Lekan Shodiya V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTITO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal Sitting at Ibadan, hereinafter referred to as the court below, delivered on the 23rd June 2009, affirming the conviction of the appellant, Lekan Sodiya, by the Ogun State High Court, hereinafter referred to as the trial court, for the offence of conspiracy to commit armed robbery contrary to Section 5(b) and punishable under Section 1(2)(a) of the Robbery and Fire arms (special provisions) Act CAP. The court pursuant to Section 1(1) of the Act, however substituted the death sentence passed by the trial court for a term of life imprisonment. Being dissatisfied by the decision, the appellant has further appealed to this Court on a Notice, see pages 189-190 of the record of Appeal, containing four grounds.

The brief facts of the case that brought about the appeal, from the record of appeal, are that the appellant was arraigned and tried along with two others before the trial court for conspiracy to commit armed robbery at the residence of Mr Olusesan Sowunmi, PW3, at Kenta House Estate, Idi Aba, Abeokuta. Appellant was charged for the said offence along with two other person and others then still at large. He pleaded not guilty whereupon the respondent called ten witnesses and tendered four Exhibits to prove its case against the accused persons. Appellant testified on his own behalf and called his mother who testified further on his behalf.

Respondent’s case is that on the 4th of November 1999, at about 11:pm, four men scaled the fence and jumped into the compound of Mr Olusesan Sowunmi, Pw3, at Kenba Housing estate, Idi-Aba Abeokuta. The men had earlier overpowered PW7 and ordered him to take them to where Pw3, his master, was in the compound. Only Pw1, Pw3’s wife, was in the compound. Pw3 had gone out at the particular time. The men, armed with guns, subjected Pw1 and the other occupants of the premises to all manner of inhuman treatment, took away whatever they could get, including Pw3’s Mercedez Benz car in which they drove away from the compound after the robbery operation.

On receiving Pw3’s report of the robbery on the 7th of November 1999, Pw8, a police officer, accompanied him to his house from where he recovered a gun carrier bag, Exhibit B, two expended cartridges, Exhibit B1, four live cartridges, Exhibit B2 and a cartridge carrier belt Exhibit 83. Following some information they received, Pw8 along with other police officers also retrieved Pw3’s Mercedez Benz car at the Lantoro end of the Elite Road where the robbers had abandoned it. Pw9 and Pw10 are both police sergeants at the State criminal Investigation Department, Eleweran to which the robbery case was transferred for further investigation. Their investigation led to the arrest of the Appellant and the two other accused persons along whom he was tried and convicted.

On his arrest, the respondent further asserts, the appellant made a statement wherein he mentioned the names of those who carried out the robbery in Pw3’s house on the night of 4th November 1999 of those mentioned, Pw9 and Pw10, with the help of the appellant who took them to their houses, arrested appellant’s co-accused. The two made confessional statements to Pw9 and Pw10 about the robbery at the house of Pw3. The statements of the appellant and his two co-accused persons were admitted in evidence, after a trial-with in-trial, the respondent having been held by the trial court to have established the voluntariness of the statements. Exhibit C2, appellant’s own statement, asserts the respondent, shows beyond doubt that appellant had informed the other accused persons that Pw3 had some money in his house and reached some understanding with the robbers that they carry out the robbery that eventually took place. The very Exhibit also reveals how the appellant met with the other accused persons after the armed robbery.

The appellant in his defence conceded that he works with Pw3 as an apprentice produce buyer in training; that having been released from his apprenticeship by and with Pw3’s permission and, after washing his boss’s car, appellant left Pw3’s house on 4th November 1999 at about ten o clock in the morning. At departure, Pw1 and Pw3 gave the appellant two thousand (N2,000) and one thousand naira (N1000) respectively; that he proceeded to his mother’s house, Dw4, to inform her of his release from the apprenticeship and that he was proceeding to Owode – Idi-Iroko to collect money from the people who had bought cocoa from him on credit while he was still under Pw3. He slept at Owode, the appellant further told the trial court, when he was unable to find the people he was to collect the sum of nine thousand naira they owed to Pw3. The debtors who had no money at the time of appellant’s call, pleaded with him to return at a later date before which, however, he was arrested and forced to make Exhibit C2, the content of which he asserted were not true. He said he was at Dw4’s residence on his return from Owode when he was arrested on the 8th November 1999.

The 2nd accused Dw2 told the trial court that the appellant took PW9 and PW10 to his residence on 8th November, 1999 where the latter arrested him. He asserted that he was beaten and tortured by PW9 and PW10 before he made exhibit C1. He stated not knowing the appellant before 1998 and that they came into talking terms subsequently.

The 3rd accused in testifying at the trial court stated that he was arrested at Eleweran where he went to look for his brother. He was arrested on 18th November, 1999. He denied ever knowing the appellant before the robbery incident. He insisted under cross examination that he never conspired with anyone to rob PW3 or any other person at all.

At the end of the trial including addresses of counsel, the trial court found the appellant guilty, pursuant to the only head of charge against him punishable under Section 1 (2) (a) (i) of the Robbery and Fire Arms (special provisions) Act CAP 398 Laws of the Federation of Nigeria 1990, as amended by the Tribunal’s (certain Consequential Amendments) Act 1999, of conspiracy to commit robbery.

The affirmation of the conviction and substitution of the trial court’s sentence of death by firing squad for life imprisonment by the court below informs the instant appeal.

In keeping with rules of court, parties have filed and exchanged briefs which, at the hearing of the appeal, they adopted and relied upon as their arguments for or against the appeal.

At page 4 of his brief of argument, deemed filed on 13th April, 2011, the appellant has identified the following four issues as having arisen for the determination of his appeal.

“1. Assuming (but not conceding) that Exhibit ‘C2’ was rightly admitted in evidence, whether the Trial Court and the Court of Appeal attached the proper evidential weight to it bearing in mind the standards set out in R vs. OBISA (1962) 2 S.C.N.L.R, 402 (Ground 2, Notice of Appeal).

2. Whether the Prosecution has proved or established the offence of Conspiracy to commit robbery against the Appellant (Ground 3, Notice of Appeal).
3. Whether the entire Judgment of the Court of Appeal and the conviction of the Appellant for Conspiracy to commit robbery con be supported having regard to the evidence before the Court (Ground 4, Notice of Appeal).
4. Whether the Court of Appeal was right in affirming the decision of the Learned Trial judge admitting Exhibit ‘C2′ in evidence as a Voluntary Statement (6round 7, Notice of Appeal).”

The respondent’s brief, deemed filed on 7th March, 2013, at page 5, paragraph 3.1 thereof, contains the following two issues for the determination of the appeal:

“1. Has the prosecution based on the evidence presented before the court, established a case of conspiracy against the appellant and other accused Persons (Ground 3)

2. Was the confessional statement of the appellant which was tendered and admitted as Exhibit C 2 properly admitted as a voluntary confession upon which a conviction can be based

(Grounds 1 and 2)”

Respondent’s two issues clearly subsume appellant’s 3rd and 4th issues which issues are repetitive of the latter’s 1st and 2nd issues. Consideration of respondent’s two issues will in my firm view facilitate the just determination of the appeal.

Arguing appellant’s 1st, 2nd and 3rd issues jointly, learned counsel for the appellant submits that the court below in failing to re-evaluate the evidence on record abdicated its responsibility. Had the court discharged that duty it would have found that Exhibit C2 stands alone there being absolutely no credible evidence outside it to corroborate appellant’s statement and/or show that its content is true or possible. Yet, learned counsel submits, this court, in restating the test outlined in R v Obiosa (1962) 2 SC NLR 402, insists that it is not only desirable but necessary that trial courts look for evidence outside the extra judicial statements of accused persons before relying on them to convict the accused persons. None of the other accused persons either in their statements, Exhibits C and C3, or oral evidence before the court implicated the appellant. The lower court at page 183 of the record had found that much but yet proceeded to find that given appellants own statement he knew that some crime was intended. Again, it is submitted, the testimonies of the witnesses called by the respondent are contradictory and equally incapable of corroborating appellant’s confessional statement. The court, it is argued, has erred in endorsing the trial court’s finding that Exhibit C2, appellant’s confessional statement, has provided sufficient and direct evidence of conspiracy. The error is fatal and having caused miscarriage of justice necessitates interference by this court with the decision of the court below.

It is further argued that the armed robbers, from the evidence on record, knew each other and Pw3’s house and did not require any information from the appellant. Lastly, appellant had raised an alibi which the respondent failed to investigate and disprove. Had that been done, learned counsel contends, the movement of the appellant as well as the reasons for not sleeping at Pw3’s house on the day of the robbery would have been discovered. Relying on the decision in Amachree v. Nigeria Army (2003) 3 NWLR (pt 807) 256 at 281, learned counsel urges that since conspiracy purports an agreement formed by two or more persons with the intention of doing an unlawful act, evidence of which agreement does not exist outside Exhibit C2, it is only just that the issues be resolved in appellant’s favour and the appeal allowed.

On appellant’s 4rh issue, learned appellant’s counsel questions the lower court’s affirmation of the weight the trial court ascribed to Exhibit C2. The trial court’s decision at pages 58-62 of the record nor only on the voluntariness of Exhibit C2 but the weight the court ascribed to the content of the document as hurriedly affirmed by the court below at pages 176-178 of the record being manifestly perverse, argues counsel, should be re-visited by this Court. The court below has the jurisdiction to review the entire trial-within-trial conducted by the trial court and differ from the trial court’ At the trial-within-trial, learned counsel submits, the appellant was not cross-examined The unchallenged evidence he gave must be accepted as the truth which the two courts declined to do. Relying on Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 at 605, and R v Haske (1951) SCNLR 90, learned appellant’s counsel urges that the issue, too, be resolved against the respondent. The appeal, counsel concludes, should be allowed.

On their 1st issue, learned respondent’s counsel submits that appellant is wrong in his contention that the respondent did not prove the offence of conspiracy for which the two found him guilty. Citing Section 516 and 517 of the Criminal Code Act laws of the Federation, Amachree v. Nigeria Army (2003) 3 NWLR (Pt 807) 256 at 281; Olusegun Haruna & ors v. The State (1972) 819 SC 174 at 200-201 and Erim v. State (1994) 5 NWLR (Pt 346) 522, learned counsel submits that conspiracy is a matter of inference and there is hardly any direct proof of the agreement between those involved, He submits that appellant had not only made C2, his statement, but also took Pw9 and Pw10, police officers, to the exact houses where 2nd and 3rd accused persons were arrested. The two accused persons also mentioned the very names of those mentioned by the appellant as those who planned and robbed Pw3. The statements of these witnesses whose conviction as affirmed by the lower court is appealed against, provide a ready corroboration for the appellant’s statement collateral circumstances, submits learned respondent counsel, the involvement in the conspiracy for robbery can be inferred. Counsel asks that the issue be resolved in their favour.

Under their 2nd issue for determination, learned respondent’s counsel argues that Exhibit C2 was rightly admitted by the trial court after the trial-within-trial it conducted and found that the statement was voluntarily made. Appellant’s retraction does not make his statement that was voluntarily given inadmissible. Again, what weight to ascribe to the statement, it is argued, is primarily the function of the trial court and the court’s decision in that regard is only interfered with an appeal if same is perverse. And this, learned counsel argues, has not been shown to be the case. Appellant’s statement, which from all the collateral circumstances is voluntary, is alone capable of grounding a conviction. The lower court’s affirmation of the trial court’s decision, learned respondent’s counsel contends, cannot be faulted. In urging us to resolve the issue against the appellant and also dismiss the appeal, learned respondent’s counsel relies inter-alia on Kareem v. F.R.N. No.2 (2002) 8 NWLR (pt.770) 664 at 667; Akibu Hassan v. THE STATE (2001) 15 NWLR (Pt.735) 184 at 195 as well as R v. Obiosa (supra) and Erim v. State (supra) two decisions relied upon also by learned appellant’s counsel.

The questions the appellant by the two issues identified for the determination of the appeal seeks answers to are firstly, whether the tower court is right in affirming the trial court’s finding that Exhibit C2, appellant’s statement, is voluntary and secondly, whether the respondent has discharged the burden of proof the law places on it to justify the lower court’s affirmation of the trial court’ conviction of the appellant.

The trial court’s findings as affirmed by the court below which are crucial to the resolution of the two issues this appeal raises need to be closely examined. After evaluating the evidence before it, the court reasoned page 111 of the record of appeal thus:-

‘Obviously, Exhibits “C”, “C1” and “C2” above are confessional statements as has been noted earlier above, they have been proved to have been made voluntary (sic) by each of the accused persons. Clearly, they are positive, direct and unequivocal, and each of them amounts to an admission of guilty in my view. In Egboghorome Vs. The State (1993) 7 NWLR (Pt.306) 383. It was held that, once on extra judicial statement was found to have the qualities enumerated above, it would suffice to ground a finding of guilty regardless of the fact that the maker resiled therefrom, or retracted it altogether at trial. According to the case, such a retraction does not necessarily make the confession inadmissible.’

The court proceeded at page 112 of the record as follows:-

‘In the instant case, the learned defence counsel has advanced many reasons why the accused’s statement (Exhibits “C”, “C1” and “C2”) should not be upheld against them, but most of those reasons are an attempt to re-open the issues already dealt within the trial-within-trial. However, the court is enjoined to test a confession on its truth before upholding it by examining it along other evidence in the case so as to determine the following:

(1) Whether there is anything outside it to show that it is true;

(2) Whether it is corroborated;

(3) Whether the facts stated in them are true in so far as can be tested;

(4) Whether the accused’s confession is possible; and

(5) Whether the confession is consistent with other facts which have been ascertained and proved. See:- R. v. Obiosa (1962) 2 S.C.N.L.R. 402.’

Further reasoning on the point the court at 112 – 113 of the record stated thus:-

“In applying these tests to the facts of the instant case, one only needs to consider the evidence of PW1, PW2, PW5, PW6 and PW7 and related them to the statement of the accused (Exhibits “C”, “C1” and “C2”. After a deep and sober reflection on the evidence of those witnesses in relation to the statements of the accused persons; I am of the firm view that the confessional statements made by the 1st – 3rd accused are substantially and materially corroborated.’ (underlining mine for emphasis).

The court concluded at 114 – 115 of the record as follows:-

“In the instant case, there is the evidence of conspiracy provided in the statement of the 1st accused (Exhibit C2) in respect of how the first armed robbery in the 2nd count was executed; also, there is evidence of conspiracy provided in the statement of the 3rd accused (Exhibit C) of how the second armed robbery in the 6th count was executed. On the authority of section 11(1) of the Evidence Act, such evidence is admissible and thus relevant to explain the participation of the 1st, 2nd and 3rd accused in the conspiracy in the 1st count, and the participation of the 2nd and 3rd accused in the conspiracy in the 4th count respectively………………………….

Assuming however for an argument sake that exhibits C and C2 do not provide sufficient direct evidence of conspiracy, the Supreme Court has said that direct evidence of conspiracy is not indispensable and that it is open to the trial court to infer a conspiracy from the fact of doing things towards a common end. See Paul Onochie v. The Republic (1966) N.M.L.R. 307 at 308.” (underlining supplied for emphasis).

In affirming the foregoing findings of the trial court the court below at pages 179-180 of the record of appeal opined as follows:-

“What then is the procedure to be adopted by the Appellate Court when confronted with such finding of the trial Judge, Phipson on Evidence Twelfth Edition at Page 798, the 3rd paragraph stated:-

‘The question whether a statement is voluntary is for the judge. This does not make it any the less a question of fact. An Appellate court should not disturb a judge’s finding that a confession was voluntary simply because he has treated the facts before him differently from the way in which similar facts were treated in a reported case. Only if the trial judge has erred in principle or has made completely wrong assessment of the facts can his decision be disturbed.’

After a very careful examination of the finding of the trial judge in relation to the confessional statement of the Appellant (1st Accused), Exhibit “C2″ as detaily provided to (sic) earlier in this judgment, I have not found where the trial judge has erred in principle or has made a completely wrong assessment of the facts to disturb his finding in this case. This Court therefore, will not disturb the finding of guilt mode against the Appellant on Count 1 by the trial Judge.”

The thrust of learned appellant’s counsel’s arguments is that the foregoing concurrent findings of the two courts are wrong and the error entitles this Court to interfere by setting them aside and allowing the appeal. Learned counsel simply cannot be right. He must be reminded that evaluation of relevant and material evidence and the ascription of probative value to such evidence are the primary function of the trial court which saw, heard and assessed the witnesses while they gave the evidence. Where the trial court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate court to substitute its own views for the views of the trial court. See State v. Ajie (2000) 7 SC (Pt 1) 24 Bashaya v. State (1998) 5 NWLR (Pt 550) 351 Agbi v. Ogbeh (2006) 11 NWLR (pt.990) 65 and Fagbenro v. Adusei (2006) 7 NWLR (Pt.978) 174.

Again, it must be restated that though the right of appeal against the concurrent findings of the two lower courts enures to the appellant, he succeeds only if he establishes either that there is insufficient evidence in support of the findings appealed against or such substantial error that is apparent on the record of proceedings which error constitutes a violation of some principle of law or procedure and occasions miscarriage of Justice see Ezeonwu v. Onyechi (1996) 3 NWLR (Pt 438) 499 SC and Babuga v. State (1996) 7 NWLR (Pt 460) 279. In the instant appeal has the appellant satisfied these requirements to justify the interference of this Court I think not.

Appellant was tried and convicted for the offence of conspiracy proof of which offence, this Court has held in very many cases, is a matter of inference to be made from the acts or inactions of the parties concerned. See Oduneye v. The State (2001) 13 WRN 88 SC, Obiokor v. State (2002) 10 NWLR (Pt.776) 612 SC and Dabor v. State (1977) 5 SC 197.

The inference the two courts drew from the evidence led by the respondent cannot be faulted. Learned appellant counsel has insisted that Exhibit C2, appellant’s extra judicial statement, cannot sustain his conviction for the offence of conspiracy. It must be conceded to learned appellants counsel that conviction made solely on the basis of an appellant’s confessional statement survives an appeal where the statement is not only voluntarily obtained but the statement is direct, positive and unequivocal as to the entire ingredients of the offence for which the appellant is convicted as well. In that case nothing outside the statement is required to justify the conviction. Where, however, the extra judicial statement of the appellant is not that comprehensive or total in relation to the offence the appellant is convicted, the existence of such evidence outside the statement becomes a necessity to justify the persistence of the conviction on appeal. See R v. Obiosa (1962) 2 SCNLR, Kanu v. R 14 WACA 30 and Dawa v. State (1980) 8-11 SC 236 – all cases relied upon by the appellant herein.

In the case at hand learned counsel for the appellant appears to have, however, forgotten that the lower court, in affirming the trial court’s conviction has realized that beyond Exhibit C2, the trial court has further taken into consideration the act of the appellant of taking the police to the houses of the 2nd and 3rd accused persons in addition to the testimonies of the witnesses called by the respondent. There are also Exhibits C and C1 the extra judicial statements of the 2nd and 3rd accused persons as well as their oral testimonies the two courts equally and rightly drew from.

Appellant’s guilt is to be inferred from the totality of the evidence led by the respondent including the convict’s statement whether or not same is confessional. By exhibit C2, appellant’s own statement to the police, he is shown to have informed the 2nd and 3rd accused person that PW3 had, in his house, some large sum of money. This statement in relation to the statements of the 2nd and 3rd accused, the testimonies of PW1, PW2, PW3, PW4 and PW5, the two courts hold, and rightly too, point inexonarably to the guilt of the appellant. On the authorities, these concurrent findings that evolved from the evidence on record cannot be interfered with more so when the appellant has neither shown any breach of some law substantive or procedural or the miscarriage of justice the findings occasioned.

In the result, the two issues in the appeal are resolved against the appellant and the unmeritorious appeal dismissed. The judgment of the court below is accordingly hereby affirmed.

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SC.309/2010