLR (pt. 1329) 251. This burden of proof rests primarily on the Prosecution and is not relieved of this burden simply because an accused person admitted to the commission of the offence in his statement to the Police, Alonge v IGP (1959) 5 SCNLR 516.
The appellant, in the instant case, was charged with four offences, conspiracy to commit an offence, armed robbery and attempted armed robbery. They all require to be proved beyond reasonable doubt to grant a conviction on any or all of the offences. In the process of establishing the guilt of an accused person, the prosecution has a duty to prove all the essential ingredients of the offences as contained in the charge, While discharging this duty, vital witnesses must be called to testify during the proceedings.
Before a trial Court can arrive at a conclusion that an offence has been committed by the accused person, the Court must look out for the ingredients of the offence and ascertain critically that the acts of the accused person were within the confines of the particulars of the offence charged, Amadi v State (1993) 8 NWLR (pt. 314) 644.
Count 1 on the Information relates to the offence of Conspiracy. Conspiracy, as an offence, is the agreement of two or more persons to do or cause to be done an illegal act or legal act by illegal means. This Court has held in a plethora of cases that a crime of conspiracy is distinct from the crime contemplated by the conspiracy.
The gist of the offence of conspiracy, therefore, lies not in the doing of the act or the purpose for which the conspiracy is formed, but in forming of the scheme or agreement between the parties, State v Salawu (2011) LPELR-8252 (SC); (2011) 18 NWLR (pt. 1279) 580; Oloye v State (2018) LPELR-44775 (SC); Gabriel Ogogovie v State (2016) LPELR-40501 (SC); Kayode v State LPELR-40028 (SC).
To establish conspiracy, the prosecution must prove the following ingredients:
(a) An agreement or confederacy between two or more persons, as one person cannot conspire with himself;
(b) That the agreement or confederacy was to carry out an unlawful or illegal act which is an offence; and
(c) That in furtherance of the agreement or confederacy, each of the accused persons took part in the commission of the offence.
The findings of the learned trial Judge on the above ingredients are germane. The learned trial Judge found as follows:
Simply put, conspiracy means an agreement between two or more persons to commit an unlawful act, in this case, armed robbery. To succeed, the prosecution must prove:
a. That there was an agreement or confederacy between the accused persons;
b. That in furtherance of the agreement or confederacy, each of the accused took part in the commission of the robbery;
c. That the robbery was armed robbery. See: Adeyemo v The State (2010) LPELR-3622; Njovens v The State (1973) 5 S.C 17; Haruna v The State (1972) 8/9 S.C 174
Again, contrary to the submission of their Learned Counsel, Mr. Akinsola, there is in my view, abundant evidence before this Court, both from the prosecution witnesses and the confessional statements of the accused persons, that the three of them agreed to steal motorcycles with the use of firearms and dangerous weapons. In the confessional statements of second and third accused persons which I have already referred to, and which I believe to be true, and voluntary, they admitted their agreement to rob with arms and dangerous weapons. They also admitted that it was the first accused who procured the gun they were using for them. First accused person in both his confessional statements at Obantoko Police Station and the Sate CID, confessed that he was the one who gave the gun to be used for the operations to the third accused. He even stated the source of the gun. Although he attempted to deny the voluntariness of his statement at Obantoko Police Station, during the trial within trial he stated that he never made the statement at all, not that he made it involuntarily. In light of that, the trial within trial was, by agreement of both Counsel, discontinued, and the statement admitted. However, his further statements at the state C.I.D, were tendered and admitted without objection from him or his Counsel, as Exhibits 5,6 and 6A, and in these, he also confessed that he gave a gun to the third accused person for the purpose of carrying out robbery operations. I reiterate that I believe the confessional statements of the accused persons, to have been made voluntarily and without any inducement. In my view, they pass the test of truth laid down in Kanu v King (1952) 14 WACA 30 and followed in several other cases, and are entitled to be relied upon by this Court with considerable weight. The law is settled that the Court can convict solely on the confession of an accused voluntarily made. See: Adesina v The State (2012) 14 NWLR (Pt. 1321) 429. Having carefully examined all the facts in evidence, I am satisfied, that the prosecution has proved beyond reasonable doubt, all the necessary ingredients of conspiracy to commit armed robbery against the first, second and third accused persons. I find each of them guilty as charged in Count 1 of the Information.
The lower Court did well by affirming the position of the trial Court. Quite apart from the trial Court’s findings, it is necessary to state here, for the sake of clarity, that to succeed on Count 1, it need not be actual agreement. It is trite law that in a charge for conspiracy, proof of actual agreement is not always easy to come by,Yakubu v State (2014) 8 NWLR (pt. 1408) 111.
However, once it is clear that the accused persons had knowledge of the scheme, the offence is established.
It is not necessary for the conspirators to know each other and they need not be seen together coming out from the same place at the same time, Njovens v The State (1973) 5 SC 17; (1973) LPELR- 2042 (SC); Adejobi v The State (2011) 12 NWLR (pt. 1261) 347. The evidence of a vital witness, if called by the Prosecution, settles this matter once and for all, Ochiba v State (2011) LPELR – 8245 (SC) 37; Omogodo v State (1981) 5 SC 5; Onah v The State (1985) 3 NWLR (pt 12) 236; Shurumo v State (2010) LPELR -3069 (SC) 13.
At this juncture, I refer to a part of PW1’s testimony where he stated inter alia:
I know the accused persons. On the 27th May, 2012, on Sunday at about 7pm, I rode my Okada and went to Fajol junction. I saw the second accused person (appellant in this case); he asked me to take him to Oloruntedo and said, I would also pick somebody else along the way and he asked me what my fee would be. I said N100, and that if I would also take another person, then I would charge N150. But he pleaded with me to collect N100, and I agreed. I carried him and we started going. We got to a point where he asked me to also pick another person which I did, and we proceeded. The person I picked is the present third accused person…
Another general principle of law is that an accused person can be convicted on the clear and unimpeachable evidence of a single witness. Such evidence does not require any corroboration.
In the instant case, the appellant’s attitudinal dispositions and actions along with the other accused persons, as described by PW1, established the fact that there was a pre-conceived plan between them to execute the act of armed robbery on the said day of the incident. They need not have been picked up at the same place or at the same time to show that there was common intention to prosecute the unlawful purpose, Adesujo Akinkunmi and Ors v State (1987) LPELR – 347 (SC); Okosi v State (1989) ANLR 170; D. A. Guobadia, Criminal Justice Administration, Vol. 1 (Lagos: NIALS, 2008) 464 – 465. With the above scenario in mind, I am of the firm view that the appellant was rightly convicted for the offence of conspiracy. I shall now turn my attention to the armed robbery charge for which the appellant stands convicted and sentenced to death. As regards Count 2, the ingredients necessary to prove the offence of armed robbery are set out thus:
(a) That there was a robbery or series of robberies;
(b) That the said robbery was an armed robbery; and
(c) That the appellant was one of those who took part in the robbery/armed robbery.
Suberu v The State (2010) 8 NWLR (pt 1197) 586; Alabi v The State (1993) 7 NWLR (pt 397) 551; Nwachukwu v The State (1985) 1 NWLR (pt 11) 218.
Where the Prosecution fails to establish all the essential ingredients of the offence charged, its case will collapse like a pack of cards,Nwachukwu v State (1985) 3 NWLR (pt.11) 218; Bozin v State (1985) 2 NWLR (pt.8) 465; Suberu v State (2010) 8 NWLR (pt. 1197) 586; Oyebola v State (2008) All FWLR (pt. 402) 1175.
What makes an offence armed robbery is the use of firearms or offensive weapons. What then constitutes firearms or offensive weapons under Nigerian criminal law jurisprudence? Section 403B of the Criminal Code Act defines “firearms” to include any canon, gun, flint-lock gun, revolver, pistol explosive or ammunition or other firearms, whether whole or in detached pieces; while “offensive weapon” means any article apart from a firearm made or adopted for use for causing injury to the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, metal, glass or stone dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.
The proof of the offence also comprises proof that property has been fraudulently taken via assault or by instilling fear of life or by inflicting bodily harm on the victim. It may be proved by both direct and circumstantial evidence, Osuagwu v State (2016) NWLR (pt. 1537) 31.
The experience of fear and intimidation of the victim is very important. The intimidation or constructive force includes all other means of administration of force or menace by which the victim is put in fear, sufficient to sustain at the material time, free exercise of his will power to make it awfully difficult or nearly impossible for him to offer any resistance to anyone taking his property, Aruna v State (1990) 6 NWLR (pt. 155) 125. It will be unduly wearisome to restate the testimonies of PW1 and PW2 which point to the establishment beyond reasonable doubt that there was an armed robbery incident on the 27th of May, 2012, as this has already been set by the lower Court. On this, I refer to pages 253-257 of the Record of Appeal.
Three weapons that were identified by the Prosecution witnesses include: a gun, a cutlass/machete and a bottle, all of which fall within the meaning of firearm and offensive weapons under Section 403B of the Criminal Code Act.
A critical examination of the testimonies on oath of PW1 and PW2 does not reveal the contradictions so material to fault the Prosecution’s case, as the appellant alleges. Both witnesses are consistent on the fact of the occurrence of the armed robbery; that the robbers were armed and that the appellant herein, was one of the robbers.
PW5, who was the officer on duty on the day of the incident, also testified thus:
On 28th May, 2012, I was on duty at Obantoko Division when one Segun Kayode (PW1) came to report that two young men dispossessed him of his Bajaj motorcycle after inflicting injury on his head. The case was incidented and referred to my Section for investigation. The said Segun Kayode volunteered English Language and later signed it after it was read over to him. In that statement, he said he could identify the two men who dispossessed him of his motorcycle if he sees them. Myself and other team members visited the scene of the crime.
PW1 positively identified the appellant as one of the robbers that attacked him. PW2 also confirmed that PW1 identified the robbers in his presence when they were caught on the 1st day of June, 2012. Their evidence was not demolished by cross-examination. They remain unshaken under cross-examination over these facts as well as how the appellant was arrested in the vicinity a week after the armed robbery incident.
Learned counsel for the appellant made a complaint about the identification of the appellant. On this matter, I endorse respondent’s submission that an identification parade is not the only way by which it can be proved that the appellant was positively connected with the alleged crime, and most certainly not necessary in the instant case. As this Court held inAfolalu v The State (2010) 16 NWLR (pt. 1220) 584, 616, paras A-C: Identification parade is not a sine qua non to a conviction for a crime alleged, it is only essential in the following circumstances:
(a) Where the victim did not know the accused (person) before and the first acquaintance with him was during the commission of the offence;
(b) Where the victim or witness was confronted by the offender for a very short time; and
(C) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused (person).
The decisions on this point are actually legion. Only a handful will be cited here, Khaleel v State (1997) 8 NWLR (pt.516) 237; Otti v State (1993) 4 NWLR (pt.290) 675; Adebayo v State (2014) LPELR-22988 (SC); Alufohai v State (2014) LPELR-24215 (SC), (2015) 3 NWLR (pt. 1445) 172; Opeke v State (2021) 1 NWLR (pt. 1758) 570.
In the instant case, an eyewitness, PW1, had both contact and interaction with the appellant and the other accused persons for quite a reasonable time during the commission of the offence. The appellant himself, by his confessions in exhibits 2, 2A and 7, fixed himself at the scene of the crime on the day of the incident. The requirement of a formal identification parade is therefore superfluous as rightly posited by both lower Courts.
The evidence adduced by the prosecution witnesses pertaining to the three ingredients of the offence of armed robbery is so probable and compelling that any reasonable Court or tribunal can rely on same to convict. Besides all these established facts, appellant’s confessional statements, exhibits 2, 2A and 7 still linger. The confession is a direct, positive and unequivocal admission by the appellant that he was indeed one of the robbers that struck on the 27th day of May, 2012.
He also admitted therein to having been in possession of a U.T.C knife which he used to strike PW1 while the third accused person was holding a bottle. In Saidu v State (1982) 4 SC 41, this Court held that a confession can support a conviction if proved to be made and properly tendered and admitted in evidence.
It is not a requirement for the Prosecution to produce evidence of the firearm or offensive weapon used by the accused person(s) at the time of the commission of the robbery. It is sufficient if the prosecution establishes that the accused person was armed with such weapon or was in the company of any person so armed at the time of commission of the offence.
There is no principle of law requiring that the weapon used be tendered in order to establish the guilt of the accused person, Olayinka v State (2007) 9 NWLR (pt. 1040) 561; Attah v State (2009) 15 NWLR (pt.1164) 284,303; Garba v State 6 NWLR (pt.661) 378, 388.
As regards Count 3, my position on Count 1 remains the same. Count 4 was for attempted armed robbery. To succeed in proof of a charge for attempted armed robbery, the Prosecution must prove the following ingredients:
(a) That there was an attempt to rob by the accused person but he was stopped in the process or he attempted to abet the commission of the offence;
(b) That the accused was armed or in the company of a person who was armed; and
(c) That the accused person in an attempt did some act of an ambiguous kind, directly towards the commission of the offence charged, Osung v State (2012) 18 NWLR (pt. 1332) 256; Tope v State (2019) 15 NWLR (pt. 1695) 289.
In the instant case, the evidence of PW2 and PW3 fixed the appellant at the scene of the crime. PW2 gave account that on the 1st day of June, 2012, at about 7 a.m., the appellant and the third accused person attempted an armed robbery operation in his estate where he is a well-known resident. It was the shouts of “thief, thief” that had interrupted their planned operation. They immediately jumped a fence and ran into a bush.
PW2 also stated that they were captured in the bush with a pistol and two bullets in their possession. These were tendered as exhibits 11 and 11A. PW3, being the Chief Security Officer of the estate, also corroborated PW2’s testimony and also identified the appellant as one of the robbers whom he had apprehended at the scene of the crime. PW4, being the owner of the motorcycle, gave account of how he had received a distress call of this incident that the appellant and third accused person attempted to rob one Haruna Akinwande of his motorcycle. This incident was also admitted in detail by the appellant and the third accused person, in their confessional statements.
With the above scenario in mind, it is clear that the findings of both lower Courts cannot be faulted. The concurrent findings of both lower Courts were rooted in credible evidence led by the Prosecution and cannot be faulted, Afolalu v State (2010) 6 -7 MJSC 187; Mbang v The State (supra); Audu v The State (2003) FWLR (pt 53) 325.
Without hesitation, I therefore hold that the offences of conspiracy to commit armed robbery and armed robbery and attempted armed robbery were established by the Prosecution, beyond reasonable doubt. The case of the appellant is simply the case of a drowning man clutching at every straw to avoid being drowned.
The resultant effect of all that I have posited here is that the two issues formulated for the determination of this appeal are resolved against the appellant. I find no merit in this appeal as would justify me to interfere with the decision of the Lower Court.
Appeal dismissed. I hereby enter an order affirming the judgment of the lower Court which had earlier affirmed the judgment of the trial Court. In all, the two judgments are hereby further reaffirmed.
SC.1568/2019
