Ganiyu Gbadamosi Vs The State (1992)
LawGlobal-Hub Lead Judgment Report
OMO, J.S.C.
The two appellants and one other were jointly charged on two counts of conspiracy and armed robbery in the Lagos High court (Ikeja) in May, 1983. After a trial, in which they testified but called no witnesses, they were all found guilty on 10th September, 1985 of conspiracy and robber simpliciter (not armed robbery). They were then sentenced to 25 years imprisonment on each count, sentences to run concurrently.
Whilst the convicted persons appealed against their conviction and sentence, the State cross-appealed against the conviction for robbery simpliciter, contending that the conviction be set aside and a verdict of guilty of armed robbery be substituted.
On 18/6/91, after considering the briefs filed and the oral arguments offered by both sides, the Court of Appeal dismissed the appeal of the two appellants and allowed the appeal of the third convict. It also allowed the cross-appeal, finding the appellants guilty of armed robbery as originally charged.
Dissatisfied with this judgment, the appellants have appealed to this Court against the conviction and sentence.
The relevant facts of this case, briefly stated, are that one Ayodele Bakare drove his mother’s Mercedez Benz car by 6.30a.m. on 11th September, 1981, from Adeniyi Jones Street, Ikeja, to Anthony Village, to deliver a message to one Chief Lamikanra resident there. As he left the house, driving home alone in the car, his path was blocked by a Peugeot 504 saloon car. Some men from this car and others coming by foot from the nearby main road converged on him armed with cutlasses. They forced the door open and took possession of the Mercedez Benz car, abandoning the Peugeot 504 some of them emerged from, at the scene. He ran away into the nearby house of Dr. Beko Kuti from where he reported the event to his parents. A few hours after, in the afternoon, the police reported that the vehicle had been recovered at Badagry, where his parents and himself went and identified the car.
According to the prosecution, the three accused persons were arrested at Ajara Village, Badagry, between 9-10 a.m. when a motor mechanic invited by the 3rd accused was helping them change the tyre of the stolen car – Mercedez Benz. No. LA 6788K. They had been arrested by a Police Constable because the name of the owner of the vehicle given by the accused, on being queried by him, was different from the name on the vehicle’s particulars.
All the accused denied the charges against them. They were only victims of circumstances who had left their respective abodes to come to Ajara Village Badagry, where a policeman arrested them. While the 1st appellant testified that he left Okoya Ajegunle that morning to buy some planks, nails and other tools at Ajara village, and that it was at the place of purchase that he was arrested. The second appellant said that he left his Alaba residence, and traveled through Orile-Iganmu to Ajara Village, Badagry, to buy palm wine. He had bought the wine and was waiting for transport to convey him home when he was arrested. The third accused said he had a shed at the village and had gone looking for one Mr. Onyemoto P.W. 3 volunteered to take him to where he was if he waited for him. It was while he was waiting that he was arrested along with the other accused and about 5 others.
In his judgment, the trial High Court Judge considered the alibi relied on by the accused persons and held they had not been established. He believed the prosecution’s story about the snatching and recovery of the Mercedez Benz car. He held that since the accused had been found in recent possession of a stolen good, section 148(a) of the Evidence Act applied to raise the presumption that they were guilty of the theft of the car. He also relied on statements of the accused made after their arrests which he held were confessional, and duly corroborated by the evidence of P.W.1 and P.W.6. In his view, armed robbery as charged had not been proved because the weapon used had not been produced and tendered in court. Applying section 179(2) of the Criminal Procedure Law, he convicted the accused of robbery simpliciter. He also convicted them of the charge of conspiracy which he held could be inferred from the confessional statements and evidence led by the prosecution.
At the Court of Appeal, the procedure in conducting the trial within trial by the trial Judge was attacked. It was submitted that it was incurably bad, and therefore since the burden on the prosecution of proving that the statements made by the appellants to the police had not been discharged, the whole trial is a nullity. The Court of Appeal held that the conduct of a trial within a trial is not part of Nigerian Law and whether it was properly conducted or not made no difference to the trial. If however it is material, the wrong procedure used had not occasioned any injustice to the accused. Exhibit J, the 2nd appellant’s statement to the police, it held is not a confession, and has been wrongly so admitted by the trial Judge. There was really therefore no need to conduct a trial within trial. It therefore upheld the trial and conviction of the present appellants; but proceeded to set aside their conviction for robbery simpliter and substituting therefore, a conviction for armed robbery. It arrived at this decision because the reason for the trial Judge’s decision is obviously wrong and there is strong evidence in favour of a conviction for armed robbery.
In this Court, issues for determination were set out by the appellants in their briefs as follows:-
“(i) Whether there was sufficient evidence before the court to support the conviction and sentence for armed robbery in the absence of any direct identification of the appellants as two of the armed men who robbed P.W.1.
(ii) Whether the irregularity of the trial within trial resulting in the shifting of the onus of proof from the prosecution to the defence nullified the whole trial.
(iii) Whether Exhibit ‘J’ should be expunged from the records having been found not to be a confessional statement.
(iv) Whether the prosecution succeeded in proving its case beyond reasonable doubts.
(v) Whether the doctrine of recent possession is applicable.
(vi) Whether the doctrine of recent possession in this matter in the absence of any identification evidence, considering the fact that the offence of armed robbery requires proof of being armed with firearms or offensive weapons or being in the company of one so armed and in spite of the fact that these vital ingredients were not proved by the prosecution.”
I will begin by considering the third issue for determination. In his judgment, the learned trial Judge held Exhibit J. which is the statement of the 2nd appellant to the police to be a confession. It is set out at pages 100/102 of the record of proceedings. What the 2nd appellant “admitted” in that statement is to being a party to the attempted sale of the stolen car. That is not the offence for which he was charged. To constitute a confession, a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in so doing be clear, precise and unequivocal. Exhibit J is therefore not a confessional statement and I agree with the decision of the Court of Appeal to that effect. What is the result of so finding Appellants’ counsel has submitted that the consequence of so finding is that the statement wrongly treated as a confession should be expunged from the record of the proceedings, and not relied on in any way. It should in fact be treated as if it never existed. Respondent’s counsel, on the other hand, whilst agreeing with the decision of the court below that it is not a confession, submitted that it is not therefore rendered inadmissible in evidence. It is admissible and whatever admissions are contained within it can be acted upon.
In support of her submission, appellants’ counsel has cited and relied on Saidu v. The State (1982) N.S.C.C. Vol. 13 page 70, (1982) 4 S.C. 41 where she said it was held that a statement, which is not proved to be made voluntarily, cannot be used against an accused person. It must not only be expunged from the records but it’s contents cannot be relied upon to convict the appellant. She also referred to the observation of Idigbe, J.S.C., in Salawu Olukade v. Abolade Alade (1976):2 S.C. 186 at 187-188 thus:-
“A court is expected in all proceedings before it to admit and act only on evidence which is admissible in law (i.e. under the Evidence Act or any other law or enactment relevant in any particular case) and so if the Court should inadvertently admit inadmissible evidence it has a duty generally not to act upon it.”
She therefore submitted that the court below had a duty not to act upon Exhibit J which it had found to be wrongly admitted as a confession. She finally referred to Section 226(1) of the Evidence Act on the effect of the wrongful admission of evidence which provides that:-
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
She finally contended that the court below relied on Exhibit J to find the appellants guilty of conspiracy and armed robbery. There was in her submission no other reliable and direct evidence before the court to warrant the conviction of the appellants.
Saidu v. The State cited and relied on by appellant is not quite apposite as an authority in this case. In that case, the statement objected to was fatally flawed, because it was admitted and acted upon as a confession without the test of its voluntariness being conducted, to wit, a trial within trial. A document was therefore admitted as a confession without proof of its being so. What is worse, the accused in that case, on a homicide charge, was convict thereon, without his being given the opportunity of at least cross-examining the writer of the document (who was not produced to testify) with a view of establishing that the statement was not voluntary. In the present case the document. Exhibit J was incorrectly regarded as confession. It was otherwise properly admitted, its voluntary nature not being objected to. In my view, therefore, the question or totally expunging Exhibit J from the record cannot arise. What is objectionable and cannot be allowed, is any decision arrived at which appears to be based on the document being regarded as a confession. The answer to the first issue as set out therefore is that a statement wrongly admitted as a confessional statement can, if it has no other defects, be admitted as an ordinary statement and be relied upon as such, as a basis for conviction.
I think it is convenient for me to proceed now to consider the second issue for determination since it also concerns a confessional statement. Exhibit H. to which the question asked here refers, is the statement of the 1st appellant to the police. Ex facie, this statement, which is reproduced at pages 98 to 100 of the record of proceedings, appears from its contents to he a confessional statement. It contains admissions which unequivocally relate to the offences charged. It was retracted by the 1st appellant in court, and objected to by his counsel when it was sought to be tendered in evidence. The learned trial Judge therefore also bilged to conduct a trial within a trial. It is agreed by counsel for both sides that his conduct of this “trial within trial” was irregular. He called upon 1st appellant to give evidence first instead of the prosecution. It is argued that by so doing, he shifted the onus of proof from the prosecution to the defenec, vide Ashake v. the State (1969) 2 All N.L.R. 198; Auta v. The State (1975) 1 All NLR (Pt, 1) 165; Adekanbi v. Attorney-General (Western Region) (1966) 1 All NLR 47. (Western Region) (1966) 1 All NLR 47. It is submitted that this is prejudicial to the appellants and denied him a fair trial. I agree with counsel that the trial within trial conducted by the learned trial Judge was irregular and that calling on the appellant to first testify, in an inquiry whether or not the statement he is alleged to have made is voluntary, does suggest a shih of the onus on proof from the prosecution to the defence (appellant), The immediate result of this irregularity is that the end result of it i.e. the admission of the Exhibit H as a confession, is improper and must be set aside Obidiozo & Ors. v. The State (1987) 4 NWLR (Pt.67) 748 at 751. On whether this irregularity should result in the whole trial being pronounced a nullity, no serious argument has been advanced by appellant’s counsel. The irregularity attaches to only an aspect of the trial designed for a specific purpose. The aspect is the test of the voluntariness of a confessional statement. The specific purpose is the admission in evidence of the document. The only effect of this irregularity cannot possibly go beyond its specific purpose, and lead to the vitiating of the whole trial. The irregularity therefore does not make the whole trial null and void. This disposes of issue 2. So much has been said by the learned Justices of the Court of Appeal on the history and position and conduct of a “trial within trial” in our criminal procedure. I do not intend to embark on the same exercise in this judgment, as there has been no ground of appeal filed challenging the long-standing procedure as illegal or contrary to law and therefore inviting us to set it aside. If and when that is done, the whole matter may have to be re-examined. Suffice if for me to say firstly, that I share the views of the learned Justices of the Court of Appeal as to the problems surrounding this procedure; but secondly, that the procedure is now very much part of our law vide The Queen v. Igwe (1960) 1 SCNLR 158; (1960) 5 F.S.C. 55 at 56, that it cannot be overlooked or decreed into illegality by the Court of Appeal. The learned Justice, of the Court or Appeal were, with respect, very wrong to have done so in the face of decisions of this Court which have made this procedure mandatory, and part of the law.
The other three issues can conveniently be taken together. They attacked the judgment on the ground that there was not enough evidence before the learned trial Judge to support the convictions of the appellants and to justify the Court of Appeal’s judgment. I will consider the charge of conspiracy first. To convict on this charge the court below relied on Exhibits H and J. Tobi, J.CA. stated thus:-
“…..the one evidence of conspiracy against the 1st and 2nd appellants as found by the learned trial Judge, is Exhibit H, the confessional statement at the 1st appellant.” (note: italics mine)
and further stated
“The learned trial Judge also found evidence of conspiracy in Exhibit J. the statement of the appellant.”
and concluded thus
“Although both applicants took a complete “U” turn at the trial, I entirely agree with the learned trial Judge that the two statements are conclusive of offence of conspiracy and I so hold.” (note italics mine).
The Court below therefore relied on the two statements which as shown earlier have been adjudged wrongly admitted in evidence as confessions to base it’s decision that the offence of conspiracy has been proved, These are statements which must be treated with caution and the courts show action. The effect of the taint on Exhibit H, as earlier considered, is that it is not evidence which can be acted upon in this case. It has not been shown to be capable of admission (since its voluntariness was not established), it’s purported admission was wrong, and it cannot now be admitted in evidence. It is therefore not evidence on which the court below can rely, as did the trial court, in proof of conspiracy, If Exhibit H cannot be relied upon, then what is left is Exhibit J, I have held that the admissions therein can be acted upon, even though it is not a confession, But the admissions therein cannot be evidence against the 1st appellant. They only bind the 2nd appellant. The net effect is that the necessary meeting of the minds and acting in concert which are necessary ingredients of the offence of conspiracy do not exist. The conviction of the appellants of that offence is therefore wrong and must be set aside.
We are now left with the charge of armed robbery. It is admitted by counsel for both sides that there is no direct evidence that the appellants took part in the act of armed robbery which the court found, and I believe, took place. What have been relied upon are circumstantial evidence and the doctrine of recent possession ride s.148(a) of the Evidence Act. The attempt to buttress these with “confessional statements”, to wit, Exhibits J and H came to grief.
It must be conceded that the learned trial Judge was satisfied that a robbery had taken place as testified to by P.W.1 from whom the Mercedez Benz was snatched. It is part of his finding that the persons who carried out the robbery were armed (albeit with cutlasses), Counsel for the respondent has proceeded from this basis to state as follows:-
“What was left therefore was to prove that there was a nexus between the appellants and the alleged robbery. This nexus was provided in two important ways. First, by the appellants themselves in their confessional statements exhibits ‘H’ and ‘J’ (pages 98 – 100 and 100 – 102 respecitvely) wherein they owned up to the robbery. They gave a graphic account of how they planned and executed the robbery. Second by the doctrine of recent possession. We must be reminded that the 1st and second appellants were caught with the stolen vehicle only three hours after the theft. The vehicle was stolen at 6.10a.m on September, 11th, 1981 and was recovered from the appellants at about 9.35a.m on the self same 11th September, 1981, that is about 3 hours thereafter! See pages 26 lines 6 and page 42 lines 5 – 10 respectively). If the doctrine of recent possession could not be invoked in the circumstances of this case the respondent cannot conjecture any other occasion when it can validly invoked. By the combined effect of the confessional statements – Exhibit ‘H’ and ‘J’ and the doctrine of recent possession, therefore, the inference that the appellants were the hoodlums that robbed P.W.1 of his vehicle became inescapable.” (Note; italics mine).
In these submissions in his brief, the respondent’s counsel recognized the need to rely on Exhibits H and J to provide the nexus that can take back the appellants to the scene of the crime and, with the presumption that is available under the doctrine of recent possession, connect them with the offence of armed robbery charge. But, in view of my earlier findings, Exhibit H and J are not longer available to play that role. The only one of them admitted in evidence is Exhibit J. That does not connect either one or both appellants to Anthony Village. It binds the 2nd appellant to Ajara Village Badagry, and possession of the vehicle stolen and no more.
I agree with the submission of respondent’s counsel that convictions for armed robbery is not invalid because it rests on the doctrine of recent possession vide Madagwa v. The State (1988).5 NWLR (Pt.92) 60: and Mufutau Aremu v. The State (1991) 7 NWLR (Pt.201) 1. But recent possession alone cannot justify an inference of murder vide Omogodo v. The State (1981) 5 S,C, 5. In the most recent case of Mufutau Aremu (supra), there was further evidence to buttress the application of this doctrine evidence of identification and confessional statements which, though retracted, amply corroborated the evidence of prosecution witnesses in material details as to the actual robbery and the matter of execution thereof. In Madagwa’s case (supra), the appellant was found not only in possession of the stolen taxi-cab, but also three locally made pistols, when they were stopped and arrested at a road block on the same day the robbery took place. In addition, at a subsequent identification parade, the appellant was picked out by one of the eye witnesses of the robbery. In the present case on appeal the prosecution appears only able to rely on the doctrine of recent possession simpliciter. There is no sufficient admissible or admitted evidence to create a nexus between the appellants and the armed robbery. Since that is the case, the only evidence available points to the alternative presumption created by section 148(a) of the Evidence Act, which states that –
“a man who, is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for them.” (note: italics mine)
If, the appellants cannot be presumed to be the thieves (robbers) of the car, can they be presumed to be receivers thereof I think they can. The 2nd appellant is bound by his admissions in Exhibit J. in which he admitted that he went along with 1st appellant and some others to go to Seme border to sell a car, the stolen Mercedez Benz No. LA 6788 K. He was found at the Ajara Village scene by the car and arrested by the policeman.
His new story in his evidence in court was not believed by the trial court, found with the vehicle as he was only three to four hours after P.W.1 was robbed of it, the presumption that he was at least the receiver thereof is inescapable. His statement Exhibit J is not evidence against the 1st appellant, who may have succeeded to escaping a conviction for armed robbery because of the unfortunate handling of Exhibit H. Even though Exhibit J and H do not bind him, he was found with the stolen vehicle very soon after it was stolen and the presumption that he received the goods knowing them to be stolen can be drawn. What is his explanation for possession of the goods at Ajara Village when he was arrested. His story about being arrested when he went there to buy planks was clearly not believed. It is an unbelievable explanation. So also is the 2nd appellant’s story that he went buy palm wine and was waiting to take transport home when he was arrested.
In conclusion therefore, I allow the appeal of the appellants and find them not guilty of the offences of conspiracy and armed robbery for which they were convicted by the court below, the judgment of which court is hereby set aside. In exercise of the courts powers order section 179(2) of the Criminal Procedure Act. I substitute for the conviction of the offence of armed robbery charged, a conviction for the offence of receiving stolen property contrary to section 427 of the Criminal Code.
I sentence each of the appellants to a term of 5 years imprisonment. The nine years in which they have been in custody since their arrest will be taken into account. They are therefore to be deemed to have served their sentence and their immediate release is hereby ordered.
Other Citation: (1992) LCN/2542(SC)
