CORAM

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OLABODE RHODES-VIVOUR JUSTICE, COURT OF APEAL

John Inyang Okoro, Justice of the Supreme Court of Nigeria

PAUL ADAMU GALINJE JUSTICE, COURT OF APEAL

EJEMBI EKO JUSTICE, COURT OF APEAL

AMINA ADAMU AUGIE JUSTICE, COURT OF APEAL

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PARTIES

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SULE MUSA

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant, charged with 4 other persons, was tried and convicted on a two count charge of conspiracy to commit armed robbery and armed robbery at the trial Court. The Appellant was the 2nd Accused at the trial court. The 1st accused, Monday Eze, died in the course of the trial. He was the son of the PW.1, and a brother of PW.3.

The PW.1, Hyginus Eze, was not an eye witness of either the conspiracy or the armed robbery. He depended largely on the account of his son, Ifeanyichukwu Eze (PW.3) for his actions in the matter. The 1st Accused (deceased) was the first to be arrested. He led the police officers to arrest the 3rd and 5th Accused in Benin City. The PW.1 travelled with the investigating police officer and the 1st Accused to Lagos for the arrest of two other Accused Persons. The arrest of the Appellant was actively facilitated by the 1st Accused. It was the 1st accused who identified the Appellant, in the presence of the PW.1, as one of the robbers in his gang.

In all five (5) witnesses testified for the Prosecution. At the close of the Prosecution’s case, the Appellant’s no case submission was dismissed. The Appellant later testified in his defense. He was the lone witness in his defense. He denied both charges and the fact of his knowledge of Monday Eze, the 1st Accused. He insisted that he did not make the alleged voluntary confession, admitted earlier in evidence through PW.5 as Exhibit A. The defense in the first instance, did not oppose the tendering of Exhibit A. It was admitted in evidence without objection.

The trial Court dismissed the attempts made by the Appellant subsequently to retract the confession and resile out of it. The Court of Appeal (the lower court) also alluded to the fact that Exhibit A was admitted in evidence without objection in its judgment and affirmed the decision of the trial court to treat Exhibit A as a confession properly made and admitted in evidence and by due process of law.

Dissatisfied and aggrieved by the decision of the trial Court, the Appellant has lodged the instant appeal.

 

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HELD

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Appeal dismissed.

 

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ISSUES

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Whether the Appellant was identified and fixed to the commission  of the alleged offences?

Whether the guilt of the Appellant was proved beyond reasonable  doubt?

 

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RATIONES DECIDENDI

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RETRACTION OF CONFESSION- DUTY OF THE ACCUSED PERSON TO ESTABLISH REASON FOR HIS INCONSISTENCY

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 “When an accused person retracts his confession and resiles from it, it is his function to explain to Court in his evidence the reason for his inconsistency: ONWEMERE V. THE STATE (1991) LRCN 984 at 999.” – Per  EKO, J.S.C.

 

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OFFENCE OF ARMED ROBBERY-INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

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“To establish armed robbery, as Appellant’s counsel correctly submitted, the prosecution must establish the following facts beyond reasonable doubt. That is –

a. There was a robbery or series of robbery incidents;

b. The robbers were armed;

c.The accused was one of the robbers who committed the robbery.

See: BOZIN v. THE STATE (1986) 2 NWLR (pt.8) 465 at 469; THE STATE V. ADEMOLA (1989) CLRN 370. Accordingly, it is imperative that the prosecution must prove the participation of the accused in the alleged armed robbery, and the identity of the accused is therefore in issue.” – Per  EKO, J.S.C.

“Charge under section 1 (2) (a) of the Robbery and Firearms Act. Section 1 (2) (a) supra creates the offence of armed robbery. To succeed in the offence of armed robbery the prosecution must establish that;

(a.) there was a robbery;

(b.) it was carried out with the use of offensive weapons; and

(c.) the accused person participated in the robbery. See Ogudo v State (2011) 12 SC (Pt.i) p.71.”– Per  RHODES-VIVOUR, J.S.C.

 

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CONFESSION- HOW TO TEST THE VERACITY OF A CONFESSION

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“Courts in Nigeria apply the rule in R v. SKYES 8 CAR 233 at 236 to test the veracity of the making of the confession as well as the correctness of the contents of the confession as statement. The six-way test is run on the following pertinent questions. That is –

a. Is there anything outside the confession to show that it is true?

b. Is it corroborated?

c. Are the relevant statement of fact made in it true as far as can be tested?

d. Was the accused one who had the opportunity to commit the offence?

e. Is the confession possible?

f. Is it consistent with other fact which has been proved?

The 6-way test has been consistently applied in our courts, as can be seen from BONY v. THE STATE (1994) 5 NWLR (pt.343) 138; KAREEM v. F.R.N. (NO.2) (2002) 8 NWLR (Pt.770) 664.”– Per  EKO, J.S.C.

 

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CONCURRENT FINDINGS OF FACT-INSTANCES WHEN THE APEX COURT WOULD INTERFERE WITH CONCURRENT FINDINGS OF FACT

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“The concurrent findings of fact are neither perverse nor unreasonable. The Appellant’s counsel has not established, satisfactorily, that a miscarriage of justice has been done to the Appellant by the said concurrent findings of fact. Since this appeal is predicated on questions of fact. Since this appeal is predicted on questions of fact requiring proof by evidence; the Appellant, in order to succeed on current findings of fact, must show that special circumstances exist that warrant this Court interfering with the concurrent findings of fact. The settled policy of this Court is that, this Court will not interfere with concurrent findings of fact unless the appellant shows special circumstances of either that there was a miscarriage justice, or that there was a serious violation of some rules of substantive law or procedure, or that the findings of fact do not flow from the evidence adduced at the trial, or that the findings are perverse: ENANG v. THE STATE (1981) 11- 12 SC 25 at 42; AKAYEPE v. AKAYEPE (2009) 11 NWLR (pt.1152) 217 (SC). In the instant case the findings are reasonable and they are supported by the printed evidence legally admitted. The findings are not perverse; and there has been no miscarriage of justice.”– Per  EKO, J.S.C.

 

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CONFESSION-WHETHER A CONFESSION ALONE IS SUFFICIENT TO GROUND CONVICTION OF AN ACCUSED PERSON

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“Exhibit A supports the conviction of the Appellant. That confession alone is sufficient to ground his conviction. NWACHUKWU v. THE STATE (2007) ALL FWLR (pt.390) 1350 at 1406.”– Per  EKO, J.S.C.

“There are innumerable authorities who support the view that the court may convict an accused person on his extra judicial confession which is voluntary and true but inconsistent with his evidence in court. See Queen v Itule (1961) 2 SCNLR p.183 Queen v Obasa (1962) 2 SCNLR p.402 Akpan v State (1192) 6 NWLR (Pt.248) p.439.”– Per  RHODES-VIVOUR, J.S.C.

 

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OFFENCE OF CONSPIRACY-HOW CONSPIRACY MAYBE FORMED

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“In Oyediran v Republic (1967) MNLR p. 122 Coker JSC explained the offence of Conspiracy when his lordship gave three examples of how a conspiracy may be formed.

“(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.

(b) There may be one person who is the hub around whom the others revolve, like the centre of a circle and the circumference.

(c) A person may communicate with A and A with B, who in turn communicates with another and so on. This is called the ‘chain’ conspiracy.”

To establish conspiracy it is not necessary that the conspirators should know each other. So long as they know of the existence and the intention or purpose of the conspiracy, the offence is complete .”– Per  RHODES-VIVOUR, J.S.C.

 

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OFFENCE OF ARMED ROBBERY-HOW A PERSON IN THE COMPANY OF ARMED ROBBERS THOUGH UNARMED IS TREATED

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“Furthermore anyone in the company of armed robbers, though unarmed is treated as armed under section 1(2) (a) supra, and is convicted and sentenced as if he was also armed when the robbery was carried out.”– Per RHODES-VIVOUR, J.S.C.

 

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CONFESSIONAL STATEMENT- CONDITIONS FOR ADMISSIBILITY OF AND RELIANCE ON A CONFESSIONAL STATEMENT

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“A confessional statement is admissible in evidence and can be acted upon if it is direct, positive and relates to the maker’s acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Adisa v The State (2014) LPELR – 24221 (SC), Yusuf v The State (1976) 6 SC 167, Obasi v The State (1965) NWLR 129, Akpan v State (1992) 7 SCNJ 22, Ogoala v State (1991) 2 NWLR (pt 175) 509.”– Per OKORO, J.S.C.

“The law is settled that where a confessional statement has admitted all the essential ingredients or elements of the offence and shows unequivocally direct and positive involvement of the accused in the crime for which he is charged, the court can rely on it alone to convict him. See Odua vs FRN (2002) 5 NWLR (Pt.761) 615: Ogudo vs State (2011) 18 NWLR (pt. 1278) 1, Ntaha vs State (1972) 4 SC 1; Ikemson vs State (1989) 3 NWLR (pt. 110) 455: Saidu vs State (1982) 3 SC 41.”– Per GALINJE, J.S.C.

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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1999 Constitution of the Federal Republic of Nigeria (as amended)

Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990

1999 Constitution of the Federal Republic of Nigeria (as amended)

Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990

1999 Constitution of the Federal Republic of Nigeria (as amended)

Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990

1999 Constitution of the Federal Republic of Nigeria (as amended)

Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990

 

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