JOSEPH ZHIYA V. THE PEOPLE OF LAGOS STATE

_{APPEAL NO: CA/L/618C/2015}

_{Court Of Appeal – Lagos Division}

_{Areas Of Law
APPEAL, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE}

_{Summary Of Facts
The Appellant and another accused person were arraigned at the High Court of Lagos State on a three count charge for conspiracy to rob and robbery and armed robbery which was subsequently amended to two counts on the death of the 1st accused person. They pleaded not guilty to the charge. The Prosecution’s case was that the Appellant and the other accused person who were policemen together with one Emmanuel Akor (now deceased) robbed some Chinese citizen resident at No 2 Ogidi Street, Lekki Phase I by introducing themselves as officers who are presently carrying out investigation on allegations of crime against the victims. Upon entry into the victim’s premises, they robbed them of various items including foreign currencies, three laptops, and three bags containing other stolen items. While the robbery was going on, the security guards in a neighboring house who noticed what was happening ran to report the incident at Maroko Police Station. The Police Officers on duty responded immediately and this resulted in the arrest of the three suspects while two others escaped.  The Appellant denied the allegation of robbery and stated that he got a distress call from EMMANUEL AKOR who told him that he was having problem with his employers and when he got to the place he met them fighting and this prompted him to go to Maroko Police Station for their intervention, but on getting there he himself was arrested. The trial Court found the two accused persons guilty of the alleged offence and sentenced them to 14years in imprisonment on each of the counts, which were to run concurrently. Dissatisfied with decision of the court, the Appellant has appealed to this Court.}

<sub>Held
Appeal Allowed

Issues For Determination</sub>

• _{Whether the prosecution proved the essential ingredients of the offence of conspiracy to commit robbery against the Appellant;}
• _{Whether the Learned Trial Judge could safely convict the Appellant on Exhibit ‘F’ the alleged confessional statement of the Appellant; and}
• _{Whether the prosecution could establish the offence of robbery against the Appellant.}

_{Rationes
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROOF IN CRIMINAL TRIALS
“It is an established and trite principle of law that in criminal trials the burden of proof is on the prosecution who has the onus to establish the guilty of the accused person beyond reasonable doubt and this burden never shifts. See Igbabele Vs State (2006) 6 NWLR (Pt 975) 100, Kim Vs The State (1992) 4 NWLR (Pt 233) 17; Okafor Vs The State (2006) 4 NWLR (Pt 969) Page 1; Ani Vs The State (2003) 11 NWLR (Pt 830) 142. Ilodigiwe Vs State (2012) 18 NWLR (Pt 1331) 1, Bello Vs State (2012) 8 NWLR (Pt 1302) 207. “ PER S.C. OSEJI, J.C.A}

OFFENCE OF ARMED ROBBERY – NATURE OF EVIDENCE TO BE ADDUCED TO SATISFY THE LEGAL REQUIREMENT OF PROOF BEYOND REASONABLE DOUBT IN AN OFFENCE OF ARMED ROBBERY
_{“Thus, for the prosecution to succeed in proving the guilt of an accused person for the offence of robbery or armed robbery, the evidence adduced must satisfy the legal requirement of proof beyond reasonable doubt:-
(a) That there was a robbery or series of robberies.
(b) That the robbery or each of the robberies was an armed robbery, that is to say that the accused person was armed during the robbery.
(c) That the accused person was one of those who took part in the armed robbery.}

See Bozin Vs The State (Supra). Ani Vs the State (2003) 11 NWLR (Pt 830) 142; Afolalu Vs The State (2010) 43 NSC QR 227; Ogudu Vs The State (2011) 45 NSCQR (Pt 1) 278.
In the case of The State Vs Salawu, (2011) LPERL (8252) SC it was held that, before a trial court comes to the conclusion that an offence had been committed by an accused person the court must look for the ingredients for the offence and ascertain critically that the acts of the accused come within the confines of the offence charged.” _{PER S. C. OSEJI, J.C.A}

CONFESSIONAL STATEMENT – THE FACT THAT A VOLUNTARY CONFESSIONAL STATEMENT IS RETRACTED IS IMMATERIAL
_{“The Supreme Court has held in a number of cases that where the statement of an accused person is voluntary, the fact that it was later retracted is immaterial. See Ohuebuka Vs The State (2000)2 SCNQR 186 at 217, Edamine Vs The State (1996) 3 NWLR (Pt. 438)530; Onwumere Vs The State (1991)4 NWLR (Pt 186) 428.” PER S.C. OSEJI, J.C.A}

ADMINISTRATION OF CRIMINAL JUSTICE LAW – EFFECT OF NON-COMPLIANCE WITH SECTION 9(3) OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW
_{“The question that then arises is the effect of non compliance with section 9(3) of the Administration of Criminal Justice Law by the prosecution:-
The said Section 9(3) provides thus:-
“Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of  it may be produced at the trial provided that in the absence of video Facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.”
Two major issues are germane in the said Section 9)3) of the law.  They are to the effect that whenever a person arrested for committing an offence volunteers to make a confessional statement, the Police officer in charge of the investigation shall ensure firstly, that the whole process of making the said confessional statement as well as taking it is recorded on video which may be produced during trial.  Secondly, in the absence of video recording equipment at the police station, the confessional statement shall be made and put in writing in the presence of a legal practitioner chosen by the accused person.” PER S.C OSEJI, J.C.A}

ADMINISTRATION OF CRIMINAL JUSTICE LAW – SIGNIFICANCE OF SECTION 9(3) OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW
_{“The mischief sought to be cured by this thoughtful and progressive provision is the abuse inherent in taking statements from accused persons by investigation police officers who are bent on achieving quick and positive results to please their superiors and moreso in the absence of adequate resources to carry out detailed and indebt investigation of cases assigned to them.  It is therefore an easier and quick fix approach to harass, intimidate and most times torture suspects into admitting to the commission of the offence alleged against them.  That is not to say however that there are no die hard criminals who will always deny any involvement in a crime even if caught in the act.  But the genuine essence of the law is to avoid miscarriage of justice and also to reduce to the barest minimum the incident of retraction or denial of confessional statements by accused persons, as well as the delays inherent in conducting trial within trial in a bid to confirm the voluntariness of a confessional statement.” PER S.C. OSEJI, J.C.A}

CONFESSIONAL STATEMENT- EFFECT OF NON-COMPLIANCE WITH SECTION 9(3) OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW
_{“In the main, the view of this court as per the above judgments is that section 9(3) of the law is mandatory as far as voluntary confessions are concerned and non-compliance with the said provisions renders such confessional statements impotent.” PER S.C. OSEJI, J.C.A}

Statute Referred To
_{Administration of Criminal Justice Law of Lagos State 2011}