Patrick Njovens & Ors. v. The State (1973)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C.
The four appellants were respectively the 1st, 2nd, 3rd and 4th accused persons tried together by Adesiyun, J. in the High Court, Borin in the Kwara State. The Charge Sheet on which they were tried contains a total of nine counts and reads as follows
“That on or about the 13th day of April, 1971 at a place between Ilorin and Bacita in the Kwara Judicial Division one Felix Dumeh and three others committed the offence of robbery, and that you, Patrick Njovens, Y.L. Bellow, Alhaji Amusa Abidogun and Chief Samuel Taiwo Oredein sometime in April, 1971 at Ibadan having previous knowledge of the plan to commit the said offence abetted the said Felix Dumeh and others in the commission of the said offence by intentionally aiding, encouraging and instigating the commission of the said offence by agreeing with Felix Dumeh and others and promising on oath to conceal the said offence when committed and by taking no action to prevent its commission and you thereby committed an offence punishable under section 85 and section 298 (b) of the Penal Code and triable by the High Court.
That you Patrick Njovens, Y.L. Bello, Alhaji Amusa Abidogun and Chief Samuel Taiwo Oredein, on or about the 13th day of April, 1971 at Ibadan dishonestly received from one Felix Dumeh, stolen property, to wit five thousand pounds (35,000 pounds) which belonged to the Barlcays Bank Nig. Ltd., Ilorin and which was part of the proceeds of the robbery committed on or about the 13th day of April, 1971 between Ilorin and Bacita in the Kwara Judicial Division, by the said Felix Dumeh and others, knowing the same to be stolen property and that you thereby committed an offence punishable under section 317 of the Penal Code and triable by the High Court.
That you Patrick Njovens, Y.L. Bello, Alhaji Amusa Abidogun and Chief Samuel Oredein, sometime in February, 1971 at Ibadan agreed to do an illegal act, to wit to accept a gratification of seven thousand pounds (7,000 pounds) for yourselves in consideration of your concealing the offence of robbery which was to be committed between Ilorin and Bacita in the Kwara Judicial Division by one Felix Dumeh and others and that the same offence was committed in pursuance of the agreement and that you thereby committed an offence punishable under section 97 and section 168 of the Penal Code and triable by the High Court.
That on or about the 13th day of April, 1971 between Ilorin and Bacita in the Kwara Judicial Division one Felix Dumeh and three others committed the offence of robbery and that you, Patrick Njovens, Y. L. Bello, Alhaji Amusa Ibidogun and Chief Samuel Taiwo Oredein, later on the same day at Ibadan accepted a gratification namely five thousand pounds (5,000 pounds) for yourselves in consideration of your screening the said Felix Dumeh and others from legal punishment for the said offence of robbery and that you thereby committed an offence punishable under section 168 of the Penal Code and triable by the High Court.
That you Patrick Njovens, Y.L. Bello and Alhaji Amusa Abidogun, on or about the 13th day of April, 1971, at Ibadan, being public servants, to wit police officers, directly accepted from one Felix Dumeh and others for yourselves a gratification of five thousand pounds (5,000 pounds) other than lawful remuneration as a reward for forbearing to do an official act to wit arresting the said Felix Dumeh and others for the offence of robbery committed by them on 13th April, 1971 between Ilorin and Bacita in the Kwara Judicial Division and thereby committed an offence punishable under section 115 (ii) of the Penal Code and triable by the High Court.
That you, Chief Samuel Taiwo Oredein, on or about the 12th day of April, 1971 at Ibadan directly accepted from one Felix Dumeh and others for yourself and others a gratification of five thousand pounds (5,000 pounds) as a reward for inducing by corrupt means public servants to wit Patrick Njovens, Y. L. Bello and Alhaji Amusa Abidogun, Police Officers, to forbear to do an official act, to wit arresting the said Felix Dumeh and others for the offence of robbery they had committed on 13th April, 1971 between Ilorin and Bacita in the Kwara Judicial Division and thereby committed an offence punishable under section 116 of the Penal Code and triable by the High Court.
That you, Patrick Njovens, Y. L. Bello, and Alhaji Amusa Abidogun, on or about the 13th day of April, 1971 at Thadan being public servants to wit police officers, whose duty as such public servants it was to arrest Felix Dumeh and others for the offence of armed robbery they had earlier committed on the same day at a place between Horin and Bacita in the Kwara Judicial Division, knowing that the said Felix Dumeh and others had committed the said offence, intentionally omitted to arrest the said Felix Dumeh and others and thereby committed an offence punishable under section 127 of the Penal Code and triable by the High Court.
That you, Chief Samuel Taiwo Oredein, on or about the 13th day of April, 1971 at Ibadan, abetted the commission of the offence of intentionally omitting to arrest one Felix Dumeh and others by Patrick Njovens, Y. L. Bellow and Alhaji Amusa Abidogun, who were police officers and whose duty as such it was to arrest the said Felix Dumeh and others for the offence of robbery which they had earlier committed on the same day at a place between Ilorin and Bacita in the Kwara Judicial Division by inducing and instigating the said Patrick Njovens, Y. L. Bello and Alhaji Amusa Abidogun to omit to arrest the said Felix Dumeh and others and thereby committed an offence punishable under section 85 and section 127 (b) of the Penal Code and triable by the High Court.Count 9
That you, Patrick Njovens, Y. L. Bello, Alhaji Amusa Abidogun and Chief Samuel Taiwo Oredein, on or about the 13th day of April, 1971 at Thadan, knowing that one Felix Dumeh and others had earlier on the same day committed the offence of robbery at a place between Ilorin and Bacita in the Kwara Judicial Division, harboured the said Felix Dumeh and others with the intention of screening them from punishment and that you thereby committed an offence punishable under section 170 of the Penal Code and triable by the High Court.”
According to the 9th P.W., Jacob Olaniyonu Olarinde, an Assistant Commissioner of Police and Staff Officer to the Inspector-General of Police, the 1st accused, Patrick Njovens, was a Chief Superintendent of Police at the State C.I.D. in Thadan, the 2nd accused was an Assistant Superintendent of Police at the State C.I.D. Thadan as from the 9th October, 1970, and the 3rd accused a Chief Inspector of police stationed in Thadan before being transferred to Ondo province on the 28th April, 1971. The 4th accused was described in evidence as a one time politician and in his own statements he described himself as a trader. The 11th P. W., Jacob Abiodun Shangobiyi, a Superintendent of Police, described the 1st, 2nd and 3rd accused persons as follows:
“I know accused one he was my immediate senior officer at the State’s C.I.D., Thadan. I know accused two he was the officer in Crime Section, State’s C.I.D., Ibadan. I know accused three, he was attached to the Provincial Crime Branch, Central Police Station, Ibadan.”
The 13th P.W., Michael Oshineye Showale, Deputy Superintendent of Police, also described the 1st, 2nd and 3rd accused persons as superior police officers. Seventeen witnesses gave evidence for the prosecution and one of them, Felix Dumeh (17th P.W.), was a self-confessed robber who made a clean breast of the whole show and told the whole story of the robbery concerned as well as other robberies in which he had been involved. The evidence of these witnesses seriously implicated the four appellants (hereinafter in this judgment to be referred to as accused persons in the order in which they were so signified in the High Court) and told in a rather vivid way the several parts played by the several accused persons in the whole exercise. Among the witnesses were as well a number of policemen who were completely blameless and whose courage in the face of obvious danger needs more than a passing remark. Between these two categories, there are some witnesses who at one time or another had been involved in different crimes and who acknowledged various degrees of inglorious criminal records.
Each of the accused persons soon after his arrest made statements to the police and it is convenient to set the position with respect to the various statements of the accused persons as follows:
(i) Exhibit 18, made on the 1st June, 1971 to P.W. 8 at Ilorin.
(ii) Exhibit 27, made on the 10th June, 1971 to P.W. 15 at Ibadan.
(iii) Exhibit 17, made on the 6th July, 1971 to P.W. 8 at Ilorin.
(i) Exhibit 15, made on the 31st May, 1971 to P.W. 8 at Ilorin.
(ii) Exhibit 16, made on the 1st June, 1971 to P.W. 8 at Ilorin.
(iii) Exhibit 32 made on the 10th June, 1971 to P.W. 15 at Ilorin.
(iv) Exhibit 33 made on the 10th June, 1971 to P.W. 15 at Ilorin.
(v) Exhibit 14 made on the 6th July, 1971 to P.W. 8 at Ilorin.
(i) Exhibit 28, made on the 31 st May, 1971 to P. W. 16 at Ilorin.
(ii) Exhibit 29, made on the 10th June, 1971 to P.W. 15 at Ilorin.
(iii) Exhibit 46, unsigned and undated, made on the 5th July, 1971 to P.W. 8 at Ilorin.
(iv) Exhibit 7 made on the 5th July, 1971 to P.W. 8 at Ilorin.
(i) Exhibit 8, made on the 30th May, 1971 to P.W. 8 at Ilorin.
(ii) Exhibit 9, made on the 3rd June, 1971 to P.W. 8 at Ilorin.
(iii) Exhibit 10 made on the 6th June, 1971 to P.W. 8 at Ilorin.
(iv) Exhibit 11 made on the 6th June, 1971 to P.W. 8 at Ilorin.
(v) Exhibit 12 made on the 6th June, 1971 to P.W. 8 at Ilorin.
(vi) Exhibit 13, made on the 22nd June, 1971 to P.W. 8 at Ilorin.
At their trial, all the accused persons gave evidence in their defence. Whilst the third accused person called no witnesses, the first accused called four witnesses, the second accused called one witness and the fourth accused person called six witnesses. Each of the accused persons denied the allegations against him and in particular the 2nd and the 4th accused persons set up the plea of alibi, the 4th accused stating that at the material time with which the 2nd count is concerned he was in his hometown Ogere in the Western State and the 2nd accused stating that he was at the material time with which the 2nd count is concerned at the Police Station in Ibadan.
The evidence of the prosecution witnesses is of the same pattern, that is to say, it is to the effect that the accused persons well knew of the plan to commit the robbery later committed along the Bacita Road in Ilorin, Kwara State on the 13th day of April, 1971 before the date, that those of them that could prevent its commission refused, failed or neglected to do so tendentiously and that all the accused persons encouraged the commission of the robbery by the 17th P.W., Felix Dumeh, an archrobber, and his gang, that later that night the parties, including all the accused persons, took an oath of secrecy in the house of Felix Dumeh to ensure the continued protection of the robbers from detection, and that thereafter the accused persons collected from Felix Dumeh, as their own share of the loot, an amount of 5,000 which was part of the money stolen in the cause of the robbery.
A witness for the prosecution, Mustapha Adigun, alias Balewa (1st P.W.) testified that he knew all the accused persons, the first three being police officers and the 4th one being a politician and his own boss during the days of politics when he, i.e. the witness, used to be the head of the thugs of the 4th accused. In the course of his evidence, he described the event in the house of Felix Dumeh on the night of the robbery as follows:
“We went to the house of Felix. When the two of us got to Felix, Felix asked ‘wey dem’ Accused 3 said he was going to call them. Accused 3 went out and left me with Felix. When accused 3 returned, he came with accused 1, 2 and 4 . . .
Felix opened the bottle of schnapps and poured a little quantity on the floor he also threw some alligator pepper on the floor. Felix raised up the bottle of the schnapp and said ‘this thing way tin we dey do, God make it no let it prove’. They all said amen. Felix drank out of the schnapp and threw one alligator pepper into his mouth. He then gave the bottle of schnapp to accused 1 who drank it and drew an alligator pepper into his mouth. Accused 1 passed it to accused 2 who drank out of it and took alligator pepper. When accused 2 handed the bottle to accused 3, accused 3 refused to drink it but he threw an alligator pepper into his mouth. The bottle was handed over to accused 4 who drank it as well as taking the alligator pepper.
Felix entered the room and came out with a brown paper bag like a carton. He handed it to accused 4 who later gave it to accused 3 who in turn gave it to accused one. Accused one then opened the paper. It was then I saw that it contained money. Accused one asked ‘how much’ Felix replied five, accused one asked, is that the arrangment, Felix answered ‘The boys are too many on it’. Accused one said before the arrangement was seven’. The money that I saw was in bundles of 1pound and 10s currency notes.”
The witness was severely cross-examined by counsel for the accused persons and indeed confronted with the statement which he made to the police in Lagos and which was admitted in evidence at the trial as exhibit 1. The witness however persisted in his evidence and denied all suggestions of discrepancies. It was suggested to him for instance, in cross-examination, that he had been whipped by the police into making the statement exhibit 1 but he denied the suggestion. An application was then made to the learned trial judge for the witness to exhibit his bare back to the court so application was refused by the learned trial judge even after that issue had been separately tried on the evidence on witness including the 4th accused. The story of the robbery was confirmed by the 4th P. W., Alimi Adebayo Ajisafe, an official of the Barclays Bank at Ilorin, Mudashiru Ajani Layiwola, the 2nd P. W. and a motor-driver, was another witness of admittedly criminal character. He testified, inter alia, that on the 6th April, 1971, when he was arrested by the 1st and 2nd accused persons in front of the Easy Life Hotel at Mokola in Ibadan, he told both the 1st and the 2nd accused persons, who had requested of him some information about Felix Dumeh and Lieutenant Usman (another arch-robber), that Felix Dumeh was planning another robbery to take place in the Kwara State during that same month and indeed told them that the robbery was to take place on either the 13th or the 27th April. He was manifestly a person of ignominious character for in the course of his cross-examination he stated:
“The police in Ibadan punished me and I also feel that they made me to make incriminating statements about the theft of the car. These two events made me unhappy. After I had done good thing for the police, their conduct displease me.
My last jail sentence was for 10 years but I won on appeal early this year. I was sentenced for manslaughter in relation to the death of a prison warder at Ilesha. It was in relation with Co-operative Bank robbery of 19,000 pounds at Akure which i led.”
Later, and still under cross-examination, the witness said this of himself:
“I was first convicted for murder of the warder, but it was reduced to manslaughter by the appeal court and I was sentenced to 10 years. I am now 31 years of age. I was first sentenced in Lagos to 5 years for stealing. I have not been taken to court for the theft of the car which I sold to Usman. I don’t know anything about the gun battle with the car along Jericho that is between accused two and Usman.
I am a truthful witness in this case. I opened the way for the police. . .
I was prosecuted for the Co-operative Bank robbery and discharged.
The robbery took place in September 8, 1966. All what I said yesterday was true.”
They asked him to show them where they could get hold of one Chukwumeka Onyemechi (alias Chuks) and that he took the police to the house of the girl friend of Chuks where he was arrested. The story of his arrest by the 1st and 2nd accused persons was confirmed by Chuks himself (3rd P.W.) who also told the court of how Felix Dumeh, after having revealed to him the plan for the Kwara robbery of 13th April, 1971 unsuccessfully tried to persuade him (witness) to join in the operation. The witness further stated that indeed on the 10th April, 1971 he was arrested by the 1st and 2nd accused persons for an offence which he did not commit and that when Felix Dumeh visited the 1st and 2nd accused persons at the Ibadan police station he, Felix Dumeh, refused the appeal of the witness to him to stand bail for him. He further testified as follows:
“When Felix left, accused one asked me why Felix did not want to bail me. I told him that it was because I did not want to take part in the robbery at Kwara State. I added that I had taken part in the operation before but because I did not co-operate the operation was not carried out.
Accused one asked accused two if he believed what I said about Felix whom he had known for eight years. I then told accused one that if he would not believe me, he should mount a road block on 13-4-71 or 27-4-71. Accused two was at that time sitting with accused one. The road block should be mounted along U.I. on Ibadan to Ilorin road.”
Furthermore, the witness stated that on the night of the 12th April, 1971 he was locked up in the cell at the Ibadan police station by the 1st and 2nd accused persons and was only released from the cell by the Kwara police on the 20th May, 1971 on the instructions of the Deputy Superintendent of Police, Aremu, of the Kwara State Command. Continuing his evidence the witness testified as follows:
“When Aremu was leaving the office, he asked me to discuss with accused 2. Accused 2 then told me not to tell anyone what I knew. When Aremu re-entered, I was brought to Ilorin. I told the Kwara police all that I knew about the matter.”
He was positive, as stated by him under cross-examination, that the plan for the robbery was in hand since January 1971 and that it should have taken place on the 2nd March, 1971. The story of the attempted robbery of the 2nd March, 1971 was confirmed by the 6th P.W. Lasisi Sheidu who admitted having taken part in the robbery of the Peugeot car on the night of the 2nd March,1971 was confirmed by ”””””””’
The 6th P. W. also described in full the robbery of the 13th April, 1971 on the Bacita Road, the opening of the iron box containing the sum of 13 ,000 pounds and as well the sharing out of the loot which he described as follows:
“On our way, Felix started to share the money and he gave me 2 bundles of 500 pounds each. I complained that 1,000 pounds was not enough as my share out of 13,000 pounds. He gave Rafiu 2,000 pounds and Lt. Usman 2,000 pounds and he took 2,000 pounds himself. In fulfilment of his primise to Blankson, he allotted 1,000 pounds to Blankson. Both Felix and Usman checked the balance. It was 5,000 pounds made up of 1 pounds and 10s currency notes. I saw Felix when he put the 5,000 pounds his own 2,000 pounds and Blankson’s 1,000 pounds inside his handbag.”
This witness, the 6th P. W., admitted that he was charged to court for the Bacita robbery and that the case was still pending. Going back to the evidence of the 3rd P.W., that is Chukwuemeka Onyemechi (alias Chuks) he testified thus concerning the 4th accused.
“Accused four visited Felix in February 1971. I do not know that the accused’s Mercedes Benz car was under repairs between January and March. The fourth accused might have come to Felix in February in another Mercedes car because I saw him in a Mercedes car. The car was parked on the main road and he walked to Felix’s house. I saw someone in the car but I could not recognise that person because the car was far from me. When he left Felix’s house, he walked to the car. By description, the car was parked about 50 yards to the house of Felix. I saw the accused. I was ironing when he came.”
Again, the evidence of this witness as to the arrest of the four men brought down to Ibaban from Lagos by Felix Dumeh and their release on bail to him was confirmed by the 5th P. W., police constable Lamide Lajide, and this witness confirmed as well that in his presence P.C. Kadiri, on the instructions of the 1st accused, slapped the 1st P.W. many times on his face.
As stated before, a number of police officers gave evidence at the trial of the accused persons. One of the police officers was Sunday Adebayo Adewusi, Commissioner of Police, Kwara State. Testifying concerning the arrest of Felix Dumeh, the witness Adewusi (7th P. W.) said as follows:
“I know a man called Felix Dumeh. He was arrested by the police under my command in connection with the robbery along Ilorin-Bacita road on 13-4-71. As a result of our investigation we were able to establish that Felix Dumeh and Lt. Usman took part in the highway robbery along Borin-Bacita road on 13-4-71.”
The witness gave evidence concerning all the accused person and told the court how in the course of his investigation of the case each of the four accused persons was shown the confessional statement of Felix Dumeh and later confronted one by one with Felix Dumeh who in their presence and to their hearing stated that each and every one of them took part in two ceremonies of oath-taking, one before and the other after the robbery of the 13th April, 1971. He stated that the 1st, 2nd and 3rd accused persons had first tried to deny the allegations of Felix Dumah but later started to beg him to assist them. Concerning the 4th accused he testified as follows:
“On 26-5-71, I interviewed accused four with Felix Dumeh. In the presence of accused four, Felix Dumeh repeated the same allegation he had made against accused 1, 2 & 3. In the presence of accused four Felix said accused four was present in his house on the two occasions of oathtaking along with accused 1, 2 and 3 and that it was accused four who first received the money from him before accused three snatched it from accused four. Accused four said he did not know Felix Dumeh.”
Later, and still in the course of his evidence, the witness Adewusi stated:
“Towards the end of June, P. W. 1 was brought to me. When he said he knew accused four, I asked accused 4 to be brought. Accused four said he knew P. W. 1 very well and that P. W. 1 had served under him for about 9 years. He added that P. W. 1 was an honest man and during the political days, if P.W. 1 was given thousands of pounds, he would account for every penny. P. W. 1 stated in the presence of accused four how accused four with others came to the house of Dumeh and state how Dumeh handed money to accused four and how the money was snatched from accused four. Accused four admitted that all that P. W. 1 said was correct. There was an argument about the denomination of the money. P.W. 1 said it was of 1 pounds and 10s currency notes. Accused four nodded his head in approval.”
The witness further described the unco-operative attitude of the 1st, the 2nd and the 3rd accused persons to the Kwara State police by their failing or refusing to release Leiutenant Usman to the Police at Ilorin, by arresting and locking up on trumped-up charges the policeman whom he had sent to Ibadan to investigate the robbery, and by throwing out his policemen from the police station at Ibadan and putting up false charges which were never in fact recorded in any authorised books by the accused persons. In the course of his cross-examination, he told the court how the accused persons came to Ilorin as follows
Accused 4 was brought to Ilorin on 26th May, 1971.”
The witness described as well the discovery of the Peugeot Car No. WQ 1432 which was used in the robbery of the 13th April 1971. This took place at Oke-Ado in Ibadan in the afternoon of the same day of the robbery. The witness stated that he found a number of burglarious exhibits inside the Peugeot car and there was evidence of the car having been involved in a road accident in which it collided with another vehicle described by P.C. Yakubu Anakali, the 10th P.W., as a state carriage mini-bus. The 10th P. W. also confirmed the story of the discovery of the stolen Peugeot car. The Provincial Police Officer, Ilorin, Mohammed Jimoh Aremu, the 8th P. W., also gave evidence and produced statements made to him by the accused persons. Concerning the entry of the 4th accused in Ilorin he testified as follows:
“Accused four was not arrested in Ibadan on 26-5-71. He was invited to Ilorin on that day and he came to Ilorin in car WR 6666- Mercedes. I did not accompany accused four to Ilorin after I had been at the Central C. I. D., Ibadan. I did not return to Ilorin in his car. I did not enter his car. A Police Inspector was detailed to invite accused four to Ilorin. I deny the suggestion that accused four was in communicado from 26-5-71 to 6-6-71. Accused four was never detained at the office of Comm. of Police. I deny the suggestion that accused four was in handcuffs from 27-5-71 to 6-6-71. I did not chain the accused.”
The witness testified further that the accused persons were arrested with warrants at Dorin and told the court in detail the steps taken by him and other Police officers from Ilorin to track down the robbers and their associates. Concerning the 3rd accused who had himself offered to help him in the course of his investigation, he testified as follows:
“On the following day when accused three came to Iyaganku Police Station, I gave him the paper addressed to him by Adeniji. Accused told me that he was busy that day but said that he would give me an informant. He gave me the informant with whom I worked for 2 or 3 days without success.”
Further on his evidence he stated that he left some members of his investigation team in Ibadan with instruction to arrest Felix Dumeh but that:
“As I was obtaining statement on 6th or 7th May from the suspect at Bacita there was a telephone call from Inspector Sinibi at Ibadan who told me that the members of my team which I left behind at Ibadan had been arrested for demanding and receiving 10pounds. I was shocked and I reported the matter to the C. P. I requested that I should go to Ibadan. About three days after the telephone call, I went to Ibadan . . . I then asked accused one, the position of the detained policemen. Accused one told me that I could go with them, but they must leave the Western State because they were corrupt. I asked for bail bond for me to sign. He said they were policemen and whenever they were required he would send to their Commanding Officer. I then told accused one that these constables were detailed by the C.P. Kwara to carry out certain investigations and that I could not take them out of the Western State.”
Testifying further, the witness stated:
“As a result of what P. C. Hawak (one of the constables detained) told me, I returned to accused one that I was looking for Lt. Usman. Accused one told me that Lt. Usman was in cell in connection with robbery. When I told accused one that Lt. Usman was wanted in Ilorin in connection with a robbery, he said that he could not release Usman to me . . .
Three days later when I called on accused one, he marched me before A.C.P. Odofin and stated that I was causing trouble between C.L.D. Ibadan and Kwara Police. I explained myself and later left for Benin. I returned to Ibadan on the following day and I learnt that Usman was still in Ibadan. On the following day I saw Usman being taken to court in Ibadan. He was later returned to the cell at Iyaganku Police Station. Following the information received, my men surrounded the place where Usman was with automatic weapons and gave them instruction to shoot if there was any move to whisk Usman out.”
Concerning the Peugeot car which had been kept with the C.I.D. Ibadan during the investigation of the robbery and the search for the robbers, the 8th P. W. further in his evidence stated;
“I went to Akure and Benin. When I later returned to Ibadan, I went to the M.T.D. to look for that Peugeot. It was no more there. I found it at the S.C.O.A. Motor Garage at Ibadan for repair. I protested to the Manager of the S.C.O.A. who released the Peugeot to me and it was towed to Ilorin.”
The witness was severely and vigorously cross-examined about Lieutenant Usman. In this connection he stated, inter alia-
“I deny the suggestion that Usman was detained in Ibadan for the purpose of being identified before being sent to Kwara State. I was told that Usman was brought to ilorin by accused one. I checked the records at Ibadan and discovered that Usman was detained for no offence committed. P.W. 2 was arrested by accused one in Ibadan for an offence. I do not know that P. W. 2 and Usman committed the offence.”
Of the four policemen from Kwara arrested by the Ibadan Police, the witness testified that the alleged complainants against them made statements to the effect that the policemen neither in fact demanded nor received any bribes from them. He testified as follows:
“I telephoned to Ilorin from Ibadan that the men were arrested for no offence. I was not aware of the signal sent to Ilorin from Ibadan about the identity of the four men. One presented an identity card, one a notebook and the four of them produced their uniforms with their numbers on. The first day they were arrested Shangobiyi and Cpt. Adebiyi searched their house with the Army Sgt. and they saw their police uniforms with their numbers on. They also saw the arms and ammunition. It was after this search that they were locked up. I do not know when they were locked up. Sangobiyi told me he was the one who arrested them and locked them up. I did not know that the order of their detention came from Brisbie. I am interested in all policemen. I feel sorry for them when I saw them. I was happy when I saw them. I did not know whether they had food or not. I don’t know from where they were brought when they met me at the office of accused one.”
His evidence depicted the falsity of the charges trumped-up against the four Kwara policemen and this is confirmed in effect by the evidence of the 11th P. W., Assistant Superintendent of Police Shangobiyi and that of the 12th P.W. Police Sergeant James Adebiyi. Evidence similar in nature and effect was also given by one of the policemen concerned, i.e., Police Sergeant Alexander Agbenyo (P.W. 14) who said that for the three days of their detention they were not given any food to eat.
Michael Oshineye Showale, Deputy Superintendent of Police, Ibadan and the 13th P.W. testified and produced in evidence the police station crime diary. Exhibit 31 containing entries for the 7th April, 1971 which the policeman, Lamidi Lajide (P.W. 5), had tendered as (Exhibit 6). The witness Showale testified that although six persons arrested on suspicion of preparing for the Kwara robbery were arrested by the 1st and the 2nd accused persons on the 6th April, 1971 and were released on bail to Felix Dumeh on the instructions of the 1st accused on the 7th April,1971 there was an record of this in the crime diary, (exhibit 31) and that there was an record either of the arrest on the instructions of the 1st accused of Mudashiru Ajani Layiwola (P.W. 2) on the 6th April, 1971 although there was an entry in (exhibit 31) showing that on the 8th April, 1971 the 2nd P. W. was released on bail, again on the instructions of the 1st accused, to Abdulai Karimu-one of those who actually participated in the robbery along the Bacita Road on the 13th April, 1971. In the same way, the 13th P.W. stated that there was no record in (exhibit 31) of the arrest of the investigating police officers from Ilorin who were arrested and detained on the instructions of the 1st accused in the Police cell at Ibadan.
As stated before, all the accused persons gave evidence at the trial and denied the charges and indeed the specific allegations against them by the several prosecution witnesses. When the 13th P.W. was being cross-examined by learned counsel for the 2nd accused, he stated that the police routine diary, (exhibit 38) (which was produced in evidence by the Registrar of the High Court, Lagos) was the property of the police and that entries No. 891 and No. 892 therein, purported to show that the 2nd accused was at the police station, Ibadan, between 8 p.m. and 8.40 p.m. on the 13th April, 1971 contrary to the prosecution story that the accused persons, all of them, were at that time at the house of Felix Dumeh taking an oath of secrecy and receiving the amount of 5,000 pounds part of the loot of the robbery of that day. After the evidence of the 1st accused and his witnesses, the 2nd accused, Y.L. Bello, gave evidence denying the allegations in the charges made against him. He stated that the 1st P. W., Adigun alias Balewa had occasion to tell lies against him because he, the accused person, was concerned with the investigation of the shop breaking case at Oyo and the Feleye armed robbery. He called a witness who produced the Station Diary (exhibit 38) and referred to the Station Diary (exhibit 38) and relied on it as evidence of the fact that at the time the prosecution said he was at the house of Felix Dumeh he was indeed at the police station. The 3rd accused as well gave evidence in his defence and denied the charges and the several allegations made against him by the prosecution witnesses. He stated that the unsigned and undated statement allegedly made by him on the 5th July, 1971 was not in fact his statement but that it was written by the 8th P. W., P. P. O. Aremu and that he was only asked to sign it after having been tortured and rough handled by the Kwara police. He denied that he dictated the contents of his statement exhibit 46 to the 8th P.W. The 4th D.W., Theophilus Odofin, an Assistant Commissioner of Police, Ibadan, gave evidence for the defence and stated that as far as he was aware the complaint about non-cooperation with the Kwara police against the Ibadan police was not justified. The 4th accused person also gave evidence and called six witnesses. He described his own esteemed position in the local community and denied the charges and the allegation made against him by the prosecution witnesses, especially the oath takings of the 9th April and the 13th April, 1971 and the receipt of the amount of 5,000pounds from Felix Dumeh on the night of the 13th April, 1971. Concerning his own statement admitted in evidence as exhibit 11 and making of it, the 4th accused testified thus; “I followed P.W. 8 to the police officers mess. We were surrounded with armed policemen. My right hand was taken out from handcuffs. P. W. 8 started to dictate what I should write to me from certain paper. When I was writing the statement the fear of further punishment was operating in my mind if I did not write the statement. Also the consequence of the robbery charge was worrying me. I eventually wrote and signed exhibit 11. I wrote exhibit 11 on the assurance of police protection. The contents of exhibit 11 are not true because they never happened. My last sentence in exhibit 11 reads I do not know anything about the robbery of 20,000 pounds.” Indeed, the 4th accused testified that on the 13th April, 1971 he was at Ogere, his home-town and had left Ibadan since 6.30 p.m. on that day; he had slept the night at Ogere and only came back to Ibadan around 9 a.m. on the 14th April, 1971. He admitted that it was true that the 7th P. W. confronted him on the 26th May, 1971 with Felix Dumeh and stated that he denied there and then the allegations of Felix Dumeh. The 8th D.W., Julius Oyetunde Shobayo and the solicitor to the 4th accused, testified in support of the 4th accused that he, witness, was with the 4th accused on the 13th April, 1971 from about 3 p.m. to 11.30 p.m. In the same way the 9th D.W. Lasisi Ashubiojo, a farmer of Ogere, the 10th D.W., Alonge Adeneka, also a farmer of Ogere and the 11th D. W., Alhaji Sule Balogun, an Arabic teacher of Ogere, all gave evidence of the effect that the 4th accused was at Ogere on the evening of the 13th April, 1971.
In a reserved judgment, in which the learned trial judge extensively analysed and appraised the evidence, he came to the conclusion that the accused persons were guilty of the charges against them, and convicted them accordingly. He set out in a manner perhaps open to the blame of prolixity rather than that of inadvertence the evidence of the several witnesses and dealt fully with the effect of the evidence of those witnesses one by one. With respect to the actual robbery of the 13th April, 1971, the learned trial judge found as follows-
“P.W. 2 and P.W. 3 impressed me as truthful witnesses and were unshaken during the long and rigorous cross-examination and I accept their evidence. I find as a fact from the evidence of P. W. 3 that accused one and two used to visit P. W. 17 who was the master of P. W. 3. That at about 6 p.m. one day, accused four went to the house of P.W. 17 and asked for P. W. 17 from P. W. 3. That on that occasion accused four wore a white guinea-brocade garment. When P. W. 3 told accused four that P.W. 17 was away to an hotel at Omitowoju, accused four told P.W.3 he was going to meet P. W. 17 there. Accused four denied this incident. I do not believe him.
I am satisfied from the evidence of P. W. 2 and P. W. 3 that both accused one and two had prior knowledge of the robbery that took place on 13-4-71 not earlier than 6-4-71 and both of them as police officers whose duty is to prevent commission of crimes, did nothing to prevent the robbery even though they knew and saw P. W. 17 before 13-4-71.”The learned trial judge also accepted the evidence concerning the oathtaking and concluded that all the four accused persons were present in the house of the 17th P. W., Felix Dumeh on the days and at the times stated by the prosecution for the ceremony of taking the oath and in respect of the 13th April, 1971, for receiving as well their own share the proceeds of the robbery. He expressly rejected the entries Nos. 891 and 892 in the station diary, (Ex. 38), concerning the movement on that night of the 2nd accused. He took the view that first and foremost in order to prove its authenticity, the writer of the entry should have been called but he was not called. The learned trial judge found that the statement (Ex. 7), which was most damaging against the 3rd accused person, was written by him in his own hand-writing and rejected his attempts to resile from that statement at his trial. He also considered the statement of the 4th accused, (Ex. 11) dated and written by the 4th accused himself and came to the conclusion that that statement was a free and voluntary expression of the mind of the 4th accused person proceeding from remorse rather than from fear or any inducement or promise and that the half-truths it told were as damaging as ever to the case of the 4th accused. The learned trial judge concluded on this aspect of the case thus:
“I am of the view that the contents of exhibit 11 are direct, positive and unequivocal in regard to the part which he played at the house of P. W. 17 on 13-4-71. I do not believe accused four when he said that he did not take oath on 13-4-71 in the house of P. W. 17, that he did not receive money from P. W. 17 on 13-4-71 and that he was at Ogere holding meeting when he was supposed to be in the house of P.W. 17”.
Also in the course of his judgment, the learned trial judge was at pains to consider the implications of the offence of abetment by conspiracy. He took the view that the four accused persons were engaged in a criminal conspiracy by which they promised protection from detection to the robbers who did the act of the 13th April, 1971 along Badta Road, swore to protect the arch-robber and to assure him of their continued intention to give him the protection which he most ardently required and that some of the conspirators, admittedly by virtue of their positions as policemen, actively obstructed the investigation of the robbery by those who were lawfully engaged in carrying out such investigation. The learned trial judge concluded this part of the judgment with the following observations:
“I am therefore satisfied that the four accused persons abetted the commission of the robbery by P. W. 17 and three others on 13-4-71 between Ilorin and Bacita. The prosecution has therefore proved the essential ingredients on count one. I find the four accused persons guilty on count one as charged contrary to sections 85 and 298 (b) of the Penal Code.”
With respect to the charge of receiving, the learned trial judge recounted the story of the night of the 13th April, 1971 and the visit to the house of the 17th P.W., Felix Dumeh, the oath-taking that there and then took place and the consequent departure from there with a parcel containing an amount of 5,000 pounds. He found all four accused persons guilty of receiving under section 317 of the Penal Code. He also found the 1st accused guilty on counts 4, 5, 7 and 9; the 2nd accused guilty as well on counts 4, 5, 7 and 9; the 3rd accused guilty as well on counts 4, 5, 7 and 9 and the 4th accused guilty as well on counts 4 and 6. He discharged and acquitted them on the other counts of the charge on which they were respectively charged. He convicted them on the counts on which he found them guilty and sentenced them accordingly.
This appeal is from that judgment. Before us, learned counsel appearing for the accused persons filed many grounds of appeal containing complaints against the facts as found by the learned trial judge and the law as applied by him to those facts. We granted leave generally to counsel to argue the facts as well as the law and allowed the inclusion of as many new and additional grounds of appeal as counsel would like to canvass.
All counsel are together in arguing that the offences with which the accused persons were charged and tried are not cognisable by the Penal Code. At the inception of the appeal, the learned Director of Public Prosecution of the Kwara Sate, Mr Ekundayo, appearing for the State, informed us that he was not supporting the conviction of the accused persons on counts 3, 4, 5, 6, 7, 8 and 9 and asked for their discharge on those accounts. We propose to make the necessary order on this at the end of this judgment.
Before us it was argued certainly on behalf of the 1st and 4th accused persons and presumably on behalf of the other accused persons, that the High Court, Ilorin should not have exercised its jurisdiction to try the accused persons on the offences charged since they were not offences contemplated by the Penal Code of Northern Nigeria which is applicable in Kwara State. It was submitted that the offences of which the accused persons were tried and convicted, that is to say abetment under count No.1 and receiving under count No.2, are by virtue of the provisions of section 4 (2) of the Penal Code Law such as are not postulated by the Penal Code. Section 4 of the Penal Code Law, Cap. 89, reads as follows:
“4 (1) Where by the provisions of any law of Northern Nigeria the doing of any act or the making of any omission is made an offence those provisions shall apply to every person who is in Northern Nigeria at the time of his doing the act or making the omission.
(2) Where any such offence comprises several elements and any acts, omissions or events occur which, if occurred in Northern Nigeria would be elements of the offence, occur elsewhere than in Northern Nigeria then,
(a) if the act or omission, which in the case of an offence committed wholly in Northern Nigeria would be the initial element of the offence, occurs in Northern Nigeria, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence occurred in Northern Nigeria; and
(b) if that act or omission occurs elsewhere than in Northern Nigeria, and the person who does that act or makes that omission afterwards enters Northern Nigeria, he is by such entry guilty of an offence of the same kind, and is liable to the same punishment, as if that act or omission had occurred in Northern Nigeria and he had been in Northern Nigeria when it occurred.
(3) Notwithstanding the provisions of subsection (2) it shall be a defence to the charge in any such case to prove that the person accused did not intend that the act or omission should have effect in Northern Nigeria.
(4) The provisions of subsection (2) do not extend to a case in which the only material event that occurs in Northern Nigeria is the death of a person whose death is caused by an act or omission at a place outside, and at a time when that person was outside, Northern Nigeria.”
In the course of his argument on this ground of appeal learned counsel for the 1st and the 4th accused persons submitted that as no “initial element”of the offences under the 1st and the 2nd counts occurred in Kwara State, the section does not apply the Penal Code to the acts and/or omissions of the accused persons. The learned Director of Public Prosections contended however that the “initial elements” of the offences under the 1st and the 2nd counts occurred in the Kwara State and that the offences come within the purview of section 4 (2) (a) and (b) of the Penal code Law and are therefore punishable by the Penal Code.
Admittedly section 4 (2) of the Penal Code Law is not easy to construe. The section is concerned with an offence that comprises several elements and identifies these elements with “acts, omissions or events”. It is clear therefore that the “element” in the section is more widely conceived and is not and should not be limited to either an actus reus or the mens rea in conventional criminal jurisprudence. The “initial element” to which reference is made in the section is the initial act or omission concerned and for the purpose of applying section 4 (2) it is necessary to look for that “initial element”. If (a) that “initial act or omission” occurs in the State even though the other “elements” do not, the person who does that “initial act or omission” is punishable by the State under the Penal Code; on the other hand, if (b) that “initial act or omission” occurs outside the State, the other or others occurring within the State and the person who does that “initial act or omission” afterwards enters the State, he is by such entry triable by the State under the Penal Code. The learned Director of Public Prosecutions has submitted that with respect to the charge of abetment in the first count the accused person are liable under the Penal Code by virtue of section 4 (2) (b) of the Penal Code Law and that with respect to the charge of receiving in the 2nd count they are triable under the Penal Code by virtue of section 4 (2) (a) of the Penal Code Law. Learned counsel for the accused persons contended otherwise and submitted in effect that, with respect to both counts, none of the elements occured in Kwara State and that section 4 (2) (b) could not in any case apply because the accused persons had come into Kwara State involuntarily by being arrested by the police and taken thereto and therefore did not “enter” Kwara State as required or contemplated by section 4 (2) (b) of the Penal Code Law.
We cannot of course agree with the contention of learned counsel for the accused persons. Section 4 (2) (b) of the Penal Code Law which deals with cases in which the “initial element” occurs outside the State, does require that the person who does that act or omission should “afterwards enter” the State before being triable or punishable under the Penal Code.
The learned Director of Public Prosecutions submitted on this aspect of the case that any mode of entry is sufficient for the purpose of the section and that even if the accused persons were kidnapped and brought into the State they have indeed entered the State within the meaning and intent of the provisions of section (4) (2) (b) of the Penal Code. We are satisfied ourselves that to construe the word “enter” in the subsection as meaning only a voluntary entry would be completely ridiculous since in that circumstance no criminal will ever enter the State when he known or realises that such entry may make him triable by the laws of the State.
Learned counsel for the 1st and the 4th accused persons had referred us to the position in England and had cited in aid of his argument section 7 and section 9 of the English Accessories and Abettors Act, 1861. We observe in connection with this enactment that section 9 refers only to accessories with respect to Admiralty offences and that even section 7 provides that an accessory may be tried as well “in any country or place in which such person shall be apprehended or be in custody”. In England now, a place of trial is normally regulated by section 11(1) of the Criminal Justice Act (1925) which provides as follows:
”A person charged with any indictable offence may be proceeded against, indicted, tried and punished in any country or place in which he was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence, as if the offence had been committed in that country or place, and the offence shall, for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, be deemed to have been committed in that country or place.”
Looking back at section 4 (2) (b) of the Penal Code Law we are of the view that the entry postulated by the subsection is not necessarily a voluntary entry and, whether the offender be apprehended in the State or be in custody in the State, his entry is complete within the purpose and intent custody in the State, his entry is complete within the purpose and intent of the subsection and he is triable in the State under the Penal Code.
It is pertinent at this juncture to point out that the arguments of learned counsel for the accused persons overlook the actual facts of the case. The evidence of the prosecution as to the entry of the accused person into Kwara State has been reproduced by us earlier on in this judgment. That evidence is to the effect that all the accused persons were arrested in the Kwara State and that all had come into Kwara State by themselves at different times in different ways. The evidence is also to the effect that the accused persons were not arrested before they entered into Kwara State. There was positive evidence by the 7th P. W. that the 3rd accused went on his own to Ilorin on the 3rd July, 1971 that the 1st accused went to Ilorin in his own car with Lieutenant Usman on the 18th May, 1971 P.W.7. The prosecution evidence is also to the effect that the 4th accused went to Ilorin on the 26th May, 1971 in his own Mercedes Benz car, WR 6666 8th P. W. The 2nd accused himself stated in his evidence that he went on his own to Ilorin on the 5th July, 1971 on the instructions of his boss. It seems to us clear therefore that the argument concerning the voluntariness or otherwise of the entry of the accused persons into the Kwara State, did not strictly speaking arise on the facts of this case but it is well to point out that our view of the subsection is that any type of entry would satisfy the section, the important factor being the availability of the accused person for trial within the State.
The accused persons are charged on the 1st count with abetment under section 85 of the Penal Code. That section reads as follows:
“85. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Penal Code or by any other law for the time being in force for the punishment of such abetment, be punished with the punishment provided for the offence.”
It is obvious that the section requires that, apart from the abetment, the act abetted should have been actually committed. The section requires the proof not only of the acts or omissions constituting the abetment but also of the commission of the act abetted in consequence of the abetment. This indeed was the contention of the learned Director of Public Prosecutions who also pointed out that the robbery manifestly committed in the Kwara State on 13th April, 1971 is an element of the offence contemplated by section 85 of the Penal Code. We do not agree with the submissions of learned counsel for the accused persons that no element of the charge of abetment under section 85 (as opposed to abetment under section 91) of the Penal Code had taken place within the Kwara State. It is significant that Dr Alan Gledhill in his book entitled “The Penal Codes of Northern Nigeria and the Sudan” in illustrating the meaning and effect of section 4 (2) gives the following example at p. 775-
“If A in the Western Region instigates B to commit robbery in the Northern Region and the robbery is committed and, after the instigation, A enters the Northern Region, A is punishable under section 91, N.N.P.C.
If A writes a letter in Northern Nigeria and posts it to B, who receives it in the Western Region, the contents being an instigation to B to do something in Western Nigeria which, if committed in Northern Nigeria, would be an offence, A would be punishable under section 91, N. N . P . C. , the instigation is not complete until B has read the message; the initial element in the act of instigation, the posting of the letter, was done in Northern Nigeria.
Section 4 (2) of the Penal Code Law does not deal with venue but with guilt and it would be doing violence to its purpose and import to construe it with an eye on excluding rather than asserting the applicability of the Penal Code. The principles embodied in this section are well known and are universally recognised. See R. v. Ellis (1899) 1 Q.B.230: also The King v. Oliphant  2 K.B.67. In a charge of abetment of an offence the “initial element” is the instigation or positive act of encouragement to do the act or omission which constitutes the offence. By the charge in count 1, the prosecution case is that the accused persons are in a conspiracy by which they instigated those who committed the robbery of the 13th April, 1971 to do so and promised to protect them from detection and/or prosecution. Obviously the “initial element” took place outside the Kwara State but the act abetted, an element of the charge under section 85, took place in Kwara State. We have earlier on made our own analysis of the meaning of section 4 (2) of the Penal Code Law and for the reasons which we have set out as well we are firmly of the view that section 4 (2) of the Penal Code clearly covers the charge on count 1 with which the accused persons are charged and that by virtue of that subsection, they are properly triable for an offence under the Penal Code. See also in this connection, the judgment of this court in Olusegun Haruna v. The State (1972) 8/9 S.C. 192 et seq. The accused persons are charged on the 2nd count with receiving under section 317 of the Penal Code. That section of the Penal Code is in the conventional form and reads thus;
“317. Whoever dishonestly receives or retains any stolen property knowing or having reasons to believe the same to be stolen property shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.” It was submitted by the learned Director of Public Prosecutions that the robbery committed was the “initial element” of the charge of receiving whilst learned counsel for the accused persons argued that the offence of receiving had nothing to do with the robbery committed. By the provisions of section 317 and in order to sustain a charge under that section, the prosecution must prove that the receiver knows that the property he was receiving was “stolen property” and in the case in hand the prosecution has set out to prove that the accused persons knew that the amount of 5,000 pounds which they received in the evening of the 13th April, 1971 was part of the money which the robbers stole along Bacita Road in the morning of the same day as alleged in the charge. A parcel containing the money was identified all the way by prosecution witnesses and indeed it was not argued before us that the identity of the parcel and its contents should be or was infact in any doubt. We hold therefore that the argument against the applicability of section 4 (2) (a) of the Penal Code Law fails and that that subsection makes the accused persons triable for an offence under section 317 of the Penal Code. A number of other points of law and facts were raised and it is sufficient to say that many of them are either valueless or misconceived in view of the facts of the case which they have overlooked. There are however some of these points with which we propose to deal before dealing with the facts of the case and the application of the learned trial judge of the relevant rules of law to those facts.
It was contended for instance that the statement of the 4th accused person, (Ex. 11), was inadmissible in as much as it does not comply with the requirements of section 126 of the Criminal Procedure Code, Cap. 30, Laws of Northern Nigeria. In the High Court objection was taken to the production in evidence of this statement on the grounds that the statement was not voluntary and that the accused person had been tortured into making the statement which in any case is a statement made to a person in authority within the con of section 27 of the Evidence Law, Cap. 40 (Laws of Northern Nigeria.) The learned trial judge separately tried this issue as a trial within a trial and ruled that the statement was made voluntarily by the 4th accused person. As stated before, the contention before us is that the statement being a confessional statement was inadmissible because it was not taken down or employed in accordance with the provisions of section 126 of the Criminal Procedure Code. That section reads as follows:
”126 (1) If any person in the course of an investigation under section 118 or at any time after the close of the investigation but before the commencement of any inquiry or trial confesses to the commission of an offence in connection with the subject-matter of the investigation, a police officer may, instead of taking the person before a justice of the peace, record such confession in the case diary in his own handwriting in the presence of the person making the confession and after reading over to that person such record shall require him to sign or seal it and the police officer shall also sign it.
(2) No police officer shall record any such confession unless after questioning the person making it he is satisfied that it is made voluntarily.
(3) No oath shall be administered to any person making such confession.
(4) Subject to the provisions of the Evidence Law and of any rules made under paragraph (f) of subsection (1) of section 373 of this Code, the record of a confession in the case diary if made by a police officer in accordance with this section shall be admissible as evidence against the person who made the confession and if so admitted shall be read out in court.” Manifestly the section prescribes the mode of recording and dealing with a confession made by an accused person before his trial. We have looked at the statement, (Ex. 11), ourselves. It is true that the statement admits many of the facts put in evidence by the prosecution and indeed admits the presence of the 4th accused in the house of Felix Dumeh on the night of the 13th April, 1971 and a description of the oath-taking ceremony in which himself participated, but we are of the view that the statement does not “confess” to the commission of any offence with which the accused is charged and contains no positive and direct admission that the accused person had committed the crimes described in the charge sheet against him in the con of the decision of the Federal Supreme Court in Raimi Adebisi Afolabi v. The Commissioner of Police  All N. L. R. 654 (see per Taylor, F.J. at pp. 657 -658). If this is so, then prima facie, the section does not apply to the statement (Ex. 11) and the taking down or making of that statement.
But, nonetheless, we think we should consider the submissions of learned counsel on the assumption that the statement, (Ex. 11), was a confession. The statement, exhibit 11, was written by the accused person himself and before proceeding to write the substantive parts of it, he signed a statement of the words of caution which the 8th P. W., Deputy Superintendent of Police, Jimoh Aremu had already written on the top of the form. What the witness said in evidence was that the 4th accused sent for him on the morning of the 6th June, 1971 and told him “that he wanted to make another statement in addition to the one he had made earlier.” There was no question of the 4th accused person confessing “to the commission of an offence” which is a pre-condition of the applicability of section 126 of the Criminal Procedure Code. We think that section 126 of the Code applies only where the accused person “confesses to the commission of the offence in connection with tfte subject-matter of the investigation” and not in a case where, like this, all the accused person had said was that he wanted to make an additional statement. Rather we think that in the circumstances described by the 8th P.W., section 124 (2) of the Criminal Procedure Code applied and that section provides as follows:
“124 (2) No police officer or other person shall prevent any person from making in the course of the investigation any statement in accordance with any rules made under section 373 which of his own free will he may be disposed to make.”
Now, section 124(2) refers to the section 373 of the Criminal Procedure Code, subsection (1) of which gives the Chief Justice of the Northern States power to make Rules of Court for;
“373 (1) The Chief Justice with the approval of that Governor may make rules of court for all or any of the following purposes
(f) prescribing the conditions under which statements may be made to the police by accused and other persons and under which such statements may be admitted in evidence.”
Rules have indeed been made by the Chief Justice in virtue of those powers. The Rules are the Criminal Procedure (Statement to Police Officers) Rules No. 11 of 1960 and rules 6 and 9 of those Rules read:
“6. A person against whom a police officer had decided to make a complaint and who makes a voluntary statement shall not be cross-examined, and no question shall be put to him about such statement except for the purpose of removing ambiguity in what he has actually said.
- Save as provided in the Evidence Ordinance, no statement made to a police officer by a person against whom the has decided to make a complaint shall be admissible in evidence in any court unless such statement is made in accordance with these rules. ”
It will be observed that section 126 (4) of the Criminal Procedure Code has let in the provisions of the Evidence Law and the admissibility of a record made in the Crime Diary is expressly made subject to the Evidence Law and the Rules made under section 373 (1) (f) of the Criminal Procedure Code. It is remarkable that rule 6 of the Criminal Procedure (Statements to Police Officers) Rules, No. 11 of 1960, provides for the making of a voluntary statement by an accused person and rule 9 of those Rules subjects the admissibility of that statement to the Rules, i.e. No. 11 of 1960 which again refers to the Evidence Law. Indeed, that was the basis of the decision of this Court in Peter Uche and Anor. v. The Queen  1 All N.L.R. 195 where at pp. 198-199 the Court, whilst discussing the admissibility of a confessional statement made by an accused person himself without complying with the provisions of section 126, observed as follows:
“These rules were not referred to by the learned counsel on either side; the view we are taking is without the aid of argument. Seeing that the provisions of the Evidence Ordinance are saved by rule 9, we think that a confession which is admissible under that Ordinance may, though not recorded in writing, be received in evidence. We do not know of any decision that evidence of an oral confession which was made after caution and was free and voluntary cannot be given if it is not recorded and signed; nor was it as argued.”
Our observations would have covered the argument of learned counsel for the accused person and constituted a complete answer to the argument against the admissibility of (Ex. 11) as undoubtedly that statement was made in conformity with the provisions of section 27 (2) of the Evidence Law, Cap. 40, Laws of Northern Nigeria. Actually when Uche’s case, supra, was decided in June 1964 the attention of the Court was not drawn to the fact that section 122 to which section 126 is supposed to be an exception, had been amended to read as follows:
“122 (1) Nothing in any way included in or forming part of a case diary shall be admissible in evidence in any inquiry or trial unless it is admissible under the provisions of the Evidence Ordinance or of this Criminal Procedure Code or of rules made thereunder, but
(a) a court may if it shall think fit order the production of the case diary for its inspection under the provisions of section 144;
(b) the Attorney-General may at any time order the submission of the case diary to himself;
(c) any relevant part of the case diary may be used by a police officer who made the same to refresh his memory if called as a witness.
(2) Save to the extent that:
(a) anything in any way included in or forming part of a case diary is admitted in evidence in any inquiry or trial in pursuance of the provisions of subsection (1); or
(b) the case diary is used for the purposes set out in paragraph (c) of subsection (1), the accused or his agent shall not be permitted to call for or inspect such case diary or any part thereof but, where for the purposes of paragraph (a) or (b) any such inspection is permitted, such inspection shall be limited to the part of the case diary referred to in paragraph (a) or (b) as the case may be.”
The amendment obviously makes admissible such statements as are rendered admissible by the Evidence Law and disposes of the other argument of learned counsel for the accused person that section 9 of the Criminal Procedure (Statements to Police Officers) Rules No. 11 of 1960 is invalid inasmuch as it is inconsistent with the specific provisions of sections 125 and 126 of the Penal Code. This is so because the amended section 122 of the Criminal Procedure Code validates the reference to the Evidence Law and gives effect in statutory form to the provisions of section 9 of those Rules, i.e. No. 11 of 1960.
Learned counsel for the 4th accused also argued that the statement, (Ex. 11), could not have been voluntary and referred to the beginning of it which reads thus
“I made a statement to the police at Ilorin before this one on 30-5-71, I now decided to tell the police all I know about the case for which I am being questioned. I would have stated the fact if not for the fear that the senior police officers involved will victimize or trouble me and my people at Ibadan. Having been given full assurance by the police in Ilorin that no one can victimize me and my people if I speak the truth, I have now decided to speak the truth to the best of my knowledge about this case. I am now speaking the truth and nothing but the truth.”
This introductory portion, learned counsel states, suggests that the accused was making the statement under a promise or reward for doing so. We do not think so. We are of the view that the statement had proceeded, as we stated before, from remorse rather than from inducement. If the police promised to him do any favours and therefore induced him to make the statement, the police would have told him there and then that the introductory passage falsifies the entire statement and makes it worthless and undeserving of the inducement. The accused person was literate and had written out the statement himself and if one reads the whole statement it is apparent that most of the contents were not matters which in any view of this case would have interested the police.
Arguments similar to those in connection with the 4th accused and his statement were put forward by learned counsel both for the 2nd and the 3rd accused persons in the case. In particular, the statements of the 3rd accused person, exhibit 7 and exhibit 46, were challenged although learned counsel himself conceded that exhibit 7 and exhibit 46 are not confessional statements. Clearly, if that is so, section 126 of the Criminal Procedure Code would be irrelevant. The voluntariness of the statements (Ex. 7 & 46), like that of (Ex. 11), was separately tried by the learned trial judge and we can see nothing exceptionable in his rulings on both statements which in both cases were written by literate and experienced men fully aware of their contents and legal consequences. In the course of the trial and in order to sustain his alibi, that he was not in the house of Felix Dumeh to take any oath on the night of the 13th April, 1971 the 2nd accused person caused to be produced in evidence the station diary in use at the police station, Ibadan, where entries Nos. 891 and 892 recorded that he was inside the police station on duty between 20.00 hours (i.e. 8 p.m.) and 20.40 hours (8.40 p.m.). The station diary was produced as exhibit 38 and concerning that exhibit, the learned trial judge in the course of his judgment observed as follows-
“If these two entries are true why did accused two fail to call the writer If accused two was visited in this house at 9.40 p.m. by the patrol why did he not call Sgt. Ogunwoye who headed the patrol and reported to him If he remained in his house throughout the night of 13-4-71, why did he not call anyone from his house who saw him throughout the night as a witness I do not believe accused two and I attach no weight or important to entry Nos. 891 and 892 of (Ex. 38).”
On this aspect of the case, learned counsel for the 2nd accused submitted that the learned trial judge had wrongly placed the onus of proving his alibi on the accused person instead of the prosecution. We are clearly of the view that the argument is misconceived. The learned trial judge urged the points which he had made in order to spot-light the apparently meagre probative value of (Ex. 38). The maker of the record was not called to give evidence. Although the 4th D. W., Assistant Commissioner of Police Odofin, had stated concerning (Ex. 38) as follows:
“By entry 982 in (Ex. 38), Bello must remain in his house as he was on duty. Accused two was a very good officer.”
the accused person made no efforts whatsoever to establish the fact of his being at home or at the police station-which facts must be and are facts peculiarly within his own knowledge. There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished. The Supreme Court had had the occasion to consider this point in Hemyo Atam and Anor. v. The State, S.C. 632/66 decided on the 11 th January, 1967 and had observed on this point as follows:
“Each of the appellants made a statement under caution after his arrest, setting up an alibi. The police officer who took the statements was asked whether he had done anything to check their truth and said that he had not and it was submitted that for this reason justice had been denied to the appellants and there should at least have been a reasonable doubt as to their guilt. There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a ease such as this where the appellants were identified by three eyewitnesses there was a straight issue of credibility and we are not able to say that the judge’s findings of fact were unreasonable or cannot be supported having regard to the evidence. If the alibis had been true it would have been open to the appellants to call witnesses in support of them and neither of them did so.” We think that the entries in exhibit 38 are not proved, much less the implications of those entries; that the comments of the learned trial judge on the worthlessness of the entries are justified and that no rule of law is breached or infringed by these comments. These observations also apply to the alibi set up by the 4th accused and the complaint against the decision of the learned trial judge on this aspect of his case. The prosecution investigated the alibi, as they ought to do, and left the result to the court on the basis of the evidence available both from the prosecution and the accused person himself. The learned trial judge heard the evidence on all sides and disbelieved and rejected the evidence of the defence witnesses who had come to support the alibi of the 4th accused. In other words, the evidence accepted by the learned trial judge fixed the 4th accused in Ibadan in the house of Felix Dumeh at the time when he tried to suggest that he could not have been in Ibadan. This was a straight issue of fact and the learned trial judge saw and heard the witnesses before him. We are satisfied that the learned trial judge was not shown to have erred in any way in his conclusions in this respect.
It has also been argued for the accused persons that the statements of the 1st and the 17th prosecution witnesses to the police were not admissible, that some statements made to the police by the 8th P. W. were asked for but were not ordered to be produced, that some of the prosecution witnesses were either expert or apprentice robbers or dangerously aggrieved or vindictive persons whose evidence should not have been accepted and if accepted should have been subjected to corroboration by the learned trial judge in order to justify his acceptance and so on. We do not think that these submissions deserve more than passing observation. The statement made by the 1st P. W. to the police was indeed asked for by learned counsel and the statement of the 17th P. W. was admitted in evidence for the purpose of cross-examining Felix Dumeh after the prosecution had duly obtained the leave of court to treat Felix Dumeh as a hostile witness. Besides this, it should be remembered that the learned trial judge completely rejected the evidence of the 17th P. W., Felix Dumeh, in his judgment and there is therefore no reason whatsoever to complain about the admission in evidence of his statement. With respect to the requests for the production of written statements which were refused, including the application for the 1st P.W. to exhibit his bare back for the purpose of ascertaining whether or not he had whip-stripes thereon, we are of the view that the several rulings of the learned trial judge on these issues are sound in the circumstances and no argument of any substance has been addressed to us to disparage those rulings. Concerning the bad character of some of the prosecution witnesses, we cannot see the wood for the trees in the complaint of counsel. It is true that both the famous and the infamous gave evidence at the trial of the accused persons. When it is proposed to give evidence of the happenings inside hell it is only a matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed it would be preposterous to look for such evidence in other directions. The 1st P.W., Mustapha Adigun alias Balewa, the 2nd P.W., Mudashiru Layiwola and the 3rd P.W., Chukwuemeka Onyemeche, are not accomplices in the charges before the court and it is wrong to describe them as such. They may on account of their criminal habituality tend to tell lies against policemen whose duty it is to bring them to book and indeed they may tell lies in order to serve other purposes of their own or to wreak vengeance on innocent policemen; but these are issues of credibility and the ascription of probative values to oral evidence is pre-eminently the duty of the trial judge. In the present case, the learned trial judge heard these witnesses and concluded either that their testimonies corroborated the statements of the accused persons or vice versa and we are unable to see any justifiable grounds of complaints in the circumstances. Lastly, it was argued for the accused persons that the judgment or verdict is not justified by the evidence. On the 1st count the accused persons were charged as stated before with abetment under section 85 of the Penal Code and the learned trial judge makes it clear that he was convicting them of abetment by conspiracy. He stated in the course of his judgment that
“By section 83 (b) of the Penal Code and on the authority of Doso Awanze and 6 Ors. v. Tiv Native Authority (1966) N.M.L.R. 197, to constitute an abetment, the accused persons must have engaged in conspiracy with P. W. 17.”
The learned trial judge then discussed the implications of a conspiracy and observed that the conspirators must have engaged in some act or omission in pursuance of the conspircy and that there is no conspiracy as long as it rests on intention only. The overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspirator must be referrable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceasar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Meyrick and Ribuffi (1929) 21 C. App. R. 94. They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.
It is, therefore, the duty of the court in every case of conspiracy to ascertan as best as it could the evidence of the complicity of any of those charged with that offence. In this case the charge is one of abetment, i.e. that the accused persons conspired together to abet this robbery and that they did so having had previous knowledge of the robbery and according to the wording of the charge by “intentionally aiding, encouraging and instigating the commission of the said offence by agreeing with Felix Dumeh and others and promising on oath to conceal the said offence when commited and by taking no action to prevent its commission”, and it must be proved either that all did the acts or omissions set out in the charge or that some or one of them did such acts or omissions in the name of all and in furtherance of the common design of all. It is part of the case for the prosecution in this case that all the accused met in the house of Felix Dumeh some time in February, 1971 and there agreed by the taking of an oath that they would ensure protection from detection to the robbers. The evidence of this had come from Felix Dumeh himself from what the 8th P. W. described as the result of confronting the accused persons with Felix Dumeh and the evidence of the 3rd P. W. that even in the month of February, 1971 all the accused persons had met in the house of Felix Dumeh and were frequenting his house and that the robbery was originally planned for a date in February, 1971. Although the learned trial judge rejected the evidence of Felix Dumeh, it is nonetheless still possible to prove the agreement or concert between the accused persons to abet the robbery but, apart from the supposed oath taking in February, 1971 the 1st accused, Patrick Njovens, who was warned about the presence of the prospective robbers in Ibadan preparing for the robbery, intentionally failed to prevent the commission of the robbery. He pretended to arrest the prospective robbers but soon released them on bail to the arch-robber Felix Dumeh; he ordered the arrest and unjustified detention of the policemen from Ilorin who had come to Ibadan to investigate the robbery and indeed attempted to terrify the 8th P. W. into removing the policemen from the Western State completely without completing their investigation; he, without any justification whatsoever, refused to release Lieutenant Usman, the most dangerous of the robbers and the person who actually shot at the vehicle carrying the money on the 13th April, 1971 to the Kwara police and purported to lock him up in the Ibadan police cell without any records whatsoever of any offence against him at a time when the Kwara police most seriously were looking for him. In the same way the 2nd accused took part in every act or omission of the 1st accused and every time the 1st accused went out on pretended track of the robbers, the 2nd accused was with him. In the same way, the 3rd accused, Amusa Abidogun, although an Alhaji, was all the time and at every stage the most loyal, most willing and most ardent supporter of the 1st accused. He wilfully and successfully led the 8th P. W. on a wild goose chase for several days whilst pretending to help him locate the whereabouts of the robbers, thus giving the robbers further opportunity of perfecting their schemes of escape or disappearance. It is noteworthy that Felix Dumeh was arrested in Akure where he, 3rd accused, had been transferred from Ibadan soon after the robbery. The 4th accused described himself as a trader and ostensibly completely ignorant of the robbers and their profession but there was evidence, accepted by the learned trial judge, that he was seen in the house of Felix Dumeh in February 1971, that in the presence of the 8th P.W. Felix Dumeh accused him of having promised to protect him. There is the statement which he made himself admitting his presence at the oath-taking ceremony in the house of Felix Dumeh on the 13th April, 1971 and the inexplicable receipt, proved against him, of the amounts of 5,000 pounds in that parcel from Felix Dumeh on the night of the 13th April, 1971. It is difficult to see the acts and/or omissions of these men in any different light than that of complicity and their acts are certainly not explicable on any other rational grounds.
All the accused persons are charged with various counts of specific offences comprising of acts or omissions which would constitute for each of them the actus reus to associate him with the conspiracy for be it known conspiracies take various forms and whilst a conspiracy may exist in the form of one conspirator being like the hub of a bicycle the others rotating around him, another conspiracy may be in the form of a chain in which one conspirator hooks on to the other and so on ad infinitum, or indeed a conspiracy may exist in both of those forms or in other forms.
At the beginning of this appeal, the learned Director of Public Prosecutions informed us that he was not supporting the convictions on the other counts of the charge on which the accused persons were severally convicted, except counts Nos. 1 and 2. There is only one set of evidence which is being used to prove the conspiracy as well as the specific charges. In R. v. Dawson and Ors.  1 W.L.R. 163, the Court of Criminal Appeal deprecated this practice which carries no legal obloquy whatsoever but fails to stand the test of strategy. See the observations of Finnemore, J. at p. 170 of the report. We think that the learned trial judge was right to conclude that all the accused persons took part in abetting the offence of robbery committed on the 13th April, 1971 on the Bacita Road.
The count of receiving is simpler. There is evidence, which the learned trial judge accepted, that all the accused persons were present in the house of Felix Dumeh on the night of the robbery and collected with their own hand their own share of the loots. As stated before, the identity of the money is not in dispute. The 6th P.W. Lasisi Seidu, one of those who committed the robbery and procured the money, saw it when Felix Dumeh set it aside. The 2nd accused in his statement (exhibit 7) and the 4th accused in his statements (exhibits 11 and 12) both confirmed their visit to the house of Felix Dumeh on the night of the 13th April, 1971 and gave a description of the parcel containing the amount of 5,000 pounds which tallies with the description of it by the 6th P.W., Lasisi Seidu. As far as they are concerned, the evidence of the self confessed robbers and their apprentices is only corroborative of their own statements and there is no evidence stronger than a persons own admissions. With respect to the 1st accused and the 3rd accused, they denied that they went to the house of Felix Dumeh on the night of the 13th April, 1971 but the learned trial judge disbelieved their denials. This was an issue of fact and we think that the evidence is incapable of any other reasonable conclusion. If the accused persons did go to the house of Felix Dumeh on the night of the 13th April, 1971 and jointly received a parcel containing the particular amount of 5,000 pounds contained in the chargeproceeds of the robbery and before doing so took an oath of secrecy, there is no room for any complaint about the justification of the learned trial judge finding that the 5,000 pounds was part of the loot of the morning, that all the accused persons knew this and that they all accepted it as planned and expected. We have no hesitation in concluding that the offence of receiving has been proved against all the accused persons.
We conclude that the charges against the accused person on the 1st and 2nd counts are proved and that all the grounds of appeal argued in their favour have failed. We make the following orders;
(i) We direct that all the accused persons be discharged and acquitted on the counts other than count 1 and count 2 on which they were severally convicted by the learned trial judge because we agree with the Director of Public Prosecutions that those charges cannot stand.
(ii) In respect of count 1 and count 2, the appeals of all the accused persons are dismissed and their convictions and sentences are affirmed.
Other Citation: (1973) LCN/1727(SC)