Michael Taiye V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
The appellant was arraigned before the High Court of Delta State [the trial Court) and tried on four count charges as follows:-
COUNT NO.I
STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit armed robbery, contrary to Section 5 [b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 volume XXII Laws of the Federation of Nigeria, 1990.
PARTICULARS OF THE OFFENCE
Taiye Michael Efe ‘m’ on or about the 11th day of January, 2006, at Effurun within Effurun judicial Division conspired with others now at large to commit armed robbery.
STATEMENT OF OFFENCE: COUNT II
Armed robbery, punishable under Section 1 (2) (a) of the Robbery and Firearms (Special provisions) Act, 1990.
PARTICULARS OF THE OFFENCE
Taiye Michael Efe ‘m’ on or about the 11th day of January, 2006, at Effurun within Effurun judicial Division robbed Felix Izomare of two Nokia handsets and cash sums of N100,000.00 (One hundred thousand naira) while armed with a gun.
STATEMENT OF OFFENCE: COUNT III
Armed robbery, punishable under
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Section 1(2) (a) of the Robbery and Firearms (Special provisions) Act Cap 398 volume XXII Laws of the Federation of Nigeria, 1990.
PARTICULARS OF THE OFFENCE
Taiye Michael Efe ‘m’ on or about the 11th day of January, 2006, at Effurun within Effurun judicial Division robbed Desmond Denyan of his Nokia handset with MTN line and a purse containing the sum of 60pounds and at the time of the robbery you were armed with a gun.
STATEMENT OF OFFENCE: COUNT IV
Illegal possession of firearms punishable under Section 3 (1) of the Robbery and Firearms (Special provisions) Act Cap 398 volume XXII Laws of the Federation of Nigeria, 1990.
PARTICULARS OF THE OFFENCE
Taiye Michael Efe ‘m’ on or about the 11th day of January, 2006, at Effurun within Effurun judicial Division unlawfully had in your possession three locally made single barrel cut to size gun.
When the charges were read and explained to the accused person (now appellant), he pleaded not guilty to each of the four counts. His trial thereupon commenced in earnest, wherein the prosecution called three witnesses to prove its case. The appellant as accused person, after the close
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of the prosecution’s case testified for his defence without calling any witness to testify on his behalf. The prosecution at the trial tendered six exhibits including the voluntary confessional statement which was marked as Exhibit E. While testifying for his defence, the appellant attempted to retract the confessional statement he made immediately after he was arrested by the police.
The brief facts giving rise to this appeal go this way.
On the 11th day of January, 2006 at about 8.00pm the PW1 one police Inspector Sunday ldeho and PW2 Sgt Samuel lmana and other men of Nigeria Police Force while on road patrol along Aka Avenue, stopped an on-coming vehicle, a white Volvo car carrying four passengers therein. The driver of the said vehicle refused to stop.
Thereupon, the police men on road patrol became suspicious and thereupon pursued the said Volvo car. In the process exchange of fire ensued between the police men and the people in the said vehicle after which the occupants of the white Volvo vehicle decided to stop and abandoned it and took to their heels each following different directions. Luck ran against the present appellant when he
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fell into a well near an uncompleted building and the police brought him out of the well and arrested him. When arrested he was found in possession of a locally made gun, and live cartridge. Also when the abandoned Volvo car was searched, two double barrel guns, three live cartridges and three expanded cartridges were recovered. The appellant when arrested that night was found to have bullet wound and on being taken to the police station, the appellant volunteered a statement which was recorded by PW2 which was confessional in nature in that he admitted committing the offences charged. The said statement was tendered in evidence at the trial Court and was admitted as Exhibit E even though, as I stated earlier, he attempted to retract it when giving evidence for his defence.
At the end of the trial, the learned trial judge Hon. justice G.E. Gbemre found that all the four counts were proved against the accused/appellant by the prosecution/respondent and convicted the appellant and sentenced him to death on the offence of armed robbery and also to various terms of imprisonment in respect of the other three counts charged. Miffed by the convictions and
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sentences passed on him by the trial judge, the appellant appealed to the Court of Appeal, Benin division (the lower or Court below). The lower Court heard his appeal and on the 7th May 2015 delivered its considered judgment in which it unanimously dismissed the appellant’s appeal. The appellant still became disenchanted with the dismissal of his appeal by the Court below, hence he further appealed to this Court.
Parties filed and exchanged briefs of argument in keeping with the rules and practice applicable in this Court. The appellant’s brief of argument which was settled by Ayo Asala Esq. was filed on 14th September 2015. In the said brief of argument, a sole issue for determination was proposed by the appellant’s learned counsel which is set out hereunder.
“Whether having regard to the totality of the evidence from the record, the lower Court was right in upholding the decision of the trial Court that the prosecution had proved beyond reasonable doubt the offences of conspiracy, armed robbery and illegal possession of the arms against the appellant.
On its part, the respondents filed its brief of argument on
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17th December, 2015 which said brief of argument was settled by Peter Mrakpor, the learned Attorney General of Delta State. In the brief of argument also sole issue for determination was raised which reads as below:-
“Whether on the evidence of the Respondent’s witnesses and the confessional statement of the Appellant, the Court below was right in affirming the judgment of the trial Court which found the Appellant guilty for the offences of conspiracy to commit armed robbery, armed robbery and possession of illegal firearms (sic) (Grounds 1, 2 and 3).
Looking at the two sets of issues for determination proposed by the parties, there is no doubt saying that both of them are more or less the same except the different wordings used in couching them. I shall therefore in considering or determining this appeal, adopt the lone issue raised in the appellant’s brief of argument as reproduced supra even though, in order to avoid the verbosity used in framing each of them I shall reframe it as follows:-
“Whether the prosecution had proved its case beyond reasonable doubt as found by the trial Court and subsequently affirmed by the lower Court.”
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The learned counsel to the appellant rightly submitted that the prosecution is not relieved of the burden to prove the alleged offences beyond reasonable doubt even where the accused person arrested at the scene of the crime made a confessional statement when or where there is a confessional statement. He argued that the prosecution failed to establish the offences of armed robbery and conspiracy against the appellant and that the two witnesses did not give eye witness account of the armed robbery. He contended that the individuals listed as witnesses were not called to testify in proof of its case.
He conceded that even though the prosecution is not bound to call a host of witnesses, but where there is a vital issue for resolution and the presence of a particular witness will clarify it one way or the other, such witness must be called. He cited the case of OGUDU v STATE (2012) All FWLR (pt.629) IIII at 1116-1117 and The State v Ajile [2000) FWLR (pt.16) 2837 at 2844 parag G.
He argued that counts 1 and 11 which deal with substantive offences of armed robbery of specific items cannot be said to have been proved against the appellant beyond reasonable doubt.
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He submitted that failure of the prosecution to call Felix Izomare and Desmond Denyan who were the victims of the alleged armed robbery as contained in counts II and III, is fatal to the case of the prosecution. He stated that the trial Court was wrong when it admitted and relied on Exhibit “E” in holding that the prosecution proved the four counts charge against the appellant beyond reasonable doubt. He contended further, that inspite of the objection to the admissibility of Exhibit “E”, the trial Court admitted it after the appellant denied making same voluntarily. He argued that the evidence of PW2 revealed that the appellant was weak and feeble, lying down as a result of gunshot as at the time the statement was obtained from him and there is no way, the said statement would have been obtained voluntarily. He urged the Court to expunge Exhibit “E” from the record.
He contended that there was no other grounds upon which the trial Court convicted the appellant and PW1 and PW2 who were called by the prosecution even did not give any evidence relating to counts II & III. He argued that the appellant was not charged for robbing the occupants of the
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said vehicle and there was nothing in the record to show that the said vehicle was stolen by the appellant. He referred to the judgment of the Court below at pages 68-69 of the record and submitted that the above finding is not borne out of the evidence in the record. He contended that there is no evidence on record, that the said vehicle was stolen by appellant for the lower Court to rely on Doctrine of recent possession of the Volvo car which is not one of the items listed to have been stolen as contained in the charge.
He argued further that the prosecution has failed to prove that the appellant participated in the alleged robbery and submitted that the totality of the evidence against the appellant was founded on suspicion which cannot ground conviction.
The Learned appellant’s counsel submitted further, that the Court below was wrong in affirming the conviction of the appellant under count IV for illegal possession of firearms as there is even no credible evidence that those exhibits were found in the possession of the appellant. On the offence of conspiracy, he submitted that there is no inference of conspiracy to commit armed robbery when it is
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clear that the prosecution did not lead distinct evidence in respect of Count 1. He therefore argued that once the charge of substantive offence fails, the charge of conspiracy must also fail. He contended that the evidence i.e. Exhibit “E” upon which the lower Court upheld the conviction of the appellant for substantive offence is the same with that upon which the appellant was convicted for the offence of conspiracy. He then urged this Court to set aside the decision of the two lower Courts and discharge and acquit the appellant.
Replying, learned counsel for the respondent submitted that there was cogent, legally reliable and admissible evidence which met the requirements of the law having regard to the charge and ingredients of the offences with which the appellant was charged and upon which the Court below upheld the convictions. He referred to the case of JULIUS ABIRIFON v THE STATE (2013) LPELR – 20807 (SC).
On the offence of armed robbery which relates to count 1, he referred to the evidence of PW1 & PW2 who gave account of how Exhibit “A” and “A1″ were found with the appellant and how exhibits B, C & ‘D were found in the volvo
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car that was stolen by the appellant and 3 other boys who are now at large and Exhibit,’E” which is the appellant’s confessional statement made to the police and tendered in evidence through PW2. He referred to the judgment of the trial Court at pages 68-69 especially lines 19-21of page 69 and that of the Court below at pages 129-131, of the record and submitted that the above findings of facts were legally admissible and as such cannot be perverse. He submitted that every finding of facts by the two lower Courts was tied to a particular piece of evidence and as such the trial judge has duly performed the function of ascription of probative value to it and the Court below agreed with the trial Court. On the illegal possession of firearms which is the third count he referred to the testimony of PW1 at 32 line 1-7 of the record at lines 24-25 and the judgment of the trial Court at page 70, lines 5-9 and submitted that exhibit “E”, as well as evidence of PW1 & PW2 had sufficiently established the offence of illegal possession of firearm.
On the count of conspiracy to commit armed robbery which covers count 1, he cited the case of BUSARI v STATE
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(2015) LPELR -24279
He also referred to the judgment of the Court below at pages 132-134 of the record and urged the Court not to disturb the findings of facts by the two lower courts moreso, when the courts reached a conclusion that there was conspiracy from vivid and unimpeachable testimonies of PW1 & PW2 as well as the content of Exhibit “E”. On the failure to call Felix Izomare and Desmond Denyan, the victims of the robbery to testify for the prosecution, and with regard to the question whether it is prejudicial to the case of the prosecution, he submitted that the unassailable testimonies of PW1 & PW2 as well as the voluntary confessional statement of the appellant had wholly rendered otoise the need to call them. He cited the case of LT F.O. ODUNLAMI V THE NIG. NAVY (2013) LPELR 20701 where per Fabiyi had thus to say
“Perhaps it should be stated that where the prosecution failed to call a particular witness, the accused is at liberty to call him.”
On whether the trial Court was right in admitting and relying on Exhibit “E”, he submitted that the respondent was able to prove during trial, that the confessional statement was
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voluntarily obtained and the allegation by the appellant that he was tortured was later abandoned and the appellant’s claim that he was unsettled were mere after-thought and at best, evasion of reality.
On the issue of retraction, he submitted that it is not the law, that denial of confessional statement provides grounds or reasons for either rejecting it or rendering it unreliable or incapable of sustaining conviction. He submitted that, that does not preclude a Court from convicting an accused even on his confessional statement alone where it was found to be direct, positive and unequivocal.
He argued that the Court below, like the trial Court in addition to the confessional statement, relied on such other evidence from the testimonies of the respondent’s witnesses to further establish the truth in the appellant’s confessional statement and that both Courts are aware of the desirability of having such corroborative evidence before convicting the appellant. He submitted that whether or not a statement of an accused or weight to be attached to it, is a question of fact which evaluation and drawing inferences have always been the
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primary duty of the trial Court which had the advantage and opportunity of seeing and watching the witnesses as they testified before it. He then urged this Court to resolve this lone issue in favour of the respondent and dismiss the appeal.
It is well settled principle of law that an accused person is presumed innocent until he or she is proved guilty. The prosecution as the accuser, is always saddled with the heavy burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See Joseph Orungu & Ors vs The State (1970) All NLR 269 or (1970) LPELR – 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which make provision for the standard of proof. See also Olayinka Afolalu v The State (2010) 16 NWLR (pt.1220)584; Miller v Minister of Pensions 1947) 2 All ER 372. It should be noted however, that in order to displace the presumption, the evidence adduced by the prosecution must be targeted at the standard of proof beyond reasonable doubt only and NOT proof beyond shadow of any doubt that the accused is guilty of the offence he is charged with.
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This is so because absolute certainty is impossible in any human adventure inclusive of the administration of criminal justice.
The law has established or approved three methods of proof of a criminal offence by the prosecution in any criminal trial. These methods include the followings:-
(1) By a voluntary confessional statement of the accused person(s); or
(b) By circumstantial evidence which must be cogent, complete, unequivocal and compelling leading to the unresistible conclusion that the accused and no other person committed the offence but him; or
(c) By evidence of eye-witness or witnesses otherwise known as direct evidence.
The prosecution in this instance case seems largely to have relied on the voluntary confessional statement volunteered by the accused now appellant, which the trial Court admitted in evidence and marked same as Exhibit E. I note that the appellant merely resiled from making it voluntarily at the trial when he stated that he did not make such statement voluntarily to the police when he was arrested. That was what informed the trial Court to conduct a trial within trial
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because the defence at page 34 of the record objected to the admissibility of the said confessional statement because his counsel stated thus “the statement was extracted under force as the IPO tortured the accused”. After the mini trial, the trial Court admitted the statement in evidence as Exhibit E and the Court below agreed with the finding in that regard.
On my part, I have read the said statement and the Court proceedings on the trial within trial and I have no reason to depart from the conclusion of the two lower Courts on the voluntariness of Exhibit E. I am equally satisfied that the prosecution had discharged the burden placed on it by law to prove that the statement was voluntarily made by the appellant. The appellant, during the trial within trial had adequate opportunity to cross examine the prosecution witness who recorded the said statement with regards to his allegation that it was extracted from him, or on the issue of the alleged torture or beating he allegedly received but he did not cross examine that prosecution witness/recorder of the statement (PW2) on that aspect during the trial within trial.
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I am mindful of the fact that there are a long line of judicial authorities which had established that a free and voluntary confession by an accused person, if direct, positive and unequivocal and if satisfactorily proved is sufficient to ground a conviction. The law however, made it desirable for the trial Court to look for some independent evidence outside the appellant’s confession to the police, no matter how slight, to determine if the circumstances made it probable that the confession was in fact, true. See Haruna v A.G. Federation (2012)3 SC (pt. IV) 40; Ashiwe V The State (1983) 5 SC (Reprint)1; Alarape v State (2001) 2 SC 114; Galadima v The State (2012) 12 SC (pt. II) 213; Osuagwu v The State (2003)1-2 SC (pt.1)37.
However, in numerous judicial authorities of this Court it was decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests, which are:-
(1) Is there anything outside the confession to show that it is true
(ii) Is it corroborated
(iii) Are the relevant statements made in it of facts true
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as they can be tested
(iv) Was the prisoner one who had the opportunity of committing the offence(s)
(v) Is the confession Possible and
(vi) Is it consistent with the other facts which have been ascertained and have been proved
Once a confessional statement is subjected to these six tests, the Supreme Court/the apex Court decrees that same can be relied upon to ground a conviction. See Musa v State (2013)2-3 SC (pt. II) 75 at 94; Nwachukwu v The State (2007)7 SCM (pt.2)447 at 455; Ikpo v State (1995)9 NWLR (pt.42l) 540 @ 554. To my mind, the trial Court had subjected Exhibit E to the above tests as endorsed by the Court below.
Now on whether or not the offence of armed robbery was established against the appellant, I must say that evidence abound as produced by the prosecution, to prove the offence of armed robbery against the accused person, (now appellant) as rightly found by the trial Court. The elements required to be proved by the prosecution in order to obtain a conviction of the offence of armed robbery under Section 1 (2) of the Robbery and Firearms (Special Provisions) Act are listed hereunder:-
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(a) That there was a robbery;
(b) That at the time of the robbery the accused or any of the accused person was armed with arms or offensive weapon
(c) That the accused facing the trial was the robber or one of the armed robbers.
See Diwa v The State (1980) 8-11 SC 236; Bozin v The State (1985) 2 NWLR (pt.8) 465; Olayinka v The State (2007) 9 NWLR (pt.1040) 561.
As I stated above the prosecution/respondent relied heavily on the confessional statement of the appellant which he made voluntarily. By Section 28 of the Evidence Act, a confession is an admission made at anytime, by a person charged with criminal offence[s) suggesting the inference that he committed the crime he is charged with. I am not unaware and I stated so earlier that before an accused person can be convicted solely on his confessional statement it is desirable for the trial Court to see if there is some evidence no matter, how slight, corroborating the contents of the statement which makes it probable that the confession was correct and true. In this instant case, there exist cogent, compelling and credible pieces of compelling circumstantial evidence supporting Exhibit E.
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For instance, evidence abound that there was theft of the vehicle which when the accused/appellant was arrested he was in possession of the said vehicle and other items therein. The doctrine of recent possession of stolen goods knowing same to have been stolen, therefore operates against him. The law is also trite that where a person is found in possession of recently stolen goods, he is presumed to either be the thief or the one who stole it or that he received it knowing it to have been stolen recently.
Also some handsets and money were recovered from the car and the appellant respectively and the appellant in Exhibit E owned up when he admitted that the items were among the proceeds of their robbery operation. There was also evidence which revealed that there was exchange of fire between the police and the robbery gang which included the accused/appellant and when the appellant was arrested he was having gunshot injury. The appellant in Exhibit E clearly spelt out the co-accused persons he was in company of who had escaped besides admitting the robbery and other offences charged. He therefore had identified himself to be among the robbers pursued by the police on the
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fateful day. I therefore am in total agreement with the two lower Courts that all the ingredients of armed robbery were established or proved against the appellant beyond reasonable doubt.
This brings me to the offence of conspiracy to commit armed robbery. Conspiracy simply needs an agreement by two or more persons to do or cause to be done an illegal act, or an act which is legal but by illegal means.
The mere agreement alone constitutes the offence of conspiracy and it is immaterial to prove that the act was in fact committed. See Obiakor V The State (2002) 6 SC (pt. II) 33 at 39/40.
The offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted. See Balogun v AG Ogun State (2002)2 SC (pt. II )89.
It needs to be stressed here, that the essential ingredients of the offence of conspiracy to commit armed robbery lies in the agreement and association to do an unlawful thing or act which is contrary to or forbidden by law, whether that thing/act is criminal or not and whether the accused person has knowledge of its unlawfulness. The offence of
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conspiracy is often not proved through direct evidence but the Courts normally infers such agreement or plot from the facts of doing things towards a common purpose. See Clark v The State (1986) 4 NWLR (pt.35) 381; Odeneye v State (2001)1 SC 1; Nwankwoala v The State (2006) All FWLR (pt.339) 801. In the instant case and as rightly observed by the trial Court and endorsed by the Court below, the appellant revealed how the four of them were pursued by the police when they refused to stop when signalled to do so by the police. Also in the appellant’s statement (Exhibit E) he revealed how he and his co-conspirators communicated on phones where to meet before the operation at Boloker Market even before they set for the robbery operation. All those pieces of evidence inferentially showed that there was a concert among them on when, how and where to operate the robbery operations. I have no reason therefore to hold differently from the findings of the two lower Courts that those pieces of evidence highlighted above, went a long way in proving or establishing the offence of criminal conspiracy beyond reasonable doubt as held by the trial Court and upheld by the Court below.
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Finally on the offence of illegal possession of firearms, the two prosecution witnesses testified that when the appellant was arrested when he fell inside a well upon being pursued by the police, a gun and some live cartridges were recovered from him along with other items. There is no gainsaying that the appellant possessed that gun illegally as he did not adduced any evidence that he had licence to possess such gun or that he was authorized by law to hold such firearms. The burden is therefore on him to establish that his possession of such gun/arm was authorized by law which he failed to so establish or to account for his possession of it. Having failed to so prove, the learned trial judge rightly held that that offence of illegal possession of firearms was proved against him and to convict him accordingly. The lower Court was on the other hand, also right in upholding such conviction too. Again I have no reason to depart from the conclusion reached by the two Courts below on that too.
It is noted by me that the appellant’s learned counsel raised dust on the prosecution’s failure to call certain witnesses he named. He suggested that the prosecution’s
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failure to call those named witnesses was fatal to its case.
With due deference to the learned counsel for the appellant, there is no law which imposes an obligation on the prosecution to call list or host of witnesses. The prosecution is merely needed to call enough material witnesses to prove its case and in doing so it has a discretion in the matter on who to call or who not to call.
See Oduneye v The State (2001) 13 WRN 88; Agbi v Ogbeh (2006)11 NWLR [pt.990) 65; Babuga v State (1996)7 NWLR (pt.460) 279. In fact, even a murder case can be established by evidence of only one witness provided his evidence is credible and believed by the trial Court. See Effiong Vs State (1998) 8 NWLR (pt.562) 362.
Finally, in this instant appeal, I observe that there are concurrent findings of two lower court. It is an established practice of this Court not to interfere with or disturb the findings of two lower Courts except in an exceptional or special circumstances such as where the findings are perverse, or there is misconception of fact or misapplication of law be it substantive or procedural.
None of these special circumstances have been shown to
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have existed in this instant appeal. I therefore do not see any cogent or compelling reason(s) for me to depart or to disturb or interfere with the concurrent findings. See. Bamgbose vs University of Ilorin & Anor (1999) 6 SC (pt. II) 72; Eholor v Osayande (1992) 7 SCNJ 217; Mbenu & Anor v The State (1988) NWLR (pt.84) 615 or (1988)7 SC (pt.III)71.
Thus, in the result, I find this instant appeal to be devoid of any substance or merit. It fails and is accordingly dismissed by me. I affirm the judgment of the lower Court, which had also earlier affirmed the convictions and sentences passed on the appellant by the trial Court. Appeal dismissed.
SC.479/2015
