Ore-ofe Adesina (Aka Alhaji) & Anor Vs The State (2012)
LAWGLOBAL HUB Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.
This appeal is against the judgment of the Court of Appeal, Ibadan Division delivered on Monday the 19th of April, 2010. The decision affirmed the conviction and sentence of the appellants by the High Court of Ogun State, Ijebu-Ode Judicial Division on the two counts charge of conspiracy to commit robbery and armed robbery delivered on the 6th of July, 2004. The facts of the case are briefly; that on the 28th of February, 2008, a gang of armed robbers forcefully broke into the Gateway Bank, Ijebu-Ode Branch, Ogun State. Those who entered into the Banking Hall shot freely into the air leaving people running helter-skelter. The appellants before this court remained in a vehicle parked at the premises of the Bank. The others gained access into the bank’s strong room from where they carted away the sum of Fourteen Million Naira in different denominations. A report of the incident was made to the police. At about 11.15 pm that day, a police patrol team along the Lagos-Benin Expressway saw an unoccupied Opel Omega car which was involved in an accident behind the Federal Government College, Odogbolu. On searching the car, the police recovered a carton containing 356 bullet cartridges and one pistol. They got information that three men left the vehicle after the accident and two of them carried “Ghana must go” bags. Around 6.15 the following morning while still on patrol duty, the police saw three men, two of them were carrying “Ghana must go” bags. The two appellants were immediately arrested while the third man ran into the bush. The “Ghana must go” bags were recovered from the appellants by the police. On searching the bags, a sum of N3, 777,900.00 in different denominations and wrapped in Gateway Bank currency wrappers were found inside the bags. The appellants claimed ownership of the money. They were apprehended and taken to the police station where they volunteered confessional statements to the police. Both appellants were arraigned and charged before the trial court on two counts charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Section 5 (6) and (2) (a) of the Robbery and Firearm (Special Provision) Act, Cap 398 Laws of Federation 1990 as amended by the Tribunals (Certain Consequential Amendment Etc.) Act 1999.
At the trial, the prosecution called five witnesses. The confessional statements of the appellants were admitted in evidence as Exhibits ‘A’ and ‘M’ after the court conducted a trial within trial in respect of each of the statements. The appellants testified for themselves. In the considered judgment of the trial court delivered on the 6th of July, 2004, the learned trial judge held that the prosecution had proved its case beyond reasonable doubt whereupon the accused/appellants were sentenced to death. The accused/appellants being dissatisfied with the said judgment appealed to the Court of Appeal Ibadan Division. In the judgment of that court delivered on the 19th of April, 2010, the appeal of the appellants was dismissed and the conviction and sentence of the appellants to death by the trial court was affirmed. The appellants aggrieved by the decision of the lower court, filed a further appeal to this court.
In the appellants’ brief filed on 24/8/2010, the appellants formulated three issues which are stated as follows –
a. Whether the justices of the Court of Appeal were right in law that there was cogent or corroborative evidence outside the confessional statement that made the confessions of the appellants probable.
b. Whether the Court of Appeal was right in affirming the conviction and sentence of the appellants by the trial court when none of the members of staff of the bank and the policemen on duty were called to identify the appellants as the persons they saw at the scene of crime.
c. Whether the circumstantial evidence in this case was cogent, direct, consistent, unequivocal and irresistibly led to the conclusion that the appellants were among the armed robbers who invaded and robbed the Gateway Bank, Ijebu-Ode on 28/2/2008.
The respondent in the brief filed on 3/2/2011 distilled a single issue from the four grounds of appeal of the appellant as follows –
“Whether considering the confessional statements of the appellants and the circumstantial evidence before the trial court, the trial judge was right in convicting the appellants in the absence of identification of the appellants by the victims of the robbery incident.”
I intend to be guided by the issues raised for determination by the appellants so as to consider all the necessary legal points in the dispensation of the appeal. The appellants requested to argue issues One and Three together as they are interwoven.
The appellants in their argument and submission defined and elaborated upon what in the process of establishment of the essential ingredients of a crime is circumstantial evidence.
The evidence on record before the lower court failed to establish with any degree of certainty that the appellants were among the armed robbers who invaded the premises of the Gateway Bank Ijebu-Ode on 28/02/2008 and robbed the Bank of its money. The mere fact that the appellants were found to be in possession of ‘Ghana must go’ bags containing part of the money stolen from Gateway Bank Ijebu-Ode on the 28/02/2008 without more is not sufficient to ground conviction in the circumstances of this case.
This court must reject the doctrine of recent possession without anything more as sufficient link of the appellants with the robbery incident of 28/02/2008. This court must hold that there should be other circumstances strong enough not only to invoke the presumption covered by Section 148 (a) of the Evidence Act against the appellant but to justify with some degree of certainty that they committed the robbery.
The appellants submitted that the justices of the Court of Appeal were in grave error to affirm the decision of the learned trial judge on circumstantial evidence. Their lordships based their decision on the fact that the ‘Ghana must go’ bags containing parts of the stolen money were found in their possession forgetting however that there was no shred of evidence connecting the appellants with the ammunitions recovered from the Opel car.
The appellants drew attention also to the fact that the police guard and civilian guard at the bank were never asked to identify the appellants as the occupants of the Opel car. The appellants contended that both Exhibits ‘A’ and ‘M’ the confessional statements were not tested by the learned trial judge to show that they were in fact true or consistent with other facts proved by the prosecution. The circumstantial evidence relied on to convict and sentence the appellants by the trial court and which the learned justices of the court below affirmed fell short of the standard required by law. The appellants also challenged Exhibits ‘A’ and ‘M’ their confessional statements as they were in their opinion not tested by the learned trial judge to show whether those statements were in fact true or consistent with other facts proved by the prosecution. It is imperative that the court must test the statements by closely examining them in the light of the other evidence available. The judgment of the lower court that the trial court was satisfied that Exhibits ‘A’ and ‘M’ were true is perverse. The court is urged to resolve this issue in favour of the appellants. The appellants cited cases
Ukoroh v. State (1979) 4 SC 167.
Omogodo v. State (1981) 5 SC 5.
Igboji Abieke & anor v. State (1975) 9 – 11 SC pg. 97
Lori v. State (1980) (1980) 8-11 SC 81
State v. Nafiu Rabiu (1980) 1 NLR pg.4.
Adie v. State (1980) 1-2 SC pg.116.
Nasiru v. State (1999) 2 NWLR (pt.589) 87.
State v. Ogbubunjo (2001) 1 SC (pt.1) pg.90.
Ojegele v. State (1988) 1 NWLR (pt.71) 414.
Dawa v. State (1980) 8-11 SC pg.236.
The respondent represented by the learned counsel Akin Osinbajo replied by defining what amounts to circumstantial evidence in line with the case of Mohammed v. State (2007) 13 NWLR (pt.1050) pg.186. The respondent went further to quote from the testimony of PW3 before the trial court. He was a member of the police patrol team along Lagos-Benin Expressway who recovered ammunition and a pistol in an accident car at a spot in the vicinity of the Gateway Bank, Ijebu-Ode the scene of the robbery. The patrol team apprehended the appellants with two ‘Ghana must go’ bags containing money with Gateway Bank wrappers on them around 6.15 am the following morning. They were then on patrol duty along the same road. PW3 challenged the appellants about the money and they claimed ownership of it. They made the confessional statements ‘A’ and ‘M’; which they retracted during the trial. It is the submission of the respondent that the lower courts rightly acted on them as there are strong circumstantial evidences corroborating the two statements.
The respondent stated that the fact that the appellants were eventually arrested with ‘Ghana must go’ bags containing the stolen money makes it unnecessary to call the two persons that first saw them. The appellants did not enter the banking hall with the other armed robbers; they stayed in a vehicle outside the bank and this makes their identification unnecessary. The respondent urged this court to dismiss the appeal and affirm the judgment of the Court of Appeal.
The respondent cited cases in support of the foregoing submission.
Aremu v. State (1991) 7 NWLR (pt.201) pg.1
Ikemson & ors v. State (1989) 3 NWLR (pt.110) pg. 455.
R v. Turnball and ors. (1976) 3 All ER pg.549.
Garba v. COP (2007) 16 NWLR (pt.1060) pg.378.
I have carefully considered the submission on both sides of the divide on this issue.
On the sequence of events culminating in the robbery incident, the recovery of the rounds of ammunition in an accident vehicle which the appellants and the third man who escaped into the bush on citing the police abandoned on the one hand; and the recovery of the two ‘Ghana must go’ bags containing the stolen money property of the bank with the bank wrappers as the identification logo, are two different things. They form part of the aggregate of circumstantial evidence meant to ascertain the truth of the confessional statements – Exhibits ‘A’ and ‘M’.
The defence of the appellants was total denial of participating in the robbery incident. The appellants also retracted their statements to the police. The trial court had to conduct a trial within trial before admitting them in evidence. They were eventually marked Exhibits ‘A’ and ‘M’.
By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible.
Egboghonome v. State (1993) 7 NWLR (pt.306) pg. 383.
Bature v. State (1994) 1 NWLR (pt.320) pg. 267.
Solola v. State (2005) 11 NWLR (pt.937) pg.460.
Edhigere v. State (1996) 8 NWLR (pt.464) pg.1.
Ihuebeke v. The State (2000) 4 SC (pt.1 pg. 303.
Idowu v. State (2000) 7 SC (pt.11) pg.50.
Alarape v. State (2001) 14 WRN 1.
Generally speaking, a confession made in judicial proceedings is of greater force or value than all other proofs and it can ground a conviction if the court is satisfied with its truth; there is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court which test will enable the court to determine whether –
1. There is anything outside the confession to show that it is true
2. It is corroborated
3. The statements made in it are in fact true as far as they can be tested
4. The prisoner had the opportunity of committing the crime
5. The confession is possible
6. It is consistent with other facts which have been ascertained and which have been proved
R v. Skyes (1913) 18 CR AIP pg.233
Dawa v. State (1980) 8-11 SC 236.
Ogejele v. State (1988) 1 NWLR (pt.71) pg.414.
The other evidence offered by the prosecution before the trial court outside the evidence from direct eyewitnesses and the confessional statements is circumstantial evidence. Under the criminal legal system, circumstantial evidence is defined as the evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. Circumstantial evidence means that there are a number of circumstances which make a complete unbroken chain of evidence, if that is established to the satisfaction of the court, it may well and properly act upon such evidence. Circumstantial evidence is sufficient to ground a conviction only where the inferences drawn from the whole history of the case points strongly to the commission of the crime by the accused.
Mohammed v. State (2007) 13 NWLR (pt.1050) pg.186.
Nwaeze v. State (1996) 2 NWLR (pt.428) pg.1.
Akinmoju v. State (2000) 4 SC (pt.1) pg.64.
Duruwode v. State (2000) 12 SC (pt.1) pg.1
In other words, for circumstantial evidence to ground a conviction, it must lead to one conclusion; namely the guilt of the accused person. Where there are other possibilities that others other than the accused had the opportunity of committing the offence with which the accused was charged, such an accused cannot be convicted of the offence.
Ubani v. State (2003) 18 NWLR (pt.851) pg.22
Such circumstantial evidence abounds before the learned judge during the trial of this case. The 1st PW and 2nd PW both officials of the Gateway Bank Ijebu-Ode Branch, gave evidence of how a gang of armed robbers broke into the bank on the 28th of February, 2008. They found their way to the strong room at gun point and carted away N14, 000,000.00 the property of the bank. PW3 a police officer testified that –
“At about 11.15 pm along Benin/Lagos Express Road behind Federal Govemment College, Odogbolu very close to Honey-well Petrol Station, we met an accident vehicle on the express road facing Sagamu involving an Opel Omega with Reg. No. AV 80 Epe. We decide (sic) to conduct a search on the accident vehicle. When we opened the boot, we discovered a carton containing 356 live cartridges and one Italian made pistol.”
P9.15 lines 24-25 of the Record at pg.16.
PW3 continued his evidence that –
“A police guard attached to Honey well petrol station and a civilian guard noticed our presence and came to us. He told us that when they heard the sound of the accident they moved towards the area and they saw three men, two of them carrying ‘Ghana must go’ bags on their heads.
On 1/2/2002 at about 6.15 am while still on patrol along the same road they saw two men carrying a ‘Ghana must go’ bag. They stopped them while the third person on the other side of the road ran into the bush where he abandoned the second bag.”
The police patrol team recovered the two bags.
There was further evidence that –
“We challenged the two people as to where they were coming from and the contents of the bags. They answered that it contained money which belongs to them. The accused persons in the dock are the two people”.
Pg. 16, lines 17 – 20 of the record.
“The appellants were arrested with N3, 777,900.00 being part of the money stolen from Gateway Bank the previous day. At that time the money had Gateway Bank wrappers on them.”
Pg. 16 lines 25-30 of the Record.
The above circumstantial evidence is cogent, direct, unequivocal and compelling enough to arrive at the irresistible conclusion that the appellants were among the robbers who invaded the Gateway Bank Ijebu-Ode on the 28th of February, 2008. The confessional statements of the appellants Exhibits ‘A’ and ‘M’ corroborated by the evidence of PWs revealed that the appellants were apprehended with money stolen from the Gateway Bank, as the money in their respective denominations were in Gateway Bank wrappers. The lower court rightly invoked the doctrine of recent possession under Section 148 (a) of the Evidence Act. In this case the presumption is that the appellants were the robbers as they claimed ownership of the amount in the ‘Ghana must go’ bags recovered from them by the police.
Section 148 (a) of the Evidence Act provides that –
“The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case and in particular the court may presume (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.”
Aremu v. State (1991) 17 NWLR (pt.210 pg.1
State v. Nnolim (1994) 4 SCNJ pg.48.
Aiyeola v. State (1969) 1 All NLR pg.309.
The statement of the 2nd appellant; Exhibit M reads –
“We removed the money from the car and stood by the roadside, the money was inside a ‘Ghana must go’ bag, while we left the carton of cartridges and small pistol inside the car at about 10 pm.”
The appellant in his confessional further claimed that the money in the ‘Ghana must go’ bag, was their own share of the money. There was ample evidence before the lower court to conclude that the appellants participated in the robbery incident at the Gateway Bank on the 28th of February, 2008.
I must remark that the submission of the appellants appears like that of a drowning man who is determined not to face the realities of the moment. The appellants decided to merely scratch on the surface the effect of the available pieces of circumstantial evidence on the confessional statements of the accused. I find the sum total of the argument of the appellants in this appeal very evasive.
I resolve this issue in favour of the respondents.
Issue Two
Whether the Court of Appeal was right in affirming the conviction and sentence of the appellants by the trial court when none of the members of staff of the Bank and the policemen on duty was called to identify the appellants as the persons they saw at the scene of crime.
In this issue the appellants challenged the failure to identify the appellants by the victims of the robbery incident, policemen on duty when the robbery occurred and custodians of the key to the safe. I must explain that the purpose of an identification parade in all criminal trials is to show that the person charged with the offence actually committed the offence. It is not in every case that an identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. In order to ascribe any values to the evidence of an eyewitness identification of a criminal, the court in guiding against cases of mistaken identity must meticulously consider the following issues-
1. Circumstances in which the eyewitness saw the suspect; was it in difficult conditions
2. The length of the time the witness saw the suspect or defendant at a glance or longer observation
3. The opportunity of close observation.
4. Previous contact between the two parties.
5. The lighting conditions.
Eyisi v. the State (2000) 15 NWLR (pt.697) pg.553.
Okosi v. State (1989) 1 NWLR (pt.100) pg.642.
Alonge v. I.G.P. (1959) SCNLR pg.156.
Ikemson v. State (1989) 3 NWLR (pt.110) pg. 455.
Ukorah v. State (1977) 4 SC pg.167.
Ukpabi v. State (2004) 11 NWLR (pt.884) pg.439.
Ebri v. State (2004) 11 NWLR (pt.885) pg.589.
It is trite however that where an accused person by his confession has identified himself, there would be no need for any further identification parade.
Archibong v. State (2004) 1 NWLR (pt.855)
On the issue of witnesses to call, it is the prerogative of the prosecution to call witnesses relevant to its case. It is also settled law that the prosecution is not bound to call every person that was linked to the scene of crime by physical presence to give evidence of what he saw. Once persons who can testify to the actual commission of crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 138 of the Evidence Act.
This issue is resolved in favour of the respondent.
The Court of Appeal considered the evidence in the record of appeal and thereafter rightly affirmed the conviction and sentence of the appellants for the offence of armed robbery. We have before us in this appeal the concurrent findings of fact of two lower courts which we have no legally justifiable reason to set aside. I therefore dismiss this appeal for lacking in substance and merit. I affirm the conviction and sentence of the appellants by the two lower courts.
This appeal is against the judgment of the Court of Appeal, Ibadan Division delivered on Monday the 19th of April, 2010. The decision affirmed the conviction and sentence of the appellants by the High Court of Ogun State, Ijebu-Ode Judicial Division on the two counts charge of conspiracy to commit robbery and armed robbery delivered on the 6th of July, 2004. The facts of the case are briefly; that on the 28th of February, 2008, a gang of armed robbers forcefully broke into the Gateway Bank, Ijebu-Ode Branch, Ogun State. Those who entered into the Banking Hall shot freely into the air leaving people running helter-skelter. The appellants before this court remained in a vehicle parked at the premises of the Bank. The others gained access into the bank’s strong room from where they carted away the sum of Fourteen Million Naira in different denominations. A report of the incident was made to the police. At about 11.15 pm that day, a police patrol team along the Lagos-Benin Expressway saw an unoccupied Opel Omega car which was involved in an accident behind the Federal Government College, Odogbolu. On searching the car, the police recovered a carton containing 356 bullet cartridges and one pistol. They got information that three men left the vehicle after the accident and two of them carried “Ghana must go” bags. Around 6.15 the following morning while still on patrol duty, the police saw three men, two of them were carrying “Ghana must go” bags. The two appellants were immediately arrested while the third man ran into the bush. The “Ghana must go” bags were recovered from the appellants by the police. On searching the bags, a sum of N3, 777,900.00 in different denominations and wrapped in Gateway Bank currency wrappers were found inside the bags. The appellants claimed ownership of the money. They were apprehended and taken to the police station where they volunteered confessional statements to the police. Both appellants were arraigned and charged before the trial court on two counts charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Section 5 (6) and (2) (a) of the Robbery and Firearm (Special Provision) Act, Cap 398 Laws of Federation 1990 as amended by the Tribunals (Certain Consequential Amendment Etc.) Act 1999.
At the trial, the prosecution called five witnesses. The confessional statements of the appellants were admitted in evidence as Exhibits ‘A’ and ‘M’ after the court conducted a trial within trial in respect of each of the statements. The appellants testified for themselves. In the considered judgment of the trial court delivered on the 6th of July, 2004, the learned trial judge held that the prosecution had proved its case beyond reasonable doubt whereupon the accused/appellants were sentenced to death. The accused/appellants being dissatisfied with the said judgment appealed to the Court of Appeal Ibadan Division. In the judgment of that court delivered on the 19th of April, 2010, the appeal of the appellants was dismissed and the conviction and sentence of the appellants to death by the trial court was affirmed. The appellants aggrieved by the decision of the lower court, filed a further appeal to this court.
In the appellants’ brief filed on 24/8/2010, the appellants formulated three issues which are stated as follows –
a. Whether the justices of the Court of Appeal were right in law that there was cogent or corroborative evidence outside the confessional statement that made the confessions of the appellants probable.
b. Whether the Court of Appeal was right in affirming the conviction and sentence of the appellants by the trial court when none of the members of staff of the bank and the policemen on duty were called to identify the appellants as the persons they saw at the scene of crime.
c. Whether the circumstantial evidence in this case was cogent, direct, consistent, unequivocal and irresistibly led to the conclusion that the appellants were among the armed robbers who invaded and robbed the Gateway Bank, Ijebu-Ode on 28/2/2008.
The respondent in the brief filed on 3/2/2011 distilled a single issue from the four grounds of appeal of the appellant as follows –
“Whether considering the confessional statements of the appellants and the circumstantial evidence before the trial court, the trial judge was right in convicting the appellants in the absence of identification of the appellants by the victims of the robbery incident.”
I intend to be guided by the issues raised for determination by the appellants so as to consider all the necessary legal points in the dispensation of the appeal. The appellants requested to argue issues One and Three together as they are interwoven.
The appellants in their argument and submission defined and elaborated upon what in the process of establishment of the essential ingredients of a crime is circumstantial evidence.
The evidence on record before the lower court failed to establish with any degree of certainty that the appellants were among the armed robbers who invaded the premises of the Gateway Bank Ijebu-Ode on 28/02/2008 and robbed the Bank of its money. The mere fact that the appellants were found to be in possession of ‘Ghana must go’ bags containing part of the money stolen from Gateway Bank Ijebu-Ode on the 28/02/2008 without more is not sufficient to ground conviction in the circumstances of this case.
This court must reject the doctrine of recent possession without anything more as sufficient link of the appellants with the robbery incident of 28/02/2008. This court must hold that there should be other circumstances strong enough not only to invoke the presumption covered by Section 148 (a) of the Evidence Act against the appellant but to justify with some degree of certainty that they committed the robbery.
The appellants submitted that the justices of the Court of Appeal were in grave error to affirm the decision of the learned trial judge on circumstantial evidence. Their lordships based their decision on the fact that the ‘Ghana must go’ bags containing parts of the stolen money were found in their possession forgetting however that there was no shred of evidence connecting the appellants with the ammunitions recovered from the Opel car.
The appellants drew attention also to the fact that the police guard and civilian guard at the bank were never asked to identify the appellants as the occupants of the Opel car. The appellants contended that both Exhibits ‘A’ and ‘M’ the confessional statements were not tested by the learned trial judge to show that they were in fact true or consistent with other facts proved by the prosecution. The circumstantial evidence relied on to convict and sentence the appellants by the trial court and which the learned justices of the court below affirmed fell short of the standard required by law. The appellants also challenged Exhibits ‘A’ and ‘M’ their confessional statements as they were in their opinion not tested by the learned trial judge to show whether those statements were in fact true or consistent with other facts proved by the prosecution. It is imperative that the court must test the statements by closely examining them in the light of the other evidence available. The judgment of the lower court that the trial court was satisfied that Exhibits ‘A’ and ‘M’ were true is perverse. The court is urged to resolve this issue in favour of the appellants. The appellants cited cases
Ukoroh v. State (1979) 4 SC 167.
Omogodo v. State (1981) 5 SC 5.
Igboji Abieke & anor v. State (1975) 9 – 11 SC pg. 97
Lori v. State (1980) (1980) 8-11 SC 81
State v. Nafiu Rabiu (1980) 1 NLR pg.4.
Adie v. State (1980) 1-2 SC pg.116.
Nasiru v. State (1999) 2 NWLR (pt.589) 87.
State v. Ogbubunjo (2001) 1 SC (pt.1) pg.90.
Ojegele v. State (1988) 1 NWLR (pt.71) 414.
Dawa v. State (1980) 8-11 SC pg.236.
The respondent represented by the learned counsel Akin Osinbajo replied by defining what amounts to circumstantial evidence in line with the case of Mohammed v. State (2007) 13 NWLR (pt.1050) pg.186. The respondent went further to quote from the testimony of PW3 before the trial court. He was a member of the police patrol team along Lagos-Benin Expressway who recovered ammunition and a pistol in an accident car at a spot in the vicinity of the Gateway Bank, Ijebu-Ode the scene of the robbery. The patrol team apprehended the appellants with two ‘Ghana must go’ bags containing money with Gateway Bank wrappers on them around 6.15 am the following morning. They were then on patrol duty along the same road. PW3 challenged the appellants about the money and they claimed ownership of it. They made the confessional statements ‘A’ and ‘M’; which they retracted during the trial. It is the submission of the respondent that the lower courts rightly acted on them as there are strong circumstantial evidences corroborating the two statements.
The respondent stated that the fact that the appellants were eventually arrested with ‘Ghana must go’ bags containing the stolen money makes it unnecessary to call the two persons that first saw them. The appellants did not enter the banking hall with the other armed robbers; they stayed in a vehicle outside the bank and this makes their identification unnecessary. The respondent urged this court to dismiss the appeal and affirm the judgment of the Court of Appeal.
The respondent cited cases in support of the foregoing submission.
Aremu v. State (1991) 7 NWLR (pt.201) pg.1
Ikemson & ors v. State (1989) 3 NWLR (pt.110) pg. 455.
R v. Turnball and ors. (1976) 3 All ER pg.549.
Garba v. COP (2007) 16 NWLR (pt.1060) pg.378.
I have carefully considered the submission on both sides of the divide on this issue.
On the sequence of events culminating in the robbery incident, the recovery of the rounds of ammunition in an accident vehicle which the appellants and the third man who escaped into the bush on citing the police abandoned on the one hand; and the recovery of the two ‘Ghana must go’ bags containing the stolen money property of the bank with the bank wrappers as the identification logo, are two different things. They form part of the aggregate of circumstantial evidence meant to ascertain the truth of the confessional statements – Exhibits ‘A’ and ‘M’.
The defence of the appellants was total denial of participating in the robbery incident. The appellants also retracted their statements to the police. The trial court had to conduct a trial within trial before admitting them in evidence. They were eventually marked Exhibits ‘A’ and ‘M’.
By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible.
Egboghonome v. State (1993) 7 NWLR (pt.306) pg. 383.
Bature v. State (1994) 1 NWLR (pt.320) pg. 267.
Solola v. State (2005) 11 NWLR (pt.937) pg.460.
Edhigere v. State (1996) 8 NWLR (pt.464) pg.1.
Ihuebeke v. The State (2000) 4 SC (pt.1 pg. 303.
Idowu v. State (2000) 7 SC (pt.11) pg.50.
Alarape v. State (2001) 14 WRN 1.
Generally speaking, a confession made in judicial proceedings is of greater force or value than all other proofs and it can ground a conviction if the court is satisfied with its truth; there is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court which test will enable the court to determine whether –
1. There is anything outside the confession to show that it is true
2. It is corroborated
3. The statements made in it are in fact true as far as they can be tested
4. The prisoner had the opportunity of committing the crime
5. The confession is possible
6. It is consistent with other facts which have been ascertained and which have been proved
R v. Skyes (1913) 18 CR AIP pg.233
Dawa v. State (1980) 8-11 SC 236.
Ogejele v. State (1988) 1 NWLR (pt.71) pg.414.
The other evidence offered by the prosecution before the trial court outside the evidence from direct eyewitnesses and the confessional statements is circumstantial evidence. Under the criminal legal system, circumstantial evidence is defined as the evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. Circumstantial evidence means that there are a number of circumstances which make a complete unbroken chain of evidence, if that is established to the satisfaction of the court, it may well and properly act upon such evidence. Circumstantial evidence is sufficient to ground a conviction only where the inferences drawn from the whole history of the case points strongly to the commission of the crime by the accused.
Mohammed v. State (2007) 13 NWLR (pt.1050) pg.186.
Nwaeze v. State (1996) 2 NWLR (pt.428) pg.1.
Akinmoju v. State (2000) 4 SC (pt.1) pg.64.
Duruwode v. State (2000) 12 SC (pt.1) pg.1
In other words, for circumstantial evidence to ground a conviction, it must lead to one conclusion; namely the guilt of the accused person. Where there are other possibilities that others other than the accused had the opportunity of committing the offence with which the accused was charged, such an accused cannot be convicted of the offence.
Ubani v. State (2003) 18 NWLR (pt.851) pg.22
Such circumstantial evidence abounds before the learned judge during the trial of this case. The 1st PW and 2nd PW both officials of the Gateway Bank Ijebu-Ode Branch, gave evidence of how a gang of armed robbers broke into the bank on the 28th of February, 2008. They found their way to the strong room at gun point and carted away N14, 000,000.00 the property of the bank. PW3 a police officer testified that –
“At about 11.15 pm along Benin/Lagos Express Road behind Federal Govemment College, Odogbolu very close to Honey-well Petrol Station, we met an accident vehicle on the express road facing Sagamu involving an Opel Omega with Reg. No. AV 80 Epe. We decide (sic) to conduct a search on the accident vehicle. When we opened the boot, we discovered a carton containing 356 live cartridges and one Italian made pistol.”
P9.15 lines 24-25 of the Record at pg.16.
PW3 continued his evidence that –
“A police guard attached to Honey well petrol station and a civilian guard noticed our presence and came to us. He told us that when they heard the sound of the accident they moved towards the area and they saw three men, two of them carrying ‘Ghana must go’ bags on their heads.
On 1/2/2002 at about 6.15 am while still on patrol along the same road they saw two men carrying a ‘Ghana must go’ bag. They stopped them while the third person on the other side of the road ran into the bush where he abandoned the second bag.”
The police patrol team recovered the two bags.
There was further evidence that –
“We challenged the two people as to where they were coming from and the contents of the bags. They answered that it contained money which belongs to them. The accused persons in the dock are the two people”.
Pg. 16, lines 17 – 20 of the record.
“The appellants were arrested with N3, 777,900.00 being part of the money stolen from Gateway Bank the previous day. At that time the money had Gateway Bank wrappers on them.”
Pg. 16 lines 25-30 of the Record.
The above circumstantial evidence is cogent, direct, unequivocal and compelling enough to arrive at the irresistible conclusion that the appellants were among the robbers who invaded the Gateway Bank Ijebu-Ode on the 28th of February, 2008. The confessional statements of the appellants Exhibits ‘A’ and ‘M’ corroborated by the evidence of PWs revealed that the appellants were apprehended with money stolen from the Gateway Bank, as the money in their respective denominations were in Gateway Bank wrappers. The lower court rightly invoked the doctrine of recent possession under Section 148 (a) of the Evidence Act. In this case the presumption is that the appellants were the robbers as they claimed ownership of the amount in the ‘Ghana must go’ bags recovered from them by the police.
Section 148 (a) of the Evidence Act provides that –
“The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case and in particular the court may presume (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.”
Aremu v. State (1991) 17 NWLR (pt.210 pg.1
State v. Nnolim (1994) 4 SCNJ pg.48.
Aiyeola v. State (1969) 1 All NLR pg.309.
The statement of the 2nd appellant; Exhibit M reads –
“We removed the money from the car and stood by the roadside, the money was inside a ‘Ghana must go’ bag, while we left the carton of cartridges and small pistol inside the car at about 10 pm.”
The appellant in his confessional further claimed that the money in the ‘Ghana must go’ bag, was their own share of the money. There was ample evidence before the lower court to conclude that the appellants participated in the robbery incident at the Gateway Bank on the 28th of February, 2008.
I must remark that the submission of the appellants appears like that of a drowning man who is determined not to face the realities of the moment. The appellants decided to merely scratch on the surface the effect of the available pieces of circumstantial evidence on the confessional statements of the accused. I find the sum total of the argument of the appellants in this appeal very evasive.
I resolve this issue in favour of the respondents.tIssue Two
Whether the Court of Appeal was right in affirming the conviction and sentence of the appellants by the trial court when none of the members of staff of the Bank and the policemen on duty was called to identify the appellants as the persons they saw at the scene of crime.
In this issue the appellants challenged the failure to identify the appellants by the victims of the robbery incident, policemen on duty when the robbery occurred and custodians of the key to the safe. I must explain that the purpose of an identification parade in all criminal trials is to show that the person charged with the offence actually committed the offence. It is not in every case that an identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. In order to ascribe any values to the evidence of an eyewitness identification of a criminal, the court in guiding against cases of mistaken identity must meticulously consider the following issues-
1. Circumstances in which the eyewitness saw the suspect; was it in difficult conditions
2. The length of the time the witness saw the suspect or defendant at a glance or longer observation
3. The opportunity of close observation.
4. Previous contact between the two parties.
5. The lighting conditions.
Eyisi v. the State (2000) 15 NWLR (pt.697) pg.553.
Okosi v. State (1989) 1 NWLR (pt.100) pg.642.
Alonge v. I.G.P. (1959) SCNLR pg.156.
Ikemson v. State (1989) 3 NWLR (pt.110) pg. 455.
Ukorah v. State (1977) 4 SC pg.167.
Ukpabi v. State (2004) 11 NWLR (pt.884) pg.439.
Ebri v. State (2004) 11 NWLR (pt.885) pg.589.
It is trite however that where an accused person by his confession has identified himself, there would be no need for any further identification parade.
Archibong v. State (2004) 1 NWLR (pt.855)
On the issue of witnesses to call, it is the prerogative of the prosecution to call witnesses relevant to its case. It is also settled law that the prosecution is not bound to call every person that was linked to the scene of crime by physical presence to give evidence of what he saw. Once persons who can testify to the actual commission of crime have done so, it will suffice for the satisfaction of proof beyond reasonable doubt in line with Section 138 of the Evidence Act.
This issue is resolved in favour of the respondent.
The Court of Appeal considered the evidence in the record of appeal and thereafter rightly affirmed the conviction and sentence of the appellants for the offence of armed robbery. We have before us in this appeal the concurrent findings of fact of two lower courts which we have no legally justifiable reason to set aside. I therefore dismiss this appeal for lacking in substance and merit. I affirm the conviction and sentence of the appellants by the two lower courts.
SC.304/2010