Legalpedia Citation: (2014-03) Legalpedia 45306 (CA)
In the Court of Appeal
abuja
Mon Mar 31, 2014
Suit Number: CA/IB/339C/2014
CORAM
H. S. TSAMMANI, J.C.A
M. B. DONGBAN-MENSEM, J.C.A
PARTIES
DELE BABALOLA
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant was arraigned alongside his co-accused person before the Ogun State High Court of Justice sitting at Ilaro on a one count charge of Conspiracy to commit armed robbery, contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap. R.11), Laws of the Federation of Nigeria, 2004. The case of the Prosecution against the Appellant and his co-accused is that on the 17th of January, 2008 one Kosoko Saibu alerted the area Vigilante group of persons trying to force open his back door and shooting. The head of the Vigilante group telephoned the Police in the area who gave them the go ahead to move to the scene of crime. As the Vigilante group approached the scene, they saw some people shining their torchlight and shooting, they responded, causing the people to start running towards the swampy area near Kosoko Saibu. The Vigilante group pursued them and caught the Appellant and another accused person with two guns and cartridges. They also recovered corpses of two of the members of the armed robbery group and were all handed over to the Police at Nigeria Police Station, Ipokia. At the end of the trial, the trial Court found the Appellant guilty of conspiracy to commit armed robbery and proceeded to sentence him to death. The Appellant is aggrieved by that decision and has therefore filed this appeal vide his Notice of Appeal which was subsequently amended containing four (4) Grounds of Appeal.
HELD
Appeal Allowed
ISSUES
1. Whether the Court below did not err in law when it attached undue weight to the Appellants purported confessional statement and relied on it in convicting the Appellant for conspiracy to commit armed robber and sentencing him to death.
2. Whether the learned trial Judge was right when he convicted the Appellant for conspiracy to commit armed robbery and sentenced him to death under Section 1(2)(a) of the Robbery and Firearms (Special Offences) Act.
RATIONES DECIDENDI
CONFESSIONAL STATEMENT – WHETHER CONVICTION CAN BE FOUNDED SOLELY ON A CONFESSIONAL STATEMENT
“It is the settled law that a Confessional Statement which has been proved to have been voluntarily made by an accused person is a relevant fact against him at the trial. A confession therefore is the strongest evidence that can be led against an accused person. If such statement has been duly proved and admitted, it may alone, in some cases, be sufficient to warrant convicting an accused person on it. A Confessional Statement made by an accused person and properly admitted in evidence, is in law, the best guide to the truth of the involvement of the accused in the offence charged. In the case of Adebayo v. State (2014) LPELR 22988 (SC), My Lord Ariwoola, JSC held that:
On the confession of an accused person, this Court had held that: evidential value of a confession of truth is very great indeed. It is very sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See; Rep. v. Chartwood(1980) 1 WLR 874; James Obi Achabua v.The State (1976) 12 SC 63 at 68; JimohYesufu v.The State (1976) 6 SC 167.
Similarly, in the case of Akeem Agboola v. The State (2013) LPELR 20652 (SC), My Lord Ariwoola, JSC again held that:
The law is trite on the point that a man may be convicted on his own confession alone and there is no law against it. The position of the law is that if a suspect makes a free and voluntary confession in his extra judicial statement to the Police, which confession is direct and positive and the Court is satisfied with its truth, such Confessional Statement alone is sufficient to ground and support conviction without corroboration. See; Asimiyu Alarape & Ors. v. The State (2001) 5 NWLR (pt. 705) p. 79, (2001) 2 SC 1134; (2001) LPELR 412 (SC), OzanaUbierho v. The State(2005) 5 NWLR (pt. 919) 644; (2005) 2 SC (pt. 1) 18, (2005) LPELR 3283 (SC). There is certainly no evidence stronger than a person’s own admission or confession. Such a confession is admissible.
It is therefore clear that, conviction can be properly founded on a direct, positive, unequivocal and voluntary Confessional Statement of an accused. Such a conviction may be upheld on appeal. See Ikemson & Ors v. The State (1989) 1 C.L.R.N. p. 1;Egbogbonome v. The State (1993) 7 NWLR (pt. 306) p. 383; Omoju v. F.R.N. (2008) 7 NWLR (pt. 1085) p. 38; Akinbisade v. State (2006) 17 NWLR (pt. 1007) p. 184 at 211 212; The State v. Olashehu Salawu (2011) LPELR 8252 (SC) and Dawa& Anor v. The State(1980) 8 11 S.C (Reprint) p.147. –PER H. S. TSAMMANI, J.C.A
CONFESSIONAL STATEMENT – TESTS TO BE APPLIED IN DETERMINING THE TRUTH OF A CONFESSIONAL STATEMENT
“The law however is that, a Court should be careful or cautious of convicting an accused person on a Confessional Statement alone, especially where such an accused person has retracted the statement. In that respect, the Court must carefully evaluate such statement in the light of other evidence placed before the Court before relying on same to convict. Thus, in the case of Dawa v. State (supra) the Supreme Court relied on the English case of R. v. Sykes (1913) 18 C.A.R. p. 233 to state the tests trial Courts are enjoined to apply in the evaluation of Confessional Statements before convicting thereon. Those tests have over the years been adopted by our Courts in the determination of the probative value to attach to Confessional Statements of accused persons. See for example Nwachukwu v. The State (2007) 12 S.C.M. (pt. 2) p. 447 at 455; Okeke v.The State (2003) 15 NWLR (pt. 842) p. 25; James Chiokwe v. The State (2012) LPELR 19716 (SC); Sule v. State (2009) 17 NWLR (pt. 1169) p.33 at 60; Nsofor v. State (2004) 18 NWLR (pt. 905) p. 292 at 310 311 and Habibu Musa v. The State (2013) LPELR 19932 (SC). To restate those points, I refer to the case of Ikpo v. State (1995) 9 NWLR (pt. 421) p. 540 where the Supreme Court, per Iguh, JSC said:
It is clear that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession. See; R. v. Sykes (1913) 8 CAR 233 at 236; R. v. Ajayi Omokaro(1941) 7 WACA 146; Philip Kanu& Anor v. King (1952) 14 WACA 30; Jafiya Kopa v. The State (1971) 1 All NLR 150; James Obi Achabua v. The State (1976) 12 S.C. 63 at 68-69. But it is desirable to have outside the accused persons confession, some corroborative evidence, no matter how slight, of circumstances which make it probable that the confession is true and correct as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Paul Onochie & Ors. v. The Republic (1966) NMLR 307; R. v. Sykes (supra).
His Lordship went on to stipulate the tests to be applied in determining the truth of such Confessional Statement in the following words:
Indeed the test for determining the truth or otherwise of a Confessional Statement is to seek any other evidence of circumstances which make it probable that the confession is true. In this regard, the Court would consider issues such as:
(i) whether there is anything outside the confession to show that it is true.
(ii) whether the statement is corroborated.
(iii) whether the statement of facts made in the Confessional Statement so far as can be tested is true.
(iv) whether the accused person had the opportunity of committing the offence charged.
(v) whether the confession of the accused person was possible.
(vi) whether the confession was consistent with other facts which have been ascertained and proved at the trial.
It would appear that if any of the above stated tests is resolved to be in the negative, the Court would be reluctant to convict on such Confessional Statement. –PER H. S. TSAMMANI, J.C.A
CONTESSIONAL STATEMENT – WHETHER THE COURT CAN CONVICT ON A RETRACTED CONFESSIONAL STATEMENT
“Of course the law is that, the fact that an accused person has retracted his confession will not make the Confessional Statement inadmissible. Indeed, the Court may still convict on such retracted statement once the Court has applied the above stated tests and is satisfied of the truth of the Confessional Statement. See Edhigere v. State (1996) 8 NWLR (pt. 464) p. 1; Akpan v. State (2000) 12 NWLR (pt. 682) p. 607; Osetola v. State (2012) 17 NWLR (pt. 1329) p. 251; Busari v. State(2015) LPELR 24279 (SC) and Edamine v. The State (1996) 3 NWLR (pt. 438) p. 530. -PER H. S. TSAMMANI, J.C.A
CRIMINAL LAW AND PROCEDURE, WORDS AND PHRASES
OFFENCE OF CONSPIRACY – DEFINITION OF CONSPIRACY UNDER SECTION 6 OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP. R.11, LAWS OF THE FEDERATION OF NIGERIA, 2004
Now, the offence of robbery simpliciter and armed robbery have been created by Section 1(1) and (2) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. Section 6(b)creates the offence of conspiracy to commit any of the offences of robbery or armed robbery enshrined in Section 1(1) and (2) of the Act. Thus Section 6(b) stipulates that:
Any person who
(a)
(b) Conspires with any person to commit such an offence; or
(c) whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.
It is therefore glaring that the offence of conspiracy is one of the offences recognized under the Robbery and Firearms Act (supra). However, the Robbery and Firearms Act (supra) does not define what conspiracy is. Courts in Nigeria have therefore resorted to case law on the issue. The often recognized definition of conspiracy is that, it is an agreement of two or more persons to do an act which is an offence to agree to do. In the case of Oduneye v. State(2001) 2 NWLR (pt. 697) p. 311, Ejiwunmi, JSC said:
A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.
From the above definition, it appears to me that conspiracy must not remain in the intention of the alleged conspirators. There must be some act done by all or some of the conspirators from which the Court may infer that a conspiracy has been hatched. For as the saying goes, not even the devil knows the intention of a man. So, the intention of a man can only be deciphered from his actions. In that guise, the Courts have always determined that conspiracy is a matter of inference to be deduced by the trial Court from the actions of the alleged conspirators as disclosed by the evidence adduced at the trial. See State v. Sule (2009) 17 NWLR (pt. 1169) p. 33; Osetola & Anor v. The State (2012) LPELR 9348 (SC); per Rhodes Vivour, JSC; Osuagwu v. State (2013) LPELR (19823) (SC); Adejobi v. State (2011) LPELR 97 (SC) and Haruna&Ors v. The State (1972) All N.L.R. p. 738. In the case of Alufohai v. State (2014) LPELR 24215 (SC) Ariwoola, JSC said:
Conspiracy is an agreement between two or more persons to do an unlawful act. It is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly are ever confined to one place. Therefore, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is, in itself a separate and distinct offence, independent of the actual offence conspired to commit.
See; Balogun v. A.G; Ogun State (2002) 4 SCM 23, (2002) 2 SC (pt.II) 89, (2002) 2 SCNJ 196.
Recently in the case of Busari v. State (2015) LPELR 24279 (SC), Mutaka Coomasie, JSC also held that:
Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to do. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be Physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.
It would be seen therefore that the offence of conspiracy is often hatched in utmost secret. That is why to determine whether conspiracy which is an inchoate offence has been consummated, the Courts resort to making inferences from the facts proved and admitted at the trial. -PER H. S. TSAMMANI, J.C.A
OFFENCE OF CONSPIRACY – INGREDIENTS OF THE OFFENCE OF CONSPIRACY THE PROSECUTION MUST PROVE TO SUCCEED
“In the instance case, the Appellant was charged for conspiracy to commit armed robbery. For the prosecution to succeed in proving a charge of conspiracy to commit armed robbery, the following ingredients or facts must be proved beyond reasonable doubt:
(a) That the Accused/Appellant conspired with others to commit an offence.
(b) That the offence for which the conspiracy was formed is armed robbery; and
(c) That the accused or the co-conspirators did some act towards the execution of the crime for which the conspiracy was formed.
See the case of Usufu v. The State (2007) 3 NWLR (pt. 1020) p. 94 at 113 – 114 Paragraphs H-A. In the instant case, the Appellant was only charged for conspiracy to commit the offence of armed robbery. He was however not charged with the substantive offence of armed robbery. The general principle of law is that, an accused person cannot be convicted of conspiracy where he has been acquitted of the substantive offence for which he has been accused of conspiring to commit. The only exception is where the accused has confessed to the conspiracy and/or there is or are other evidence to sustain the conspiracy charge. However, were he has been charged for conspiracy to commit the substantive offence and for committing the substantive offence, he cannot be convicted of the conspiracy to commit the substantive offence, if he is acquitted of the substantive offence. See Abioye v. The State (1987) 7 NWLR (pt. 58) p.645; Amadi v. State (1993) 8 NWLR (pt.313) p.664 at 677 and Oladejo v. State (1994) 6 NWLR (pt. 348) p. 101 at 127.
In the instant case, the Appellant was charged with conspiracy to commit the substantive offence of armed robbery only. He was not charged with the commission of the substantive offence of armed robbery. The evidence adduced at the trial and admitted by the Court, in proof of the charge of conspiracy, appear to me to be intricately connected to the evidence needed in proof of the charge of armed robbery. Alas, he was not charged for armed robbery as a distinct offence. -PER H. S. TSAMMANI, J.C.A
OFFENCE OF CONSPIRACY – MEANING AND PROOF OF CONSPIRACY
“Conspiracy as an inchoate act is in law held birthed when there is evidence of a meeting of the minds or two or more people to do an unlawful act or a lawful act by an unlawful means. being an agreement often against societal norms, rules and regulations, conspiracy is often hatched in secrecy.
Positive evidence against conspirators is often difficult to adduce. Only circumstances short of a direct confession, often give out the conspirators. -PER M. B. DONGBAN-MENSEM, J.C.A
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
3. Robbery and Firearms (Special Provisions) Act (Cap. R.11), Laws of the Federation of Nigeria, 2004