Chukwuemeka Agugua V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
OLUKAYODE ARIWOOLA, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Sokoto Division Coram: Amiru Sanusi, JCA (as he then was); Abubakar Datti Yahaya, JCA; Abubakar Alkali Aba, JCA which was delivered on 12th December, 2011 in which the appellant’s appeal was dismissed and his conviction and sentence by the trial Court were affirmed.
The appellant and one Aliyu Danjuma who was the 1st accused while the appellant was the 2nd accused were arraigned before the Sokoto High Court. The two were charged with two counts of conspiracy to commit armed robbery and armed robbery contrary to Sections 5(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of Federation of Nigeria, 1990.
At the trial before Malami Umar .J, the prosecution called six (6) witnesses and tendered seven (7) items admitted and marked Exhibits A, B, C, D, E, F and F1.
Originally, the charge was against four accused persons but only two accused stood trial as the other two were said to be at large.
At the point of tendering the Statement of the appellant, he objected and
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claimed that he was tortured to obtain it by the police. This led to the order for trial -within-trial by the trial Court which dismissed the objection and admitted the said Statement as Exhibit F1.
It is note worthy that the appellant did not testify and chose not to call any evidence in his defence. Upon conclusion of the trial, in its considered judgment, the trial Court convicted the appellant with his co-accused for the 1st count of the charge and for a lesser offence of attempted robbery instead of the count of armed robbery contained in the charge. Appellant was then sentenced to life imprisonment.
Dissatisfied with the conviction and sentence, the appellant appealed to the Court of Appeal, Sokoto division, hereinafter referred to as Court below. In its unanimous decision, the Court below found the appeal unmeritorious, dismissed the appeal and affirmed the conviction and sentence handed down on the appellant by the trial Court.
The appellant was further dissatisfied with the decision of the Court below, hence he appealed to this Court.
Pursuant to the Rules of this Court, parties filed and exchanged briefs of argument, the record
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of appeal having been duly compiled, transmitted and served, The appeal was then heard on 17th November, 2016.
In the brief of argument filed by the appellant on 31st October, 2012, the following sole issue, was distilled for determination of the appeal:
“Whether the learned Justices of the Court of Appeal were right in affirming that the charge of conspiracy and attempted armed robbery was proved beyond reasonable doubt.”
From the same Grounds of Appeal filed by the appellant, the respondent chose to formulate the following sole issue, differently couched for determination of the appeal
“Whether having regard to the totality of the evidence adduced by the prosecution, the learned Justices of the Court of Appeal rightly affirmed that the offences of conspiracy and attempted armed robbery have been proved by the prosecution against the appellant beyond reasonable doubt as found by the trial Court ”
The facts relied on by the prosecution as given in evidence are succinctly as follows:
On the 9th day of December, 2007 at about 8. 00pm, the appellant and some other men had visited house No.45 Sabon-Birnin Road, Low Cost Area, Sokoto.
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One Zainab Shehu Ladan, Hajiya Fatima and Buhari Muhammed were inside the house when the appellant and one other entered the house and pointed a gun at Buhari. As Buhari tried to seize the said gun from the appellant, he was slapped. The appellant and his co-accused later ordered them to bring money out for them. The appellant stood with the occupants of the house while the other went into the bedroom. He later came out with Hajiya’s handbag and people started shouting “thief” “thief”. On hearing the shout, the men ran out into their Motorcycles. One of the two motor cycles they had brought refused to start hence it was abandoned. Two of them rode one away while the others ran away. As they were trying to escape, they shot Into the air. The matter was later reported to the Gwiwa Police Station.
The appellant and the co-accused were later arrested with one of the Motorcycles. The appellant made statement to the Police, which statement was retracted during trial. After the conduct of a trial-within trial, the objection was overruled and the statement was admitted and marked Exhibit F1. Other items admitted were, the Jarma UK Motorcycle Exhibit A, a pair of
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black Sandals Exhibit B, a pair of white covered shoes Exhibit C, a trouser and shirt as Exhibits D and E respectively. The statement of the 1st accused person was also admitted and marked Exhibit F.
The appellant neither testified nor called any other witness in his defence. He relied on the case of the prosecution.
In the considered judgment, the trial Court found the appellant and the co-accused guilty of the first count of conspiracy but not of the count of armed robbery. He was found guilty of a lesser offence of attempted robbery and they were sentenced to life imprisonment.
The conviction and sentence were appealed to the Court below which dismissed the appeal on the 12th December, 2011 leading to the instant further appeal to this Court.
In arguing the sole issue distilled for determination, learned counsel for the appellant referred to the findings of the trial Court on the evidence adduced by the prosecution and contended that the Court below was wrong affirming the said finding on the two counts. He referred to the relevant provisions of the Robbery and Firearms (Special Provision) Act and the alleged confessional statement of
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the appellant. Learned counsel quoted from the testimonies of PW2 and PW4 and contended that they were not ad idem on some material facts and the lapses and contradictions were not explained away by the prosecution. He submitted that in the face of the lapses and contradictions, the evidence of the prosecution witnesses could not be said to have pointed irresistibly at the guilt of the appellant. He submitted further that the contradictory pieces of evidence weighed heavily on the mind of the trial Judge leading to the finding that the offence of armed robbery was not proved.
Learned counsel urged the Court to discountenance the testimonies of PW2 and PW4 in entirety. He contended that once the testimonies are discountenanced, the Court will be left with the appellant’s retracted confessional statement. To that, he relied on the test laid down in Dawa v The State (1980) 8-11 SC 236 following R v Sykes (1913) 8 C.R APP. 233
Learned counsel contended that the ingredient or guidelines to be met in a confessional statement must co-exist, and any statement that fails to meet the test cannot properly found a conviction, otherwise any such conviction cannot
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be sustained on appeal. He relied on Awosika vs. The State (2010) 8 NWLR (Pt. 1198) 49.
On the count of conspiracy, learned counsel referred to the testimony of appellant’s co-accused who denied knowing the appellant, and that he had never met him before, hence could not have conspired with someone he never knew. For the ingredients of the offence of conspiracy, he cited Abdullahi vs. State (2008) 17 NWLR (Pt. 1115) 203
Learned counsel contended that apart from Exhibit F1, no iota of evidence existed in support of the verdict of guilt for conspiracy. He submitted that the judgment of the trial Court was not supported by the evidence before the Court and therefore it was unsafe to convict the appellant on a confession as in Exhibit F1.
On the confession in Exhibit F1 attributed to the appellant, learned counsel gave a poser that “is a trial Judge entitled to pick and choose what to believe and reject in a confessional statement” He answered by contending that evidently, the appellant in Exhibit F1 admitted that he robbed or was part of the gang that robbed the victims of their possessions as alleged in count 2 of the charge, yet learned trial Judge
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found that armed robbery was not proved. He submitted that the trial judge’s position is proof that Exhibit F1 was obtained involuntarily and should not have been used to corroborate any other piece of evidence.
Learned counsel agreed that if the trial judge had convicted the appellant on the original charge based on Exhibit F1 since it had gone through trial within trial, there would have been no problem. He however contended that since the trial Judge had agreed that the evidence, including Exhibit F1 did not prove the charge, the Court was by implication agreeing that Exhibit F1 or some part therein was not true or voluntary. He submitted that the Court below fell into the same error as the trial Court in admitting that the content of Exhibit F1 was true and correct.
Learned counsel submitted that it is the primary duty of the trial Judge who observed the demeanour of witnesses to make assessment of the probative value of the testimonies of the witnesses. He submitted that the trial Court was right to have concluded that there was no robbery hence the appellant was wrongly convicted on his alleged confession.
Learned counsel contended that the trial
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Court of its own accord rejected the evidence of armed robbery as borne out by Exhibit F1 and the testimony of the prosecution witnesses, and therefore submitted that the direct and logical implication of that rejection is that Exhibit F1 is of no probative value. He submitted further that having found that armed robbery was not proved by the prosecution, even though confessed to, the trial Court ought to have rejected the confessional statement in its entirety. He contended that the learned trial Court misdirected itself when it relied on Exhibit F1 to corroborate the testimony of PW2 and PW4 and thereby occasioned a miscarriage of justice. He submitted that the appellant deserved the benefit of the doubt created by the inconsistence in Exhibits F and F1 and the Court’s findings of fact. He urged the Court to resolve the sole issue in favour of the appellant, discharge and acquit the appellant.
The learned counsel for the respondent in arguing the appeal in the brief of argument on the single issue formulated, he referred to the charge against the appellant. He considered the second count of armed robbery first. He referred to the three ingredients the
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prosecution was required to establish to prove the charge. He submitted that the prosecution proved all the three ingredients. He referred to the testimony of PW2 and PW4 who he contended were the eye witnesses, being the victims of the incident. He submitted that the evidence of the eye witnesses not only fixed the appellant at the scene of the crime but also described the role he played in the robbery. He referred to the slip by the trial Court in its record, that the offence took place at Shinkafi Road, instead or Sabon-Birni road and contended that the slip is of no moment. He submitted that the Court below was therefore right to have held that the slip was merely a mix up or printer’s devil which did not occasion any miscarriage of justice. He submitted further that defects in a trial Court’s record of proceedings is only fatal when it can be shown that a miscarriage of justice has resulted from that effects. He relied on Oyakhire vs State (2006) 12 NWLR (Pt. 1001) 162.
Learned counsel contended that the trial Court erred to have rejected the evidence that two mobile phones were stolen because they were not recovered nor their value stated, as the law
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does not require the production of stolen items or their value. He however, submitted that if there had been cross appeal by the respondent against the judgment of the trial Court, the story would have been different. He referred Sections 218 (2) and 219 of the Criminal Code which the trial Court relied on to convict the appellant, rightly for a lesser offence which the appellant was not charged with.
Learned counsel referred to the confessional statement of the appellant- Exhibit F1 and contended that it corroborated the testimony of prosecution witnesses. He submitted that even the Court is empowered to convict on a confessional statement alone, once it satisfies, the required standard. He relied on Dibie vs State (2007) 7 SCM 101; Ibeme vs The State (2013) 8 NCC 46; Nwachukwu vs State (2008) 4 WRN 1; Salawu vs. State (2010) 28 WRM 157; Awosika Vs. State {2010) 18 WRN 159.
On the failure to tender the weapons allegedly used by the appellant, before the trial Court, learned counsel contended that Exhibit F1 had explained away how the guns were sourced and returned. He submitted that indeed, the failure to tender the guns did not do any harm to the
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prosecution’s case. He relied on Olayinka Vs State (2007) 2 NCC 507 and Alor Vs State LER (1997) SC 76.
On the issue of conspiracy, learned counsel submitted that the offence is usually proved by circumstantial evidence, and the conspirators need not know themselves. He relied on Bello Vs State (2001) 12 SCM (Pt.228); Aduku Vs FRN (2009) 4 NCC 359; Daboh Vs State (1997) 5 SC 197. He submitted that there are sufficient circumstantial evidence to sustain the charge against the appellant. He urged the Court to so hold.
He finally urged the Court to resolve the issue against the appellant, dismiss the appeal and affirm the judgment of the Court below which had earlier affirmed the conviction and sentence by the trial Court.
As earlier indicated, the appellant was charged along with other co-accused persons but only one other person stood trial with him as the 1st accused while the two others were said to be at large. The 1st count of the charge is for conspiracy that they agreed to carry out an illegal act of attacking and robbing the following persons – Zainab Shehu Ladan, Buhari Mohammed and Fatima Abdullahi all of No.45 Sabon Birni Road, Gwiwa
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Low cost, Sokoto.
However, it had been held that the proper and appropriate approach to an indictment containing conspiracy charge and substantive charge is to deal with the latter, that is, the substantive charge first and then proceed to see how conspiracy count has been made out in answer to the fate of the charge of conspiracy. Conspiracy generally, is an agreement between two or more person to carry out an unlawful act. But failure to prove substantive offence does not make conviction for conspiracy inappropriate, as it is, in itself a separate and distinct offence, that is independent of the actual offence conspired to commit. See, Balogun vs. Attorney General, Ogun State (2002) 9 SCNJ 1961 Lukman Osetola & Anor Vs. The State (2012) LPELR 9348 SC (2012) 12 SCM (Pt.2) 347; (2012) 17 NWLR (pt.1329) 251; (2012) 6 SC (Pt IV) 148.
In this case, the substantive offence was count 2 of the charge which is an offence of armed robbery. The appellant and other co-accused were alleged to have attacked and robbed their victim earlier mentioned – Zainab Shehu Ladan, Buhari Mohammed and Fatima Abdullahi with a gun and forcefully collected two GSM handsets (Nokia and
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Sagem) and other valuables, valued at the sum of N45, 000.00
It is trite law that for the prosecution to achieve success in proof of the offence of Armed robbery, the following essential ingredients must be proved beyond reasonable doubt;
(a) That there was a robbery incident or series of robberies
(b) That the robbery or each of the robberies was an armed robbery
(c) That the accused was the armed robber or one of the armed robbers.
However, the law is very clear that, this proof which it expects to be beyond reasonable doubt does not mean proof beyond any iota or shadow of doubt. Yet, the burden of such proof which lies solely on the prosecution never shifts. lf at the conclusion of trial, on the entire evidence adduced the Court is left with no doubt that the offence was committed by the accused, then that burden is discharged. See; Bello Vs The State (2007) 10 NWLR (Pt.1043) 564; Amina Vs State (1990) 6 NWLR (Pt 155) 125; Nwachukwu Vs State (1985) NWLR (Pt.11) 218; Ani Vs State (2003) 11 NWLR (Pt. 83) 142: Uwagboe Vs State (2007) 6 NWLR (Pt. 1031) 1.
It equally trite law that at the end of a trial
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and before a Court comes to the conclusion that an offence has been committed by the accused person, it must look for the ingredient of the offence charged and ascertain that the acts of the accused come within the confines of the said offence charged. See; Amadi Vs The State (1993) 8 NWLR (Pt.314) 644. Alor Vs State (1997) 4 NWLR (Pt. 501) 511.
In the instant case, PW2 and PW4, Hajiya Zainab Shehu Ladan and Buhari Shehu Muhammed respectively were the victims of alleged attack.
PW2 had testified before the trial Court that the appellant, armed with a gun with another who was at large had entered into her house and while he pointed the said gun at them demanded for money. The other person was said to have proceeded into the bedroom and then came out with a bag containing valuables belonging to her. The appellant collected her telephone handset and the handset of PW4
PW4 was Buhari Shehu Moharnmed. His testimony corroborated materially the testimony of PW2. He identified the appellant as one of the two persons who had entered their house on the day of the incident. Indeed, that it was the appellant who pointed gun at him and demanded for money
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from them. He testified that, as the accused persons suspected that people were already gathering when their victims were shouting “thief” “thief”, they ran out, shot their guns into the air and escaped.
One of the Motorcycles that were allegedly used by the said armed robbers was later recovered, tendered by the police and admitted as Exhibit A.
The appellant was said to have made a confessional statement to the Police which though was retracted but after the conduct of a trial-within-trial, the objection was overruled and the Statement was admitted in evidence.
However, the trial Court found that the appellant in his statement denied collecting the GSM phones but that it was his co-accused who was at large that collected the said handsets. The trial Court also held the view that there were doubts whether or not there was any missing GSM Phone handsets and handbag. This doubt was resolved in favour of the appellant, as the Court then came to the conclusion that the prosecution failed to prove beyond reasonable doubt that indeed there was an armed robbery. At best with the testimonies of PW2 and PW4 the trial judge felt that the offence of
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attempted Robbery was established, instead. The trial Court however found relying on the statement of the appellant to the Police-Exhibit F1 which was admitted as a confessional statement, that the appellant and the co-accused were armed with gun when they visited the complainants’ house and attempted to rob them of their possessions.
Relying on Sections 218 (2) and 219 of the Criminal Procedure Code, the appellant was found guilty, convicted and sentenced for the offence of Attempted Robbery.
It is note worthy, that there was no appeal to the Court below against this decision of the trial Court. As earlier stated, this much was admitted by the learned counsel for the respondent in his brief of argument for the state.
Sections 218 (2) and 219 of the Criminal Procedure Code provide as follows:
S. 218(2) “When a person is charged with an offence and facts are proved which reduces it to a lesser offence, he may be convicted of the lesser offence, though he is not charged with it.”
S. 219 “When a person is charged with an offence, he may be convicted of an attempt to commit such an offence though the attempt is not separately charged.”
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The trial Court who had the opportunity to listen and watch the demeanour of witnesses testifying before the Court at the end of the trial of the appellant, inter alia, came to the following conclusion:-
“…….. after a very careful perusal of evidence adduced before me, I am quite satisfied that the prosecution had failed to establish a case under Section (2) (a) of the Robbery and Firearms Act, 1990 as amended as there was no evidence of what was stolen from the victims of the robbery. But I have no doubt in my mind that a case of attempt to commit armed robbery contrary to Section 2(1) (a) of the Robbery and Firearms Act, 1990 was proved against the 1st and 2nd accused persons and l found them guilty and convict them accordingly.”
This takes me to the count on conspiracy. It is on record that the appellant was arraigned and duly charged along with others, in particular, with one Aliyu Danjuma who was the 1st accused while the appellant was the 2nd accused person before the trial Court. The others were said to be at large and never stood trial.
Generally, as the saying goes, “It takes two to tango” It certainly takes two or more persons to
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conspire and a person alone cannot be convicted of conspiracy if the others are discharged and acquitted.
However, it is trite law that a conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. See; Balogun vs. Attorney General of Osun State (2002) 4 SCM 23, (2002) 2 SCNJ 196; Silas Sule v State (2009) 8 SCM 177.
Generally, conspiracy is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful or illegal act, with an intent to achieve the agreed objective. See; The Salawu vs. State (2011) LPELR – 8252 (SC) (2011) 10 SCM 76.
In order to establish an offence of conspiracy against an accused person to commit a criminal offence, the prosecution is required by law to prove the following:
(a) That there was an agreement between two or more persons to do or cause to be done, some illegal act or an act which is not illegal but by illegal means;
(b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the
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parties in furtherance of the agreement.
(c) Specifically, that each of the accused individually participated in the conspiracy.
There is no doubt and it has been held that there need not be an express agreement before common intention can be shown in conspiracy. See: Adekunle VsThe State (1989) 12 SCNJ 184.
In the instant case, the trial Court relied on the confessional statement of the appellant- Exhibit F1 from which the Court inferred the agreement by the appellant with other co-accused to carry out the illegal act of armed robbery.
The Statement of the appellant is on pages 12 -14 of the record where the appellant inter alia states as follows:
“l was born in Bauchi but was brought up in Aba and later completed my secondary education in Bauchi Urban College in the year 1996. I am into Business of selling recharge cards and handset for the past one year. I came to Sokoto in the year 2000 where my brother did his NYSC. I get (sic) to know Ali Murtala who is a member of our gang when he was into business buying and selling of cows. My main reason of coming to Sokoto on Saturday 8/12/2007 was to visit my brother name – Ekene
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Owando who is a Soldier attached to 26 Motorised Battalion, Sokoto. Even though this is my second time of visiting him.
On 8/12/2007 about 200hrs, I went to mammy market to relax when luckily, I met one Ali Murtala alias Uwem and one Aliyu Danjuma. The said Ali Murtala alias Uwem introduced to me Aliyu Danjuma as his friend before he left.
On 9/12/2007 about 1700hrs, Ali Murtala called me on my GSM phone and asked me to meet him at Kwannawa area around 1900hrs. Reaching Kwannawa, I met Ali Murtala, Aliyu Danjuma and Lumu Abdullahi. At that place, Aliyu Danjuma said he has a work for us which is robbering job, which we instantly agreed to execute the job. The said Ali Murtala and Aliyu Danjuma asked I and Lumo to wait for them there, while they go out to look for their friend, a soldier who is their friend. When they returned from the soldier’s place, they came along with a motorcycle with four arms and share it among ourself (sic), then we moved straight to execute the robbery job at a place which I don’t know. Aliyu Danjuma carried two people on his Jarma UK Motorcycle while one of us took Okada. Reaching there Aliyu Danjuma decided to stay outside,
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Lumu Abdullahi stood by the door while I and Ali Murtala entered into the room. When we entered we first arrested the family and demanded for money which they said they don’t have and began to shout. Ali Murtala immediately collected two handsets from the victims while we took to our heels. We ran straight to Aliyu Danjuma who was with the Motorcycle to run, but clutch of the motorcycle disappointed us as it refused to on. We then abandoned the motorcycle there and ran away.”
I decided to quote extensively from the statement said to have been made by the appellant to the police, because, as earlier noted in this judgment the appellant neither testified nor called any witness to testify in his defence. He chose to rest his case on that of the prosecution.
It is on record that the appellant retracted the above statement when same was being tendered by the prosecution but as I stated earlier upon the conduct of the required trial-within trial, his objection was overruled and the statement was duly admitted. It is already settled, that a confessional statement does not become inadmissible merely because it was subsequently retracted by the maker. A
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confessional statement is admissible and should be admitted, once it is found to be direct and positive and it relates to the acts. Knowledge or intention of the maker, stating or suggesting the inference that he committed the crime charged. See; Solomon Thomas Akpan Vs The State (1992) LPELR – 351 (SC) Shittu vs State (1970) 1 All NLR 228; Adamu vs AG Bendel State (1986) 2 NWLR (Pt.22) 284; Aremu Vs State (1991) 7 NWLR (Pt. 201) 1; Ejinima Vs State (1991) 6 NWLR (Pt.200) 627.
It is already trite law, that an accused person can be convicted on his confessional statement alone where the confession is consistent with other ascertained facts which have been proved See; Akpan vs. State (1990) 7 NWLR (Pt.160) 101.
The statement credited to the appellant as the confession had graphically given in details the way the alleged robbery act was planned and carried out by him and the co-accused. It gave the role played by each of the accused. The trial Court was therefore right and correctly admitted the statement as a confession. The Court below, in its considered judgment opined, inter alia, as follows:
“The trial Court had properly assessed and evaluated
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the evidence adduced in the case, bearing in mind the fact that the appellant chose not to give evidence at the trial or call any witness to testify on his behalf. The trial Court had therefore no evidence from the defence which it could weigh in order to see where the balance tilts.”
In my view, the Court below rightly affirmed the decision of the trial Court.
Furthermore, as a result of the confessional statement of the appellant, all other sub issues raised by the counsel for the appellant such as failure to tender the alleged guns used in the said robbery attempt, are of no moment. This point in particular was explain away in the statement as noted correctly by the Court below that the guns were quickly returned to the soldier from whom they had gotten them. Indeed, the Court below correctly stated the position that there is no law insisting that the prosecution must always tender weapon or gun used in a robbery in order to establish its case. It largely depends on the facts and circumstances of each given case. See; Olayinka vs The State (2002).
It is already established, that a freely made confession, whether judicial or extra judicial, so
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long as it is found to be direct positive and proper proved, is sufficient proof of guilt and conviction could be rightly based entirely on such statement. See;Jimoh Yesufu vs The State (1976) 8 SC 167.
My Lords, I must say that I have no slightest doubt in my mind that the appellant’s confessional statement was direct, positive and proved to sustain the conviction. In the result, the sole issue is resolved against the appellant.
In the final analysis, I am of the firm view that this appeal is unmeritorious, and should be dismissed. Accordingly, appeal is dismissed. The judgment of the Court below delivered on 12th December, 2011 which affirmed the conviction and sentence of the appellant by the Court is hereby affirmed.
SC.322/2014