James Simon V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
The appellant, and two others namely Joel Adamu and Ibrahim Musa were arraigned before Talba J, of an Abuja High Court charged with conspiracy to commit armed Robbery and Armed Robbery contrary to Section 5 and 1(2)(a) of the Robbery and Firearms Special Provisions Act Cap 398 Laws of the Federation of Nigeria 1990.
The appellant and the other two accused persons denied both counts. This is an appeal by the 1st accused person. At the trial, the prosecution fielded three witnesses and tendered two statements while the appellant testified in his defence. He did not call any witness. After hearing and evaluation of evidence the learned trial judge convicted the appellant and the other two accused persons on both counts and sentenced them to death.
Dissatisfied with both his conviction and sentence, the appellant appealed to the Court of Appeal. That Court affirmed the decision of the High Court and dismissed the appeal. This appeal is against that judgment.
In accordance with the Rules of this Court, the appellant and respondent filed and exchanged briefs of argument. The
appellant identified two issues for determination, namely,
- Whether the failure of the respondent to call as witnesses the victims of the robbery and tender the items allegedly recovered from the appellant was not fatal to its case.
2 Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the appellant having regard to the evidence before the Court.
For the respondent, two issues were also postulated to wit;
- Whether there was a miscarriage of justice in convicting the appellant in spite of the respondents failure to call all those listed in the proof of evidence as witnesses and tender the recovered stolen items in evidence.
- Whether from the evidence adduced, the learned justices of the Court of Appeal were wrong in affirming the conviction and sentence of the appellant.
A close look at the two sets of issues shows clearly that learned counsel for the parties appear to be ad idem on the issues. They ask the same question. I shall accordingly rely on the appellant’s issues in considering this appeal.
At the hearing of the appeal on 3rd November 2016, learned counsel for the
appellant, Mr. A. Saiki adopted the appellant’s brief and urged this Court to allow the appeal while learned Counsel for the respondent, Miss A. Egele adopted the respondents amended brief and urged this Court to dismiss the appeal and affirm the concurrent decisions of both Courts below.
THE FACTS ARE THESE
At about 3.40a.m. on 8th September 2005, about ten men armed with clubs, sticks and cutlasses etc broke into the Anglican Church Guest House at Wuse Zone 5, Abuja. They proceeded to steal handsets, money, wrist watches and trinkets from those residing in the guest house . The security man, PW3 was tied down by the appellant and it was he who was left to guard PW3 while the armed robbery was in progress. The Federal Capital Territory Police command control room was alerted. Inspector Akeem Lamboye, PW1 and the other policeman were able to block all exits out of the canal behind the guest house and in the course of combing the bush by the canal, the 1st accused/appellant was arrested and the following items were recovered from him- Samsung handset, N4,930 cash, necklace chain, two wrist watches and a belt. He was taken to the police station where most of the
victims of the robbery were already waiting. At the station he made a statement. During trial his counsel raised objection when the prosecuting counsel applied to tender it. His objection being that the statement was not obtained voluntary. The Court ordered a trial within trial but midway through proceedings of the mini trial on 28th January 2008, learned counsel for the appellant applied to withdraw his objection to the admissibility of the statement on the grounds that the statement was obtained under violence. His position being that the appellant never made a statement. The statement was then admitted in evidence as Exhibit A. The appellant led the police to Jabi Park, Abuja where the two other accused persons were arrested. The second statement made by the appellant was admitted without objection as Exhibit B1.
ISSUES ONE AND TWO
Learned counsel for the appellant, observed that eight witnesses were listed in the proof of evidence but only three of them gave evidence. He further observed that Mrs. Ikpohopsa, R.O. Joel Ukpe, and Navy Capt. Wahid were victims of the robbery who all gave their statements to the police but were not called to give
evidence. He submitted that failure to call them to testify is fatal to the respondent’s case. Reliance was placed on Millar v. State (2005) 8 NWLR (Pt. 927) P. 236, Section 167(d) of the Evidence Act.
He submitted that failure by the respondent to tender in evidence the items allegedly recovered is fatal to the case, more-so in the absence of any explanation as to the where about of the said item or why they were not brought to Court. Reliance was placed on Nwoma Koro & Ors v. State (1995) 1 NWLR (Pt.372) p.432. He submitted that failure to call vital and material witnesses listed in the proof of evidence and failure to tender the stolen items allegedly recovered from the appellant is fatal to the respondents case.
Learned counsel for the appellant observed that the confessional statements of the appellant, Exhibits A and B1 are inconsistent with other facts on the crime scene. He observed that the offence of armed robbery was committed at No.23 Anglican Church Guest, Dauda Street, Wuse Zone 3, Abuja while Exhibit A and B1, the confessional statements of the appellant states the scene of crime to be at Wuse Zone 5 at All Saints Lodging Lodge. He
submitted that since there was no clarification of where the armed robbery occurred, the trial Court and Court of Appeal’s conclusion is speculative.
On the offence of conspiracy, he submitted that there was no direct or circumstantial evidence suggesting or inferring common intention on the part of the appellant with the other accused persons contending that the charge of conspiracy should fail since the appellant stated categorically that he never knew the other accused persons. Reliance was placed on Shurumo v State (2010) 19 NWLR (Pt. 1226) p.73.
On whether the robbery was armed robbery learned counsel observed that since PW1 admitted in evidence that clubs and cutlasses used in the robbery were not recovered from the appellant and PW2 also stated that no offensive weapons were recovered from the appellant shows that the robbery if at all was not armed robbery.
Concluding he submitted that in view of the inconsistency rule, the confessional statements, Exhibits A and B1 were wrongfully relied and acted upon by the trial Court and the Court of Appeal to convict the appellant, contending that the respondent failed to prove the case against the
appellant beyond reasonable doubt, observing that the conviction and sentence of the appellant was manifestly in error, urging this Court to allow the appeal.
Responding, learned counsel for the respondent observed that PW3 is an eye witness and victim of the robbery who gave a positive account of the robbery. Contending that his evidence is sufficient to establish the offences charged against the appellant.
On the presumption of withholding evidence as provided in Section 167(d) of the Evidence Act, he submitted that withholding of evidence is not equated with not calling witness, contending that the presumption does not apply in the present case. He urged the Court to resolve this in favour of the respondent.
Learned counsel for the respondent argued that there is no controversy on the crime scene, contending that all saints lodging lodge Wuse referred to in the confessional statement and No 23 Anglican Church Guest House Dauda street, Wuse Zone 5, Abuja referred to in the charge are Churches. Relying on Nkwuda Edamire v State (1996) 3 NWLR (Pt.438) p. 530; Dapere Gira v. State (1996) 4 NWLR (Pt.443) p.375.
Learned counsel submitted that the
Court can act and rely on a retracted confessional statement to convict an accused person after considering the weight to be attached to the statement .
He further submitted that evidence of PW3, an eye witness and victim of the robbery is consistent with the confessional statements Exhibits A and B1 observing that it is evidence outside the confessional statements which is an attestation to the truthfulness of the statements.
Concluding he submitted that apart from Exhibits A and B1 the evidence of PW3, an eyewitness was positive, direct and credible more so as it was uncontroverted and uncontrovertibly under cross examination and so sufficient to convict the appellants, further submitting that the charge of conspiracy and armed robbery were established.
The proof of evidence had eight witnesses listed as those the prosecution would call to establish its case beyond reasonable doubt against the accused person/appellant, but only three witnesses were called to give evidence. Is this fatal to the case of the prosecution
The appellant was charged on two counts. They read:
“That you James Simon, Joel Adamu and Ibrahim Musa,
all of Jabi Motor Park, Omo Awalu, Ojo, Magaji, David, Danlami and Mubo all now at large on or about 8 September, 2005 at about 3.40 hours at No.23 Anglican Church House Guest House Dauda Street Wuse Zone 5 Abuja within Abuja Judicial Division did conspire together to commit felony to wit: armed robbery and you thereby committed an offence contrary to Section 5 of the Robbery and Firearms Special Provisions Act Cap 398 Laws of Federation of Nigeria.”
“That you James Simon, Joel Adamu and Ibrahim Musa, all of Jabi Motor Park, Omo Awalu, Ojo, Magaji, David, Danlami and Mubo all now at large on or about 8 September, 2005 at about 3.40hours at No.23 Anglican church guest house Dauda Street Wusa Zone 5 Abuja within Abuja Judicial Division while armed with cutlasses, Sticks woods and other offensive weapons robbed:
(1) Julius T. Nonsham of No. 25 Church house, Guest house Wuse zone 5 Abuja of the sum of N1,505.00 cash, one rechargeable torch light, one handset valued N25,000.00.
(2) Navy Commander 1. Wayihy of same address of one Nokia handset, 22 gold necklace, N7,00.00 cash and white navy shoes.
(3) Nwafor Kelvin C. of the same
address of the sum of N25,000.00 cash, two handsets, a bag containing clothes and many other valuables.
(4) Comfort C. Okpe of the same address of N9,500.00, one handset, one wrist watch, some trinkets and other valuables.
(5) Many other occupants of the church house, guest house, you thereby committed an offence contrary to Section 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of Federation of Nigeria 1990.
To succeed, the prosecution must prove beyond reasonable doubt that:
(a) There was a robbery or series of robberies;
(b) The robbery or each robbery was an armed robbery and
(c) The accused was one of those who took part in the armed robbery. See Bozin v. State (1985) 5 SC p.106
Okosi v. Attorney General Bendel State (1989) 2 SC (pt.1) p.126.
Martins v. State (1997) 1 NWLR (Pt 481) p.355
Osuagwu v. State (2013) 1-2 SC (pt. 1) p.37
Emeka v. State (2014) 6-7 SC (pt.1) p.64
In proof of the charge of armed robbery against the appellant the prosecution called one of the victims of the robbery, Julius T. Nonsham. He being an eyewitness gave uncontroverted evidence of the role of the appellant in the
armed robbery. The prosecution was in the circumstances able to establish beyond reasonable doubt that the appellant was one of the robbers that robbed Julius T. Nonsham of his valuables in the night of 8th September, 2008. There was no need to call all the eight witnesses listed in the proof of evidence to establish the fact that Julius T. Nonsham was robbed when this fact was easily established by Julius T. Nonsham himself when he gave credible and compelling evidence on the said armed robbery.
Furthermore an examination of count 2 reveals that the witnesses who were not called to give evidence were victims of the armed robbery and are vital and relevant witnesses to prove count 2 (2),(3),(4) and (5). Since they were not call these subheads of counts 2 were abandoned. The prosecution proved count 2(1) and the victim therein is an eyewitness. Calling three witnesses out of the eight witnesses listed in the proof of evidence is not fatal to the case of the prosecution.
Section 167(d) of the Evidence Act states that:
“Evidence which could be and is not produced would, if produced be un-favourable to the person who withholds it.”
In the light
of the fact that the victim of the robbery in count2(1) who is also an eyewitness to the armed robbery gave uncontroverted evidence, nothing was withheld in proof of armed robbery in count 2(1).
On the failure of the prosecution to tender the recovered stolen property.
This is what the Court of Appeal had to say:
“Once the prosecution has adduced credible evidence to establish there was removal of property belonging to the victim under threat of hurt that is sufficient. Where goods stolen are recovered it should be tendered in evidence. However where there is overwhelming evidence that the victims are not ordinarily resident in the place of robbery or are on transit and recovered items have been released to them as personal effects it will be an enormous task on the prosecution to tender such items recovered. In such circumstances once ownership of property is not in issue the failure to tender and exhibits should not be fatal to prosecutions case.”
In a case of armed robbery, all that is required of the prosecution is to prove that there was an armed robbery and the appellant was one of the armed robbers.
Tendering recovered items from
on armed robbery; is desirable but not mandatory, especially when there is damaging eyewitness evidence that the appellant was one of the armed robbers. Pw3 an eyewitness gave evidence that was direct, very credible and compelling that the appellant was actually the armed robber who tied him up and stood guard over him while the armed robbery in the guest house was in progress. Tendering recovered stolen items on these facts are unnecessary since there is overwhelming eyewitness evidence that the appellant took part in the armed robbery.
On the failure of the prosecution to tender the weapon used in the armed robbery.
The Court of Appeal said:
“The prosecution need not tender the weapons of the offence of robbery.”
Relying on the decision of this Court in Olayinka v. State (2008) 6 ACLR P.194
This Court said:
“With respect to the submission of the appellant about the failure of prosecution to tender the weapons of the alleged robbery and its effect on the prosecution, I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person.”
on alluded to what is required of the prosecution to establish the guilt of an accused person in a charge of armed robbery.
Nowhere in the law is it stated that the prosecution should tender weapons used in the robbery. Weapons used in armed robberies are usually easily disposable items as in this case, clubs, stick, cutlasses. The circumstances of robberies do not require the tendering of weapons used by the robbers, all that is required is that the robber was armed when he robbed the victim. The prosecution does not need to tender the weapons used in an armed robbery.
On the crime scene, the charge states that the armed robbery occurred at No.23 Anglican Church House Guest House Dauda Street Wuse Zone 5 Abuja, while Exhibit A and B1 the confessional statements of the appellant states that the crime scene was at Wuse Zone 5 at All Saints Lodging lodge.
In resolving the issue of the crime scene, this was what the Court of Appeal had to say:
“…In searching the area the appellant was arrested at a canal behind the guest lodge. The Anglican Guest House Lodge is a lodge. The fact that the appellant did not mention the correct name of the lodge
is insufficient to create doubt on the evidence of the prosecution…”
To my mind since the charge and the confessional statements state that the armed robbery occurred at Wuse Zone 5, the appellant, not mentioning the correct name of the guest house is irrelevant. The fact that the armed robbery occurred in a Christian Guest House/Lodge in Wuse Zone 5 is clearly established to my satisfaction and I am in complete agreement with both Courts below on the crime scene.
In Oyediran v. Republic (1966) 4 NSCC P.252 Coker, JSC explained the modes of forming conspiracy when His lordship said that:
- Conspiracy may be formed in one of the following ways:
(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others revolve like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another, and so on. This is what is called chain conspiracy.
(2) In order to establish conspiracy therefore, it is not necessary that the
conspirators should know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy.
It becomes clear that there is said to be a conspiracy when A and B agree to commit a crime, and the agreement between A and B can be inferred after examining the facts of the case. See Njovens v State (1973) 5 SC p.17
Mumuni v State (1975) 6 SC p.79
Daboh v State (1977) 5 SC p.197
Osetola & Anor v State (2012) 6 SC (Pt. iv) p.148
The appellant and the other two armed robbers said that one Omo was the one who put the gang together. Omo is the hub around whom thee appellant and the other armed robbers revolve. On arrival at the guest house on 8/9/2005 they tied up the security man, Pw3. while the appellant stood guard over him. They robbed PW3 and occupants of the guest house. It is obvious from these facts that the appellant and the other armed robbers agreed to rob occupants of the guest house. The agreement becomes very clear when the appellant was assigned the duty of keeping guard over PW3, a duty he performed creditably. The offence of conspiracy was committed when the
appellant and the other armed robbers agreed to burgle the guest house while armed on 8 September, 2008. Both Courts below were correct that the Count on conspiracy was proved beyond reasonable doubt.
Exhibit A is a confessional statement made by the appellant. When the prosecution applied to tender it as an exhibit, the appellant’s counsel objected on the ground that the statement was obtained under duress. A mini trial was conducted to determine if the statement was made voluntarily by the appellant. During the mini trial, learned counsel for the appellant changed his stance. He withdrew his objection and said that the statement of the accused was never obtained. The Court proceeded to admit the statement as Exhibit A.
Exhibit B1, also a confessional statement made by the appellant was admitted without objection from his defence counsel.
In cross-examination the appellant denied making any statement to the police. That is to say he made confessions, Exhibits A and B1 which he later retracted in cross-examination.
In R v Golder (1960) 1 WLR P.1169
Lord Parker CJ of England explained the inconsistency Rule when His lordship said that:<br< p=””
“When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn do not constitute evidence upon which they can act.”
This position of the law has long since been adopted and applied in Nigeria. See Joshua v. Queen (1964) 1 ANLR P. 1 State v Okoro (1974) 2 SC P.73
Queen v Ukpong (1961) ALL NLR p.25
The issue is not the inconsistency Rule as it applies to a witness rather it is the inconsistency rule as it applies to an accused person.
The law is long settled that the inconsistency Rule does not apply to an accused person. Cases where an accused person confessional extra judicial statements run contrary to his testimony in Court are not covered by the inconsistency rule. The Court is at liberty to convict on the retracted confessional statement of an accused person provided the testimony and confession of the accused person and all other evidence are properly evaluated.
Once an accused
persons confessional statement is voluntary and true but inconsistent with his evidence in Court a Court may convict. See Egbogbonome v. State (1993) 7 NWLR (pt 306) p.383.
Section 28 of the Evidence Act defines confession. It states that:
A confession is an admission made at a time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
It is well settled law that a free and voluntary confession of guilt made by an accused person if it is direct and positive is sufficient for a conviction without corroborative evidence, so long as the Court is satisfied that the confession is true. See Haruna v A.G. Federation (2012) 3 SC (Pt.iv) p.40
Adekoya v. State (2012) 3 SC (Pt.iii)p.36
Galadima v. State (2012) 12 SC (Pt.II) P.213.
It is desirable, though not mandatory to have some evidence outside the confession which makes it probable that the confession is true.
In Exhibits A and B1 the appellant admitted that he and his co-armed robbers agreed and planned to rob the guest house.
At trial, the appellant said that Exhibit A was obtained under duress. He then said his statement was never
obtained. Exhibit B1 was tendered in evidence without objection. It is long settled that where an accused person objects to the tendering of a confessional statements on the ground that he did not make it, the question as to whether he made it or not is to be decided at the end of trial by the learned trial judge. No matter the objection by counsel, such a statement should be admitted since the issue of voluntariness of the statement does not arise for consideration. See Queen v. Igwe (1960) 5 FSC P.55 Ikpasa v. Bendel State vol.112 (1979-1981) NSCC P.300.
That is the position of Exhibit A. On the other hand Exhibit B1 is also a confessional statement tendered in evidence without objection by defence counsel. When a confessional statement is tendered without objection, the clear understanding is that it is a free and voluntary confession made by the accused person.
Exhibits A and B1 are without doubt a confession by the appellant to armed robbery and conspiracy to commit armed robbery is easily inferred from the facts. The confession was free and voluntary and in itself fully consistent and probable.
Is there evidence outside
the confession which make it probable that the confession is/was true PW3, Julius Nomshem, was a victim of the robbery. An eyewitness. It was he that was tied up by the armed robbers on the 8 of September 2005 and it was the appellant that stood guard over him while the other armed robbers ransacked the guest house and stole from the occupants. He gave damaging evidence.
In evidence in chief he said:
“I am a security man. I know the three accused persons. On 8/9/2006 when I was patrolling round the premises of the guest house… many of them had weapons such as cutlass, machete, sticks.. they tied me down, they started their operation and they left one of them to guard me. When they came there was light in the compound they removed one hand set from me (sergem), the sum of N1505.00 and a security torch light. The first and the third accused were the ones that tied me. I saw their faces in the light …they said if I shout they would finish me. After the incident, the police arrested them. I went to the police station I saw them. The sergem handset, the security torch light and money were recovered from the accused persons. It was the first
accused who was left to guard me…”
Evidence of an eyewitness is one of the best evidence available in a criminal trial provided he is telling the truth, and all too often victims of armed robbery are always ready to identity almost anyone as the armed robber. The Court can only find out the truth of a witness testimony by good cross-examination, and his demeanour. I shall reproduce the entire cross-examination to highlight the shady handling of such an important aspect of the trial. It runs as follows:
“The accused persons confessed. At the station I saw the three of the accused. The accused persons were not brought to the guest Inn in the morning. I made a statement at the police station Wuse. The police asked me to write what happened at that time and I wrote. I am telling the Court the truth. The accused persons were not arrested at the guest house.”
That was all, and quite rightly there was no re-examination. I must explain the importance of cross examination.
When a witness (the adversary) testifies on a material fact in controversy in the case, the other party if he does not accept the witness testimony as true should
cross-examine him on that fact or at least show that he does not accept the evidence as true. Where, as in this case he fails to do either, the Court can take his silence as an acceptance that the party does not dispute the fact. See Amadi v. Nwosu (1992) 5 NWLR(Pt.241) p.275.
It must be made abundantly clear that one of the main purpose of cross-examination is to test the veracity of a witness and in this case it is established that PW3 was telling the truth. Evidence of PW3 is credible and compelling evidence outside the confession which makes it probable that the confession was true. In the light of all that I have been saying, the trial Court was right to convict on the appellant’s confessional statements, subsequently retracted, and the Court of Appeal was correct to affirm the conviction.
The evidence given by PW3 established the fact that it was an armed robbery when he said:
“…many of them came with weapons such as cutlass, machetes, sticks… they tied me down.”
This evidence was unchallenged under cross-examination. The Supreme Court is always slow to upset concurrent findings of fact made by the High Court and the Court of Appeal,
unless a substantial error is apparent on the face of the record of proceedings or when the findings are perverse. See Military Gov of Lagos State & Ors v. Adeyinka & Ors (2012) 2 SC (Pt.1) p.68.
It is clear that the appellant was convicted on his confessional statement and the evidence of PW3, an eyewitness who saw him participating in the armed robbery on 8/9/2005. The appellant has not been able to show that his statement, particularly Exhibit B1 was not voluntarily made by him or that he was not seen by PW3 participating in the armed robbery.
It is my conclusion in the circumstances that since the appellant has not been able to show these findings to be perverse, this Court cannot interfere with the decisions of both Courts below. Once again it is established that PW3 was telling the truth.
In the end I am satisfied that the learned justices of the Court of Appeal were right in affirming the conviction of the appellant on the evidence as presented by the respondent.