MUSA v. STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 23rd day of February, 2018

SC.261/2009

Before Their Lordships

OLABODE RHODES-VIVOUR  Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO  Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE  Justice of The Supreme Court of Nigeria
EJEMBI EKO  Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE  Justice of The Supreme Court of Nigeria


Between

SULE MUSA –Appellant

AND

THE STATE –Respondent

…………………….A…………………….

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): 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 punishable, respectively, under Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990. 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, the Appellant’s no case submission was dismissed. The Appellant later testified in his defence. He was the lone witness in his defence. 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 defence, in the first instance, did not oppose the tendering of Exhibit A. It was admitted in evidence without objection. See pages 46 and 47 of the Record.
Before Exhibit A was admitted in evidence the PW.3 had narrated that, before recording the statement, he had cautioned the Appellant before he volunteered his statement, Exhibit A. There being no dispute about the Appellant voluntarily making the statement, that is confessional, there was no further need for trial-within-trial to be conducted, and none was in fact conducted, to determine whether or not it was made voluntarily. Facts not disputed are taken as established. The unchallenged evidence of PW.5 prima facie established that Exhibit A was voluntarily recorded from the Appellant. The trial Court was, in my view, right or correct when it 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 at page 135 of the Record particularly thus
At the trial, the statements of the Appellant were tendered and admitted in evidence with their consent. No objection of any kind was raised against the admission. If the Appellant had objected to the admission of the statements at the time it was being tendered, the voluntariness or otherwise of the statements would be tested through the conduct of trial-within-trial, but the trial Court was not afforded such opportunity. It was only when the Appellant (was) testifying in (his) defence that (he) claimed that (he) did not make the statement and that (he was) tortured into signing the statement.

Not impressed or persuaded by the retraction of Exhibit A, by the Appellant, the lower Court affirmed the decision of the trial Court to treat Exhibit A as a confession properly made and admitted in evidence by due process of law. It held, and I agree, that Exhibit A was voluntarily made and that it was admissible in evidence.
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. Having allowed Exhibit A to be admitted in evidence without objection when the PW.5 testified and there being no effort made through cross-examination to discredit the PW.5, the trial Court and the lower Court properly, in my view, disbelieved the Appellant’s subsequent retraction. There could not have been a better case of an after thought. I will not interfere with the concurrent refusals of the two Courts to attach any credence to the Appellant’s retraction. He offered no explanation for his inconsistency.
Learned counsel for the Appellant argued this appeal on two issues, to wit:
i. whether the Appellant was identified and fixed to the commission of the alleged offences?
ii. whether the guilt of the Appellant was proved beyond reasonable doubt?
The issues are intertwined.

…………………….B…………………….

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 (1985) 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.
It is true, as submitted by the Appellant’s counsel, that PW.1, PW.2 and PW.5 were not eye witnesses of the robbery the Appellant allegedly committed. The PW.3 and PW.4 did not identify the Appellant as one of the robbers who harassed and robbed them on the fateful day. The evidence of the PW.1 that he was present when the 1st Accused (deceased) identified the Appellant as one of those who committed the alleged robbery was unchallenged and undiscredited. It was reliable.
The 1st Accused admitted his participation in the robbery. He led PW.1 and Police officers to arrest the Appellant. The PW1’s evidence is corroborated by Exhibit A, Appellant’s extra-judicial statement.
Exhibit A, is quite emphatic. In it the Appellant unequivocally confesses to the offences thus
Na Monday Eze (m) carry them to Benin from Lagos in the month of December, 1996. No the very day we planned and robbed a store No. 12A Mission Road, Benin-City. I knew them for the first time.
Na five of us go for the robbery operation, where we removed. The names of other people be Monday Eze, Tere Taju, and Femi Ajayi. It was around 9.00 pm we go for the robbery operation. The time we reach there store, Monday Eze, Taju and Tere entered the store and me and Femi Ajayi stayed by the Junction. It was Taju and Monday Eze carry Jack knifes.
After the operation Monday Eze gave four of us the sum of N64,000.00 to share. I was given the sum of N11,000.00 and Taju, Tere and Femi shared the balance. I was arrested on 17/12/96 in Femi’s house by the Policemen 
from New Benin Police Station on 17/12/96, where I admitted the alleged robbery offence. Na Femi Ajayi I dey stay with before my arrest.
From Exhibit A, a confessional statement, I hold the view that the Appellant’s counsel cannot sustain his argument that there is no evidence establishing that the Appellant participated in the alleged conspiracy to commit armed robbery and the commission of armed robbery. I cannot fault the concurrent findings of fact by the trial Court and the lower Court that the Appellant participated in the conspiracy to commit armed robbery and did in fact commit the robbery, as planned. No doubt exists about the identity of the Appellant, as a participant in the robbery he planned with others to commit.
The Appellant’s counsel has not satisfactorily shown that any reasonable doubt exists that the Appellant planned and participated in the actual execution of the robbery operation.
Exhibit A is a confessional statement. The maker, the Appellant, unsuccessfully attempted to retract the confession in Exhibit A. 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 confessional 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 facts which has been proved?

The 6-way test has been consistently applied in our Courts, as can be seen from NWAEBONYI v. THE STATE (1994) 5 NWLR (pt.343) 138; KAREEM v. F.R.N. (NO.2) (2002) 8 NWLR (pt.770) 664.
The undiscredited evidence of the PW.3 and PW.4 to the effect that in the night of the material date Monday Eze (1st Accused), now deceased, came with 4 armed people to rob, and in fact robbed them that night, corroborate the contents of Exhibit A in materia particular. The Appellant, testifying on oath in his defence, averred that he was arrested from the house of Femi Ajayi, 4th Accused. In Exhibit A he stated: I was arrested on 17/12/96 in Femi Ajayi’s house.
The facts admitted in Exhibit A are consistent with other empirical facts brought out in the testimonies of the prosecution witnesses, which facts outside the confession, aptly corroborates the facts in Exhibit A. When the eye witness

…………………….C…………………….

accounts of PW.3 and PW.4 are juxtaposed with the contents of Exhibit A, there exists no doubt whatsoever that it has been established that on 30th November, 1996, in Benin-City the Appellant and others conspired to commit armed robbery and that on the said date, in the night, the Appellant and 4 others committed the alleged armed robbery. The conviction of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery, affirmed by the lower Court, is unassailable.
The concurrent findings of fact are neither perverse nor unreasonable. The Appellants 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 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) 277 (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.
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.
I find no substance in this appeal, and it is accordingly dismissed in its entirety. The conviction and sentence of the Appellant by the trial Court in the charge No. RFT/B/36/99, affirmed by the lower Court in the appeal No. CA/B/33/2002 is hereby further affirmed. Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother Eko, JSC. I agree entirely with his lordships reasoning and conclusions. I propose though, to add only a few observations.
The appellant was charged along with four other persons with conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of Federation of Nigeria 1990.
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.
By the appellant’s own confession it was Monday Eze, Taju and Tere who entered the shop while he (the appellant) and Femi Ayaji stayed outside as the lookout men. The only reasonable inference from these facts is that the four armed robbers planned to steal, from the shop at No 12A Mission Road, and they all had clear rolls to perform. The planning involves the meeting of the minds and an agreement, and that in law is a conspiracy. The charge of conspiracy was proved beyond reasonable doubt.
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.

All of the above must be proved beyond reasonable doubt before a conviction can be sustained.

…………………….D…………………….

 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.
Exhibit A is the appellant’s confessional statement. It was admitted in evidence without any objection from the appellant or his counsel. The effect of not objecting when his confessional statement was admitted is that the statement was voluntarily made. The content of exhibit A reveals that there was an armed robbery on 30 November 1996 at No.12A Mission Road, Benin City, The armed robbers were armed with knives and the appellant participated in the armed robbery as one of the lookout men. The charge of armed robbery under Section 1(2)(a) supra was proved beyond reasonable doubt.
There are innumerable authorities which 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 (1992) 6 NWLR (Pt.248) p.439.
Before the Court convicts on extra judicial statements that are confessional such statements must be subjected to the tests laid down in R v. Walter Sykes (1913) 8 CAC p.233, explained in the leading judgment of my learned brother Eko JSC.

It is desirable to have outside the confession some evidence, however slight of circumstances which make it probable that the confession was true. The confession to conspiracy to commit armed robbery and armed robbery by the appellant was free and voluntary and consistent and probable and this confession was corroborated by facts testified to by PW3 and PW4 which showed that the confession is true.
It is for this, and the more detailed reasoning in the leading judgment that I find no merit in this appeal.
Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: My learned brother, Ejembi Eko, JSC obliged me in draft the judgment he has just delivered with which I agree that this appeal lacks merit and ought to be dismissed. Although His Lordship has admirably resolved all the issues submitted for the determination of this appeal, I propose to add a few words of mine in support of the judgment.
The PW1 gave evidence to the effect that he was present when the 1st accused person (now deceased) identified the appellant as one of the armed robbers. This piece of evidence was never controverted. The first accused himself admitted he took part in the robbery. That piece of evidence was corroborated by the confessional statement of the appellant admitted as exhibit A and vice versa. In the said Exhibit A, the appellant gave detailed account on how the armed robbery was planned and executed. He mentioned his co – robbers and even stated how the money stolen was shared. Both the trial Court and the Court below agree that exhibit A was a proper confessionary statement. I also agree that based on the surrounding circumstances in this case, the confessional statement i.e. Exhibit A was genuine and reliable.
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) NMLR 129, Akpan v State (1992) 7 SCNJ 22, Ogoala v. State (1991) 2 NWLR (Pt 175) 509.
May I reiterate the point that a confessional statement constitutes a clear and cogent proof of an act of the accused person who made it. There is no evidence stronger than a person’s own confession. This is so, since no rational being will say a negative thing against his own interest, all things being equal. See Otoha v The State (1975) 1 SC 5J, Tajudeen Fabiyi v The State (2015) LPELR – 24834 (SC).
I am satisfied that the concurrent findings on both issues of law and facts raised in this case are justified as they are and well supported by the evidence. This Court does not, in practice, disturb such concurrent findings unless they have been shown to be perverse. See Sobakin v. The State (1981) 5 SC 75, Bashaya v. The State (1998) 5 NWLR (Pt.550) 351.
I hold a strong view that the appellant was identified and fixed to the commission of the armed robbery as proved and that is why I agree with the Court below on the issue.

…………………….E…………………….

Based on the above comments of mine and the fuller reasons expanciated in the lead judgment, I agree that this appeal has no merit at all. It is hereby dismissed. I affirm the judgment of the lower Court.
Appeal Dismissed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just handed out by my learned brother, Eko, JSC, and I agree entirely with his reasoning and conclusions. Appeal dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother EKO, JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. The Appellant had confessed in his extra-judicial statement, Exhibit A that he and four others planned and robbed store No. 12A Mission Road, Benin City. This statement was tendered and admitted without any objection. 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.
The confessional statement of the Appellant Exhibit A is direct, unequivocal and the trial Court believed in the truthfulness of the said exhibit. It is therefore sufficient to sustain the Appellant’s conviction. My learned brother has as usual resolved the sole issue submitted for determination of the appeal with utmost efficiency. I have nothing much to add.
For these few words and the more detailed reasoning in the lead judgment, this appeal shall be and it is hereby dismissed by me as well.

Appearances

Victor Opara, Esq. –For Appellant

AND

Adewale Atake, Esq. with him, C.J. Ejiofor, Esq.  –For Respondent

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