Semiu Afolabi V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The Appellant in this appeal was arraigned before the High Court of Justice of Ogun state at Abeokuta Judicial Division on, two count charge of, conspiracy to commit armed robbery and armed robbery contrary to Section 5(a) and 1(2)(a)) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendment etc) Act 1999.

On pleading not guilty to the two counts, the prosecution proceeded to prove its case by calling 4 witnesses. In the course of the trial, exhibits comprising the Appellants statement to the Police recorded from him in the course of the investigation of the case and the stolen Suzuki Motor Cycle recovered from the Appellant being the property the subject of the act of armed robbery were tendered and received evidence. At the close of the prosecution case, the learned trial Judge after hearing the Appellant in his defence and the respective addresses of the learned Counsel for the prosecution and the defence, in a well considered judgment delivered on 28th April, 1999, found the Appellant guilty of the two counts charge and convicted the Appellant accordingly. The Appellant was consequently sentenced to death.

Aggrieved by the judgment of the trial Court, the Appellant then appealed to the Ibadan Division of the Court of Appeal which after hearing, the appeal, in its judgment delivered on 25th February, 2010 allowed the appeal in part by substituting the conviction of the Appellant for conspiracy and armed robbery with that of conspiracy and simple robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act CAP 398, Laws of the Federation of Nigeria 1990 and sentenced the Appellant to 21 years imprisonment for each of the two counts to run concurrently. Part of the judgment of the Court below and the reasons therefore at pages 108 – 109 of the record reads –

“I do not have any doubt that the prosecution has successfully proved that there was conspiracy to commit the offence of robbery (sic) if not of armed robbery. The learned trial Judge clearly exceeded his jurisdiction by convicting and sentencing the Appellant for conspiracy to commit Armed Robbery and Armed Robbery having found, inter alia that the prosecution failed to prove the existence of the offensive weapon mentioned in the charge upon which the Appellant had taken his plea. The learned trial judge interestingly found that even if such a weapon existed (bottle mentioned in the charge) it was never used in inflicting injury on PW1 or else PW4 would have been required to take PW1 to the hospital. Where the evidence adduced by the prosecution supports the conviction for a lesser offence than that for which an accused is charged an Appellate Court can convict for such lesser offence.

I find the Appellant not guilty of the offence of conspiracy to commit Armed Robbery and Armed Robbery but guilty of lesser offence of conspiracy to commit Robbery and Robbery.”

The Appellant still not satisfied with the reduction in the gravity of the offences and sentence by the Court of Appeal, is on a further appeal to this Court by his Notice of appeal containing 9 grounds of appeal from which the learned Counsel to the Appellant in the Appellant’s brief of argument identified the following 5 issues for the determination of the appeal.

(i) Whether all the ingredients of robbery simpliciter for which the lower Court convicted the Appellant were present and proved beyond reasonable doubt (grounds 1, 2 and 8).

(ii) Whether the lower Court was right in upholding the learned trial Judge’s holding that the Appellant made confessional statement relied upon by the said learned trial Judge in convicting him voluntarily (grounds 3 and 5).

(iii) Whether the lower Court was right in its holding that identification parade was unnecessary even though the Appellant was never arrested while committing the crime (ground 4).

(iv) Whether by holding that the term of 21 years sentence imposed on the Appellant should start from the day of conviction and sentence on 28th April, 1999 as opposed to the day of arrest on 9th September 1995, does not result in any miscarriage of justice on the Appellant, moreso when he was never granted bail from the time of his arrest to the time of his conviction (ground 7).

(v) Whether the lower court could safely convict the Appellant of the offence of conspiracy from the legally inadmissible confessional statements allegedly made to 2PW and in Exhibit A and A1 (grounds 5 and 9).

In the Respondents brief of argument deemed filed on 28th March, 2013, the issues as distilled by the learned Counsel to the Appellant from the grounds of appeal as contained in the Appellant’s brief of argument, were duly adopted by the learned Counsel to the Respondent.

The case against the Appellant as presented at the trial High Court by the prosecution reveals that on 9th September, 1995 PW1, a commercial motor cycle operator while riding his Suzuki Motor Cycle towards Akute was stopped by the Appellant in company of another person. The Appellant and the other person attacked PW1 with a broken bottle and seized the motor-cycle and the sum of N700.00 from PW1. On alarm being raised, another motor cycle operator came to the aid of PW1 and chased and stopped the Appellant who was trying to escape with the motor cycle in company of the other person. On being forced to stop, the accompanying person escaped leaving the Appellant with the stolen motor cycle which was consequently recovered from the Appellant and tendered and received as exhibit in the course of the trial.

On the first issue for determining regarding whether or not all the ingredients of the offence of robbery for which the court below convicted the Appellant had been proved beyond reasonable doubt by the prosecution, Learned Appellants Counsel referred to the ingredients of the offence in Otiti v. State (1991) 8 N.W.L.R. (Pt.207) 103 at 118 and argued that the prosecution had failed to prove the offence against the Appellant. Counsel maintained that there was no evidence that the Appellant used offensive weapon to snatch the motor cycle as the Appellant’s alleged confessional statements Exhibits A and A1,have failed the tests laid down in R v. Sykes (1913) 18 CR App. R. 233; that at most having regard to the Court of Appeal decision in Imasuen v. Amissah (1996) 8 N.W.L.R. (pt.457) 460 at 461, in the absence of force used in taking away the motor cycle, the Appellant may only be convicted of the offence of stealing.

Learned Counsel to the Respondent on the first issue for determination had observed that the question of whether offensive weapon was used in the commission of the offence, had been laid to rest in the judgment of the Court of Appeal which found the Appellant guilty of lesser offences; that the evidence of PW1 had provided sufficient proof of the use of violence in the process of stealing PW1’s motor cycle to prove the lesser offence. As for the evidence of conspiracy, learned Counsel referred to the evidence of PW1 who was attacked by the Appellant and another person; that the confessional statement of the Appellant Exhibits A & A1 on the authority Akpa v. State (2008) 14 NWLR (Pt.1106) 77 and Nwachukwu v. State (2007) 17 N.W.L.R. (Pt.1062) 43, also contains enough evidence to support the conviction of the Appellant.

The question of whether the ingredients of the offence of robbery for which the Court below convicted the Appellant were present and proved beyond reasonable doubt in this case, is quite obvious on the evidence on record.

The evidence of PW1 whose motor cycle was forcibly seized from him by the Appellant and his accomplice before they were intercepted and forced to stop with the stolen motor cycle found in effective possession of the Appellant almost immediately after the happening of the event of stealing by force, is enough in my own view, to prove all the ingredients of the offence of robbery, of which the Appellant was convicted by the Court of Appeal, Having regard to the evidence contained in the Appellant’s confessional statement Exhibits A & A1 admitted in evidence after the holding of trial within trial by the trial court, the conviction of the Appellant of the offence of simple robbery was fully supported by credible evidence in the confessional statement. See Nwachukwu v. The State (2007) 17 NWLR (pt.1062) 43 and Akpa v. The State (2008) 14 NWLR (pt.1106) 77 at 100-101.

In other words the law is well settled that where an accused person confesses to the commission of an offence, he can be convicted on his own confession alone once the confession is positive, direct and properly proved and as long as the Court is satisfied, as in the present case, the confession of the Appellant in Exhibits A & A1 to the commission of the offence of robbery as found by the Court below by forcibly seizing the motor cycle of PW1 which was immediately after the act of the robbery, found in his possession, was positive and direct to support the conviction of the Appellant. See Bature v. The State (1994) 1 NWLR. (Pt. 320) 267 and Atano v. Attorney General Bendel State (1988) 2 N.W.L.R. (Pt.75) 201.

In any case the offence of robbery for which the Appellant was convicted is defined at Section 15 of the Robbery and Firearms (Special Provisions) Act, 1990 as follows –

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

With this definition the heavy weather or storm being raised by the learned Appellant’s Counsel on the failure of the prosecution to prove the use of offensive weapon of broken bottle and use of pepper on PW1 before the stealing of the motor cycle by the Appellant, is totally irrelevant. What had been clearly proved from the evidence of PW1 in the instant case, is that violence was clearly used in the act of stealing the motor cycle by the Appellant to justify his conviction for the simple offence of robbery as defined under the Act.

The second issue is whether the lower Court was right in upholding the learned trial Judge’s holding that the Appellant made the confessional statement relied upon by the said learned trial Judge in convicting him voluntarily.

In support of this issue learned Counsel to the Appellant narrated the Appellants evidence given in the course of trial within trial alleging that he was locked up for two weeks, hanged, matchetted on his hands and foot as the result of which the Appellant agreed to incriminate himself..PW3 who recorded the confessional statement denied ever touching the Appellant before the confessional statement was made. The learned trial Judge in exercise of his discretion disbelieved the Appellant and admitted the confessional statement in evidence. Learned Counsel to the Appellant therefore blamed the learned trial Judge for admitting and using the confessional statement in finding the Appellant guilty. Learned Counsel to the Appellant relied on the case of Cpl. Jona Dawa v. The State (1980) 8 – 11 SC 236, to say that the Court below was in error in finding that the required tests for the admission of a confessional statement of an accused person have been met in the present case and urged the Court to resolve this issue in favour of the Appellant.

Learned Counsel to the Respondent is of the view that the complaint of the Appellant on this second issue, appears to be accusing the two Courts below of bias which the learned Counsel urged this Court to ignore. On the alleged contradictions in the confessional statements Exhibits A & A1 and C & D, learned Respondent’s Counsel urged the Court to disregard the arguments of the Appellant’s Counsel which mostly dwelled on comparing the statements in Exhibits A & 41 with the statements in Exhibits C & D completely forgetting that Exhibits C & D were not used in the judgment of trial Court or the judgment of the Court of Appeal; that the decision of the trial Court that the confessional statement of the Appellant was voluntarily made as affirmed by the Court below, was not perverse. With regard to the argument of the Appellant’s Counsel that the oral confession to the agreement between the Appellant and other persons to commit the offence, ought to have been disregarded by the trial Court in the absence of words of caution, the Respondent’s Counsel referred to Section 27 of the Evidence Act and the case of Onungwa v. The State (1975) N.S.C .C. 27, to say that there was no such requirement in law and urged the Court to resolve the issue against the Appellant.

The whole basis of the Appellant’s complaint in this issue relates to the decision of the trial Court in the trial within trial conducted by that Court at the end of which Exhibit A & A1, was voluntarily made to justify its being admitted in evidence. The case of Cpl. Jona Dawa v. The State (1980) 8 – 11 S.C 235, cited by the learned Counsel to the Appellant, indeed laid down conditions to be satisfied before a confessional statement may be admitted by a trial Court. These conditions include looking outside the statement to see if there is anything to show that it was true; whether: it was corroborated; whether the statement made in it of facts so far as can be tested are true; whether the accused person had the opportunity of committing the offence; whether the confession was possible and whether the confession was consistent with the other facts which have been ascertained and which have been proved before the Court. In the present case, the learned Counsel to the Appellant in his argument appears to have lost track of what happened at the trial Court when the learned trial judge quite rightly in accordance with the law, refused to use the statement of the Appellant admitted as Exhibits C & D on the ground that the person who acted as interpreter in recording the Appellant’s statement, was not called as a witness by the prosecution. The Appellants confessional statement Exhibit A & A1 were therefore correctly admitted and used as evidence in convicting the Appellant.

The third issue is whether the lower Court was right in holding that the identification parade was unnecessary even through the Appellant was never arrested while committing the crime. The learned Appellant’s Counsel citing the case of Bozin v. The State (1985) 2 N.W.L.R. (Pt. 8) 465 at 459, had submitted that the law is well established that the prosecution must prove beyond reasonable doubt that a person accused of armed robbery actually took part in it; that where the identification evidence is poor, the trial court should return a verdict of not guilty. Learned Counsel argued that having regard to the conditions set down by this Court, where identification parade is necessary in the case of Archibong v. The State (2004) 1 N.W.L.R. (Pt.855) 488 at 508, the nature of the evidence adduced by the prosecution in the present case called for identification parade and that the failure to hold one, put the identification of the Appellant in doubt warranting his being given its benefits leading to the setting aside his conviction and sentence.

In his response on this issue learned Counsel to the Respondent contended that with the arrest of the Appellant immediately after the act of the robbery in possession of the motor cycle of PW1 which was tendered in the course of the prosecution, had ruled out any issue of identification of the Appellant in the present case where the Appellant was apprehended in the course of commission of a crime, around the crime with the stolen motor cycle in his custody. Learned Counsel concluded that the confessional statement of the Appellant had also made identification parade in this case quite unnecessary taking into consideration the decision of this Court in Attah v. The State (2010) 10 N.W.L.R. (Pt.1201) 190 at 200.

The law is well settled that whenever the case against an accused person depends wholly or substantially on the correctness of his identification and he alleges that the identification was mistaken, the Court must closely examine the evidence so that any real weakness discovered about the evidence of identification, that discovery must lead to giving the accused person the benefit of the doubt. See Ukpabi v. The State (2004) 11 N.W.L.R. (Pt- 884) 439. In the case at hand however, the case of conspiracy to commit robbery and robbery itself against the Appellant, does not wholly or substantially depend on the correctness of identification of the Appellant. The circumstances under which the Appellant with his accomplice committed the offences for which the Appellant was charged, tried and convicted, are such that the question of his identity can hardly arise. The Appellant, accordingly to virtually unchallenged evidence led by the prosecution, was apprehended immediately after forcibly dispossessing PW1 of his motor cycle. The stolen motor cycle was found in possession of the Appellant after his accomplice had escaped. The Appellant in his own confessional statement also admitted the Planning execution of the attack on PW1 to take possession by force of the stolen motor cycle found in possession of the Appellant, the Commission of which act he admitted on his arrest.

It is my view that where an accused person by his own confession had identified himself with the Commission of the act constituting the offence he was charged with, the need for identification parade in such circumstances as happened in the instant case, is completely ruled out. In otherwords where the accused person is linked to the commission of the offence by convincing, cogent and compelling evidence, as was the case in the present case, an identification parade would case to be a relevant fact. See Attah v. The State (2010) 10 NWLR (Pt.1201) 190 at 200.

In the circumstances of this case therefore, where the Appellant was virtually caught red-handed immediately after the commission of an act of robbery and in possession of the stolen property taken away from the owner thereof, the Court below was indeed right in holding that the holding of identification parade to identify the Appellant was unnecessary.

The fourth issue raised by the Appellant is whether any miscarriage of justice resulted in the decision of the Court of Appeal that the sentences of 21 years of imprisonment passed on the Appellant, were to take effect from the date of his conviction on 28th April, 1999 rather than the date of arrest of the Appellant on 9th September, 1995. Learned Counsel to the Appellant considered the sentences passed on the Appellant as rather excessive as the Court below failed to take into consideration that the Appellant was in custody for 4 years before his conviction. Learned Counsel therefore urged this Court to apply its decision in Osayeme v. The State (1966) NMLR 388 at 389, to reduce the sentences passed on the Appellant by the Court below by making the sentences to start running from 9th September, 1995, the date the Appellant was arrested.

For the learned Counsel to the Respondent however, he referred to Section 381 of the Criminal Procedure Act which states that a sentence of imprisonment takes effect from and includes the whole of the day of the date on which it was pronounced; that there is no provision in the law stipulating that a sentence should commence from the date on which the accused was arrested and therefore the Court below was right in its decision that the reduced sentences passed on the Appellant should commence from the day the trial Court pronounced its judgment. With regard to the case of Osayeme v. State (supra), cited by the Appellant’s Counsel, it is the view of the learned Counsel to the Respondent that it does not apply to the present case.

In this issue under consideration, it is quite plain that the Appellant is not complaining that the sentences of 21 years imprisonment for each of the two counts to run concurrently as passed upon by the Court below are excessive. This is because the sentence for the offence of robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act for which the Appellant was found guilty by the Court below in substitution for the sentence of death for Armed Robbery by the trial Court, is mandatory being imprisonment for not less than 21 years. What the Appellant is complaining about is contained in the last order of the Court below in its judgment where that Court said -“Sentences shall begin to run as from the 28th April, 1999 being the date of conviction and sentence of the Appellant at the High Court of Justice Abeokuta, Ogun State.”

Having regard to the fact that the Appellant was initially found guilty of conspiracy to commit Armed Robbery and Armed Robbery, for which he was sentenced to death by the trial Court on 28th April, 1999, the fact that the Appellant’s appeal having succeeded resulting in his being found guilty of lesser offences of robbery and conspiracy to commit same, which carry mandatory sentences of 21 years of imprisonment, simply because the Court below merely exercised its discretion to order that the sentences should start to run from the date of conviction of the Appellant by the trial Court in line with Section 381 of Criminal Procedure Act, the complaint of the Appellant of having suffered a miscarriage of justice, is definitely without basis whatsoever. The case of Osayeme v. State (supra) relied upon by the Appellant which deals with exercise of discretion of trial Judge passing a sentence, which this Court regarded as excessive, does not apply in the present case where the 21 years sentence of imprisonment is mandatory under the statute creating the offence. Therefore there was no miscarriage of justice to the Appellant in the sentence passed on him by the Court below to justify the review of the same by this Court.

The fifth and final issue in this appeal is whether the lower Court could safely convict the Appellant of the offence of conspiracy from the legally inadmissible confessional statements allegedly made to PW2 and in Exhibits A & A1. It was the contention of the learned Counsel to the Appellant on this issue, that there was no credible evidence from the witnesses called by the prosecution and the confessional statements of the Appellant to support the Appellants conviction for conspiracy to commit robbery; that the learned trial Judge merely relied on perverse findings, hearsay and contradictory confessional statements of the Appellant, to convict him for conspiracy and therefore called in aid a number of cases including Owie v. The State (1985) 1 N.W.L.R. (Pt.3) 470 at 483, to say that the conviction of the Appellant for conspiracy cannot stand and urged this Court to set it aside.

As for the Respondent on this issue, its learned Counsel argued that the issue is misconceived because the question of whether or not the confessional statement of the Appellant Exhibits A & A1 were properly admitted and relied upon as evidence in convicting the Appellant of the offences charged, has been laid to rest under issue number two, which specifically dealt with the confessional statements of the Appellant. On the argument of the Appellant that the trial Court used proof of evidence filed by the prosecution as part of evidence in convicting the Appellant, learned Counsel pointed out that that argument of the Appellant is misconceived because the evidence contained at pages 7 – 10 of the record of appeal, are the confessional statements of the Appellant duly admitted in evidence.

The grouse of the Appellant in this last issue originates from the Appellant’s ground 9 of the grounds of appeal which states –

“The learned Judges of the lower Court erred in law in using the legally inadmissible confessional statements allegedly made by the Appellant to PW2 and in Exhibits A & A1 to affirm the conviction of the Appellant by the trial Judge for the offence of conspiracy.

What I have to determine in this issue therefore, is whether or not on the evidence on record, the trial Court was right in convicting the Appellant of the offence of conspiracy and consequently, if the Court below was also right in affirming that convicting. The offence of conspiracy is not defined in the Robbery and Firearms (Special Provisions) Act as is the case of the offence of robbery that is defined under Section 15 of the Act. Therefore direct positive evidence of the plot between the conspirators, is hardly capable of direct proof. The Courts therefore usually tackle the offence of conspiracy as a matter of inference to be deduced from evidence of criminal acts or inactions of the parties concerned. See Oduneye v. The State (2001) 2 N.W.L.R. (Pt.697) 311 at 324, where Achike JSC (of blessed memory) said –

“A conviction for conspiracy is not without its inherent difficulties. First the offence of conspiracy is not defined under the Criminal or Penal Code. But, perhaps, more importantly, a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is evidence not of fact in issue’ but of other facts from which the fact in issue can be inferred’”

As far as the law is concerned therefore, the offence of conspiracy is said to have been established once it is shown in evidence that the criminal design alleged is common to all suspects. In the case at hand, the conviction of the Appellant for conspiracy to commit robbery is traceable to the evidence of PW1, PW2 and the confessional statements of the Appellant Exhibits A & A1. In the evidence of PW1 and PW2 on record, it is quite clear that the Appellant and his accomplice on 9th September, 1995 participated in an act of robbery at which PW1 was dispossessed of his Suzuki motor cycle which was immediately recovered from the Appellant as he tried to escape with the loot of the robbery, in the process of which the Appellant was arrested with the motor cycle while his accomplice escaped. The confessional statement of the Appellant also revealed how the plot commit the robbery was hatched between the Appellant and his accomplices when he said-

“On the 9th September, 1995 around 4p.m, myself Tumbosun and Taofik jointly left Lagos State down to Akute to celebrate with one of our friends called Nura. xxxxxx Three of us gone to the party around 5p.m and we did not stay more than one hour at the party before we left. As we are going on the road, Tumbosun and Taofik discussed with me that we will still snatch another motor cycle today. Immediately I heard these, I supported them, because this is not our first time doing such operation. As we are going on the road, we have moved about a kilometre to Nuru party, we saw an Okada driver. We stopped him.

Immediately, he stopped, Tumbosun we started beating the driver and Tumbosun used the stick on him to hit, the Okada driver on the head. The Okada driver dropped his Motor cycle and ran away.”

The above confessional statement of the Appellant had not only established the offence of conspiracy against the Appellant but also the offence of robbery committed by him with his accomplices all of whom clearly belong to a gang of robbers who have been engaged in the business of snatching of motor cycles. With these revelations, I say the Court below was on very strong ground in affirming the conviction of the Appellant for the offence of conspiracy to commit robbery.

In the result therefore, all the issues raised by the Appellant in his brief of argument having failed, the appeal itself must fail. Accordingly, the appeal is hereby dismissed. The conviction of the Appellant and sentences as substituted by the Court below for the offences of conspiracy to commit robbery and robbery, are hereby affirmed.

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SC.300/2010