Okunade Kolawole V The State (2015)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal or Court below sitting in Ibadan. The said judgment was delivered on the 13th October, 2011 affirming the judgment of the Ogun State High Court, Ijebu-Ode Judicial Division per C. C. Ogunsanya J. on the 23rd December, 2009. The Appellant and others were tried on a two count charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, CAP R.II, Laws of the Federation of Nigeria, 2004.
STATEMENT OF FACTS:
The case of the prosecution at the trial court was that on the 7/5/07 at about 9.30p.m, the PW1, who was the Managing Director of FAO Constant Petroleum at Ilese, Ijebu-Ode, Ogun State closed for the day at the filling station. He took the day’s proceeds, the sum of three hundred and fifty-seven thousand, one hundred and fifty naira in his car with one of his staff and while driving along the road, he saw a motorcycle with three men coming behind his vehicle, which overtook his car and blocked his vehicle in front.
That the three men rushed down from the motorcycle, attacked him, seriously beating him and with a broken bottle injured him making away with the money and two mobile phones in the vehicle. The staff of the complainant was able to escape while the complainant assisted by two people around pursued the robbers without success. That on getting back to the scene of crime, his brother, Leke Osiyemi told him that he saw the Appellant around the filling station that day. The case was later reported to the police who arrested the first accused person and upon the arrest he confessed and mentioned the names of the two others who were then arrested.
On the arrest of the second accused person, the mobile phone of the complainant was found on him. The prosecution had called two witnesses.
The case put forward by the defence when Appellant testified was a denial of the charge and an objection to the admissibility of the additional statement which he asserted was involuntarily obtained and that the signature looked different from the earlier statement, Exhibit B which he had no objection to. There was a trial-within-trial over the additional statement which the court admitted as Exhibit C and that it was voluntarily made. The Appellant made another confessional statement which was not objected to and was admitted as Exhibit E and another one admitted as Exhibit F. The mother of the Appellant testified for the defence.
At the end of the trial, the Appellant and the two other accused persons were convicted of the offences of conspiracy to commit armed robbery and armed robbery. Dissatisfied, the Appellant appealed to the Court below which affirmed the judgment of the trial court hence this appeal to the Supreme Court.
Mr. Ikenna Okoli, learned counsel for the Appellant on the 4th day of December, 2014 date of hearing adopted the Appellant’s Brief of Argument filed on 26/3/12. In the Brief were raised four issues for determination of the appeal which are thus:-
- Whether the judgment of the Court of Appeal met the requirements of a good appellate judgment
- Whether the Court of Appeal was right in relying on Exhibits G and H (alleged confessional Statements of the Appellant’s co-accused) as corroborative evidence against the Appellant
- Whether the Court of Appeal was right in holding that the trial court rightly attached much weight to Exhibits C, E and F (the alleged confessional statements of the appellant) and convicting the appellant thereon
- Whether the Court of Appeal was right in upholding the trial Court’s conviction of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery
J. K. Omotosho Esq, the Deputy Director of Public Prosecutions for the State adopted the Respondent’s Brief filed on 13/6/2012 and in which were crafted two issues for determination, viz:-
- Whether the learned Justices of the Court of Appeal were right in affirming that the trial court was right in admitting Exhibits C, E and F (the confessional statements of the Appellant) in evidence and attaching evidential weight to them and using same in convicting the Appellant.
- Whether the Respondent proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt against the Appellant
The issues as formulated by the Respondent seem to me easier to utilise and I shall use them in the determination of this appeal.
ISSUE NO. 1:
This calls for the answer whether the Court below was right in affirming that the trial court was right in admitting Exhibits C, E and F in evidence and attaching evidential weight to them in convicting the Appellant.
Learned counsel for the Appellant referred to Exhibits C, E and F, the alleged confessional statements made by the appellant and Exhibit B, Appellant’s first statement where he denied any involvement in the alleged armed robbery. That the Court below ignored the appellant counsel’s submission that the regularity of a signature and not showing off any scars cannot be a proper basis to hold that Exhibit C was voluntary as the signature will normally be procured after a cooling off period between being beaten and intimidated, to signing off a purported voluntary statement and it is not always that there will be a permanent scar from the torture, He cited Section 28 of the Evidence Act 1945 similar to Section 29 (2) of the Evidence Act, 2011. That the Court of Appeal ought to have been more circumspect in affirming the position of the trial court that Exhibit C was voluntarily made.
Learned counsel for the Appellant said the appellant did not bother to object to Exhibits E and F with the wrong admission of Exhibit C. That the Lower Court was wrong to have used the statements of the co-accused, Exhibits G and H as corroboration of the confessional statements of the appellant and the implication is that there was no corroboration of the confessions and so no basis for attaching weight on them. He cited Ikpo v State (1995) 9 NWLR (Pt. 421) 540 at 554; Nwaebonyi v State (1994) 5 NWLR (Pt. 343) 138 at 150.
Responding, learned counsel for the Respondent said it is well established that a trial court can rely solely on the confessional statement of the accused person to convict him. He cited Akpa v State (2008) 8 SCM 58 at 70; Adebayo v. A.G Ogun State (2008) 5 SCM 1 at 15; Oseni v. State (2012) 4 SCM 150 per Ngwuta, JSC.
It was submitted for the Appellant that the confessional statement Exhibit C was corroborated by the unchallenged fact that the mobile phone of the complainant was recovered from the 2nd Accused person, arrested as a result of the confession of the Appellant. That the mere fact that the Appellant retracted his confession Exhibit B during the trial will not affect or stop the court from relying on it and once the trial court was satisfied as to its truth, it can rely solely on it to ground a conviction. He cited Dibie v State (2007) 7 SCM 101.
The summary of the contest between the Appellant and the Respondent is restated by showing that Appellant’s point of view is that the Court of Appeal was wrong in relying on Exhibits G and H (alleged confessional statements of the Appellant’s co-accused) as corroboration evidence against the Appellant. Also that the Lower Court was wrong in holding that the trial court rightly attached much weight to Exhibits C, E and F (the alleged confessional statements of the appellant).
For the Respondent is that the conviction of the Appellant on his confessional statements, Exhibits C, E and F, the corroborative facts outside of those confessions being available. Furthermore, that the Court of Appeal was right to affirm the trial court’s admitting Exhibits C, E and F and rightly relying on it.
The learned trial judge in his consideration in relation to the confessional statements stated thus:-
“In Exhibit C, the 1st Accused confessed to orchestrating the attack on PW1 and that he was the one who invited one Adewole to bring his Motorcycle and also again invited one Segun both of whom together with him planned the attack on PW1. He explained how the PW1 was crossed on the road and beat him up and they took away the money on him and that they were at the time in possession of a bottle but they never hit PW1 with the bottle and that Jeans Shift recovered inside the uncompleted building is his”.
The learned trial judge went on to say thus:-
“In Exhibit E, the 1st Accused stated that he planned the attack on PW1 due to his wickedness towards him and stated that the total money collected from PW1 is N250,150 and a label on the money showed that amount and that he took possession of the money so Adewole and Segun would not spend it and he had the money which was recovered in his possession and at the time of recovery, he had already spent N7,000.00 out of it to get drugs. He denied stealing any handset from PW1 that day and also claimed he did not know the whereabout of Segun and Adewole.
In Exhibit F, the 1st Accused claimed the PW1 was threatened at the time of the attack on him with a beer bottle and that he organized that PW1 be beaten and claimed he bought beer for all the boys who followed him to attack PW1 including some boys called Kayode and mentioned the names of other persons also apart from 2nd & 3d Accused persons who took part in attacking PW1. He described again how PW1 Benz vehicle was stopped and blocked and that he stayed at the back of the vehicle while he ordered Segun Kayode, Raimi and Sunday Kehinde to beat PW1 and drag him into the bush and that it was Segun who took the bag in the Car but he later took the money and spent N7,000 from it. In this statement, the 1st Accused also exonerated one Adeniyi Ahmed, Sunday Folorunsho and Saheed Aluko of any involvement in the robbery but that himself including the 2nd & 3rd Accused person committed the offence”.
On these confessional statements admitted and utilised by the trial Court, the Court of Appeal stated as follows:-
“What is certainly not in doubt for now is that the Appellant raised no objection to the admissibility of Exhibits “E” and “F”. Admissibility was objected to Exhibit “C” on the ground that it was not voluntarily made by the Appellant. It is at this stage that one should concern oneself with what to make out of Exhibit “C” which the Appellant said was not voluntarily made by him. The Court went into the conduct of a trial-within-trial after which Exhibit “C” was admitted as having been voluntarily made. The said Exhibit “C” reads as follows:-
“I am the person who organized the attack because of the way Niyi Oshiyemi the Managing Director usually treat me in the place of work that is why I called my brother who live in Lagos one Adewole to bring his motorcycle and one Segun who live at Ogbere and plan to attack him but only to beat him up whether he will change but when we cross (sic) him on the road, my people whom we went together says we should carry (sic) the money inside the car this is why we carry (sic) the money and the total money we carry was N250,125.00 and even the label of the total money was on the money, it’s the other two boys that beat him and immediately I called the boys to order and we all left the scene with the total. Actually, on that day, we hold a bottle and is mineral bottle but we didn’t him with the bottle at all. The time then was around 09.20pm in the night but the money I collected it and is in our house at Ijebu Ife. Adewole, I know him, I have never heard of any bad past record on him and why I explain to him is not whether Adewole has not being doing so but just to put fair on the mind of the Managing’ Director one Niyi Oshiyomi. The motorcycle we used belong to the said Adewole and is Jincheng motorcycle the Reg/No. I don’t know and pertaining to Segun I know him at Ogbere but where he reside the house I don’t know and since the day of the incident he told me that he will not stay around at all and presently I don’t know where he is. The Jeans shirt recovered in an uncompleted building inside the uncompleted building. I have never conducted myself in a manner that can cause breach of peace. Okunade Kolawole”.
“It is this statement that the learned trial Judge admitted as Exhibit “C’as having been voluntarily made by the Appellant after a trial-within-trial. If the learned trial Judge was right in its finding, this sole confessional statement – Exhibit “C” would be sufficient to convict the Appellant. See Nwachukwu v. State (2008) 4 WRN 1; (2007) 12 SCM (Pt.2) 447 & 455; Ikemson v State (1989) 3 NWLR (Pt.110) 455 at 468 – 469; Adebayo v A.G. of Ogun State (2008) 5 SCM P.1 at 15; Akpa v. State (2008) 8 SCM P.’
The Court Below stated further as follows:-
“He admitted that the names of the 2nd and 3rd accused persons were not contained in the statement which PC Solomon asked him to copy unto the plain sheet of paper. How could the Appellant know the names of the 2nd and 3rd accused persons which were not known to PC Solomon if the Appellant was not part and parcel of the gang to which the 2nd and 3rd accused persons belong At page 53 of the Record of Appeal, the learned trial Judge in summing up the evidence of the Appellant during the course of the trial within trial stated thus:-
“I have looked at the statement sought to be tendered and it contains the following information, “Adewale lives in Lagos and one Segun Osho lives in Ogbere; the amount of N250,150; “it was a Juncheg motorcycle which was used for the robbery and a jeans shirt recovered in an uncompleted building , belongs to 1st accused”
and came to this conclusion,
These pieces of information which PW1 could not have known not being within his personal knowledge’ which to my mind are information that can only be known to the 1st accused personally”.
The learned trial Judge in my estimation was absolutely right. A better evaluation could not have been made”.
The Lower Court was of the view that outside of the confessional statement of the Appellant Exhibit C are the confessional statements Exhibits G and H of the other accused persons charged and convicted with the Appellant which offered corroborative materials to the confession of the Appellant. That appellate Court so held, finding that there was a harmonious flow one statement to the other and offered a consistent picture of the incident in such a way that the Appellant confession is not only possible but cannot be doubted.
As if the co-relation between the confessional statements of the Appellant and those proffered by his co-travellers were not enough is the fact of the missing or stolen money being found in the possession of the Appellant soon after the theft under the doctrine of recent possession of stolen property and the presumption that follows that the person in possession is either the thief or received the property knowing it to have been stolen. I refer to the case of Oseni v. State (1984) 11 SC 44; Alarape v The State (2001) FWLR (Pt.41) 1873; Nwaebonyi v State (1994) 5 NWLR (Pt.343). See Section 167 Evidence Act 2011 (As amended) which provides thus:
‘167. The court may presume the existence of any fact which it deems likely to have happened, regard being had to the common course of natural events’ human conduct and public and private business, in their relationship to the facts of the particular matter, the court may presume that –
(a) 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 his possession’
Whether the Respondent has proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.
Learned counsel for the Appellant contended that a good appellate court judgment must contain, inter alia, the submissions made by the counsel for the parties in the appeal which that court is required to consider in reaching its decision which is lacking in the case in hand. He cited Ogba v. Onwuzo (2005) 14 NWLR (Pt.945) 331 at 345.
That the confessional statement of an accused is only relevant and admissible against the maker and not against the co-accused, a principle jettisoned in this case when the Court of Appeal utilised Exhibits G and H, confessional statements of the co-accused of the appellant. He relied on Solola v State (2005) 11 NWLR (Pt.937) 460 at 480; Section 27 (3) of the Evidence Act, 1945 (Similar to Section 29 (4) of Evidence Act, 2011.
It was further submitted for the Appellant that from the evidence adduced before the trial court, PW1 was in company of one of his attendant Agbo Samson when the PW1 was purportedly attacked and robbed but the said Agbo Samson was not called to testify by the prosecution. That the failure to call that vital witness is fatal to the case of the prosecution, a situation which the Court below ought not to have ignored, He cited Opayemi v State (1985) 2 NWLR (Pt.5) 101 at 109; Yusuf v. State (2007) 1 NWLR (Pt.1020) 94.
Again submitted for the Appellant is that even though the court can convict solely on confessional statement of an accused, it is desirable to have some evidence outside that confession which would make it possible that the confession was true, a situation absent in this instance. He relied on Dibie v State (2007) 9 NWLR (Pt.1038) 30 at 51; Aigbadion v. State (2000) 7 NWLR (Pt.666) 685 at 704.
Learned counsel stated on for the appellant that the maker of Exhibit A, the medical report of the treatment of PW1 ought to have testified and be cross-examined as to the contents of the documents. That the failure should affect the probative value to be attached to the document. He cited Omega Bank (Nig.) Plc v. O. B. C. Ltd (2005) 8 NWLR (Pt.928) 547 at 682; Buhari v. INEC (2008) 12 SC (Pt.1) 1 at 123.
That there was no evidence establishing the agreement by two or more persons to do an unlawful act necessary for the offence of conspiracy.
For the Respondent, it was contended that from the evidence of PW2, the fact that the complainant’s mobile phone was found with the 2nd Accused mentioned and arrested upon the confession of the appellant inter alia corroborate the confessional statements, Exhibits C, E and F of the appellant and shows that there are other evidence outside the confession making the confession possible.
On the offence of conspiracy, learned counsel for the Respondent said it is difficult to have direct evidence in support of conspiracy and so it is inferred from the facts and circumstances of each case. That the acts of the appellants and co-conspirators as explained in their various confessional statements and stated in the evidence of PW1 were sufficient to infer the offence of conspiracy. He cited Kaza v The State (2008) 5 SCM 70 at 104; Upahar v. The State (2003) 6 NWLR (Pt.81) 230 at 239.
It was submitted for the respondent that the evidence of the co-accused on oath binds the other accused person. He referred to Oyakhire v The State (2006) 12 SCM (Pt.1) 359 at 38 – 381.
That even though it is desirable to have outside the confession some evidence of circumstantial no matter how slight which makes it possible that the confession is possible. That the corroborative evidence may be direct or circumstance so whichever may suffice. He cited Dagaya v State (2006) 2 SCM 33 at 67; Bozin v State (1985) 2 NWLR (Pt.8) 465.
For the respondent, it was canvassed that Appellant did not apply for the maker of Exhibit A, the medical report to be called and so cannot at this stage complain on his not being called to testify. He relied on Nwachukwu v The State (2003) 7 SC (Pt.11) 124 at 131 – 132.
On whether or not the judgment of the Court of Appeal met the requirements of a good judgment, learned counsel for the respondent stated that a judgment will not per se be set aside on proof that one or more of the ingredients of a good judgment are missing. That the judgment can only be jettisoned if it is shown that such omission resulted in a total miscarriage of justice. He cited A.G. Federation v. Abubakar (2007) All FWKR (Pt.375) 405 at 457 – 458 or (2007) 4 SC (Pt.11) 62.
Learned counsel urged that the appeal be dismissed for lacking in merit.
On the matter of conspiracy and the armed robbery offences, the Court of Appeal per Alagoa JCA (as he then was) held:-
“On the issue of conspiracy, I had earlier noted that it is a separate and distinct offence from the offence of armed robbery although in most cases both offences are intricately woven together. Conspiracy simply put is the meeting of the minds of the conspirators to perpetrate an unlawful act or a lawful act by unlawful means. Conviction is usually grounded on circumstantial evidence and a trial court may infer conspiracy from facts through which a common purpose is achieved. There is a plethora of case law on this subject matter. See generally the following cases – R. V. Aspinall (1876) 1 QBD 48; Waziri v State (1997) 3 NWLR (Pt. 496) 589; Nwankwoala v. State (2005) all FWLR (Pt.339) 801; Odeneye v. State (2001) 1 SC 1; Patrick Njovens v State (1973) 5 SC 17; Upahar v. State (2003) 6 NWLR (Pt.816) 230. When the confessional statements in Exhibits “C”, “E”, “F”, and “H” are comparatively evaluated one is left in no doubt that the Appellant conspired with other persons to perpetrate the offence of armed robbery against PW1 on the day of incident”.
The definition of conspiracy is well stated by this court in case of Kaza v The State (2008) 5 SCM 70 at 104 wherein it was held thus:-
“Conspiracy is a meeting of two or more minds to plan to carry out an unlawful or illegal act which is an offence and that bare agreement to commit an offence is sufficient”.
See also Upahar v. The State (2003) 6 NWLR (Pt.816) 230 at 230.
It is stating the obvious to say that a difficulty usually exist to get direct evidence in support of conspiracy which is established by inference from the facts and circumstances of each case and the main act of the conspiracy needs not be completed. The complainant, PW1 had testified that he saw three men rush down from a motorcycle and rob him. From Exhibits C, E and F, the confessional statements, the appellant stated how the conspiracy was hatched supporting what PW1 said.
The learned counsel for the Appellant had made much of the fact that the confessional statement of a co-accused can only be used against the maker and not the other accused. That is a generalisation which I dare say is not the completeness of what the law on confessional statements of a co-accused represent. This is because the current policy is that the evidence of a co-accused on oath is admissible against other accused persons as the peculiar circumstances of a particular case may present. In this regard would fall in a confessional statement to which there was no opposition when admitted at the point of tendering on oath by the investigating police officer as was the case with Exhibit G, statement of the 2nd accused which tallied with the statement of the Appellant in Exhibits C, E and F. In this regard, I would cite the case of Oyakhire v The State (2006) 12 SCM (Pt.1) 369 at 380 – 381.
In respect of the issue of Armed Robbery, what the prosecution need to establish are as follows:-
a. That there was a robbery or series of robberies.
b. That the robbery was an armed robbery.
c. That the Appellant was one of those who took part in the robbery.
See Bozin v State (1985) 2 NWLR (Pt.8) 465; Alabi v. State (1973) 7 NWLR (Pt.307) 511 at 523.
In proof of the first and second requirements (a) and (b), the sequence of events as narrated by PW1 from the time of the motorcycle carrying the three men overtook his vehicle, blocked him and the three men rushing down and attacking him with beatings including with a broken bottle, culminating in their making away with his money and two handsets. These facts aligned with the statements made by the Appellant in his confessional statements of Exhibits C, E and F. The mobile phone of the same PW1 was found with the 2nd accused who was arrested from the statement of Appellant mentioning him.
In the matter of the 3rd ingredient which is that Appellant was one of the robbers is the fact that a substantial part of the robbed money was recovered from Appellant. It was the mention by Appellant of the names of 1st and 2nd persons that enabled the police to effect their arrest and upon that arrest the mobile phone of the complainant taken at the time of the said robbery was recovered.
Clearly, there were loads from which the ingredients of the armed robbery were established and the current position of the Appellant difficult to justify.
On the position of the Appellant that a vital witness, that, is the maker of Exhibit A, the medical report not called being fatal. That cannot be supported by the evidence available in this instance nor does the case of Yusuf v State (2007) 1 NWLR (Pt.1020) page 94 apply.
In the case of Yusuf v state (supra), the complainant had stated that she was attacked and when she was attacked, two men came to her assistance and the situation was such that the two men were vital witnesses since their evidence would have been conclusive in support that there was indeed an armed robbery. The trial court thought not but on appeal, the Court of Appeal held thus at page 118:-
“There is no evidence in the record of appeal that attempt to secure the attendance of those vital witnesses by the prosecution was frustrated by certain circumstances. This is a criminal trial. The prosecution is bound to call all material witnesses in order that the whole facts may be put before the court. Although the prosecution need not call a host of witnesses on the same point where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called….. having played prominent role……ought to have been called as witnesses. Failure to call them is fatal to the prosecution’s case”.
The circumstances operating in Yusuf v. State (supra) are glaringly different from the case in hand, In the Yusuf case, the vital witnesses were not called but in the case in hand, the fact that the particular medical doctor who made Exhibit A, the medical report was not called does not fall in the same category. This is because there is evidence that the victim was treated in a Government Hospital from which the report emanated and which report was admitted without objection and without Appellant asking for the maker to come forth, I guess for cross-examination. To complain at this stage on the medical doctor’s non attendance and testifying is too late in the day. Also the medical report is well covered by Section 42 of the Evidence Act as to its admissibility in the absence of the maker. See the case of Nwachukwu v The State (2003) 7 SC (Pt.II) 124 at 131 -132.
In conclusion, there is more than enough from which the trial court and as affirmed by the Court of Appeal could make the decision that the offences of conspiracy to commit armed robbery and the armed robbery itself were proved beyond reasonable doubt. In fact the attempts at the defences pushed around by the Appellant remained what they really were, a beating about the bush which did nothing to enhance the position of the Appellant which his confessional statements alone had settled to his disadvantage.
It is stating the obvious to say that this issue is resolved against the Appellant and taking it with the earlier one, the appeal certainly lacks merit and I do not hesitate in dismissing it.
Appeal is dismissed as I affirm the decision of the Court of Appeal which upheld the Judgment, Conviction and Sentence of the Appellant.