Kehinde Gbadamosi V. The State (2003)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
This is an appeal against the decision of the Ogun State High Court delivered on 4/8/2010 by S. A. Olugbemi, J. sentencing the appellant to death by hanging after convicting him of a five (5) count charge of Conspiracy to commit Armed Robbery and Armed Robbery pursuant to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, CAP R.11 Laws of the Federation and punishable under Section 6(b) of the same Act.
The back ground facts on the part of the prosecution is that the Appellant and others at large at about 8.30 p.m. on the 19th day of February, 2009 at Glory Land hostel, Odo Epo, Ijebu Ode, while armed with guns robbed one Adeojo Tolulope of her Motorola 16 handset, a wrist watch and jewellery. One Sanya Oluwatoyin was also said to have been robbed of her Nokia Mobile Phone. The victims were said to have been locked up in a room while the appellant and others escaped. One of the occupants of the house was said to have escaped to the house of the Baale (Community head) who alerted people in the neighbouring village, who used stones and other wedges to block the road. The armed robbers were said to have ran into the road with the obstructions which affected the engine of their car which they abandoned and ran into the bush. The villagers alerted the police who went to the spot, searched the car and recovered a locally made pistol and cartridge.
The appellant was said to have gone to the police to report that his vehicle had been robbed from him claiming that a hunter rescued him, and that he spent the night with him. The appellant was later taken to the scene where his demeanor there made the police return him to the police station where a search was conducted on him and a mobile phone belonging to one of the victims was found. Consequently, the appellant was charged to court.
The appellant during the trial denied the charges. At the close of the trial, the trial court held that the prosecution had proved beyond reasonable doubt, the offences charged. The appellant was convicted and sentenced to death. The Appellant dissatisfied with the judgment of the trial court appealed to this court.
The Appellant’s original Notice of Appeal at page 73 of the records of Appeal was amended with the leave of this court. The Amended Notice of Appeal containing six (6) grounds which was filed on 5/12/2011 was deemed as properly filed on 21/1/2013. The Appellant contended that the complainant did not satisfy the gravamen of establishing his case by proving the guilt of the accused beyond reasonable doubt. It was also contended that the trial court guided himself wrongly in law by invoking the inconsistency Rule whereby the trial court expunged the defence of the Appellant in course of trial. It was alleged that the judgment of the trial court was a misapplication of the law which has occasioned a miscarriage of justice.
Two issues were distilled for determination by this court, they are:
1. “Whether by the facts and circumstances of this case, the evidence of the complainant was sufficient to convict the Appellant of the offence convicted of.
2. Whether the trial judge rightly involved and applied the inconsistency Rule whereby he expunged the defence available to the Appellant and sentenced him to death or whether the trial judge was right when he failed to conduct a Trial – within – Trial in the circumstance of involuntary statements the Appellant was coerced to make by the police.”
The respondent distilled three (3) issues for the determination of this appeal. They are:
(i) “Whether the prosecution has established, against the Appellant the offences of conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt.
(ii) Whether trial within trial is necessary in admitting EXHIBITS P2, P9, P9A, P10 and P10A, the confessional statements of the Appellant.
(iii) Whether the trial court was right in ignoring the oral testimony of the appellant and his extra judicial statement EXHIBT P for being contradictory.”
When the appeal was argued, the learned counsel to the Appellant E.R. Emukpoeruo Esq. adopted his brief of argument dated 20/3/13, filed the same day but deemed properly filed on 9/10/13, in urging us to allow the appeal.
In his issue one, it was submitted that the respondent at the lower court failed to link the appellant to the Armed Robbery offence committed and that conspiracy was not proved beyond reasonable doubt. It was Contended that the offence was not investigated before the appellant was charged to court. Further, that from the evidence of PW1 and PW3 the, three armed robbers were not masked, the PW3 also testified that she could identify one of the armed robbers who was a student of the Tai Solarin University of Education.
Further, that the respondent took undue advantage of the appellant who was also a victim of a robbery incident where his car was stolen and got detained after he reported the robbery incident. It was submitted that there was no identification evidence to show that the appellant is the same person that committed the offence, see UKPABI VS. STATE (2004) 11 NWLR (Pt.884) 439 SC and ARCHIBONG VS. STATE (2004) 1 NWLR (Pt.855) 488 CA. It was argued that the evidence of the PW2 that he searched the DW1 and found on him a Nokia 1110 is unfounded because the PW3 claimed to have recognized one of the armed robbers but did not identify the appellant as one of the armed robbers and no other witness did. It was argued that there was no evidence linking the Appellant to the offence committed.
The learned counsel to the appellant adopted the definition of conspiracy as defined in the case of USAMAN KAZA VS. THE STATE (2008) 3 NCC 374 at 475 also utilized by the trial court. It was the contention of the learned counsel that conspiracy cannot be proved against one person in the commission of an offence, see also SULE VS. THE STATE (2009) 17 NWLR (Pt.1169) P.93, PARAS. E – F.
On the appellant’s issue two, it was the contention of the learned counsel that the trial court wrongly invoked and applied the inconsistency Rule to the circumstance of this case by outrightly expunging both the oral testimony and the voluntary statement of the Appellant, Exhibit ‘P1’, for the reason that the Appellant’s oral testimony contradicted his voluntary extra judicial statement admitted in evidence as Exhibit ‘P1’.
It is the argument of learned counsel that the appellant ought not to have been convicted simply because the court regarded him as a liar, as the court has the duty to examine the totality of the evidence to see if his guilt has been proved beyond reasonable doubt, see: AGUNBIADE VS. STATE (1999) 4 NWLR (Pt.599) 391; UWAGBUE vs. STATE (2008) 12 NWLR (Pt.1102) 647 PARAS. A – C and AYO GABRIEL VS. THE STATE (1989) 5 NWLR (Pt.122) 457 at 468.
It was submitted that Exhibits ‘P2’, ‘P9’, ‘P9A’, ‘P10’, ‘P10A’were not voluntarily made by the Appellant and that the appellant as DW1 gave oral evidence as to the brutal treatment he got at the police station during trial, and was not cross examined on this. We were urged to treat the appellant’s testimony as true and uncontroverted.
It was argued that for an accused person’s confession to be relevant in law it must have been voluntarily made, and where the voluntariness is contested, it is the duty of a trial judge to set it down for trial within trial to determine the veracity or otherwise of the accused person’s claim before proceeding on trial which the trial, court failed to do in this case, Section 28 of the Evidence Act was relied upon.
The learned counsel emphasized that the burden of proof lies on the complainant/respondent to prove his case beyond reasonable doubt which the complainant/respondent failed to do. We were urged to set aside the judgment of the trial court and acquit the appellant.
On his part, the learned counsel to the Respondent, J. K. Omotosho Esq. Deputy Director Public Prosecutions, Ogun State Ministry of Justice, adopted and relied on his brief of argument dated 26/2/2013 filed on 27/2/2013, deemed properly filed on 5/3/2013 as his argument in this appeal.
In arguing his issue one, the learned counsel to the respondent defined the offence of conspiracy as an agreement by two or more persons to commit an unlawful act; a combination for such unlawful purpose.
Reference was made to Exhibits ‘P2’, ‘P9’, ‘P9A’, ‘P10’ and ‘P10A’ as the confessional statements of the Appellant from which it was argued the offence of conspiracy could be implied. It was submitted that conspiracy could be inferred from the facts and circumstances of each case, reference was made to the evidence of the PW1 and PW3 who gave account of how they were robbed which corroborated the contents of the above listed Exhibits.
On the offence of armed robbery, reliance was placed on the case of BOZIN vs. STATE (1985) 2 NWLR Pt.8 at P.465 as well as the evidence of PW1 and PW3 who testified as to how they were robbed with arms, at pages 30 – 31 and 36 of the records of appeal.
It was argued that the appellant did not object to Exhibit ‘P2’ his confessional statement. The fact that Exhibit ‘8’ was recovered from the appellant was argued to be facts outside the confessional statements making the confession of the appellant possible, see ALARAPE VS. THE STATE (2001) FWLR (PT.41) 1873 at 1893.
It was further argued that the fact that the Appellant retracted his confession on oath at the trial does not mean that the trial court cannot convict him on it. It was submitted that the prosecution proved that the appellant was one of the robbers.
On the Appellant’s second issue, it was the contention of the learned counsel to the respondent that there was no objection to the tendering of Exhibit ‘P2’ by the ‘PW2’. Similarly, Exhibits ‘PB’ and ‘P9’ tendered through PW4, also Exhibits ‘P10’ and ‘P10A’ tendered through PW5. It was submitted that the involuntariness of a statement ought to be raised at the point of tendering a confessional statement and that in this case the appellant did not object to the voluntariness of all the statements. It was also argued that a trial within trial is not necessary in the present case.
On the issue of torture, it was submitted that there is no credible evidence on record to show that the appellant was tortured.
It was concluded on this issue that the trial court was satisfied as to the truth in the confessional statements and could rely on same to ground a conviction and that the fact that the Appellant retracted his confession during the trial will not stop the court from relying on same.
On the respondent’s third and last issue, whether the trial court was right in ignoring the oral testimony of the appellant and his extra judicial statement Exhibit ‘P’ for being contradictory. It was submitted that the trial court was right to have ignored the extra judicial statement of the appellant and his oral testimony in court which were said to be contradictory and the trial court right to have applied the inconsistency rule.
In the Appellant’s reply brief it was argued that there was no evidence that the Appellant was found with any mobile phone but rather that what the respondent referred to as evidence is a bond to produce Exhibit (Nokia 1110 telephone) that is Exhibit ‘P8’. Further, that contrary to the submission of the respondent, the appellant denied signing the confessional statements and there was no evidence outside the statements, see JOSEPH IDOWU VS. THE STATE (2000) 7 SC (PT.11) 50 at 62 – 63. It was also argued that none of the purported signatures of the appellant’s on Exhibits ‘P2’, ‘P9’, ‘P9A’, ‘P10’ and ‘P10A’ are the same and that Exhibit ‘P9A’ was not signed at all. It was submitted that the trial court failed to properly examine the statements that were said to be confessional before convicting the appellant; see OGUDO vs. STATE at PAGE 32 PARAGRAPHS G-H. Exhibits ‘P2’, ‘P9’, ‘P9A’, ‘P10’ and ‘P10A’ were said to be contradictory to the oral testimony of the appellant and ought not to have been relied upon.
From the issues formulated by the parties, the appellant’s first issue covers the respondent’s issue one, while the appellant’s second issue covers the respondent’s second and third issues. I would adopt the appellant’s two (2) issues in determining this appeal.
The Appellant’s first issue is whether from the totality of the evidence the appellant was rightly convicted of the offences charged.
The appellant was charged and convicted for the offences of conspiracy to commit armed robbery and armed robbery. In all criminal trials, the duty is on the prosecution to prove its case beyond reasonable doubt and not proof beyond all shadow of doubt.
With the offence of conspiracy, it is seldom or rarely proved by direct evidence but by circumstantial evidence and inference from certain proved acts. The prosecution has the burden to prove not only the inchoate or rudimentary nature of the offence but also the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence, see GBADAMOSI and OTHERS vs. THE STATE (1991) 6 NWLR (PT.196) 182. Conspiracy is an offence that is often deduced or inferred from the act of the parties thereto which are directed towards the realization of their common or mutual purpose or agreement, see NJOVENS vs. STATE (1973) 5 S.C. 17; DABO vs. STATE (1977) 5 S.C. 197; ERIM vs. STATE (1994) 5 NWLR (PT. 346) 522; and ODENEYE vs. STATE (2001) 2 NWLR (PT.697) 311 at 332-333. Further, it is an agreement by two or more persons to commit an unlawful act for an unlawful purpose.
In the present case, Exhibit ‘P2’ the confessional statement of the appellant was admitted in evidence without any objection, also Exhibits ‘P10’and ‘P10A’. In these exhibits, the appellant confessed to the offence of conspiracy. These, having been admitted in evidence form part of the prosecution’s case which the learned trial judge considered. There can hardly be direct evidence of conspiracy but, it is usually inferred. In some cases the conspirators need not have met or even known each other but still succeed in the agreement to achieve a common goal by their actions.
See: QUEEN VS. ESEGE (1962) 1 S.C.N.L.R. 189; (1962) 1 ALL N.L.R. 110; OYEDIRAN VS. REPUBLIC (1957) N.M.L.R. 122; HARUNA & ORS VS. THE STATE (1972) ALL N.L.R. 738 (Reprint) (PT.512) 8-9 S.C. 172 and ERIM VS. STATE (1994) 5 NWLR (PT.346) 522 at 535.
In the present case, the PW1 and PW3 gave a graphic account of how they were robbed on 19/2/2007, at pages 30-31 and 36 of the printed records. The contents of Exhibits ‘P2’, ‘P9’, ‘P9A’, ‘P10’ and ‘P10A’ corroborated the testimony before the court of the PW1 and PW3, and made it clear that the appellant did not act alone.It is immaterial that the appellant’s other companions escaped from being arrested and/or were not charged to court contrary to the argument of the learned counsel to the appellant that the appellant cannot be convicted of conspiracy in isolation in absence of a co-accused in that one person cannot commit the offence of conspiracy. The case relied upon by the learned counsel to the appellant, SULE VS. THE STATE (2009) 17 NWLR (PT.1169) P. 63, PARAS E-F does not apply in the present case but, does apply where an accused is charged alongside others and the others are discharged and acquitted while a sole accused is convicted of conspiracy, which is not the case here. In my humble view, conspiracy can be inferred in the present case and the learned trial judge was right in holding so.
With the offence of armed robbery the ingredients of the offence that need to be proved are as follows:
1. That there was a robbery.
2. That the robbery was an armed robbery.
3. That the Appellant was one of those who took part in the robbery.
See: BOZIN VS. STATE (1985) 2 NWLR (PT.8) P.465
The evidence of two of the victims, PW1 and PW3 stated clearly that their assailants were armed with a gun, and that they were woken up at gun point at about 8.30 pm of the night of the incident. Another occupant of the hostel, Adeojo Tolulope was taken to the PW1’s room at gun point before they removed the items from their room.
The PW3 a victim, a youth corper also in her statement stated that their attackers pointed a gun at her before she was searched and her telephone taken away from her and that she demanded for the sim of the telephone taken from her. It is in evidence that four other occupants were robbed that night of various items and that the robbers were armed with guns.
On the participation of the Appellant, it is on record as I stated earlier in this judgment that the confessional statements of the Appellant where he clearly narrated the role he played in the series of robberies were tendered in the trial court, the appellant did not object to their admissibility, especially Exhibit ‘P2’ which was corroborated by the evidence of PW1 and PW3, the victims of the armed robbery. Also the PW2 at page 35 of the printed records stated how he recovered a Nokia 1110 mobile phone which the PW3 identified as hers, page 36 of the printed records. The PW4 also testified as to the recovered telephone belonging to the PW3, which she identified by her messages before it was released to her, see, page 40 of the printed records. The Appellant did not offer any explanation as to how he came about having in his possession a telephone belonging to the PW3 shortly after the incident. The evidence remained unchallenged.
In the present circumstance an inference could be drawn that the appellant who was found with the Nokia telephone that had been stolen in the night of the armed robbery was one of the robbers that attacked the Pw3 the night her telephone was taken from her at gun point or he received it from another knowing same to have been stolen. The appellant did not allege that he got the telephone innocently from another knowing where it came from. See: AREMU VS. STATE (1991) 7 NWLR (PT.201) at P.1.; KWASHIE VS. R. B WACA 86; LORD ADVOCATE VS. YOUNG (1887) 12 APP. Cas. 556 and EVEREST VS. EZE VS. THE STATE (1985) 12 S.C. 4; (1986) 3 NWLR (PT.13) 429.
The appellant’s confessional statement and the Nokia telephone that was robbed from the victim which was recovered from the appellant make it certain that the appellant was one of the robbers. The doctrine of recent possession would operate against the appellant and I so hold. The recovered telephone also serves as a fact outside the confessional statement as well as the evidence of the PW1 and PW3 to corroborate the fact that the appellant was one of the robbers. The first issue is resolved against the appellant.
On the appellant’s second issue, the learned counsel to the appellant has argued that the learned trial judge wrongly applied the inconsistency rule by not utilizing the contents of the appellant’s extra judicial statement to the police. Exhibit ‘P1’ and his testimony in court (even though the learned counsel termed it expunging) for the reason that both were inconsistent and held the appellant’s evidence (as accused) denying the offence as unreliable. The learned trial judge examined the two statements from the appellant and found same inconsistent and unreliable, disbelieved his evidence and rejected his defence in its entirety, pages 67-68 of the printed records.
The reasons given are as follows: (page 67 of the printed records)
“The reason why I cannot accept this argument is that as pointed out by the prosecuting counsel, and I agree with him, the evidence of the accused person in this court is widely at variance with the evidence in Exhibit P1 which was his report to the police on 20/2/2007, quoted earlier, and stating that the said vehicle was snatched from him at gun point, whereas his evidence before this court is that the vehicle was stolen from the front of his shop at Awokoya Street, Bonojo Area of Ijebu-Ode where he had parked it on the 19th day of February, 2007.
The accused also stated in Exhibit P1 that he used the vehicle for commercial purpose but in his evidence before this court he denied being a commercial driver or using the vehicle for commercial purpose. These inconsistencies make the accused person’s present denial in his evidence unreliable.”
At page 68 of the records, further that:
“The inconsistency in the accused person’s extra judicial statement of 20/2/2007 and his testimony in this court is world apart and is very material and germane to his only defence in this case. I therefore find both the earlier extra judicial statement in Exhibit P1 which he never denied making, and which his counsel confirmed was signed by him, and his testimony in this court in respect of the stealing of his vehicle from the spot where it was parked unreliable. This, coupled with the inconsistency of what he used the vehicle for, makes me to find the accused to be an unreliable witness; I do not believe his evidence and I therefore reject his defence in its entirety.”
The question at this stage is: was the learned trial judge right in his views?
It is the law that the inconsistency rule applied only to extra-judicial statement, which are not confessions. In the case of AKPAN VS. STATE (2001) 15 NWLR (PT.737) 745 at 762 it was held that the inconsistency rule applies where there is a conflict between the earlier extra judicial statement and evidence adduced in court, which would enable the court to reject the evidence of a witness at the trial. It was held thus:
“The testimony at the trial is to be treated as unreliable, while the statement is not to be regarded as evidence on which the court can act – see, R. VS. UKONG (1961) 1 S.C.N.L.R. 53; (1961) ALL N.L.R. PAGE 25; ONUBOGU VS. THE STATE (1974) 9 SC 1; JIZURUMBA VS. STATE (1976) 3 SUPREME COURT 89; SAKA OLADEJO VS. THE STATE (1987) 3 NWLR (Pt.61) 419; R. VS. GOLDER (1960) 1 WLR 1169.”
In my view, the learned trial judge was right to have treated the extra – judicial statement made by the appellant on 20/2/2007 and his testimony in the trial court as unreliable. I cannot fault same.
Concerning the argument of the learned counsel to the appellant that the confessional statements made by the appellant were resiled and ought not to have been relied upon. On the other hand, in the case of EGEOGHONOME VS. THE STATE (1993) 7 NWLR (PT. 306) 383 it was held that the inconsistency rule did not apply to retracted extra judicial confession of an accused person. Where an accused makes an extra judicial statement admitting the commission of the offence with which he is charged, the statement will be considered or taken into account in the determination of his guilt, notwithstanding that he had resiled from that evidence in his testimony at the trial, by giving evidence contradictory to that evidence.
The position of the law is that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution which the judge is bound to consider for its probative value see EGBOGHNOME VS. THE STATE (SUPRA); EDET VS. OFFIONG EKPE vs. THE STATE (1994) 9 NWLR (PT.368) 273; NWANGBOMU vs. THE STATE (1994) 2 NWLR (PT.327) 380. In the present case the fact that the appellant retracted his confession of the offences charged does not mean that the statements cannot be acted upon, and relied upon for the conviction of the accused, see NKWUDA EDAMINE vs. THE STATE (1996) 3 NWLR (PT.438) 530 S.C.
No doubt, the account of his role in the armed robbery as given by the appellant in Exhibits ‘P2’, ‘P10′ and ’10A’ is an admission to the commission of the offence with, which he was charged, these statements were consistent. The statements were part of the prosecution’s case which were corroborated by the evidence of the PW1 and PW3. Also, ‘P2’ and ‘P9A’ which were objected to but, admitted in evidence during the trial. The evidence of the PW1 and PW3 who were victims of the offences committed made it probable that the confession is true, see OTUFALE & ORS vs. THE STATE (1969) N.M.L.R. 262; SALAWU IYANDA VS. THE STATE (1971) 1 N.M.L.R., 249 and ONOCHIE & ORS VS. THE REPUBLIC (1966) NMLR 307. The trial court was satisfied with the truth of the statements of the appellant and could, and rightly convicted the appellant upon same.
The learned counsel had also quarreled with the fact that the learned trial judge did not conduct a trial within trial concerning the statements made by the appellant, alleging that they were not voluntarily made.
It is trite and I agree with the argument of the learned counsel to the respondent that it is at the point of tendering a confessional statement that the law requires the issue of voluntariness or otherwise of the statement to be raised and not after the admission of such statement. It is at the time if the objection is raised, that the trial court would be enjoined to conduct a trial within trial to ascertain the voluntariness of the statements.
In this case as stated earlier in this judgment when the PW2 tendered Exhibit ‘2’, the appellant did not raise any objection, particularly as to its voluntariness. Similarly, there was no objection when PW4 tendered Exhibits ‘P9’ and ‘P9’ as to their voluntariness but their admissibility on the basis that these Exhibits were not signed. Exhibits ‘P10’ and ‘P10A, tendered through P.W.5 were not objected to by the appellant at the point they were sought to be tendered, which would make the judge test the confession at that point by conducting a trial within trial to determine if the statements were voluntarily made. See: ODEH VS. FEDERAL REPUBLIC OF NIGERIA (2008) 6 SCM 162. The challenge of the voluntariness of the confessional statements of the appellant is belated and I so hold. The trial within trial issue does not arise in this case as the voluntariness of the statements was not raised at the point the statements were sought to be tendered. The second issue is resolved against the appellant.
In the final analysis, the learned trial judge was right in convicting the appellant based on his voluntary statements corroborated by the evidence of the witnesses, PW1 and PW3 along with the other prosecution witnesses, in the light of the totality of the evidence which are likely to be true, which can be tested and are consistent with the other facts already established. The appellant no doubt had the opportunity to commit the offences charged. I cannot fault the decision of the learned trial judge.
In sum, I find no merit in the appeal, I dismiss same. I affirm the judgment of the Ogun State High Court, delivered on 4th August, 2010, by S. A. Olugbemi, J. convicting the appellant and sentencing him to death.
Other Citations: (2003)LCN/1509(CA)
