Aribigbola Awosika V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal emanates from the Judgment of the Ibadan division of the Court of Appeal (the lower or Court below for short) delivered on 10th day of March 2010 which partially affirmed the Judgment of High Court of Justice, Ogun State sitting at Ijebu-Ode (coram M. A. Ojo, J) (the trial Court) delivered on 18th January 2007.

The appellant who was the 1st accused, and one other co-accused (2nd accused) were arraigned before the trial Court on four count charge of conspiracy to commit armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 318, Laws of the Federation of Nigeria 1990 (as amended by the Tribunals Certain Consequential Amendments etc) Act 1999, and various armed robberies, contrary to Section 1(2)(a) of Robbery and Firearms (Special Provisions) Act, Cap 390 Laws of the Federation of Nigeria 1990 (as amended). Both the appellant and the other co-accused pleaded not guilty to the charge, when same were read and explained to them.

The facts giving rise to this appeal are that the appellant, his co-accused, one

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Tajudeen Adisa and one other person at large were alleged to have, while being armed with offensive weapons, raided the house of Mrs Yemi Fowosere and during the robbery attack, her personal effects which included her handsets, wristwatches and some money were stolen after breaking the doors of the house. They were also alleged to have robbed PW2 and PW3 who also reside in the said compound of some money and properties in their respective rooms. The prosecution stated that a day after the robbery incidence, the appellant left Ijebu-Ode for Lagos with the co-accused. However, on their way they ran into a check-point mounted by men of OPC who arrested the appellant and handed him over to the Police. The appellant later led the police to Lagos where his co-accused Taludeen Adisa, was also arrested. The appellant during investigation volunteered a confessional statement at the State CID Abeokuta, which was tendered at the. trial without objection by the defence. During the trial, the prosecution in proof of its case, called four witnesses to testify while the appellant testified for his defence without calling any witness. After concluding the trial, the

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trial Court found the appellant guilty of all the charges, convicted him and sentenced him to death. Aggrieved by the decision of the trial Court, the appellant appealed to the Lower Court. After hearing the appeal, the Court below commuted the death sentence passed on the appellant by the trial Court to 21 years imprisonment.

Still dissatisfied with the Judgment of the Court below, the appellant further appealed to this Court. Briefs of argument were, in keeping with the practice and procedure obtained in this Court, filed and exchanged by parties. The appellant’s brief of argument settled by one Ayodeji Omotoso Esq was filed on 18/9/2014 but deemed filed on 15/3/2017. In the said brief of argument, three issues were proposed for the determination of the appeal which were encapsuled from the four grounds of appeal contained in the Notice and Grounds of Appeal, containing four grounds of appeal dated 8th of April 2010. The three issues raised by the appellant’s learned counsel for the determination of this appeal are set out hereunder.

i. Whether the confessional statement tendered by the prosecution (Exhibit A), having been retracted by the Appellant

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at trial, was properly evaluated and relied upon by the Court of Appeal such as to correctly ground a conviction of the Appellant for the offences of Conspiracy to Commit Robbery and Robbery, and the consequent sentence of 21 (twenty-one years) imprisonment under Section 1(1) of the Robbery and Firearms Act (Distilled From Ground 1 of the Notice of Appeal)

ii. Whether the testimonies of PW1, PW2 and PW3 identifying the Appellant as one of the perpetrators of the crimes allegedly committed against them, were spontaneous, extemporaneous, unrehearsed and reliable such as to justify the reliance on same to convict the Appellant for the crimes of Conspiracy to Commit Armed Robbery and Armed Robbery under Section 5(b) and 1(2)(a) of the Robbery and Firearms Act or Conspiracy to Commit Robbery and Robbery under the same law (Distilled from Ground 3 of the Notice of Appeal.

iii. Whether the Court of Appeal was right when, although it set aside the conviction, by the Trial Court, of the Appellant for the offences of Conspiracy to Commit Armed Robbery and Armed Robbery and thereupon, quashed the sentence of death passed by the said Court; yet it found the

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Appellant guilty of Conspiracy to Commit Robbery and Robbery in the absence of cogent, credible and sufficient evidence before it which proved that, in fact, there had been a robbery and/or that, if there had indeed, been any robbery, the Appellant was involved in same (Distilled from Ground 2 and 4 of the Notice of Appeal)

As regards the respondent herein, its brief of argument filed on 22nd December 2014 was settled by Olumuyiwa Obanewa. Like the appellant, the respondent has also raised three issues for the determination of this appeal which are reproduced below:-

A- Whether the confessional statement of the Appellant Exhibit A was properly evaluated by the trial Court and Lower Court in grounding a conviction of guilt on the appellant.

B- Whether the Appellant was properly identified by the Respondents witnesses

C Whether the offences of conspiracy to commit robbery and robbery (six) was proved against the appellant.

SUBMISSIONS OF COUNSEL ON ISSUES FOR DETERMINATION

ISSUE NO. 1

This issue deals with whether the confessional statement tendered by the prosecution having been retracted was properly relied

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upon by the Court below. He argued that the Appellant in his testimony dented the knowledge and responsibility for the contents of Exhibit “A, stating that the statement was not his own and that the police did not read the content to him. He stated further, that the Appellant gave evidence of torture which suggests that the statement was not obtained voluntarily.

He also submitted that notwithstanding the fact that no objection was raised at the trial as to the voluntariness of the statement, the onus still lies on the prosecution to prove that the said confessional statement was obtained from the appellant voluntarily. He argued that where there are surrounding instances which call the confessional statement to question, the Court is under obligation to seek corroborative evidence before relying on same to convict the accused person. He cited the case of STATE V SALAWU (2011) 8 NWLR (Pt.1279) 580 at 625. Learned counsel contended that the only evidence aside Exhibit “A”, were the evidence from PW1, PW2 and PW4 who were relatives and victims of the alleged crimes. He argued that the testimonies of the prosecution witnesses were riddled with

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material contradictions and were not cogent compelling and sufficient enough to corroborate the alleged confessional statement. He referred to the testimonies of the PW1, PW2 and PW3. He pointed out the alleged contradictions in the testimony of PW1 to the effect that he was robbed by two men (Appellant and Co-Accused person) but he later stated that the Appellant and the Co-accused were among the three men who attacked them. He also referred to other contradictions and urged the Court to hold the aforementioned discrepancies in the testimonies of the prosecution witnesses as material as they go to the root of the offences challenged. He argued that if the Court below had adverted its mind to the contradictions, it would have found that the testimonies could not sufficiently corroborate the Appellant’s alleged confession. He urged the Court to resolve this issue in favour of the Appellant.

ISSUE NO 2

This issue relates to whether the testimonies of PW1, PW2 & PW3 had identified the Appellant as one of the perpetrators of the crimes and whether they were spontaneous, unrehearsed and reliable to justify reliance on same to convict the Appellant.<br< p=””

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He argued that the prosecution failed to prove that the appellant was one of the robbers by relying simply on manifestly contradictory oral testimonies of PW1, PW2 & PW3 and the alleged confession of statement of the Appellant. He argued that the Supreme Court has specified circumstances in which an Identification parade is a sine qua non and that this case falls squarely within those circumstances. He submitted that the unavoidable inference to be drawn from the contradictions is either the witnesses were so apprehensive during the robbery that they could no longer remember what they saw, or that they were out rightly lying. He urged the Court to hold that the identification of the appellant by PW1, PW2 and PW3 as one of the robbers was not credible and therefore unreliable and same did not prove beyond reasonable doubt the identity of the Appellant as one of the perpetrators of the crimes.

ISSUE NO 3

Issue no 3 deals with whether the Court below was right in spite of setting aside the sentence, still found the Appellant guilty of conspiracy to commit armed robbery and armed robbery.

He argued that the Court below was in grave error when

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it reduced the death sentence of the Appellant with 21 years imprisonment and yet sentenced the Appellant to 21 years imprisonment instead of acquitting him. He agreed with the conclusion of the Court below that the prosecution failed to establish the charge of armed robbery but disagreed that the evidence disclosed the offence of simple robbery.

Learned counsel for the appellant submitted that there was no cogent, compelling and conclusive evidence on record that warranted the conviction of the Appellant either for the offence or robbery or that of armed robbery. He urged the Court to resolve this issue in favour of the Appellant and to finally allow this appeal.

In response to the arguments of the Appellant’s Counsel, the learned counsel for the Respondent as I stated supra, also formulated 3 issues for determination. His submission on those issues are reproduced as follows:-

ISSUE NO A.

Issue no A deals with whether the confessional statement of the Appellant was properly evaluated by trial Court and the Court below.

The learned counsel to the Respondent submitted that there is no doubt that the confessional statement of

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the Appellant was free, direct, clear and corroborated in relation to his role in the armed robbery of the Fowosere family members on the 31st of August, 2003. He argued that contrary to the submission of the learned appellant’s counsel, he stated that the trial Court and indeed the Court below had properly evaluated and assessed the confessional statement of the Appellant before relying on same to enter a verdict of guilty against the Appellant. He referred to the Judgment of the Court below at pages 208-213 of the record and submitted that the confessional statement of the Appellant (Exhibit A) which was though resiled by him, clearly gave a graphic description of how the Appellant in company of others, went to the residence of Fowoseres on the 31st of August, 2003, while armed and dispossessed the entire household of valuables such as cash and handsets etc. He urged the Court to hold that the trial Court and the Court below tested the truth of Exhibit A by examining the facts contained therein, with the evidence of PW1, PW2 and PW3 before rightly coming to the conclusion that the confessional statement was direct, clear and unambiguous.

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On the alleged contradictions in the evidence of the prosecution witnesses, he submitted that even though the alleged highlighted contradictions do not exist on the record, they are not material to the extent that they can affect the substance of the issue to be decided regarding the culpability or otherwise of the Appellant. He urged the Court to resolve this issue in favour of the Respondent.

ISSUE NO. B

This issue relates to whether the Appellant was properly identified by the Respondents witnesses or not.

The learned counsel referred to the evidence of PW3 at page 33 of the record and PW1’s reply under cross-examination, including the cross examination of PW4 at Pages 40-41 of the record and submitted that the Appellant was properly identified by the prosecution witnesses.

He submitted that it is not in all cases that identification parade is necessary especially where there is good and cogent evidence fixing the accused person at the scene of the crime on the day of the incident. He referred to the testimonies of PW1, PW2 & PW3 in the record and submitted that those pieces of evidence positively fixed the appellant as one of the robbers that

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robbed the witnesses on 31/8/2003. He submitted further, that from the totality of the evidence of PW 1 – PW3 there is a clear and uncontradicted eye witness account of visual identification of the appellant and thereby making the conduct of an identification parade unnecessary. He cited the case of ATTAH v. THE STATE (2010) FWLR (Pt.531) 22 where the instances of when identification parade would be unnecessary were highlighted. He contended that the evidence of the prosecution witnesses had satisfied two out of the three instances. He urged this Court to resolve this issue in favour of the Respondent herein.

ISSUE NO.C

Issue no C deals with whether the offences of conspiracy and armed robbery were proved against the appellant

The learned counsel to the respondent submitted that from the evidence on the record, there is no doubt that the appellant and others had stolen money, watches and other items. He referred to the evidence of PW1 at page 30 of the record and argued that the appellant used violence before and even after the time of stealing the items. He also referred to the evidence of PW3 at pages 32-33 of the record to show that the

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appellant and his co-conspirators entered his room armed with machete, knife and axe. He submitted further, that even though there was no actual violence applied on PW1, PW2 & PW3, the mere fact that they were rendered helpless and had no choice but to comply with the demands for money and other items by the appellant and his gang, is sufficient proof of violence on them.

On the contention of the Appellants learned counsel that the offence of conspiracy was not proved, he submitted that the offence of conspiracy is hardly capable of direct proof. It is usually proved by inference from the facts and circumstances of a given case. He referred to the case MUSA v THE STATE (2005) FWLR (Pt.262) 343 at 353 of 354. He also referred to the confessional statement of the appellant at page 8 of the record where he confirmed that he led policemen to Lagos to arrest his co-accused, Tajudeen Adisa. He submitted that apart from the confessional statement of the appellant the inference to be drawn from the evidence of the co-accused under cross examination at page 45, is that himself and the appellant had an agreement to do an unlawful act resulting in

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their arrest by the police. He urged the Court to resolve this issue in favour of the Respondent and to finally dismiss the appeal.

Now looking at the two sets of issues for determination, I think it is more comfortable to treat the appeal based on the issues raised in the respondent’s brief of argument which unlike those crafted in the appellant’s brief, are not verbose in the corresponding issues raised in the appellant’s brief of argument. I shall also consider them serially.

ISSUE NO 1

It is clear from the record of appeal, that when the prosecution sought to tender the appellant’s confessional statement through PW4, the defence counsel did not raise any objection hence the trial Court without any hesitation admitted the appellants confessional statement in evidence as Exhibit A. The said statement was earlier endorsed by superior police officer in the presence of the appellant herein. Since the defence did not challenge the voluntariness of the said statement (ie Exhibit A) when tendered in evidence, the trial Court was duty bound to admit and accept it and to subsequently act on same to convict the appellant.

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A voluntary confession of guilt of an accused person if fully consistent and probable and also if there is a clear proof that a crime had been committed by some person or persons, is regarded or accepted as satisfactory evidence on which a Court can convict. See Kenneth Ogoala vs The State (1991) 2 NWLR (Pt.175) 509 or (1991) 3 SCNJ 61 or (1991) 3 CC 80. It is however trite law, that a confessional statement is only admissible, if it is direct, free, clear unambiguous and positive and if the maker relates his acts, knowledge or intention stating or suggesting the inference that he had actually committed the crime charged. See Akpan vs The State (1992) 7 SCNJ 22; or (1992) LPELR – 381 SC. Similarly, I must add, that a confessional statement alone is sufficient to ground a conviction, if such confession is consistent with other ascertained facts which have been proved. See also Akpan v State (supra). In fact, a confession alone is sufficient to ground a conviction even where such confession is retracted at the trial (as in this instant case) provided the truth of the matter in the statement is established by some other evidence no matter how slight. See Wahab Onasanya Mumuni

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& Ors vs The State (1975) 1 ALL NLR 294 or (1976) 6 SC 66 or (1975) LPELR 1926 SC.

In this instant case, I am not unmindful of the fact that the present appellant had while testifying for his defence retracted his confessional statement, (Exhibit A). In the case of Edet Offiong Ekpe v. The State (1994) 9 NWLR (Pt.363) 3 263, the question arose as to whether the Court would consider a voluntary statement made by an accused person but later retracted as in this instant case. This Court had this to say:-

This Court considered other decisions which were apparently inconsistent in their approach to the issue of confession voluntarily made but later retracted during the trial. The matter was put to rest in a full Court decision in the case of Stanley Egboghonome v. The State (1993) 7 NWLR (Pt.306) 363. In over ruling its earlier decision in Oladejo v The State (supra), this Court held that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution having formed part of the case for the prosecution, the Judge is bound to consider its probative value when considering the retraction made subsequently.<br< p=””

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This decision has been followed in the case of Nwangbomu v. The State (1994) 2 NWLR (Pt 327) 380.

Therefore, despite the fact that the appellant had, at the trial, retracted his confessional statement, the trial Court was correct to have acted on it in convicting the appellant and the Court below also had rightly affirmed or endorsed such the trial Court’s reliance on the voluntary statement of the appellant (Exhibit A) in convicting him.

It is one of the complaints of the appellant, that both the trial Court and the Court below did not evaluate and assess the confessional statement of the appellant. That, in my humble view, could not be correct because at pages 202 to 203 of the printed record of appeal, the Lower Court had this to say

An accused can be convicted solely on his confessional statement. See Ikemson v. State (1989) 3 NWLR (Pt.110) 455 at 468-469; NWACHUKWU v THE STATE (2007) 12 SCN (Pt 2) page 447 & 455. Nevertheless the Supreme Court in DAWA V. THE STATE (1980) 8 11 SC 238 in reliance on the English decision in R v. SKYES (1913) 18 CR APP Reports and cited KANU V. R. 14 WACA 30, highlighted six test for

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the verification of confessional statement before any weight can be attached to them. The six tests are as follows:-

1. Is there anything outside it to show that it is true
2. Is it corroborated
3. Are the statements made in it of fact true as they can be tested
4. Was the Prisoner one who had the opportunity of committing the offence
5. Is his confession possible
6. Is it consistent with facts which have been ascertained and which have been proved going through each of these six tests it will be seen that the prosecution has satisfied each of these requirement. Not only is the confession of the appellants possible, facts contained in them are in complete harmony with the evidence of PW1, PW2, and PW3. The statements in Exhibits A and B are true, having been found to be so by the evidence of the prosecution witnesses.

In view of above quoted findings by the Lower Court on the confessional statement of the Appellant (Exhibit A), that, in my view, amounts to clear and detailed evaluation of the voluntary confessional of the appellant, contrary to the stance held by the learned appellants counsel that same was

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not properly evaluated or assessed by the two Lower Courts.

On the question whether the confessional statement of the appellant was corroborated, there is no gain to say, that the three victims of the armed robbery testified on behalf of the prosecution. Their testimonies had corroborated the revelations made in the appellant’s confessional statement. For instance, the three witnesses testified that the doors to their rooms were broken and the appellant in his statement confirmed that it was Segun, the accused person now at large, who broke-open the door leading inside the house. They stated that they were locked up in one room and the appellant confirmed that in his statement in question and likewise the fact that the robber operated in three rooms which tallied with both the appellant’s confession as well as the testimonies of the three victims i.e PWs 1, 2 and 3 and their pieces of evidence went a long way to corroborate Exhibit A, which therefore made the contents therein as true.

On alleged contradictions in the testimonies of the prosecution witnesses as highlighted by the appellant, I uphold the view held by the two Lower Courts that

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such contradictions are not material as would vitiate the conviction made by the trial Court and affirmed by the Court below.

The law is trite, that it is not every contradiction in evidence of the witnesses for the prosecution that may warrant interfering with the decision of a trial Judge by an appellate Court. For a contradiction to be a fatal one to a case, it must not only relate to material fact but it also must lead to a miscarriage of Justice. See Queen v. Iyanda (1960) 5 FSC 14; Omisade v. Queen (1964) 1 ALL NLR 233; Asariyu v. State (1987) 4 NWLR (Pt.67) 709; Golden Dibie & Ors v The State (2007) 9 NWLR (Pt.1038) 30; Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167; Princent & Anor v. The State (2002) 18 NWLR (Pt.798) 49; Isibor v. The State (2002) 2 SCNJ 162 at 167. Thus, in the result of what I discussed above this issue must be and is hereby accordingly resolved against the appellant herein.

ISSUE NO 2

This issue relates to whether the prosecution had led credible evidence for identification of the appellant and his co-accused by the victims of the armed robbery ie PW1, PW2 and PW3. At this stage, I think it will be pertinent

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to refer to the pieces of evidence of the three witnesses who also as victims of the offences, gave eyewitness account of their experiences during the robbery operation perpetrated by the appellant and his co-accused on them.

In his testimony at page 30 of the record, the PW1 Niyi Fowesere testified, inter alia, as follows:-

I identify (sic) the accused persons. On 31st August 2003 at about 1:30am. I slept in room when I suddenly heard the sound of our house doors being broken, after the house door had been broken, they come to my door and ordered me to open the door I saw the two accused person when they entered my room because the light in my room was on. They were both armed with axe and cutlass. They demanded for money.

Under cross-examination this witness stated thus:-

there was light at the time of the incident —- The police invited me to come and identify those who attracted (sic) me out of several suspects arrested. There were about 5 suspects but I was able to identify the two accused persons.

Then PW2, Mrs Olayemi Fowosere, in her testimony at page 31 of the record stated as below:-

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“I know the accused persons two men entered and they were armed with cutlass and axe. One of the men threatened to kill me if I did not release the money. It was the 1st accused who threatened to kill me and he raised up the axe in his hand to hit. The second man then said he should not hit me. The other man is not on trial.

Under cross examination this witness said as follows:-

there was light in the house at the time of the incident. The light in my room was off when the robbers came in, they ordered me to switch it on.

On his part, PW3 Wasiu Fowosere gave evidence at pages 32 to 33, where he revealed, inter alia, that he knew the appellant and his co-accused who he said were armed with knife, machete and axe and had even asked him if he was Wasiu, Alhaja’s son and he lied to them that he was not and that Wasiu was absent. Under cross-examination he confirmed that there was light at the time of the robbery incident and that though it was late at night, he could see properly. From these pieces of evidence given by the three eye witnesses and victim of the robbery attack, there is no doubt that the three witnesses encounter with

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the appellant and the other robbers was not snappy at all. Though the incident took place late at night, evidence abounds that there was light for each of the witnesses to clearly see his attackers, after all, there was no suggestion even from the defence that any of the robbers was hooded or masked during the robbery operation. When the witnesses were invited to police station to identify them a day after the incidence, they did not have difficulty in doing so since the episode was still very fresh in their minds. It is also worth being stated here, that the appellant in his statement had even identified himself to be one of the robbers who attacked PWs 1, 2 and 3 when he stated in his confessional statement at page 7 of the record as follows:-

We did not go to the house with any instrument but a cutlass and axe we used was taken by us from Alhaja; (sic) house

The above piece of evidence, no doubt also corroborated the testimonies of the three prosecution witnesses/victims.

To my mind, all the pieces of evidence given by the victims clearly showed that the appellant was properly identified by the witnesses. Also the confessional

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statement made by the appellant had unequivocally showed that the appellant was among the robbers who robbed PWs 1, 2 and 3 on the fateful day. The learned counsel for the appellant has raised heavy weather on the prosecution’s failure to conduct identification parade in this instant case. With due deference to the learned appellant’s counsel, identification evidence is evidence tending to show that the person charged with an offence is actually the same person who was shown committing the offence. Whenever a trial Court is faced with identification evidence, the task before it, is that it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. In fact, identification parade is not a sine qua non to conviction. See Ukpabi vs The State (2004) 6/7 SC 27; Orimoloye vs The State (1984) 10 SC (Reprint) 1288;

My lords, permit to state here, that it is not in all cases that identification parade must be held or conducted. Identification is simply a means of establishing whether a person charged with an offence is the same person who had actually committed the offence. If there are other means of such

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identification other than through identification parade, such means once credible is sufficient and the parade, can be dispensed with as it will be unnecessary because it is sheer waste of time. However, identification parade can of necessity be conducted in the following instances:-

(a) where the victim did not know the accused before and his 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.

(c) where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused

SeeArchibong v State (2006) 5 SC (Pt.111) 1.

Where the victim/witness had ample opportunity to identify the accused as in this instant case, a parade is not necessary. See Bolanle v The State (2004) 1 FWLR (Pt.229) 745 at 164. Recognition of an accused may even be more reliable than identification. See Eyisi vs The State (2000) 12 SC 24. Osuagwu vs The State (2013) 1-2 SC (Pt.1) 37.

Thus, from the testimonies of the witnesses called by the prosecution, the Court below was correct in its finding that

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the appellant was duly and properly identified to be one of those that robbed the three witnesses as earlier held by the learned trial Judge. On the alleged contradictions highlighted by the appellant’s learned counsel, I must say that those alleged contradictions were not material as would vitiate the appellants conviction. Such contradiction were not material or strong enough at all, to create doubts as to the identity of the appellant as being among the robbers who robbed the PW1, PW2 and PW3 on the fateful day. More so, as I stated earlier, the appellant had even unequivocally identified himself when he owned up his participation in the crimes charged, his voluntary confessional statement (Exhibit A). I also resolve this issue against the appellant.

ISSUE NO 3

This third queries whether the offence of conspiracy to commit armed robbery and armed robbery were actually committed by the appellant. Before dealing with the offence of conspiracy to commit armed robbery. My Lords please permit me to first reflect on the offence of armed robbery with which the appellant and his co-accused were charged convicted and sentenced and to determine whether the

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offence of armed robbery was actually committed by him.

It is settled law, that in order to establish the offence of armed robbery, contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 (as amended) the prosecution must prove the under listed salient ingredients of the offence which include:-

(a) That there was a robbery or series of robbery incident(s)

(b) That the robbers or any of the robbers was armed with offensive weapons

(c) That the accused person(s) was/were the ones responsible of committing the offence

See State vs Adedamola Bello & Ors (1989) 1 CLRN 370; Bozin vs The State (1985) 7 SC (Reprint) 276; Balogun v AG Ogun State (2001) FWLR (Pt.78) 1144 at 1160. The settled law is that in order to obtain conviction on the offence of armed robbery like in any other criminal matters the prosecution must prove the guilt of the accused person beyond reasonable doubt as required and provided by Section 135 of the Evidence Act 2011 (as amended) See Woolmington v DPP (1935) AC 462; Uche v State (2015) 4-5 SC (Pt.11) 140 at 157; State v Oladotun (2011) 5 SC

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(Pt.11) 133; Sani v. State (2015) 6/7 SC (pt 11)1 at 17. It must be emphasized here, that where doubt exists as to the guilt of the accused person, the trial Court must give him the benefit of such doubt and acquit him of the offence charged. Now reflecting on the evidence adduced in this case vis a vis the above mentioned ingredients, it is incumbent on the prosecution to prove stealing of something capable of being stolen by the accused or any of the accused persons. See Offoing vs The State (1991) 8 NWLR (Pt.103) 118; Okoko v. State (1964) ALL NLR 423; Obue v State (1976) 2 SC 141. From the evidence adduced by the prosecution through PW1 the appellant and his colleagues stole his N40,000, two wrist watches valued at N5,5000 and 3 GSM cell phones (See page 30 lines 11-72 of the record).

Also PW2 gave credible evidence that threat to kill her was what made her surrender her N15,000 to the appellant. (See page 31 lines 13 to 14 of the record). Similarly, PW3 testified in that line too, when he narrated how his hand set and, N70,000 stolen from his wardrobe by the robbers plus another N5,000 from his pocket. The hand set was valued at N25,000. These stolen

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items, are no doubt capable of being stolen.

Evidence was also led to show that as at the time of the robbery operation, the appellant and his companions in crime applied violence on their victims ie PWs 1, 2 and 3. For instance, they broke opened the door of the compound and upon knocking at the victims’ rooms, they ordered each of them to open his door or else they (the victims) would be killed by them. They therefore threatened to kill them. Also when engaged in their nefarious operation they were armed with machete, knife and axe as testified by Pw3. It was certainly as a result of such threat that the victims/witnesses were left with no option than to obey the orders of the robbers and surrendered their monies and other items to them.

I have while treating the second issue supra dealt with the issue of identification of the appellant by his victims and also stated that the appellant had even fixed himself at the scene and time of the crime in his confessional statement (Exhibit A). Both the trial Court and the Court below in my considered view, rightly held that the offence of armed robbery had been duly established against the appellant

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herein.

This now brings me to the offence of criminal conspiracy to commit armed robbery on which the appellant and the co-accused were also tried, convicted and sentenced. As I state above, the offence of armed robbery was duly proved by the prosecution against the appellant herein. What remains now is to determine whether the Lower Court was correct in affirming the conviction of the appellant of the offence of conspiracy to commit armed robbery, or to put it in another way, whether the offence of criminal conspiracy was proved beyond reasonable doubt against the appellant by the prosecution, now respondent.

The appellant’s learned counsel holds the view that such offence was not proved beyond reasonable double.

It is pertinent to say that the word “conspiracy” has been described in Mulcahy vs R (1968) 3 HC at 377 when Willes J of House of Lords stated thus:-

A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So being as a design rest in intention only it is not indictable. When two agree to carry it into effect, the

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very plot is an act in itself and the act of each of the parties, promise against promise, actus centra acins, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. (emphasis supplied by me)

See also cases of Patrick Njovens & Ors vs The State (1973) 5 SC 17; Dabo & Ors vs The State (1994) 5 NWLR (Pt.346) 535. It is now settled law, that the offence of conspiracy can most of the time, only be established through inferences of common design or agreement by two or more persons to do or not to do a criminal act. The offence of conspiracy is seldomly capable of being proved through direct evidence, but is largely established through inferences from the act or action of the parties thereto, which said act was focused towards realization or achieving a common or natural criminal purpose. See. Oduneye v The State (2001) 1 SC (Pt.1) 1 at 617. Godwin (Isienei) Chianugo v State (2001) FWLR (Pt.74) 242 at 251; Kenneth Clark & Anor vs The State (1986) 4 NWLR (Pt.35) 381; Musa v The State (2005) FWLR (Pt.262) 343 at 353/354.

In the instant appeal, the appellant in his confessional statement (Exhibit A) clearly

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showed that he had formed an agreement with Tajudeen Adisa his co-accused and Segun his co-conspirator at large, to rob the family of Alhaja Fowesore (PW2). On 31/8/2003 (See pages 5-8 of the record). The appellant also confirmed that he was the one who led the police to Lagos and to where his co-accused, Tajudeen Adisa was arrested. The latter also confirmed that portion in the appellant’s statement at page 45 of the record of appeal. That portion of the appellant’s confessional statement had clearly shown by way of inference that the three armed robbers had earlier on agree amongst themselves, to execute their plan or plot to rob the family of Fowosere i.e PWs 1, 2 and 3. The offence of criminal conspiracy to commit armed robbery was therefore, in my view, proved beyond reasonable doubt, as rightly found by the trial Judge and the Court below was flawless in affirming or confirming the trial Court’s finding in that regard. The third issue is therefore hereby resolved against the appellant and in favour of the respondent.

The learned counsel for the appellant submitted that going by the testimonies of the four prosecution witnesses namely, PW1, PW2, PW3

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and PW4 and even from the confessional statement of the appellant (Exhibit A), there was no conclusive evidence in the record of appeal to warrant the conviction of the appellant for either the offence of armed robbery or robbery and urged this Court to so hold as the said offences were not proved beyond reasonable doubt by the prosecution. The backdrop upon which the above submissions were made, as could be gleaned from the appellant’s brief of argument, are summarised below:-

(a) That the identification evidence of the appellant by the witness were shaky and not reliable, largely because the witnesses did not know the appellant before and that their first encounter with him was during the commission of the offence.

(b) That there were contradictions in the testimonies of the witnesses called by the prosecution.

(c) That the prosecution witnesses were members of the said Fowosere family who were also the victims of the robbery attack.

(d) That the appellants confessional statement (Exhibit A) relied upon by the trial Court and the Court below was not corroborated.

It is in the light of the above observation or submissions that

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the appellant’s learned counsel urged us to quash the convictions of the trial Court as well as Lower Court’s substition of sentence and to ultimately acquit the appellant.

It is well settled principle of law, that an accused person arraigned before any Court of law is presumed innocent unless and until he is proved guilty by his accusers beyond reasonable doubt through credible and reliable evidence. See Section 138 of Evidence Act (as amended) Cap 62 Laws of the Federation of Nigeria 1990. See Olayinka Afolalu v The State (2010) 16 NWLR (Pt.1210) 584; Okoro v State (1988) NWLR (Pt.94), (1958) 2 SC (Pt.II) 88; Bakare v. The State (1957) 3 SC 1 or (1987) LPELR -714 (SC). It needs to be added, that the burden of proof does not shift. Once there is the slightest doubt in the mind of the Court, such doubt must be resolved in favour of the accused who should subsequently be acquitted by the trial Court. See Alonge v. IGP (1959) SCNJ 5116.

Proof of the guilt of an accused person by the prosecution must be done through any of the underlisted methods, namely:-

(a) The voluntary confession of the accused person.

(b) Through direct credible and

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reliable eye witness(s) or victim of the offence account depending on the circumstance of the offence, and

(c) Through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence(s) charged and by no other person(s) but him.

See Adio v The State (1986) 2 NWLR (Pt.24); Emeka v The State (2001) 6 SC 227; Egboghonome v The State (1993) 7 NWLR (Pt.306) 383.

As I stated in the fore paragraphs of this discourse, the Lower Court per Stanley Alagoa JCA (as he then was) in the concluding part of his judgment now appealed against, reduced the sentence of death passed on the appellant by the trial Court to a term of 21 years imprisonment. Miffed by the sentence of imprisonment passed on his client, the appellant raised and complained on that conclusion reached by the Court below and made it an issue here. His stance is that the Lower Court should have acquitted the appellant, as according to him, even the conviction of the appellant of the offence of simple robbery on which the appellant was alleged to have committed, was not proved beyond reasonable doubt.

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At page 32 of the appellant’s brief of argument, the learned appellant’s counsel observed rightly in my view, that the Lower Court had in one breath found that the prosecution had proved each of the elements of armed robbery beyond reasonable doubt. (See pages 196 to 197, 198, 200 to 207 of the Record, while in another breath the Lower Court held that the prosecution had not proved armed robbery beyond reasonable doubt, because as the Lower Court found, the alleged offensive weapons used for the armed robbery were not tendered in evidence by the prosecution.

I think at this stage it would be apt to refer to the two conflicting findings of the Court below for ease of reference and as shown in the record of appeal.

The Lower Court at pages 196 to 198 had this to say:

These two pieces of evidence were not contradicted during cross-examination. Whatever one may make out later of the confessional statement of the Appellants, it is necessary at this stage that at page 7 of the Record of Appeal, 1st Appellant said as follows;

We did not collect money from Alhaja but we only collected N40,000.00 from Alhaja children and two

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handsets.. We only operated in 3 rooms during the robbery and apart from the money and handsets we did not collect anything again.

This statement of the 1st Appellant was admitted without objection as Exhibit “A”. Section 15(1) of the Robbery and FireArms (Special Provisions) Act Cap 398 defines “Robbery. It says,

Robbery means stealing anything and, at or immediately before or after the time of stealing it using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

From this definition of robbery and the pieces of evidence just highlighted above, the prosecution has undoubtedly proved beyond reasonable doubt that there was a robbery.

The second ingredient or requirement is whether the robbery just established by the prosecution was an armed robbery. Here again one must have recourse to the bits and pieces of evidence of the prosecution witnesses alluding to the use of arms. Under Section 15(1) of the Robbery and Fire Arms (Special Provisions) Act the

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word arms is made to include firearms and “offensive weapon” with the same punishment or sanction under that Act. For the purpose of this appeal, the use of the word arm is made to connote offensive weapon which include inter alia cutlass, axe and machete.

(Underlining mine for emphasis). PW2 said in evidence at page 31 of the Record “Two men entered and they were armed with cutlass and axe”. PW3 also said of the robbers, “They were armed with machete, knife and an axe”. See page 31 of the Record of Appeal. It should perhaps be noted that machete and knife mean one and the same weapon. 1st Appellant Arigbigbola Awosika had in his confessional statement at page 7 of the Record of Appeal said as follows;

“We did not go to the house with any instrument but the cutlass and axe we used was taken by us from Alhaja (sic) house.

As can be been seen, the use of cutlass, machete, axe permeates the evidence not only of PW2 and PW3 but also the confessional statement of 1st Appellant I think that it will be right to say that whoever the robbers were, they were armed.” (emphasis supplied)

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Now despite the above far reaching finding of the Lower Court, the same Court conversely in another breath U-turned when it stated in its unanimous judgment at pages 205 to 207 as below which conflicts with the view it earlier held above when it found thus;

“Appellants have made heavy weather of the fact that the prosecution did not tender the weapons used in the robbery and the various items recovered from the Appellants even though they were listed as exhibits. Appellants alluded at pages 6 and 7 of their Brief of Argument to the fact that these items which included cutlass and axe as well as handsets were not tendered. Respondent while conceding to this fact at page 6 of the Respondents Brief of Argument submitted that there are other convincing pieces of evidence which point to the guilt of the Appellants. This may well be true but the Respondents argument is flawed by the fact that the Appellants took their plea based on the charge read to them which was to the effect that they carried out the armed robbery while armed with offensive weapons to wit cutlass and axe (underlining mine for emphasis). The prosecution failed to tender the said cutlass and axe.

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Can the prosecution then be said to have proved there was an ARMED robbery when not only were the cutlass and axe allegedly used in the armed robbery operation not tendered but no explanation for the failure of the prosecution to tender them was supplied Can the prosecution then be said to have discharged its burden of proving that there was an armed robbery beyond reasonable doubt Earlier in this write-up I had made reference to AIGBADION V. THE STATE (supra) where the Supreme Court had said as follows:

In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in this statement to the police admitted committing the offence, the prosecution is not relieved of that burden.

I had earlier in this write-up spelt out the ingredients for the offence of robbery. There can be no doubt from the available evidence that there was indeed a robbery and that the Appellants carried out the robbery. The prosecution has also successfully established that Exhibits A and B were confessional statements made by the Appellants. That fact however does not absolve

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the prosecution from proving that the Appellants were indeed armed with axe and cutlass as contained in the charge while carrying out their Robbery. That onus the prosecution has failed to discharge. The purport is that while the prosecution may have succeeded in established that there was a robbery, the charge of armed robbery has not been established and so must fail. (emphasis supplied)

It would seem to me that the learned eminent justices of the Court below fell in grave error when after crucially being convinced that the appellant and his co-accused had committed armed robbery, they later changed their mind to hold that the offence of armed robbery which the appellant and his co-accused were charged with tried and convicted by the trial Court was not proved beyond reasonable doubt by the prosecution, now respondent on the simple reason that the latter failed to tender the offensive weapons. It is worthy of note that the same Lower Court had rightly agreed earlier that the appellant and co-accused were armed with axe, machete and cutlass at the time of the robbery operation and had threatened their victims with such weapons. The same Court

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below had also earlier held that by the provisions of Section 15(1) of the Robbery and Fire Arms (Special Provisions) Act axe, cutlass and, knife all satisfy the definition of offensive weapons or arms. To our utter surprise and dismay the Court below later made a U- turn when it changed its mind from its earlier finding that the offence of “armed robbery” was proved against the appellant and the co-accused, and held the contrary simply because of the prosecution’s/respondent’s failure to tender in evidence the alleged arms or offence weapons used at the robbery operation and hence it reduced the sentence of death sentence passed on the appellant by the trial Court to one of 21 years imprisonment.

With greatest respect to the learned justices of the Court of Appeal, to secure a conviction for armed robbery, all that the prosecution must prove are:-

(i) That there was an armed robbery;

(ii) That the accused person or persons was/were armed during the armed robbery or in company with someone amongst them who was so armed.

Once the prosecution proves the above ingredients beyond reasonable doubt, their failure to tender the offensive weapon

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or the arms, cannot result in acquittal of the accused person(s) because of the possibility of the accused person doing away with the offensive weapon they used, after the commission of the offence in order to exculpate himself from criminal responsibility or to escape detection. See the cases of Martin vs State (1997) 1 NWLR (Pt.481)355; Okosi v. AG Bendel State (1989)1 NWLR (Pt.100) 642; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561 SC.

I must also stress here, that there is no principle of law which requires the prosecution to mandatorily tender the weapons used in an alleged robbery in order to establish the guilt of the accused person. In fact, in Olayinka’s case (supra), it was held that since there was no assertion from the prosecution witness that any weapon was recovered from the accused, proof of use of any weapon at the alleged robbery operation was not necessary to establish.

It is noted by me, that the Lower Court applied a wrong principle in reducing or tempering with the sentence passed earlier on the appellant by the trial Court since, as I stated above, the reason given by the Lower Court in reducing the death to 21 years jail term

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sentence was based on a wrong principle of law that tendering of weapon used in the robbery is a condition precedent to establish the offence of armed robbery which it had earlier found to have been duly proved beyond reasonable doubt before it made the U-turn.

Ordinarily, this is a clear example of case in which this Court would have reversed the sentence passed on the appellant by the Court below and restore the correct sentence of death earlier passed on the appellant by trial Court. However, this Court’s hands are tied for the simple reason that there is no cross appeal against the sentence of 21 years passed by the Lower Court filed by the Respondent herein. I will therefore stop at that and say no more except to say that the appellant is just lucky to have narrowly escaped the hang-man’s noose.

In the result, having resolved all the issues raised in this appeal against the appellant, it is my judgment that this appeal lacks merit or substance. It fails and is accordingly dismissed. The judgment of the Court below substituting the death sentence passed on the appellant to that of 21 years imprisonment is hereby reluctantly affirmed. Appeal

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dismissed.

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SC.677/2013