The State V. Olashehu Salawu (2011) LLJR-SC

The State V. Olashehu Salawu (2011)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

The Respondent was arraigned before the Kwara State High Court of Justice, Ilorin Judicial Division on a two count amended charge, hereunder reproduced:

“COUNT ONE: That you Ola Shehu Salawu and five others at large on or about 8/5/2007 at Adeta round about in Ilorin, Kwara State, within the jurisdiction of this Honourable Court conspired to commit a criminal offence, to with (sic) rob one Mr. Soleman Alafara while armed with dangerous weapon at Adeta round about Ilorin and you thereby committed an offence contrary to Section 97 of the Penal Code.

COUNT TWO: That you Ola Shehu Salawu and five others at large on or about 8/5/2007 at Adeta round about in Ilorin Kwara State within the jurisdiction of this Honourable Court while armed with dangerous weapon did rob one Mr. Suleman Alafara of his car Honda bullet with dealer number KWD 142 AL Nurus Motors and you thereby committed an offence contrary to Section 1 (2)(a) of Robbery and Fire Arms (Special Provision) Act Cap R11 Law (sic) of the Federation of Nigeria 2004.”

The Respondent pleaded not guilty to the amended charge on 11/04/08 and the appellant opened its case, calling a total of four witnesses. The Appellant sought to tender the Statement allegedly made by the Respondent through PW4 but learned Counsel for the Respondent objected to the admissibility of the Statement on the following two grounds:

“(1) This is not the primary evidence of the accused person because the accused speaks and understands Yoruba alone and its only the Yoruba version coupled with the English version that can be admitted in this Honourable Court.

(2) Secondly, on the voluntariness of the Statement, the accused in conjunction with his counsel will be raising an objection to the admissibility of the Statement on ground that it was not voluntarily made. Finally, the Statement of the accused being a public document but coming from proper custody should have been certified in line with the Evidence Act.”

In reaction to the objection to the admissibility of the Statement credited to the Respondent, the learned trial Judge Garba, J ruled as follows:

“Court: In view of the objection to the Statement of the accused on ground of not being voluntary, the best thing to do is to conduct trial within trial to determine its voluntariness or otherwise.” (See pages 41-42 of the record of the trial Court).

In the ensuing trial within trial the Appellant called two witnesses while the Respondent testified as the only witness for the defence.

Learned counsel for the parties addressed the trial Court. In its ruling of 22/05/08, the learned trial Judge held:

“… that I find the confessional statement of the accused voluntary and it is accordingly admitted in evidence and marked Exhibit 4.”

At the conclusion of the evidence of the PW4, the Appellant rested its case the only witness for the defence was the Respondent who testified as PW1. The defence closed its case on 23/06/08 and the trial Court adjourned to 14/07/08 for Counsel’s addresses.

On 14/07/08, learned counsel for the parties adopted their written addresses and the case was adjourned to 23/9/08. However, the case did not come up again until 10/10/08 from which date it was adjourned to 14/10/08 for judgment after learned Counsel at the instance of the trial Court, had resolved some issues relating to the number of those at large referred to in the Charge and the numbering of the Exhibit 4, i.e. the alleged Statement of the Respondent.

In its judgment of 14/10/08 spanning pages 78-92 of its record, the trial Court concluded as follows:

“It is apparent from the overwhelming and believable evidence adduced by the prosecution the circumstances culminating into the arrest of accused, his lack of respect for truth and his inconsistency in his testimony, I feel satisfied that the prosecutor has proved the charge of armed robbery against the accused person to the standard required in criminal cases. That is, beyond reasonable doubt and he is found guilty of the offence charged. He is accordingly convicted.” (See page 52 of the trial court’s record).

The trial court passed sentence of the Respondent, thus:

“In respect of the 1st Count of criminal conspiracy, which I have a discretion to exercise, the convict is sentenced to 6 (six) months imprisonment without an option of fine. On the 2nd Count of armed robbery, he is sentenced to death by hanging him in his neck till he is pronounced dead. The convict has right of appeal to the Court of Appeal.”

On the 5th day of November, 2010 the Respondent filed a notice of appeal in the Court of Appeal, Ilorin, Kwara State.

In the unanimous judgment of the Court below delivered on 13/12/2010 by Denton-West, JCA, His Lordship concluded thus:

“I have found that there is merit in this appeal and I hold that the conviction by the lower Court is null and void, and therefore the death penalty has no effect and significance on the appellant. I accordingly set aside the conviction of the appellant by the lower Court and order that the appellant be released from custody forth.”

Aggrieved, the appellant herein appealed the judgment on three grounds, reproduced hereunder but shorn of their particulars:

“GROUND 1:

The lower Court erred in law when it held that Exhibit 5, the extrajudicial Statement of the Respondent cannot be used to corroborate any other evidence.

GROUND 2:

The lower Court erred in law when it held that the Appellant breached the legal principle espoused in the case of Nimm v. The State (2007) 2 NCC 598 at 611 on the identification of the Respondent as the person who committed the robbery in question.

GROUND 3: The learned trial Judge erred in law when it held that the prosecution has not led evidence to show common criminal design to sustain the offence of criminal conspiracy for which the respondent was convicted by the trial Court.”

Learned counsel for the appellant formulated three issues in his brief of argument.

The issues, one from each of the three grounds of appeal are:

“(1) Whether the Court of Appeal was right to have held that Exhibit 4, the extrajudicial Statement of the respondent was wrongly admitted (Relates to Ground 1 of the Ground of Appeal).

(ii) Whether the Court of Appeal was right to have came (sic) to the conclusion that the respondent was not properly identified by PW2 who was the victim of the robbery operation. (Relate to Ground 2 of Appeal).

(iii) Whether the Court of Appeal was right to have held that the prosecution had not led sufficient evidence to sustain the offence of criminal conspiracy against the respondent.

(Relate to Ground 3 of the Ground of Appeal).

Learned Counsel for the respondent adopted the issues framed by the Respondent. At the hearing of the appeal, learned Counsel for each party adopted and relied on his brief of argument in urging the Court to decide in favour of his client. Arguing Issue 1 in his brief as to whether the Court of appeal was right to have held that Exhibit 4, the extra-judicial Statement of the respondent, was wrongly admitted, learned Counsel for the appellant drew our attention to page 42 of the record of the trial within trial to determine the voluntariness vel non of the Respondent’s confessional statement. He referred to the trial Court’s determination in the trial within trial where it held that “the effect of the above findings is that I find the confessional statement of the accused voluntary and it is accordingly admitted in evidence and marked Exhibit 4.”

Based on the above, learned Counsel impugned the observation of the lower Court that “it is unfortunate that the trial Court refused to rule on the trial within trial, but rather claimed that the appellant retracted his statement. Though the appellant never argued on this point, but just by the way. A trial Judge is expected to rule on the trial within trial.”

Learned Counsel argued that admission of Exhibit 4 was not a ground of appeal nor was it raised as an issue before the lower Court, contending that the lower Court’s erroneous view on the said Exhibit led to a miscarriage of justice. He referred to Iyayi V. Ejigebe (1987) 7 SCNJ 148; Mockupe v. The State (1988) 9 SCNJ 1 in support of his contention that even if Exhibit 4 had been raised as an issue before the trial Court it ought to have been discountenanced on the ground that it did not emanate from a ground of appeal before the lower Court. With reference to Nwokoro V. Onuma 3 NWLR (Pt. 136) p.22, he said it was wrong for the lower Court to have formulated an issue suo motu for the parties.

Learned Counsel reproduced Exhibit 4 for what he called salient revelations therein and contended it was wrong for the lower Court to hold that the trial Court, in reliance on Egboghenome V. The State (1993) 7 NWLR (Pt.306) 383 should have subjected the confessional statement to the “six baptismal fire test to test or verify the truthfulness of the statement”. He argued that the fact that Exhibit 4 was admitted by the trial Court despite its retraction by the respondent does not in any way depreciate its evidential value as espoused by this Court in Egboghenome’ case (supra). He argued further that, the intents of Exhibit 4 were in accord with the natural cause of events and in line with and in agreement with the six cardinal principles of veracity highlighted by this Court in Onochie v. The Republic (1966) NMLR 107. In learned Counsel’s submission, Exhibit 4 is corroborated by other evidence led by the appellant, the respondent had the opportunity to commit the offence and the confession is consistent with other facts which have been established at the trial.

Learned Counsel referred to page 161 of the record for the finding of the lower Court that the only evidence in support of the confession was the stolen car and submitted that though the unregistered used car was released to its owner, i.e. the victim of the robbery before the trial, the appellant tendered the bond releasing the car which was received in evidence and marked Exhibit 1. According to learned Counsel, there was no basis for the trial Court to raise and rely on the non-production of the car even though its existence was not disputed at the trial. Counsel argued that Exhibit 4 in itself is enough to ground a conviction for the offence charged, even without the evidence corroborating it as led at the trial. He urged the Court to resolve issue one in favour of the appellant.

In his own submission on Issue one, learned Counsel for the Respondent conceded that an accused can be convicted on his confessional statement alone but he stressed that the confessional statement is subject to evaluation and assessment in the light of the totality of the evidence before the Court to reach a just decision in the case. He relied on Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383. If the confessional statement is not supported by evidence before the trial Court it ought to be accorded little or no probative value or completely disregarded. In response to the argument of learned counsel for the appellant that the trial Court suo motu formulated a new issue for the parties, learned counsel said it is a settled principle that an appellate Court can rightly interfere with the findings of fact of a trial Court if the finding is not supported by evidence. He relied on Akinbisade v. State (2006) 17 NWLR (pt. 1007) page 184 at 211-212. He contended that issue allegedly formulated suo motu by the trial Court flowed from the issue as to whether or not the prosecution proved its case as formulated by the Respondent before the lower Court. In his view, the cases of Iyayi v. Ejigbo (supra) and Nwokoro v. Onuma (supra) relied on by the appellant are not applicable to the case at hand. Learned Counsel contended that what was in issue before the lower Court was not the admissibility of Exhibit 4 but rather it was the weight to be attached to it. He referred to pages 162-163 of the record of the lower Court. He maintained that the lower Court was concerned that the trial Court did not subject Exhibit 4 to the legal scrutiny enunciated in Eghehonoru v. The State (supra), adding that in the light of the above, there is no substance in the appellant’s argument that the respondent did not appeal against the reception of Exhibit 4 in the trial Court.

Learned Counsel relied on Tanko v. State (2008) 164 NWLR (pt. 1114) page 594 at 628-629; Isa v. State (2007) 12 NWLR (Pt. 1049) 582 in support of his contention that there is need to exercise caution with a confessional statement, no matter how startling the revelations therein, adding however that retraction of a confessional statement is not synonymous with the truth or the guilt of an accused. Where a confession is retracted, he argued further, the trial Court ought to evaluate the confession in the light of evidence before the Court to determine what weight or value to attach to it. He relied on Nsofor V. State (2004) 18 NWLR (Pt.905) 292 at 314-315 paras. E-B. He contended that the weight placed on Exhibit 4 by the trial Court was unreasonable when viewed in the light of the evidence before the Court. He argued that not only did the respondent retract the confessional statement but his evidence was wholly corroborated by other pieces of evidence before the trial Court. He added that even if it could be said that the respondent lied before the Court, that fact alone will not relieve the State of the duty of proving its case beyond reasonable doubt. Counsel argued that it is not enough to say that the contents of Exhibit 4 accord with the natural cause of events and in accord with the six cardinal principles of veracity enumerated in Onochie v. The Republic (1966) NMLR 107 and R. C. Osakwu (1994) 2 NWLR (Pt. 326) 273 without stating the facts proved to support the contention. He said the lower Court was right in holding that Exhibit 4 cannot be used to corroborate the fact that a car was stolen. He relied on Folorunsho v. The State and Udosen v. The State (2007) NCC 409. He noted that the appellant did not state the pieces of evidence that corroborated the confessional statement of the respondent, i.e. Exhibit 4. Learned Counsel urged the Court to resolve this issue in favour of the respondent.

In issue one, the appellant complained of the decision of the Court below that Exhibit 4 – the extra-judicial statement credited to the respondent was wrongly admitted by the trial Court. Exhibit 4 was objected to by the Respondent when it was sought to be tendered in evidence as a confessional statement made by the Respondent. The trial Court, rightly in my view, ordered a trial within trial to determine the voluntariness vel non of the alleged confessional statement. At the said trial, the Respondent gave a detailed account of his arrest in Lagos and his journey from Lagos to Ilorin, from Ilorin to Abuja and back to Ilorin on the allegation that he was the Oluwashun who was wanted for the assassination of some SSS men in Abuja. At the instance of the Police who were in Lagos looking for Oluwashun, he gave his name as Ola Shehu. The Police said he was the man they wanted for murder. At the end of his cross-examination as the DW1 in the trial within trial, the Respondent said:

“I made one statement at Lion Building Police Station and three statements at the Police CID Headquarters, Ilorin. From all the statements I made to the Police, none of them is before the Court and the one in Court is not my statement.” See page 51 of the records.

Based on the above statement, the trial Court jettisoned the evidence at the trial within trial and admitted the statement as retracted statement of the Respondent.

In the totality of the evidence at the trial within trial, the learned trial Judge made two contradictory decisions. At page 501 of the record, His Lordship held:

“In effect, I quite agree with the learned DPP that since the accused has retracted his confessional statement, the question of involuntariness does not arise again. The Court is entitled to admit the Statement and consider it on its own and determine if it was made by the accused or not and I so hold.”

At page 61 of the record, the learned trial Judge held also:

“The effect of the above findings is that I find the confessional statement of the accused voluntary and it is accordingly admitted in evidence and marked Exhibit 4.”

Be that as it may, I will take the issue as framed: whether the Court below was right in holding that the confessional Statement Exhibit 4 was wrongly admitted by the trial Court. Whether or not Exhibit 4 was made by the Respondent, as distinct from the issue of its voluntariness, is not in issue in this appeal.

Section 27(1) of the Evidence Act Cap 172 Laws of the Federation of Nigeria 1990 defines a confession thus:

“S.27 (1): A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

Sub-section provides:

“Confessions, if voluntary, are deemed to be relevant facts as against the person who made them only.” I shall now consider the evidence in the records of the trial Court to determine whether or not the lower Court was right in the decision that Exhibit 4 was wrongly admitted by the trial Court. At page 41 of the record, the PW3 stated on oath:

“Being a member of the Anti-robbery section, I was instructed by the team leader to obtain the statement of the accused person which I did (underlining mine) by cautioning him in English language. It was Insp. Matthew Adino that brought the accused to me to take his statement because he (Insp. Adino) did not understand Yoruba language.”

My Lords, a statement, confessional or exculpatory, made by an accused to the Police Officer investigating the crime for which he is arrested is a form of evidence. PW3 said she was instructed to obtain the statement of the Respondent, a form of evidence. The word “obtain” connotes a demand and in my view, the statement made by the Respondent on demand by the Police officer cannot be said to have been voluntarily made. The demand for the statement wholly dissipated the effect of the caution administered by the Police. See The State v. Mati Audu (1971) NNLR 91 at 92 and Nakumde V. Jos NA (1966) NNLR 52 at 58-59. Even the words of caution have been held to be an, inducement to speak to the Police for the accused cannot be expected to keep mute after the caution. See Queen v. Viaphony (1961) NNLR 47 at 47-48. In Onobu v. IGP (1957) NNLR p.25, it was held that when a person is under arrest in a criminal charge, it is not the duty of the Police to obtain evidence in the form of a statement from him. The duty of the Police, after the accused has been charged and cautioned, is to take or record the statement of the accused, if he makes any.

The Police have no authority to obtain a statement from him, having told him he is not obliged to say anything. The Judges Rules, through rules of practice, are designed to leave it open to the arrested person to say nothing and to prevent Police officers from trying to get the arrested person to say anything. See Egbadekwu Onobu v. IGP (supra) 25 at 26.

The Respondent was arrested in Lagos and taken to Ilorin on allegation of assassination of SSS men. He was told if he cooperated by making a confessional statement he would not be taken to Abuja. He was eventually taken to Abuja and presented to the Police boss as the assassin. The Police boss ordered them out when the

Policemen who brought him admitted that the assassination took place there days after he was arrested. He was taken back to Abuja and subjected to inhuman treatment as a result of which he spent two months in the hospital. He named the officers at whose hands he suffered torture and humiliation as Adino, Dada and two others. The above facts can be verified at the Police Headquarters, Abuja and the hospital he was taken to in Ilorin.

From his unchallenged evidence when he was taken back to Ilorin, the Police said that there had been a robbery in Ilorin and took him to a torture chamber where he confessed under torture. Apart from fruitless cross-examination the evidence of the Respondent in the trial within trial went unchallenged. None of the officers he named – Adino, Dada and two others was called to the stand to disprove his story and show that Exhibit 4 was voluntarily made.

The prosecution did not explain the absence of the officers to give evidence in rebuttal. The Court is entitled to hold that the evidence of the named Police men which could be, but was not produced, would if produced, be unfavourable to the case of the appellant who withheld it.

The same applies to the evidence that the Respondent spent two months in the hospital as a result of the torture he was subjected to in order to extract Exhibit 4 from him. The appellant could have tendered his medical record from the hospital he was taken to and admitted. That evidence was withheld because if produced, it would have destroyed the appellant’s case and proved that Exhibit 4 was not made voluntarily. See Section 149 of the Evidence Act which provides:

“S.149 (d): The Court may presume that evidence which could be and is not produced would, if produced, be unfavourble to the person who withholds it.” I find nothing in the evidence at the trial to corroborate the statement in Exhibit 4.

On the other hand, the evidence of PW1 at the trial within trial give the lie to the statement in Exhibit 4. It is the duty of the appellant to prove, positively, that Exhibit 4 was voluntarily made by the Respondent and the Appellant failed to do so. (See Adekanbi v. A-G Western Nigeria (1966) 4 NSCC 46 at 48. I hold the view that the Court below was right in the decision that Exhibit 4 was wrongly admitted in evidence by the trial Court. Issue one is hereby resolved against the appellant.

In Issue 2, learned Counsel for the Appellant, referred to page 163 of the record of the Court below on the mode of identification of the Respondent by the PW2 and submitted that the conclusion of the lower Court is not supported by the evidence before the trial Court. He referred to pages 37 and 38 for the testimony of the PW2 on the identification of the Respondent. He argued that in the peculiar circumstances of the case, the PW2’s identification of the Respondent was in accord with the decision of the Supreme Court in NMM V. The State (2007) 2 NCC 598 at 611; a case he said the lower Court quoted copiously from at page 164 of its record.

Learned Council relied on the State v. Collins Ojo Aibangbee & Anor (1988) 2 SCNJ (Pat.1) at 128 and 762, and page 165 per Oputa, JSC for the meaning of the verb “to identify” and its Noun form “identification” and Nnaemeka-Agu, JSC on the meaning of “identification”, respectively. He referred to Exhibit 3 – a statement the victim of the robbery – PW2 – made to the Police on the night of the incident and said the name of the Respondent was given in the said statement as Sheun and that the Policemen who recorded the Exhibit 3 also gave the Respondent’s name as Sheun.

According to learned Counsel, the name Ola Sheu given by the Respondent is an enlarged form of Sheun and that “the name Sheun was derived and recollected from the scene and during the robbery operation while PW2 was struggling with the Accused/Respondent and his gang.” See pages 34-38 of the record.

On the evidence of the PW3 (Police officer who made a call through the handset alleged to have been recovered from the Respondent at the scene of crime) and which he described as neither shaken nor rebutted under cross-examination, and as “direct, cogent, reasonable and compelling as to admit of no evidential conjections or make shift” he impugned the finding of the Court below to the effect that the failure to call Muritala, the younger brother of the Respondent who picked the Policeman’s call and through whom the Respondent was arrested was fatal to the Appellant’s case.

On the identification of the Respondent as the felon, Counsel argued that:

“(1) The evidence of PW3, was unshaken under cross-examination.

(2) The victim of the crime at the earliest opportunity and even though he did not know the Respondent prior to the robbery, recalled the name Sheun which tallies with the Respondent’s name.

(3) The Respondent was identified by the victim, PW2, even before the Respondent identified the victim as shown on page 37 of the record.

(4) The robbery operation was done at about 7.30 pm where there was light, and

(5) The evidence of Muritala could have been most relevant if the evidence of the PW3 was either shaken or rebutted under cross – examination.”

Based on the above, learned Counsel said the lower Court was in error in the finding on the identity and identification of the Respondent, a decision that is contrary to the conclusion reached on the same issue by the trial Judge who saw and listened to the witnesses in Court. He submitted that there was no mistaken identity and urged the Court to resolve the issue in favour of the Appellant.

In Issue 2, learned Counsel for the Respondent listed the essential ingredients which must be proved in a case of armed robbery to be:

(a) That there was a robbery.

(b) That the robbery was armed robbery.

(c) That the accused was one of those who robbed.

He relied on Ani v. State (2003) 11 NWLR (Pt. 830) 142 at 161 para C-E; Bello v. The State (2001) 10 NWLR (Pt. 1043) p. 564 and 564 at 566-567; Nwachukwu v. State (1988) 1 NWLR (Pt. 11) page 218. Counsel said that the case of the Appellant was on the third element of the offence of armed robbery.

He pointed out that the robbery took place in Ilorin but that the Respondent was arrested in Lagos nine clear days after the robbery. The above, coupled with the flawed identification of the Respondent by the victim, made it impossible for the Appellant to link the Respondent with the crime. He said that the identification of the respondent did not conform with the definition of that word in Archibong v. The State (2006) 14 NWLR (Pt, 1000) 349 at 371 paras. f-b, 393 para D. He referred also to Ibe V. State (1992) 5 NWLR (Pt. 244) page 642; State v. Ojo Aibangbee & Anor (1988) 7 SCNJ (Pt. 1) 128 at 162 also cited by the Appellant.

On identification parade as a mode of identification of an accused and when it will be necessary to conduct the exercise, Counsel referred to Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 at 472 where it was stated that identification parade will be required:

“(a) Where the victim did not know the accused prior to the crime and his first acquaintance with him is only the commission of the offence.

(b) Where the victim was confronted by the offender for a very short time; and

(c) Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.”

Counsel submitted that the facts and circumstances made it imperative to hold an identification parade to establish the identity of the perpetrator of the crime. He argued that no proper identification parade was conducted as the Respondent was made to identify the man he allegedly robbed. He emphasized that the incident occurred, from the evidence, between 7.30 pm and 8 pm in an area where there was no street lighting, with reflection of light from houses twenty feet away. He contended that there was no sufficient illumination for the victim to identify, the person who robbed him.

Counsel argued that in view of the uncontroverted evidence of the Respondent that he was an only child of his parents, the appellant should have called the respondent’s alleged brother, Muritala. He urged the Court to resolve the issue against the appellant.

Issue 2 reads: ”Whether the Court of Appeal was right to have come to the conclusion that the respondent was not properly identified by PW2 who was the victim of the robbery operation.” The totality of the evidence of PW2 on this alleged identification of the respondent is at page 37 of the record. It is hereunder reproduced:

“I identified the accused person at the Police Station, when he was arrested and brought. The accused also identified me and said it publicly that he took the vehicle from me.”

Wittingly or by deliberate design, the Police turned the process of identification on its head and a subsequent identification parade would have been a farce as the witness has been firmly fixed upon the respondent as the person who took a car from him. See Balogun v. A-G (2003) 2 SCNJ 196 at 211-212.

The robbery was said to have taken place about 7.30 to 8 pm on a street without street light. Even though the PW2 claimed he could observe the respondent, by the reflection of light from houses 20 feet from the street, there is no evidence that the PW2, if he did observe the person who robbed him, stated the physical features of that person to the Police at the earliest opportunity he had. As if enough harm had not been inflicted on the appellant’s case, the Police decided to work from the answer to the problem they had to solve by ordering the respondent to identify his alleged victim.

The facts as presented, warrant conduct of an identification parade, taking into account the need for:

(a) description of the accused given by the witness to the Police shortly after the commission of the crime;

(b) the opportunity the witness had of observing the accused, and

(c) the features of the accused noted by the witness and communicated to the Police which mark him out of other people.

See Patrick Ikemson & 2 Ors V. The State (1989) 1 CLRN 1 at 18. It is disturbing that learned Counsel for the appellant would urge the Court to endorse the conviction of the respondent based on a travesty of the identification process. I resolve Issue 2 against the appellant.

In Issue 3 on whether or not there was sufficient evidence to sustain the charge of criminal conspiracy, learned Counsel referred to page 124 of the record, and relying on Lezarus Akano & Anor v. A/G Bendel State (1988) 2 NWLR 201 at 232; Francis Tete Lawson & Ors v. The State (1975) 4 SC 115 at 123; RV Sweetland (1957) 42 CR App R 62 at 66, he contended that the fact that the respondent was exonerated on the charge of armed robbery does not necessarily mean that the charge of conspiracy is not proved, bearing in mind that conspiracy and the offence committed in pursuance thereto are two separate and distinct offences. He referred to the evidence of PW2 that he was attacked by six men in unison and Exhibit 4 the statement of the respondent, in part, to the effect that:

“My self and one Rasaqi Majibare of Jankara in Lagos State came to Ilorin to join the rest of our gangs members and robbed one Honda Bullet car unregistered in Ilorin.”

He also referred to the evidence of PW3 and said that the three set of evidence proved the offence of conspiracy against the appellant. He referred to S.96 of the Penal Code for the definition of conspiracy as:

“When two or more persons agree to do or cause to be done:

(a) an illegal act;

(b) an act which is not illegal by illegal means, such an act is called criminal conspiracy.”

He urged the Court to resolve Issue 3 in favour of the appellant.

In conclusion, learned Counsel urged the Court to allow the appeal based on the following:

(1) The lower Court was wrong to have come to the conclusion that Exhibit 4 was wrongly admitted by the trial Court.

(2) The Accused/Appellant was properly identified by PW2 who was the victim of the crime.

The prosecution led direct, cogent and compelling evidence to sustain the charge of conspiracy.

In Issue 3, Learned Counsel for the Respondent said that “a charge of conspiracy purports an agreement formed by two or more minds with the intention to do an agreed but unlawful act.” He relied on Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) page 256 at 280 paras D-E. He said that conspiracy is established if it is shown that the criminal design alleged is common to the suspects, relying on Nwosu v. State (2004) 15 NWLR (Pt. 897) p.466. He said that the actus reus must be referable to the common criminal design. For the prosecution to prove conspiracy to commit armed robbery, it must be proved beyond reasonable doubt:

(a) that there was an agreement or confederacy between the convict and the others to commit the offence of armed robbery;

(b) that in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery of series of robberies;

(c) that the robbery or each robbery was armed robbery.

He relied on Usufu v. State (supra) at 113 para F-H. Learned Counsel conceded that a charge of conspiracy can be sustained where the substantive offence fails but added that for this to happen the prosecution must lead direct and independent evidence in proof of conspiracy. He added that where the Court is urged to infer conspiracy from the proof of the substantive, the offence of conspiracy will sink or swim with the substantive offence. He relied on Amachree v. Nigerian Army (supra); Usufu v. The State (supra) and Njovens v. The State (1973) 5 SC 17.

In the case at hand, Counsel argued there was no independent evidence to prove conspiracy nor did the appellant show that the actus reus is referable to a common criminal design. He contended that on the facts before the Court the charge of conspiracy shared the same fate with the substantive offence. He urged the Court to resolve Issue 3 in favour of the Respondent.

In conclusion, he urged the Court to dismiss the appeal and endorse the judgment of the Court below.

Issue 3 is whether the Court of Appeal was right to have held that the prosecution had not led evidence to sustain the offence of criminal conspiracy against the Respondent. The case for criminal conspiracy is built on a portion of Exhibit 4 reproduced hereunder:

“Myself and one Rasaq Majobene of Jankara in Lagos State came to Ilorin to join the rest of our gangs members and robbed one Honda Bullet car unregistered in Ilorin.”

Contrary to the submission of learned Counsel for the appellant, I find nothing in the evidence of the PW2 or PW3 relating to criminal conspiracy, not to talk of linking the Respondent thereto. While I accept the definition of conspiracy and the fact that conspiracy and the offence committed in pursuance thereto are two separate and distinct offences as elucidated in Lazarus Akano & Anor v. A-G Bendel State (1988) 2 NWLR (Pt. 201) 232 and the other authorities relied on by the appellant, the bottom of the appellant’s case has been knocked out by the resolution of issue one in this appeal. Exhibit 4, being a product of coercion and torture of the Respondent, is inadmissible. At best, the appellant failed to discharge its duty to prove that the confessional statement was voluntarily made, Issue 3 is also resolved against the appellant.

My Lords, though this is not an issue before us in this appeal, there is need to comment on the mode the trial Court adopted in passing sentence on the Respondent. A man condemned to death should have the sentence addressed directly to him. The sentence of death at page 92 of the record of the trial Court was conveyed as information not to the Respondent but to the world at large.

Having resolved all the three issues in the appeal against the appellant, I hold that the appeal is devoid of merit and it is hereby dismissed. I affirm the judgment of the lower court setting aside the judgment of the trial Court.

Appeal dismissed.

SC.11/2011