(2017) LPELR-42511(CA)

Transcription

1 OBAZEE v. STATE CITATION: JIMI OLUKAYODE BADA In the Court of Appeal In the Benin Judicial Division Holden at Benin ON WEDNESDAY, 24TH MAY, 2017 Suit No: CA/B/306C/2015 Before Their Lordships: MOORE ASEIMO ABRAHAM ADUMEIN MUDASHIRU NASIRU ONIYANGI Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal KELVIN OBAZEE - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI

2 1. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE: Circumstance(s) when an Appellate Court will not interfere with evaluation of evidence made by a Trial Court "In this appeal, the Learned Trial Judge has in my view done a proper evaluation of the evidence before him, and this will lead me to the fact that it is the elementary principle that the function of evaluation of evidence is essentially that of the Trial Judge. (See ONUOHA VS THE STATE (1998) 5 NWLR Part 548 Page 118), where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an Appellate Court to interfere, and to substitute its own views for the view of the Learned Trial Judge. See the following cases:- - ABISI VS EKWEALOR (1993) 6 NWLR Part 302 Page 643; - OKOLO VS UBN LTD (1998) 2 NWLR Part 537 Page 618; - UBN VS BORINI PROMO CO. LTD (1998) 4 NWLR Part 547 Page 640. My view above is supported by the decision of the Supreme Court in the case of - AMADI VS FRN (2011) VOL.9 LRCNCC Page 177 at Ratio 3, where it was held inter-alia that:- "An Appellate Court will not ordinarily disturb the finding of facts of a trial Court unless such findings are perverse and not supported by evidence. It is only the trial Court that has the singular advantage of seeing and listening to a witness, thereby watching his demeanour as he gives evidence and assessing him." See also the following cases:- - AFOLALU VS THE STATE (2012) VOL 10 LRCNCC Page 30 at 40 Ratio 13; - NNAMDI OSUAGWU VS THE STATE (2013) All F.W.L.R. Part 672, (2013) LPELR S.C. Page Paragraphs F - B." Per BADA, J.C.A. (Pp , Paras. C-E) - read in context 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Ingredients that must exist to prove the offence of armed robbery "The essential ingredients of the offence of armed robbery which the prosecution must prove are: - - That there was a robbery; - That the robbery was an armed robbery; - That the Appellant was one of those who took part in the armed robbery. See the following cases:- - OLAYINKA VS STATE (2007) 9 NWLR Part 1040, Page 561; - BELLO VS THE STATE (2007) 10 NWLR Part 1043 Page 564; - OKOSI VS A.G. BENDEL STATE (1989) 1 NWLR Part 100 Page 642; - STATE VS SALAWU (2011) 8 NWLR Part 1279 Page 580 at 617. The three ingredients enumerated above must co-exist and they must each be proved before an accused can be found guilty of the crime. See - ATTAH VS THE STATE (2010) 10 NWLR Part 1201 Page 190 at 224 Paragraphs B - H." Per BADA, J.C.A. (P. 20, Paras. A-E) - read in context 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: When the offence of conspiracy will be said to be complete "The offence of conspiracy is complete when two or more people agree to do an unlawful act by unlawful means. See - ADEJOBI VS STATE (2011) 12 NWLR Part 1261 Page 347 at Paragraphs H - C." Per BADA, J.C.A. (P. 24, Paras. C-D) - read in context 4. EVIDENCE - CONFESSIONAL STATEMENT: Meaning of confession/confessional statement "A confession is a statement made by any person charged with a crime at any time stating or suggesting the inference that he committed the offence." Per BADA, J.C.A. (P. 8, Para. A) - read in context

3 5. EVIDENCE - CONFESSIONAL STATEMENT: Whether a confessional statement becomes inadmissible because an accused person retracted or denied making it "The confessional statement in this appeal (Exhibit "A") was tendered and admitted in evidence without objection. That being the case, I am of the firm view that the said Exhibit "A" which is a confessional statement can be relied upon and it is sufficient to ground a conviction without corroboration whether or not subsequently retracted. This is because a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part played by the accused. The above view is supported by the decision of the Supreme Court in the case of - IKEMSON VS STATE (1989) 3 NWLR Part 110 Page 455, where it was held among others that: "Once a statement complies with the law and rules governing the method for taking it and it is tendered and not objected to by the defence, whereby it was admitted as an exhibit, then it is good evidence and no amount of retraction will vitiate its admission as a voluntary statement. It is a different matter from a statement objected to ab initio during trial where voluntariness is challenged; in such a case, there will be trial within trial to decide its voluntariness. Similarly, this is a different matter from where the accused admits at the time a statement is sought to be tendered that though he signed the statement, he did so not voluntarily but under some undue influence or duress, in which case the Court would weigh the credibility to be attached to such statement. In the instant case, there was hardly any objection to the statement and the Court of Appeal rightly rejected attack on the statement. Also in BASIL AKPA VS STATE (2008) 4 SCNJ Page 250 at 266, the Supreme Court per Niki Tobi JSC held among others that: - "Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye-witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse who is the accused person. What better evidence than that? He knows or knew what he did and he says or said it in Court. Is there need for any further proof? I think not." In this appeal under consideration, Exhibit "A" i.e. the Confessional Statement of the Appellant showed that it complied with the rules governing the recording of statement of an accused person. The Appellant was cautioned, the statement was read over to him and he signed it. With the steps enumerated above, the lower Court is entitled not only to admit the Confessional Statement but also rely on it. A Confessional Statement does not become inadmissible merely because the accused denied making it, also the fact that the Appellant took the earliest opportunity to deny making the statement is not a reason to ignore the statement. See the case of - NSOFOR VS STATE (2004) 1 MJSC Page 128, (2006) 12 S.C.N.J. Page 121. I have carefully perused the entire proceedings at the trial, there was no time the issue of involuntariness of Exhibit "A" was raised. Therefore, I am of the view that Exhibit "A" was made voluntarily and it is admissible. In NSOFOR VS THE STATE (Supra), the Supreme Court per Oguntade JSC, held among others that - "It is well settled that where the objection to the admissibility of an accused's statement is merely that it was not read over to him and on the ground that he did not make it but not that it was not voluntarily made, he was coerced or induced to make it, the statement is voluntarily made and admissible. The rule with respect to conducting trial within trial operates only in cases questioning the voluntariness or otherwise of confessions. It does not apply to questions of weight to be attached to them." Per BADA, J.C.A. (Pp. 9-13, Paras. G-B) - read in context

4 6. EVIDENCE - CROSS-EXAMINATION: Effect of failure to cross-examine a witness on material point "I am therefore of the view that the failure to cross-examine the I.P.O. on the said Exhibit "A" is a tacit acceptance of the truth of the evidence of the I.P.O. (i.e. 1st PW.) See the case of - GAJI VS PAYE (2003) 8 NWLR Part 823." Per BADA, J.C.A. (P. 9, Paras. E- F) - read in context 7. EVIDENCE - CONFESSIONAL STATEMENT: Conditions to be satisfied before a confession can be used in convicting an accused person "The law is settled that a free and voluntary confession of guilt by an accused person, if it is direct and positive and satisfactorily proved, it should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. Such a confession by itself alone is sufficient without further corroboration to secure a conviction. See the following cases:- - ULUEBEKA VS THE STATE (2000) 4 S.C. Part 1 Page 205 (2000) 7 NWLR Part 665 Page 404; - SOLOLA VS STATE (2005) 11 NWLR Part 937 Page 460; - ALARAPE VS STATE (2001) 5 NWLR Part 705 Page 79; - IDOWU VS STATE (2007) S.C. Part 11 Page 50." Per BADA, J.C.A. (Pp , Paras. F-B) - read in context 8. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Whether proof beyond reasonable doubt means proof beyond all shadow of doubt "Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It is a degree of compulsion which is consistent with a high degree of probability. In the case of -SGT. MONDAY YAKUBU VS THE STATE (2014) 8 NWLR Part 1408 Page 111 at 137, the Supreme Court held among others that:- "By Section 139 of the Evidence Act 2011, in all criminal prosecutions, it is the duty of the prosecution to prove its case beyond reasonable doubt. This however does not mean proof beyond any shadow of doubt but the ingredients of the offence charged must be proved as required by law to the satisfaction of the Court. See - Obiakor Vs The State (2002) 6 SCNJ page 193, (2002) 10 NWLR Part 776 Page 612, State Vs Aibangbee (1988) 7 SC Part 1 Page 96, (1988) 3 NWLR Part 84 Page 548." Per BADA, J.C.A. (Pp , Paras. G-E) - read in context

5 JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Edo State sitting at Benin City in Charge No - B/58C/2011: THE STATE VS KELVIN OBAZEE AND ANOR delivered on 28/10/2014 wherein the Appellant was convicted for the offences of conspiracy to commit robbery and armed robbery. Briefly, the facts of this case are that a gang of armed robbers robbed one Mr. Igbinakenzua Henry (PW2) at gunpoint on the 17/10/2009. The gang of robbers broke into the house of PW2, through the window at midnight. He testified that the force on the window woke him up, that the robbers brought out guns and he was ordered to shut up and not to shout. He testified that the robbers pointed their gun at his wife s head and then commanded him to bring out all the money withdrawn from the bank earlier in the day. He stated that he actually went to the bank that day to withdraw N15, and went for a burial. But the robbers alleged that he withdrew N100, which he denied. At the end of the day, he testified that the armed robbers dispossessed him of the sum of (N9,000.00) Nine thousand Naira 1

6 only being the balance of the money he had withdrawn, his wristwatch and phones, and from his wife, money, gold and wristwatch. They threatened to come back if the PW2 makes any report. The PW2 then reported the incident at Ugbekun Police Station and also reported to the Youth Chairman. On getting to the Youth Chairman s house, he said he was surprised to see up to 15 phones handsets with him. He identified his own handset among them and he raised an alarm which attracted the whole street. He testified that the Youth Chairman told the people that the phone belongs to one Mr. Kelvin and that they fell from him when policemen were chasing him and that as Youth Chairman, he picked them up. He stated that he called the IPO who now went to Kelvin s house and he was arrested. PW2 stated that Kelvin confessed that the Youth Chairman as having joined them to rob PW2 s house and that the phones found with the Youth Chairman were shared to him. Kelvin also took the police to the Hausa man that he sold to at the Third Junction and he identified the Hausa man, who was arrested i.e. the 2nd Accused. The Appellant in his defence denied 2

7 the charge. He testified for himself and he did not call any witness. At the conclusion of the Appellant s case, Counsel for the parties addressed the Court. In a considered Judgment delivered on 28/10/2014, the Learned Trial Judge believed the evidence of the prosecution witnesses and consequently found counts 1 and 2 proved against the Appellant and sentenced him to death on both counts. Dissatisfied with the Judgment of the lower Court, the Appellant appealed to this Court. The Learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are reproduced as follows:- (1) Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt. (2) Whether the confessional statement is admissible against the Appellant. On the other hand, the Learned Counsel for the Respondent also formulated two issues for the determination of the appeal. The issues are also reproduced as follows:- (1) Whether the confessional statement of the Appellant (Exhibit A ) was rightly admitted in evidence and relied upon by the Learned Trial Judge. (2) Whether

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9 having regard to the totality of the evidence led at the trial and the circumstances of this case, the prosecution proved the offences of conspiracy to commit robbery and armed robbery against the Appellant beyond reasonable doubt. At the hearing of this appeal on 12/4/2017, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Edo State High Court delivered on 28/10/14. The Notice of Appeal was filed on 5/11/14 and on 22/11/14, the Court granted leave to the Appellant to amend his Notice of Appeal. The Amended Notice of Appeal was filed on 4/12/15 and deemed as properly filed on 22/11/16. The Appellant s brief was filed on 4/12/15. The Learned Counsel for the Appellant adopted and relied on the said Appellant s brief as his argument in urging that the appeal be allowed and to discharge and acquit the accused person. On the other hand, the Learned Counsel for the Respondent referred to the Respondent s brief filed on 13/5/2016 but deemed as properly filed on 22/11/2016. He adopted and relied on the said brief as his argument in urging that the appeal be dismissed and

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11 Judgment of the lower Court affirmed. I have carefully examined the issues formulated for determination of the appeal by Counsel for the parties. The issues are similar but the issues formulated on behalf of the Respondent are apt in the determination of this appeal. I will therefore rely on the said issues. ISSUES FOR THE DETERMINATION OF THE APPEAL ISSUE NO 1 Whether the confessional statement of the Appellant (Exhibit A ) was rightly admitted in evidence and relied upon by the Learned Trial Judge. The Learned Counsel for the Appellant submitted that before a confession can be admissible against an accused person, certain conditions must be fulfilled. He went further that one of the fundamental ingredients of a confession is that it must be voluntary, otherwise it is deemed inadmissible. And for a confession to be admitted in evidence, it must be direct, positive and unequivocal. He relied on the following cases:- - GIRKA VS THE STATE (1996) 4 SCNJ Page 94; - RE EDASMINE VS THE STATE (1996) 3 SCNJ Page 12; - PATRICK NJOVENS & ORS VS THE STATE (1973) 5 SC Page 17. He went

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13 further in his submission that PW1 wrote the confessional statement and merely asked the Appellant to sign the statement. He also referred to the testimony of the Appellant that he did not rob the Complainant i.e. PW2 on 17/10/2009, he went further that on 5/11/2009, the Appellant was at his store when two men forcefully arrested him. The Learned Counsel for the Appellant contended that the conviction of the Appellant by the trial Court was based on the evidence of PW1 and PW2, that the Appellant was a party to the robbery incident of 17/10/2009. He submitted that the evidence of PW1 and PW2 are hearsay evidence which is not admissible. He finally submitted that it is the primary duty of the prosecution to prove the guilt of the Appellant beyond reasonable doubt and that it does not lie on the Appellant to prove his innocence. He therefore urged that this issue be resolved in favour of the Appellant. In his response, the Learned Counsel for the Respondent submitted that the confessional statement of the Appellant i.e. Exhibit A was rightly admitted in evidence and relied upon by the Learned Trial Judge. He stated that 6

14 the said Exhibit A was admitted in evidence without objection. He went further that at the point of tendering in evidence the attestation form, the Counsel for the Appellant informed the trial Court that the Appellant did not sign the attestation form. But that it was later admitted in evidence as Exhibit B. It was also contended on behalf of the Respondent that Exhibit A complied with the rules governing the recording of the statement of an accused person. He submitted that in the case of an objection to the admissibility of a statement on any other grounds other than involuntariness, it will be admitted. He relied on the following cases: - - NSOFOR VS STATE (2004) 1 MJSC Page 128; - AKPAN VS STATE (2008) 7 MJSC 77; - OGOALA VS THE STATE (1991) 2 LRCN Page 666 at 684; The Learned Counsel for the Respondent urged this Court to hold that the Learned Trial Judge rightly admitted the extrajudicial statement of the Appellant i.e. Exhibit A and relied on it having satisfied himself that it is true, positive and probable. He urged that this issue be

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16 resolved in favour of the Respondent. A confession is a statement made by any person charged with a crime at any time stating or suggesting the inference that he committed the offence. Before Exhibit A i.e. the confessional statement was admitted in evidence at the lower Court, the following are what transpired:- 1ST PW: My name is Asakpa Matthew, Police Inspector attached to special anti-robbery squard, police headquarters, Benin City. I charged the 1st Accused with offence of conspiracy and armed robbery, I cautioned him in English and he volunteered statement in English. I read it back to him. He confirmed it to be correct and signed. This is the statement. Mr Airende: I seek to tender it as Exhibit. Mr. Eguaogie: No objection. Accused just told me that it was the IPO that wrote the statement and signed, that it was not written by him. Order: The above objection amount to a retraction. In such a situation, the law requires me to admit the statement and then determine at the end 8

17 of the evidence whether the 1st Accused did make it or not. Consequently, statement credited to the 1st Accused is admitted and marked Exhibit A. (See pages of the Record of Appeal). The attestation form was also admitted in evidence at the lower Court as Exhibit B. The statement of the Appellant in this appeal was admitted in evidence at the lower Court without objection before the Appellant tried to retract it. Furthermore, the Appellant while testifying in his defence at page 44, lines of the Record of Appeal, he deliberately failed to adduce any evidence as to whether the statement was made by him or by the I.P.O. as he earlier alleged. The Counsel for the accused person, also failed to cross-examine the I.P.O. on the statement allegedly written and signed by him. I am therefore of the view that the failure to cross-examine the I.P.O. on the said Exhibit A is a tacit acceptance of the truth of the evidence of the I.P.O. (i.e. 1st PW.) See the case of GAJI VS PAYE (2003) 8 NWLR Part 823. The confessional statement 9

18 in this appeal (Exhibit A ) was tendered and admitted in evidence without objection. That being the case, I am of the firm view that the said Exhibit A which is a confessional statement can be relied upon and it is sufficient to ground a conviction without corroboration whether or not subsequently retracted. This is because a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part played by the accused. The above view is supported by the decision of the Supreme Court in the case of IKEMSON VS STATE (1989) 3 NWLR Part 110 Page 455, where it was held among others that: Once a statement complies with the law and rules governing the method for taking it and it is tendered and not objected to by the defence, whereby it was admitted as an exhibit, then it is good evidence and no amount of retraction will vitiate its admission as a voluntary statement. It is a different matter from a statement objected to ab initio during trial where voluntariness is challenged; in such a case, there will be trial within trial to decide its 10

19 voluntariness. Similarly, this is a different matter from where the accused admits at the time a statement is sought to be tendered that though he signed the statement, he did so not voluntarily but under some undue influence or duress, in which case the Court would weigh the credibility to be attached to such statement. In the instant case, there was hardly any objection to the statement and the Court of Appeal rightly rejected attack on the statement. Also in BASIL AKPA VS STATE (2008) 4 SCNJ Page 250 at 266, the Supreme Court per Niki Tobi JSC held among others that: - Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye-witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse who is the accused person. What better evidence than that? He knows or knew what he did and he says or said it in Court. Is there need for any further proof? I think not. In this appeal under consideration, Exhibit A i.e. the Confessional Statement of the 11

20 Appellant showed that it complied with the rules governing the recording of statement of an accused person. The Appellant was cautioned, the statement was read over to him and he signed it. With the steps enumerated above, the lower Court is entitled not only to admit the Confessional Statement but also rely on it. A Confessional Statement does not become inadmissible merely because the accused denied making it, also the fact that the Appellant took the earliest opportunity to deny making the statement is not a reason to ignore the statement. See the case of NSOFOR VS STATE (2004) 1 MJSC Page 128, (2006) 12 S.C.N.J. Page 121. I have carefully perused the entire proceedings at the trial, there was no time the issue of involuntariness of Exhibit A was raised. Therefore, I am of the view that Exhibit A was made voluntarily and it is admissible. In NSOFOR VS THE STATE (Supra), the Supreme Court per Oguntade JSC, held among others that - It is well settled that where the objection to the admissibility of an accused s statement is merely that it was not read over to him and on the 12

21 ground that he did not make it but not that it was not voluntarily made, he was coerced or induced to make it, the statement is voluntarily made and admissible. The rule with respect to conducting trial within trial operates only in cases questioning the voluntariness or otherwise of confessions. It does not apply to questions of weight to be attached to them. Another important area of focus in this appeal is whether the trial Judge satisfied himself that Exhibit A is positive, true and probable. The Learned Trial Judge in doing that, ascribed probative value to the evidence of both the prosecution and defence before rejecting the defence where he held inter alia, as follows:- Generally, the thrust of the defence seemed to be as to how he was arrested by the police in his barbing saloon on 5/11/09. As for the Confessional Statement, he did not say anything and interestingly, his Learned Counsel, Mr. Arhaoje also did not present any argument. It would appear therefore that the 1st Accused and his Counsel opted to abandon their earlier stance that it was concocted. Indeed in Ozana Unierho Vs State 13

22 (2004) All FWLR 219 Page 1028 Ratio 7, the Court of Appeal, Benin Division had held that the written confession of an accused person was relevant and should not be discarded merely because he later retracted or resiled from that voluntary statement. What is more, Exhibit A was attested, indicating that the 1st Accused had confirmed before a superior Police Officer that he made it. I therefore reject the claim of the 1st Accused that Exhibit A was made by the IPO and not him. In the present case, Exhibit A had admitted that the 1st Accused and gang members went to the complainant s house in the night of 16/10/09 and described how they robbed the complainant (2nd PW) how the gang members shared the proceeds and how he disposed of his share. The contents of Exhibit A are not different from the testimony of the 1st and 2nd prosecution witnesses. I have no difficulty whatsoever in finding that Exhibit A, Confessional Statement was made by the 1st Accused. In Idigun Egboghonome Vs The State (2001) 2 ACLR Page 267 Ratio 13, the Supreme Court explained that where a Confessional 14

23 Statement was admitted in evidence and this was done during the case for the prosecution, it becomes part of the case for the prosecution, hence the Judge is bound to consider its probative value when considering the retraction made subsequently. The implication is that the admission made by the 1st Accused are deemed to be part of the evidence adduced by the prosecution. In the present case therefore, Exhibit A further supported the ipsi dixit of the 2nd PW Henry Igbinakenzua that the 1st Accused confessed to the robbery, told the police what was robbed in his house, what was shared to him and how he disposed of it. In view of the foregoing, it is my conclusion that the Learned Trial Judge has diligently and painstakingly evaluated the evidence led at the trial before ascribing probative value to the evidence of the prosecution and rejected the defence of the Appellant. Therefore, this Issue No. 1 is hereby resolved in favour of the Respondent and against the Appellant. ISSUE NO 2 Whether having regard to the totality of the evidence led at the trial and the circumstances of this case, the prosecution proved 15

24 the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt. The Learned Counsel for the Appellant submitted that the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He relied on the cases of - - MORKA VS THE STATE (1999) 2 NWLR Part 537 Page 294 at 301 and; - CYRACUS OGIDI & ORS VS THE STATE (2005) 15 SCNJ Page 67 at He referred to the evidence of PW2 which connected the Appellant on page 41 lines 2 9 of the Record of Appeal. He stated that the evidence is that the PW2 went to the Chairman of the youths in the area 2 days after the robbery and he saw 15 phones in possession of the said Youth Chairman and he identified one of the 15 phones as his phone, he then held the Youth Chairman and raised alarm, people thereafter gathered, the Youth Chairman then said the phones belong to one Kelvin and that the phones fell from him when policemen were chasing him and as the Youth Chairman, he picked up the phone. The Learned Counsel for the Appellant contended that the said Youth Chairman was not called as a 16

25 witness. He went further to show that the evidence by PW2 under cross-examination shows that the stolen items were recovered from Youth Chairman and not from the Appellant. It was also contended on behalf of the Appellant that going through the statement of PW2 which was made soon after the robbery incident and the testimony of PW2 before the trial Court, that both the statement and the testimony clearly contradicted each other. He went further that the evidence of PW1 and PW2 before the trial Court contradicted each other while PW2 testified before the Court that 2 days after the robbery incident that he went to the Youth Chairman and saw 15 phones, one of which belong to him and he raised alarm and people gathered. The Youth Chairman at that point, stated that the phones belong to Kelvin and that the phones fell from him when the policemen were chasing him and as Chairman he picked them, while PW1 gave evidence and claimed that the Appellant made a Confessional Statement to the police, testified before the Court that PW2 made statement to the police and stated that on the following day after the robbery incident, he met one area boy called Rati with 17

26 the same handset and that Rati confessed that it was given to him by the Appellant and that he took the PW2 to the House of the Appellant and that the Appellant was arrested while Rati escaped. The Learned Counsel for the Appellant submitted that the evidence of PW1 before the trial Court and the evidence of PW2 before the trial Court completely contradicted each other and where there are such contradictions and inconsistencies in the evidence before a criminal Court, such as to cast reasonable doubt upon the guilt of the accused person, such accused person should be given the benefit of doubt, and not be convicted on the basis of such unreliable evidence. He relied on the following cases: - - ONUBOGU VS THE STATE (1974) 9 SC Page 1; - AKOSILE VS STATE (1972) 5 SC Page 332. He urged that the issue be resolved in favour of the Appellant. The Learned Counsel for the Respondent, in his response, submitted that all what is required of the prosecution in a criminal trial in discharging the burden of proof is to establish the ingredients of the offence. And one of the ways of discharging this burden of proof is by 18

27 Confessional Statement of an accused person. He relied on the case of OSENI VS THE STATE (2012) Vol. 208 LRCN Page 151 at 158 Ratio 9. He submitted that the evidence of PW2 sufficiently established the ingredients required to prove the offences of conspiracy to commit armed robbery and armed robbery. He relied on OGUNNIYI VS THE STATE (2012) LPELR 8567 CA. He also referred to the evidence of PW1 and PW2 that the Appellant acted in concert with other members of his gang, now at large to rob the PW2. He submitted that conspiracy is usually proved from an inference drawn from proving the main offence, usually established by circumstantial evidence. He went further that offence of conspiracy to commit armed robbery was properly established against the Appellant. He relied on the following cases:- - AMADI VS FRN (2011) Vol. 9 LRCNCC Page 177 at Ratio 3; - AFOLALU VS THE STATE (2012) Vol. 10 LRCNCC Page 30 at 40 Ratio 13; - OSUAGWU VS THE STATE (2013) All FWLR Part 672, (2013) LPELR SC Page Paragraphs F B;

28 The Learned Counsel for the Respondent urged 19

29 that this issue be resolved in favour of the Respondent. The essential ingredients of the offence of armed robbery which the prosecution must prove are: - - That there was a robbery; - That the robbery was an armed robbery; - That the Appellant was one of those who took part in the armed robbery. See the following cases:- - OLAYINKA VS STATE (2007) 9 NWLR Part 1040, Page 561; - BELLO VS THE STATE (2007) 10 NWLR Part 1043 Page 564; - OKOSI VS A.G. BENDEL STATE (1989) 1 NWLR Part 100 Page 642; - STATE VS SALAWU (2011) 8 NWLR Part 1279 Page 580 at 617. The three ingredients enumerated above must co-exist and they must each be proved before an accused can be found guilty of the crime. See ATTAH VS THE STATE (2010) 10 NWLR Part 1201 Page 190 at 224 Paragraphs B H. In this appeal under consideration, the 2nd PW Mr. Igbinakenzua testified among others as follows:- I know the accused. On 17/10/2009, I was sleeping in my house when at midnight, a gang of armed robbers came into my compound, surrounded my house, broke my window and brought out guns after

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31 opening the window. The force on the window woke me up. I was surprised to see the robbers. They ordered me to shut up and not to shout, my wife was still sleeping on the bed. They ordered her to maintain and put a gun on her head. They started to command me to bring all the money I withdrew earlier in the day. At the end of the day, they took N9, being the balance of the money I had withdrawn, my wristwatch and phones. From my wife they collected her money, gold and wristwatch. They collected my car keys, but as they were going they threw the keys at me and Two days later, I went to report to the Youth Chairman in the area. I went to his house, and I was surprised to see up to 15 phones handsets with him. I identified my handset among them and shouted. I held the man, still shouting. The whole street gathered. The phone still contained my contacts. The Chairman now said that the phones belong to one Mr. Kelvin and that they fell from him when policemen were chasing him and that as Youth Chairman, he picked them. I called my IPO and police later came.... The police later arrested 21

32 the said Kelvin who confessed that the Youth Chairman was among them when they came to rob in my house and that the phones found with the Youth Chairman were shared to him. " The 1st PW Police Inspector Asakpa Matthew attached to anti-robbery squad testified earlier at the lower Court. He testified among others as follows:-... On receipt of the case file, I recorded a comprehensive statement from the complainant. I rearrested the transferred accused persons, charge them with the offence of conspiracy I charged the 1st Accused (i.e. the Appellant) with offence of conspiracy and armed robbery. I cautioned him in English and he volunteered statement in English. I read it back to him. He confirmed it to be correct and signed. This is the statement; Mr. Airende:- I seek to tender it as Exhibit. Mr. Eguaogie:- No objection Order: Consequently, statement credited to the 1st accused is admitted in evidence and marked as Exhibit A 1st PW: Seeing that the statement is confessional, I took him before a superior police officer ASP Ojo Ojoide and he attested to the 22

33 statement by reading it to the accused in English and he confirmed that it was made by him voluntarily. 1st PW: In the course of taking the statement from the 1st accused, he mentioned his gang members as:- 1. Rati (Surname unknown as their gang leader) 2. Frank (surname unknown) 3. Osagie (surname unknown) 4. Mohammed Abubakar (their receiver) 1st accused took the police to the house of Rati but he was not found.... A careful perusal of the testimonies of the 2nd PW and 1st PW set out respectively above would reveal that, there was a robbery, the said robbery was an armed robbery and the Appellant was one of those who took part in the robbery. As I said earlier in this appeal under Issue No. 1, the confessional statement of the Appellant Exhibit A was tendered and admitted in evidence without objection. The law is settled that a free and voluntary confession of guilt by an accused person, if it is direct and positive and satisfactorily proved, it should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. Such a confession by itself alone 23

34 is sufficient without further corroboration to secure a conviction. See the following cases:- - ULUEBEKA VS THE STATE (2000) 4 S.C. Part 1 Page 205 (2000) 7 NWLR Part 665 Page 404; - SOLOLA VS STATE (2005) 11 NWLR Part 937 Page 460; - ALARAPE VS STATE (2001) 5 NWLR Part 705 Page 79; - IDOWU VS STATE (2007) S.C. Part 11 Page 50. The next to be considered is the issue of conspiracy to commit armed robbery. The offence of conspiracy is complete when two or more people agree to do an unlawful act by unlawful means. See ADEJOBI VS STATE (2011) 12 NWLR Part 1261 Page 347 at Paragraphs H C. The offence of conspiracy could be inferred from the testimony of the 1st PW when the Appellant who was the 1st Accused mentioned the names of his gang members (4 in number) including himself and a receiver made it (5) five. Conspiracy could also be inferred from the testimony of 2nd PW that... they continued to keep a gun on my wife s head and threatened that if I refuse to bring the money they would kill my wife and that I would use the

35 money for her burial..." 24

36 Section 8 of the Criminal Code provides thus:- (8) When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. I am of the view that from the evidence of 1st PW and 2nd PW it has been established beyond reasonable doubt that the Appellant acted in concert with other members of his gang now at large to rob the 2nd PW. The Learned Trial Judge in convicting the Appellant for the offence of conspiracy held, inter alia, on page 98 lines and 99 lines 1 2 that:- In view of the evidence that I have already highlighted flowing from the 2nd PW, Henry Igbinakenzua as to how a gang of robbers came to his house and Exhibit A extra judicial statement of the 1st Accused confessing how he (Kelvin Obazee) Ratty, Frank and Osagie planned the robbery and executed it, I have no difficulty in agreeing with Mr. Erhaze 25

37 that the Prosecution had proved conspiracy against the 1st accused as required by law. In the circumstance, I am obliged to believe the 1st and 2nd prosecution witnesses that the 1st Accused confessed to the robbery of the 2nd PW on 17/10/09. Their claim was even supported by the 1st Accused himself in Exhibit A his earlier extra judicial statement to police. Therefore, it is my view that the offence of conspiracy to commit armed robbery has been properly established against the Appellant. In this appeal, the Learned Trial Judge has in my view done a proper evaluation of the evidence before him, and this will lead me to the fact that it is the elementary principle that the function of evaluation of evidence is essentially that of the Trial Judge. (See ONUOHA VS THE STATE (1998) 5 NWLR Part 548 Page 118), where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an Appellate Court to interfere, and to substitute its own views for the view of the Learned Trial Judge. See the following cases:- - ABISI VS EKWEALOR (1993) 6 NWLR Part 302 Page 26

38 643; - OKOLO VS UBN LTD (1998) 2 NWLR Part 537 Page 618; - UBN VS BORINI PROMO CO. LTD (1998) 4 NWLR Part 547 Page 640. My view above is supported by the decision of the Supreme Court in the case of AMADI VS FRN (2011) VOL.9 LRCNCC Page 177 at Ratio 3, where it was held inter-alia that:- An Appellate Court will not ordinarily disturb the finding of facts of a trial Court unless such findings are perverse and not supported by evidence. It is only the trial Court that has the singular advantage of seeing and listening to a witness, thereby watching his demeanour as he gives evidence and assessing him. See also the following cases:- - AFOLALU VS THE STATE (2012) VOL 10 LRCNCC Page 30 at 40 Ratio 13; - NNAMDI OSUAGWU VS THE STATE (2013) All F.W.L.R. Part 672, (2013) LPELR S.C. Page Paragraphs F B. Consequent upon the foregoing, I am of the view that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof

39 27

40 beyond all doubt or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It is a degree of compulsion which is consistent with a high degree of probability. In the case of SGT. MONDAY YAKUBU VS THE STATE (2014) 8 NWLR Part 1408 Page 111 at 137, the Supreme Court held among others that:- By Section 139 of the Evidence Act 2011, in all criminal prosecutions, it is the duty of the prosecution to prove its case beyond reasonable doubt. This however does not mean proof beyond any shadow of doubt but the ingredients of the offence charged must be proved as required by law to the satisfaction of the Court. See Obiakor Vs The State (2002) 6 SCNJ page 193, (2002) 10 NWLR Part 776 Page 612, State Vs Aibangbee (1988) 7 SC Part 1 Page 96, (1988) 3 NWLR Part 84 Page 548. This Issue No. 2 is resolved in favour of the Respondent and against the Appellant. In the result, with the resolution of the two issues for determination in this appeal in favour of the Respondent and against the Appellant, it is my view that this appeal is 28

41 devoid of merit and it is hereby dismissed. The Judgment of the lower Court in Charge No B/58C/2011 THE STATE VS KELVIN OBAZEE AND ANOR delivered on 28/10/2014 wherein the Appellant was convicted for the offence of conspiracy to commit armed robbery and armed robbery and sentenced to death is hereby affirmed. Appeal dismissed. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. His Lordship has meticulously addressed the issues in this appeal and has advanced elaborate reasons for dismissing same. I adopt the reasoning and conclusions of my learned brother as mine and I also dismiss this appeal for lacking merit. The judgment of the trial Court delivered on 28/10/2014 in Charge No. B/58c/2011 between The State Vs. Kelvin Obazee & Anor. is hereby affirmed. MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, JIMI OLUKA YODE BADA, JCA obliged me a draft of the lead judgment just delivered and I am in agreement entirely with the reasoning and the conclusion of the said lead

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43 judgment. I too will dismiss the appeal and affirm the judgment of the lower Court. The appeal is hereby dismiss by me for lacking in merit. In consequence, the judgment of the High Court of Edo State in charge No. B/58c/2011 delivered on the 28th day of October 2014 is affirmed. 30