Gani Aiyetigbon V. The State (2016)

LawGlobal-Hub Lead Judgment Report

JAMES SHEHU ABIRIYI, J.C.A. 

  The Appellant and the 1st accused person were convicted on the 16th May, 2013 in the High Court of Ondo State sitting at Akure for conspiracy to commit armed robbery and armed robbery contrary to Sections 6(2) (b) and 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Vol. 14 Laws FRN 2004.

On 27th July 2011 between 12:30am and 1:30am the Appellant and many others invaded houses in Ondo town including the houses of Pw1 and Pw4.

They had successfully broken into the houses of the Pw1 and Pw4 and made away with several items before the police arrived and there was exchange of gun fire between the police and the armed robbers.

The appellant was arrested because the 1st accused person had mentioned him as belonging to the gang that carried out the robbery operation. The 1st accused person not only mentioned the appellant to the police but led them to the appellant’s house where the appellant was arrested.
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The Appellant made a statement to the police in which he made a clean breast of the offence. However, in Court he

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retracted his statement to the police.

In his defence in Court he said that he was washing his motorcycle on the 27th July 2011 at home. Policemen passed by. They stood in front of his house and asked whether he knew Ogbonna. He said he did not know him and they left. They went and turned their vehicle and came and parked where he was. One of the policemen came down and asked him to enter the vehicle. The policeman held on to the back of his trouser. He asked the policeman what he had done. The appellant and the policeman were shouting at each other. So the caretaker of the house came out and asked the appellant what was wrong. The appellant said he did nothing. When the caretaker persisted in asking questions both the caretaker and the appellant were taken into the vehicle and taken to the police station.

At the police station, he was beaten. He was chained and shot on the leg and he fainted. He met the 1st accused person for the first time at the police station.

Before he was shot he was told to confess. He said he did not do anything.
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When he told the police that he was not a thief they were just beating him in addition to

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the wound they had inflicted on him before. They placed a white book in their front and were writing. He did not know what they were writing.

When he was arrested nothing was found on him.

He did not rob the complainants. He had never seen them.

After hearing evidence and considering addresses of learned counsel for the parties the lower Court convicted the appellant and the 1st accused person.

The Appellant has appealed to this Court by a notice of appeal dated 16th May 2013 and filed on 1lth July 2015 containing one ground of appeal. By order of this Court dated 29th October 2014 the Appellant was granted leave to amend the notice of appeal. Consequent upon the grant of leave the Appellant filed an amended notice of appeal on 30th October 2014 dated the same day. The amended notice of appeal contains three grounds of appeal from which the Appellant presented the following two issues for determination:
(i) Whether the trial Court can act and rely on retracted confessional statement which was not voluntarily made by the appellant nor signed by him to sustain the conviction of the appellant (Ground 1)
(ii) Whether the

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two counts of robbery and conspiracy brought against the Appellant was sufficiently proved beyond reasonable doubt to warrant his conviction thereof for same (Grounds 2 and 3)

On its part the Respondent formulated a lone issue for determination. That is:
1. Whether or not from the totality of evidence before it, the trial Court rightly held that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt against the appellant.

The appeal was argued upon the following briefs:
1. Appellant’s Brief of Argument dated and filed on 21st November, 2014 settled by Lanre Oliyide, Esq.
2. Respondent’s Brief of Argument dated 8th October 2015 deemed duly filed and served on 1st March 2016 settled by A. O. Adeyemi-Tuki (Mrs.) Director of Public Prosecution Ministry of Justice Ondo State.

Arguing issue 1, learned counsel for the Appellant submitted that the lower Court relied on Exhibits P14, P15, P16 and P16A which are the confessional statements of the Appellant and the 1st accused person to convict the Appellant without credible and independent evidence to corroborate the alleged confessional statements

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relied upon by the lower Court.

The Appellant, it was pointed out, denied making any statement at Fagun Police Station.

It was contended that to the extent that the Appellant objected to the tendering of the statement, he impliedly contested the voluntariness of the statement making the conduct of a trial within trial imperative.

Exhibits P15 and P16(a), it was submitted were not signed. The lower Court therefore wrongly relied and acted on uncorroborated and unsigned retracted confessional statement to convict and sentence the Appellant to death or to have even attached any evidential weight to a worthless retracted confessional statement.

It was submitted that the lower Court relied heavily on the confessional statement of the 1st accused person as corroborative evidence to convict the appellant when the said confessional statement remained a statement of the 1st accused and not evidence and is only binding on the 1st accused person as the maker.
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On issue 2, it was pointed out that no firearm or offensive weapon was found in the possession of the appellant. It was submitted that a person can only be charged and

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convicted of armed robbery if such a person is armed with any offensive weapon. The appellant having not been found with any offensive weapon, the Court was urged to hold that an essential ingredient of the offence of armed robbery has not been proved.

It was further submitted that the prosecution did not adduce any evidence to establish any common intention or criminal design between the Appellant and any other person to sustain the offence of criminal conspiracy.

Learned counsel for the Respondent submitted that conspiracy may not always be proved by direct evidence as it is generally a matter of inference deduced from certain criminal acts and conduct of the parties accused done or carried out in pursuance of an apparent criminal purpose common between them. The essence of the offence of conspiracy is the consensus ad idem of the co-conspirators to commit a crime even though they had not assembled at a particular time to hatch the intention to execute the unlawful purpose. We were referred to Shodiya v. The State (1999) 3 NWLR (Pt. 230) 457.

It was submitted that there is evidence from Pw1, Pw2 and Pw4 that the armed robbers were

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armed with guns. That Pw2 was made to part with N10,000 and three handsets while Pw4 lost money, handsets, jewelries and money. Pw5 gave evidence of how 1st accused was arrested and various items recovered from him.

It was submitted that the lower Court was right to rely on the retracted confessional statement of the appellant as the procedure is for the Court to admit the retracted statement and consider at the end of the trial whether the retraction is credible or otherwise.

This Court was referred to the judgment of the lower Court at page 142 of the record of appeal where is stated thus:
“With regards to the 2nd accused, the evidence of Pw5 that the 1st accused led the police patrol team to his house to arrest him in connection with the crime and his confessional statement on the 27th July 2011 and 30th July 2011 are to the effect that he committed armed robberies on 27th July 2011.”

From the foregoing, it was submitted there was evidence outside the confession to show that the confession was true and it was corroborated by the evidence of Pw1 ? Pw8.
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The statements, it was submitted, were signed by the

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appellant.

Finally it was submitted that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt.

The Court was urged to hold that he prosecution proved the case beyond reasonable doubt.

I will determine the appeal on the lone issue formulated by the Respondent which reproduced again immediately hereunder reads as follows:
Whether or not from the totality of evidence before it, the trial Court rightly held that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt against the appellant.

Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do. See Ayo v. State (2015) 16 NWLR (Pt. 1486) 531 at 549.
In order to get conviction on count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. Conspiracy is an offence which is difficult to prove because it is often hatched in secrecy. Circumstantial evidence is often used to point to the fact that the co-conspirator/s had agreed on the plan to commit the offence. There

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must be an overt act from which to infer the conspiracy. See Omotola v. State (2009) 7 NWLR (Pt. 1139) 148. Conspiracy is usually inferred from facts and evidence led. See State v. Gwangwan (2015) 13 NWLR (Pt. 1477) 600 at 622.

To establish the offence of armed robbery the prosecution must prove the following:
1) That there was a robbery;
2) That the accused person committed the robbery and was armed with offensive weapon; and
3) That at or immediately before or after the robbery, the accused person wounded or used personal violence to any person. See Sani v. State (2015) 15 NWLR (Pt. 1483) 522 at 540.

An accused person may be convicted solely on his confessional statement. However, the Court has a duty to test the truth of the confession by examining it in the light of other credible evidence before the Court. See Solola v. State (2005) 11 NWLR (Pt. 937) 460 and Dibie v. State (2007) 9 NWLR (Pt. 1038) 30.

It is clear from the evidence of Pw1, Pw2 and Pw4 that the appellant was not recognized as one of those who broke into their houses and collected items including money.
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It appears to me that it was the 1st accused

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who turned out to be the Appellant’s albatross. According to the Pw5, it was the 1st accused that led them to the house of the appellant where he was arrested.

It has been said that where evidence is to be led on what happens in hell, no angel from heaven will be qualified to give such evidence. It must be those in hell that will qualify to give such evidence. The 1st accused person was therefore in a prime position to say who and who participated in the robbery. In my view, the evidence of the Pw5 that the 1st accused led the police to the house of the appellant because he was one of the robbers is weighty. This is evidence outside the confessional statement of the appellant which shows that it is true.
When the statements of appellant were to be tendered in evidence, the appellant denied making them. It is the law that under such circumstance, the lower Court was entitled to admit them and consider at the end of the trial whether the accused person did make them and what weight to attach to them. See Akpan v. State (1992) 7 SCNJ 22, Aremu v. State (1991) 7 NWLR (Pt. 201) 1 and Ejinima v. State (1991) 6 NWLR (Pt. 200) 627. There was no basis

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for a trial within trial as contended by learned counsel for the Appellant.

Although the appellant in evidence in Court belatedly suggested that he was tortured, a trial within trial as the lower Court pointed out was not possible at that stage.

The appellant ought to have raised the issue of involuntariness of the statements when they were to be tendered and not during his defence in the dock.

Learned counsel for the appellant further argued that the statements of the Appellant were not signed by him. I have looked at Exhibits P16 and P15 statements of the appellant made on 27th July, 2011 and 30th July 2011 and I am unable to agree with him that a careful perusal will show that they were not signed. I find that they were signed by the appellant.

?Learned counsel for the Appellant further contended that no offensive weapon was found on the appellant. It is however the law that the failure to tender the offensive weapon used in the robbery cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to escape

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justice. See Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561.

Although the appellant said he had no gun on him and did not enter any of the houses broken into but merely kept watch outside, it did not matter. It was sufficient that he was in league with the armed robbers. He did not have to hold a gun himself.

Where it is proved that two or more persons acted in concert when the act or omission which constituted the offence was actually done or made, it is not necessary to show which of them did or made the act or omission as long as it is proved that one of them must have done so. See Odiji v. State (1976) 6 SC 152.

It is clear from the confessional statements of the appellant which are corroborated by the evidence of Pw5 that the 1st accused led them to the house of the appellant who was one of the armed robbers that the offence of conspiracy to commit armed robbery and armed robbery were proved beyond reasonable doubt.
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Furthermore from the evidence of Pw1, Pw2 and Pw4 armed robbers broke into their houses on 27th July 2011. It was not one armed robber. Pw5 who led some policemen to the scene in response to a distress call by the

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Pw1 and Pw4 exchanged gunfire with some of the armed robbers when he got to the scene before the armed robbers fled but not before they succeeded in shooting Pw6 the police drive.

The operation by the gang of armed robbers could not have been embarked upon without an agreement to proceed with the operation.

I therefore resolve the lone issue for determination in favour of the Respondent.

Consequently the appeal is dismissed.

The conviction and sentence of the appellant by the lower Court are affirmed by me.

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Other Citations: (2016)LCN/8786(CA)