Adeniyi Adekoya Vs The State (2012)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO-ODILI, JSC
This is an appeal against the decision of the Court of Appeal, Ibadan Judicial Division delivered on the 18th day of November, 2010 wherein their Lordships dismissed the appeal of the appellant and affirmed his conviction and sentence to death for the charge of conspiracy to commit armed robbery and armed robbery, contrary to section 5 (b) and 1 (2) (a) of the robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendments, etc) Act 1999.
The Appellant being dissatisfied with the judgment has appealed against same by his Notice of Appeal dated 10th day of December 2010 and filed on the 11th day of December, 2010 on three grounds.
A background to this appeal is as follows:-
The appellant pleaded not guilty to the two count charge and the case proceeded to trial. The prosecution called a total of five witnesses while the appellant called two witnesses. Exhibits were tendered and admitted in evidence.
The prosecutions witnesses evidence is to the effect that on the 8th day of November, 1999 at about 8 pm, the appellant and one other person boarded PW1s motorcycle and on their way, the appellant and his co-passenger attacked PW1 and made away with PW1s motorcycle, money and clothes. That the incident was reported to the Police. That the following day, PW3 informed them that some motorcycle mirrors were brought to him in his shop for him to buy. That on getting to PW3s shop, PW1 saw those that attacked him and robbed him whereby the appellant was arrested and taken to the Police Station. That before reporting the matter to the Police, they visited the scene of the crime and recovered some money and a knife.
PW4 as one of the investigating Police Officers in the matter testified that he visited the scene of the crime and recovered PW1s identification Shirt, a red pullover and the registration mark of PW1s motorcycle.
The defence is to the effect that the Appellant knew nothing about the crime that he came to be in possession of the two side mirrors when his alleged partner in crime came to him to help him sell the two side mirrors and indeed, to act as an interpreter between him and the buyer, the seller being an Ibo boy who did not understand Yoruba language which the buyer speaks.
On the 26/1/12 date of hearing, learned counsel for the Appellant adopted their Brief of Argument filed on 16/3/2011 and settled by Adewunmi Ogunsanya Esq. In the Brief were crafted two issues for determination which are as follows:-
Whether having regard to the facts in this case, Exhibit ‘E’ qualifies as a confessional statement to warrant the conviction and sentence of the Appellant as was affirmed by the Court of Appeal.
Whether having regard to the evidence in this case, the Court of Appeal was right in affirming the decision that the prosecution proved the offences
In the Respondents Brief settled by Akin Osinbajo, the Honourable Attorney General of Ogun State and which Brief was filed on 12/5/2011, respondent adopted the issues as couched by the Appellant.
The two issues are best taken together. Learned counsel for the Appellant submitted that the prosecution during trial tendered the Appellants alleged extra-judicial statement to the Police through PW5 which was admitted in evidence as Exhibit E and that the conviction and sentence of the Appellant were based on that exhibit. He stated that on appeal to the Court below, counsel for the Appellant argued in the main that in view of the contradictions in Exhibit ‘E’ and the fact that it failed to meet the six tests for the determination of the veracity of the truth of a confessional statement, Exhibit ‘E’ lacks the requisite probative value to warrant the conviction and sentence of the Appellant. He said the Court of Appeal disagreed with that submission.
Mr. Ogunsanya of counsel for the Appellant contended that the extra-judicial statement of the Appellant fell short of a confessional statement as envisaged by Section 27 (2) of the Evidence Act and as has been judicially interpreted in a long line of cases. He cited Obiasa v. State (1962) 2 SCNLR 402; Dawa v State (1980) 8 – 11 SC (Pt. 236).
For the Appellant was further canvassed that for a confessional statement to warrant the conviction of an accused, it must pass all the six tests viz:-
Is there anything outside the confession to show that it is true
Is it corroborated?
Are the relevant statements made in it of facts true as can be tested.
Was the prisoner one who has the opportunity of committing the crime?
Is his confession probable?
Is it consistent with other facts which have been ascertained and have been proved?
He stated on that anything short of the foregoing tests produces a valueless confessional statement. He referred to Emmanuel Nwaebonyi v State (1994) 5 NWLR (Pt. 343) 138 at 150; R. v Skyes (1913) 8 CAR 233.
Learned counsel for the Appellant went on to say that a cursory look at the salient parts of Exhibit ‘E’ shows that in one breath, Exhibit ‘E’ says that the Appellant did not know the contents of the bag with the Ibo boy. Thus, creating the impression that the Appellant did not know what the Ibo boy was up to. That in another breath, Exhibit ‘E’ creates the impression that the Appellant clearly was aware of the plan to snatch the motorcycle. Therefore that Exhibit ‘E’ can never be said to be consistent and true. That the scenario has shown doubt as to what Appellant actually confessed to in Exhibit ‘E’ and that doubt should be resolved in favour of the accused peisun. He referred to Nasamu v. State (1979) 6 SC 153.
Mr. Ogunsanya contended that it is an established principle of law that the onus is always on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The implication being that the prosecution must prove beyond reasonable doubt the essential ingredients of the offence charged. That in this instance which is a charge for conspiracy to commit armed robbery and armed robbery, the essential ingredients as laid down by judicial authorities are as follows:-
That there was robbery.
That the robbery was an armed robbery, and
That the accused was the robber or one of the robbers.
He cited Alepan v State (19990) 7 NWLR (Pt. 160) 101; Alabi v State (1993) 7 NWLR (Pt. 307) 511; Bozin v State (1983) 3 NWLR (Pt.8) 465; Ogba v State (1992) 2 NWLR (Pt. 222) 164; Ikemson v State (1997) 1 NWLR (Pt. 481) 355; Nwosu v State (1986) 4 NWLR (pt 35) 348.
Learned counsel for the Appellant stated that from the evidence it is reasonable to conclude that the Appellant did not know how the so called Ibo boy came about the two side mirrors, especially since the account given by the Appellant was uncontradicted and unchallenged and ought to be believed. That Section 148 (a) of the Evidence which provides for the presumption that a person in possession of stolen goods soon after the theft is either the thief or has received the goods has received the goods knowing them to be stolen did not apply to this case. That in the final analysis the prosecution failed woefully to prove the charge against the Appellant beyond reasonable doubt. He cited Ibrahim v State (1995) 3 NWLR (pt. 381) 35 at 47.
Mr. Osinbajo for the Respondent contended by saying that it is trite law that a trial court can rely solely on the confessional statement of an accused person to convict him. He cited Akpa v State (2008) 8 SCM 68; Nwachukwu v State (2007) 12 SCM (Pt.2) 447; Section 27 of Evidence Act.
He stated on that the Respondent as prosecution tendered two statements made by the Appellant as Exhibit ‘B’ and ‘E’. Exhibit E was admitted after a trial within trial was conducted to determine its voluntariness while Exhibit B was admitted without any objection by the defence. That from the totality of the observation of the Court below and the position arrived at there is no doubt that the Court below fully gave consideration to the six tests enunciated in R v Skyes (1913) 8 Court of Appeal Reports 233; Obiasa v State (1962) 2 SCNLR 402.
It was also submitted for the Respondent that there is no basis for any comparison of Exhibit B and E in view of the fact that the learned trial Judge expunged Exhibit B and placed no reliance on it before arriving at his Judgment which means that in the mind of the court Exhibit B never existed. That the content of Exhibit E was only within the knowledge of the Appellant because only he knew the role played by him and his partner in the incident. He said it is a misconception to hold that the Appellant admitted ownership of the curved knife during what is tagged interrogation, questions and answer session by the Appellant.
The learned Attorney General of Ogun State, Mr. Osinbajo contended that any contradiction that may have arisen from the evidence of the prosecution was not fatal. He cited Archibong v The State ((2006) 5 SCNJ 2022 at 2035.
He stated that though it is the law that burden of proof on the prosecution is proof beyond reasonable doubt, that this proof is not beyond any shadow of doubt and once the proof drowns the presumption of innocence of the accused, the Court is entitled to convict him although there could exist shadows of doubt. That the confessional statement Exhibit E and the testimony of PW1 had satisfied the burden of proof required of prosecution to discharge in order to secure conviction. He referred to Didie v The State (2007) 7 SCM 101 at 105.
The summary of the submission above show that the standpoint of the Appellant is that the confessional statement cannot be a basis for his convictions on the two counts of the charge, there being no corroboration and that the statement was not fairly obtained. Also that there were contradictions in the evidence of the prosecution/respondent making it impossible for a conclusion that the offences of conspiracy and armed robbery as charged had been proved beyond reasonable doubt.
The position of the Respondent of course was different in that the view is that the Confessional Statement was regularly and voluntarily obtained in keeping with the earlier ruling of the trial court after a trial within trial on the voluntariness of that statement Exhibit E. The respondent also took the point that there were enough corroborative evidence in support of the confessional statement thereby meeting the requirements that make it possible to convict upon that confession. Of note are the identification of the accused/appellant by the PW1, eye witness and the possession of the robbery items so soon thereafter specifically day after the robbery. That the concurrent finding of the two Courts below be affirmed as representing the correct state of affairs.
I would hereunder quote the salient part of the judgment of the Court of Appeal for a better understanding and appreciation of the findings and conclusion reached therein bases of the present appeal. It is thus:-
‘Proof beyond reasonable doubt by the prosecution is thus a sine qua non to the conviction and sentence of an accused person in all criminal trials. With this criterion constantly in mind, I now propose to deal with the ingredients of the offence with which the accused/Appellant is charged. The Appellant is charged with the offences of Conspiracy to commit armed robbery and armed robbery. I shall firstly deal with the issue of armed robbery. There are three ingredients that go to make up the offence of armed robbery and they are as follows:-
(a) That there was a robbery or series of robberies;
(b) That the robberies were armed robberies;
(c) That the accused persons were, or Some of the people who committed The armed robbery.
See BOZINV THE STATE (1985) 2 NWLR (PARTY 8); OKOSI V ATTORNEY GENERAL OF BENDEL STATE (1989) 1 NWLR (PART 100) 642.
‘With respect to (a) above there is no doubt from the totality of the evidence of the prosecution witnesses more especially PW1, PW2 and PW3; the Confessional Statement of the accused/Appellant -Exhibit ‘E’ that there was a robbery on the 8th November 1999. It is instructive at this stage to say that under Section 15 (1) of the Robbery and Fire Arms (special Provisions) Act Cap 398, robbery is stealing anything 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 or retain the thing stolen or to prevent resistance to its being stolen or retained.
Ingredient (b) would also have been satisfied given the fact that the robbers were armed. On what constitutes ‘arms’ Section 15 (1) of the robbery and Fire arms (Special Provisions) Act highlighted above defines ‘arms’ as any offensive weapon which includes inter alia cutlass, axe and machete (in which category knife belongs) used by the robbers. It is in evidence that a knife (Exhibit ‘D’) which the accused/Appellant admitted to belong to him in his statement -Exhibit ‘E’ was the offensive weapon used in snatching PW1s motorcycle on the day of the incident.
Ingredient (c) would also have been satisfied given the fact that the accused/Appellant was arrested and he made a confessional statement – Exhibit ‘E’ the facts therein having been corroborated by the evidence of all the prosecution witnesses especially PW1 who positively identified him as one of the two people who robbed him of his motorcycle. The evidence of PW2 and PW3 are also in harmony with that of PW1 and the confessional statement – Exhibit ‘E’ which has earlier been seen satisfied each of the six tests for the verification of the confessional statements of accused persons.
Appellants counsel has drawn the attention of this Court to contradictions in the prosecutions evidence as to the actual scene of the robbery operation. The paramount issue here is whether the contradictions are material. It is trite that an appellate court will only set aside the finding of a Lower court on alleged contradictions in the evidence of the prosecution if such contradictions are material. See ARCHIBONG V THE STATE (2006) 5 SCNJ 2022 AT 2035: (2006) 14 NWLR (PART 1000) 349. I do not think any inconsistency as to the actual scene of the robbery operation is material enough to disturb the finding of the learned trial Judge who upon proper evaluation of the rest of the material evidence adduced has come to the finding that an armed robbery had been committed and that the accused/Appellant was the robber or one of the robbers.
As to Conspiracy, there is ample uncontradicted evidence that the accused/Appellant in company with other persons had approached PW3, a vulcanizer in an attempt to get him to buy the two missing mirrors which had been traced as belonging to the motorcycle ridden by PW1 which was snatched by the accused/Appellant and his co-passenger who had both boarded PW1s commercial cycle on the day of the incident. PW3 gave graphic details of how some persons had approached him to buy the said mirrors. Unknown to the accused/Appellant and his partners in crime, PW3s customer had informed him earlier that PW1s motorcycle which had been snatched the day before had been recovered without the two side mirrors of the motorcycle.
Later that day the accused/Appellant had in company with others approached PW3 to buy the two mirrors. PW3 had thereupon contacted PW2 who owns the motorcycle. PW2 had gone with PW1 to PW3s shop and identified not just the two mirrors as belonging to the motorcycle but also the accused/Appellant and another who were perpetrators of the armed robbery attack on PW1. Conspiracy has been held in a number of judicial authorities to mean the meeting of the minds of the conspirators. It consists of the intention of two or more persons to do an unlawful act or a lawful act by unlawful means and conviction is usually based on circumstantial evidence. See PATRICK NJOVENS V THE STATE (1973) 5 sc 17; UPAHAR V THE STATE (2003) 6 NWLR (PART 816) 230 AT 239. In the present case the evidence is far more direct than circumstantial as the evidence of PW1, PW2, PW3 and the confessional Statement of the accused/Appellant point to the fact that the accused/Appellant had conspired with others to snatch PW1s motorcycle on the day of the incident but luck was to run out on them. I find the charges of conspiracy to commit armed robbery and armed robbery proved and as such have no reason to disturb the finding of the learned trial Judge convicting the Appellant to death.
The Appeal therefore lacks merit and it dismissed and judgment of the Lower Court is hereby affirmed.’
Those findings and conclusion are akin to those of the learned trial judge at the Court of first instance thereby situating a matter of concurrent findings of the two courts. What now arises at this point and at this forum is whose point of view is acceptable. Differently stated would be, whether or not the concurrent findings and conclusions of the Courts below represent what happened and if the ingredients of the offences of conspiracy and armed robbery have been established as required by law that is beyond reasonable doubt.
It is now no longer a matter for debate on the issue that a trial Court can rely solely on the Confessional Statement of the accused to convict him. There is nothing else but the confessional statement however in the instant case apart from the Confessional Statement, Exhibit E admitted after trial within trial are parts of the robbed items within 24 hours. As if that was not enough was the proper identification of the accused/appellant and his colleagues in possession of those items attempting to sell them and this identification made by the robbery victim. Again at the crime scene from the description given by the PW1, victim of incident were recovered knife belonging to the accused. It is therefore difficult to accept as material the minor inconsistency as to whether the incident took place along Erunwon Road as stated by the PW1, eye witness or as stated by PW2 that it took place close to Erunwon Road while the accused\appellant said the incident happened on getting to Erunwon round about.
Clearly from the description of the scene of crime whether the evidence of the prosecution witnesses or the accused/appellant the indisputable fact is that the incident took place on the road leading to Erunwon Town. Plainly these minor differences of description are insignificant and it is right that the learned trial judge chose to ignore them and had his focus on the material evidence. I place reliance in Akpa v State (2008) 8 SCM 68; Nwachukwu v State (2007) 12 SCM (Pt.2) 447; R v Skyes (1913 8 CR. APP 233; Obiasa v State (1962) 2 SCNLR 402; Archibong v The State (2006) 5 SCNJ 2022 at 2035; Didie v The State (2007) 7 SCM 101.
The learned counsel for the Appellant had vehemently posited that the tests for determining the veracity of a confessional statement had not been met in this instance to warrant a conviction. That the tests exist are not in dispute and they are as follows:-
Is there anything outside the confession to show that it is true?
Is it corroborated?
Are the relevant statements made in it of facts true as can be tested?
Was the prisoner one who has the opportunity of committing the crime?
Is his confession probable?
Is it consistent with other facts which had been ascertained and have been proved
These six tests above stated must be met in accordance with Section 27 (2) of Evidence Act otherwise the confessional statement would lack value or be worthless. In this case at hand from the totality of the evidence the Statement under review has met those requirements and the Court of trial was right in accepting its veracity and placing the weight on it. I refer to Obiasa v State (1962) 2 SCNLR 402; Dawa v State (1980) 8 – 11 SC (Pt.236); Emmanuel Nwaebonyi v State (1994) 5 NWLR (Pt. 343) 138 at 150; Nasamu v State (1979) 6 Sc 153.
On whether or not the standard of proof being proof beyond reasonable doubt in establishing the offences of conspiracy and armed robbery had been effected, I would call to mind Section 148 (a) of the Evidence Act which provides as follows:
‘The Court may presume 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 this possession.’
Bearing that statutory provision in mind the account given by the Appellant on his being in possession of the two side mirrors from the stolen motorcycle 24 hours after the robbery did not flow with the reality of the total evidence available. That fact lent credence to the position of the respondent rather than see the exculpation from blame of the appellant and partners. Taken alongside the tested Confessional Statement, Exhibit E, the identification of the Appellant by the PW1 as one of his assailants within 24 hours, the scene which was substantially stated by prosecution and tallied with that of the accused/Appellant and the report of the investigation of the police witnesses. Indeed there is just more than enough upon which it can safely be said the proof of the offences has been made beyond all reasonable doubt.
The attempt by the Appellant to impugn the evidence made available by the prosecution remained a non-starter. Therefore it is easy to go along with the one way traffic of the concurrent findings and conclusions of the two Courts below that indeed the accused committed the offences of conspiracy to commit armed robbery contrary to Section 5 (b) and 1 (2) (a) of the Robbery and Fire arms (Special Provisions) Act 1990 as Amended by the Tribunal (Certain Consequential Amendments, Etc) Act 1999.
This appeal is dismissed. I affirm the decision of the Court of Appeal in its affirmation of the conviction and sentence to death for the charges above stated as made by the trial High Court.
SC. 43/2011