UTU v. STATE

CITATION: (2019) LPELR-46524(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON THURSDAY, 24TH JANUARY, 2019Suit No: CA/L/126C/2018

Before Their Lordships:

MOHAMMED LAWAL GARBA Justice, Court of AppealJOSEPH SHAGBAOR IKYEGH Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal

BetweenFRIDAY UTU - Appellant(s)

AndTHE STATE OF LAGOS - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - INTERFERENCE WITH EVALUATION OFEVIDENCE: Whether an appellate Court can interferewith the decision of the lower Court based on credibilityof witnesses"...The defence of the appellant contained in the recordand/or evidence was therefore considered by the Courtbelow which rejected it and, having had the singularopportunity of observing the appellant in the witness-box,the decision of the Court below rejecting his defenceturned on the credibility of the evidence of the appellantwhich an appellate Court can scarcely interfere with;more so, the decision was not shown to be perverse orunreasonable or unwarranted as to occasion amiscarriage of justice to the appellant vide Faleye andOrs. v. Dada and Ors. (2016) LPELR - 40297."Per IKYEGH,J.C.A. (P. 25, Paras. A-D) - read in context

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2. CRIMINAL LAW AND PROCEDURE - ATTEMPT TOCOMMIT AN OFFENCE: What constitutes an attempt tocommit an offence"The confessional statement of the appellant formed partof the case for the prosecution at the Court below videNwabueze v. The People of Lagos State (2018) 11 NWLR(pt.1630) 201. Viewed dispassionately, the confessionalstatement of the appellant (supra) further supplied theingredients of the offences charged. Likewise, theevidence of PW1 and PW2 on the use of gun to threatenthem showing the physical act of the appellant and hiscohort was sufficiently proximate to complete the offenceof armed robbery which evinced their intention tocomplete the offence of armed robbery but for theintervening act or obstruction to complete orconsummate the commission of the substantive offenceof armed robbery occasioned by the struggle over thegun and the crash of the vehicle. See Osetola and Anor.v. State (supra) at 285 following Orija v. Police (1957)NRNLR 189 to the effect that when an accused person isprevented from committing the complete offence, aconviction for attempt to commit the offence may besustained. See also Jegede v. State (2001) 14 NWLR(pt.733) 264 at 275 - 276, 282 - 283, 284 - 285 read withSection 21 in Chapter 4 of the Criminal Law of LagosState 2015."Per IKYEGH, J.C.A. (Pp. 21-22, Paras. E-E) -read in context

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3. CRIMINAL LAW AND PROCEDURE - ATTEMPT TOCOMMIT AN OFFENCE: Whether a person charged withan offence can be convicted of attempt to commit suchan offence"A person charged with substantive offence may beconvicted of attempt to commit the substantive offence ifevidence of attempt to commit the substantive offence ismanifest in the record, as in this case vide Section 169 ofthe Criminal Procedure Law Cap C18 Laws of Lagos Statewhich provides thus-"Where a person is charged with an offence but theevidence establishes an attempt to commit the offencehe may be convicted of having attempted to commit thatoffence although the attempt is not separately charged".Conversely, Section 170 thereof provides that- "Where aperson is charged with an attempt to commit an offencebut the evidence establishes the commission of the fulloffence the accused person shall not be entitled to anacquittal but he may be convicted of the attempt and bepunished accordingly."Per IKYEGH, J.C.A. (Pp. 22-23,Paras. E-C) - read in context

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4. CRIMINAL LAW AND PROCEDURE - OFFENCE OFCONSPIRACY: When the offence of conspiracy will besaid to be complete; how it can be inferred"Conspiracy to commit attempted armed robbery wasproved by the circumstantial evidence given by the PW1and PW2 as well as the confessional statement of theappellant showing he acted in concert with the co-defendant at the time of the commission of the offence ofattempted armed robbery from which the meeting oftheir minds to do the said unlawful act can be inferred toground the offence of conspiracy vide Osetola and Anor.v. The State (supra) at 284 following Onochie v. Republic(1966) 1 SCNLR 204, Ligali v. Queen (1959) SCNLR 14,Okosun v. A.-G., Bendel State (1985) 3 NWLR (pt.12) 283to the effect that the offence of conspiracy is completewhen two or more persons agree to do an unlawful act ordo a lawful act by unlawful means which can be inferredby what each person does or does not do in furtheranceof the offence of conspiracy and that the persons whoconspire may not have met each other. See also Njovensand Ors. v. State (1973) 1 NMLR 331 and Shurumo v.State (supra) at 104 and 106."Per IKYEGH, J.C.A. (Pp.26-27, Paras. B-A) - read in context

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5. EVIDENCE - CONFESSIONAL STATEMENT: Whether anobjection to the procedure for recording a confessionalstatement not raised at trial can be raised on appeal"...The statement (supra) was tendered in evidencethrough PW4, one of the police investigators of the case,in page 56 of the record thus-"Prosecution: I seek to tender.Defence Counsel: These Statements were not containedin the proof of evidence. I rely on Section 26(a)(b) 1999CFRN."The objection was overruled and the statement admittedin evidence as Exhibit 2. It is clear from the excerpt(supra) that the objection was not based on Section 9(3)of the ACJL 2015 which provides the procedure for therecording of confessional statement on video or in thepresence of a legal practitioner of the defendant's choice.In the case of Shurumo v. The State (2010) 19 NWLR(pt.1226) 73 at 90 - 91 the Supreme Court held in thelead judgment prepared by Mukhtar J.S.C., (later CJN) thatobjection to the admissibility of confessional statementon the ground that the procedure adopted in recordingthe statement was not in accordance with the laid downprinciple of law must be specifically raised at the trialCourt and where not raised as in this case where thestatement was not objected to for violating Section 9(3)of the ACJL 2015, objection to it cannot be raised onappeal and probative value would be accorded thestatement. See also Olalekan v. State (2001) 18 NWLR(pt.746) 793, John and Anor. v. State (2011) 18 NWLR(pt.1278) 353 at 380. Having not raised objection to theprocedure of recording the confessional statement,Exhibit 2, at the Court below as laid down by Section 9(3)of ACJL 2015, the cases (supra) cited for and against theapplicability of Section 9(3) of the ACJL to the presentcase are irrelevant and are hereby jettisoned."PerIKYEGH, J.C.A. (Pp. 14-16, Paras. F-C) - read in context

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6. EVIDENCE - IDENTIFICATION EVIDENCE: When theidentity of an accused person will not be in doubt"The appellant and the co-defendant were apprehendedon the spot and spontaneously identified by the PW1 andPW2 ruling out doubt on the identity of the appellant andthe co-defendant. Besides, the appellant's confessionalstatement identified him as the culprit vide Archibong v.State (2004) 1 NWLR (pt.855) 488 at 509 followingIkemson v. The State (1989) 3 NWLR (pt.110) 455 to theeffect that where by his confession an accused personhas identified himself the issue of his identity is settledwithout ado."Per IKYEGH, J.C.A. (P. 19, Paras. C-F) - readin context

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7. EVIDENCE - CALLING OF WITNESS(ES): Discretion ofthe prosecution in calling witnesses"The alleged discrepancies (supra) in the evidence ofPW1 and PW2 are discrepancies as to details notaffecting the ingredients of the offences charged as theevidence of the presence of the PW1 and PW2 aspassengers in the vehicle who witnessed the incident atthe material time was unchallenged vide Osetola andAnor. v. State (2012) 17 NWLR (pt.1329) 251 at 282.The PW1 and PW2 testified as victims of the allegedcrime. The case against the appellant and the co-defendant did not require corroboration of the evidenceof PW1 and PW2. Their credible evidence was thereforeenough to sustain the case against the appellant and theco-defendant ruling out the interview and summoning ofother passengers in the vehicle at the material time aswitnesses in the case vide Adaje v. State (1979) 6 - 9 S.C.18, and Osetola and Anor. v. State (supra) at 280,Shurumo v. State (supra) at 94 to the effect that it is theresponsibility of the prosecution, not the defence, todetermine the number of witnesses it needs to establishits case against the accused person; and that theprosecution need only call material witnesses such asvictims of the crime as in this case where PW1 and PW2,victims of the alleged crime, were called as witnesses inthe case."Per IKYEGH, J.C.A. (Pp. 19-20, Paras. F-F) - readin context

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8. EVIDENCE - EVIDENCE OF WITNESS: Proper stage inwhich an accused person can dispute/challenge evidencein criminal trials"The issue of the police demanding a bribe to release theappellant being a grave allegation and forming part ofthe defence of the appellant should have been put to thePW3, the I.P.O., from Ijesha Police Station and the PW4,the I.P.O. from SARS Ikeja under cross-examinationduring their testimonies in pages 47 - 49 and pages 54 -55, 60 - 61, 72 - 73 of the record, respectively, vide Okosiand Anor. v. The State (1989) 1 NWLR (pt.100) 642 at657 thus- "In all criminal trials the defence mustchallenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidencelawfully admitted at the trial. For when evidence isprimary, admissible in the sense that it is not hearsay oropinion and not that of an expert, and an accused personwants to dispute it, the venue for doing so is when thatwitness is giving evidence in the case, witness should becross-examined to elucidate facts disputed, for it is lateat the close of the case to attempt to negative what wasleft unchallenged; it is even far an exercise in futility todemolish it on appeal and it is like building a castle in theair to find fault in such evidence in this Court."Having not done so, the allegation at defence stage andin counsel's address is an afterthought."Per IKYEGH, J.C.A.(Pp. 23-24, Paras. E-F) - read in context

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9. EVIDENCE - CONFESSIONAL STATEMENT: Whether acourt can convict on a retracted confessional statement"The voluntary confessional statement of the appellantwhich the Court below found to be positive, direct,unequivocal sufficed to ground the guilt of the appellantregardless of the fact that the appellant resiled from orretracted it altogether in his defence at the trial whichthe Court below rightly held in its judgment in pages 118- 120 of the record that the retraction of the confessionalstatement did not affect the potency of the confessionalstatement vide Osetola and Anor. v. State (supra) at 279following Egbogbonome v. State (1993) 7 NWLR (pt.306)383, Shurumo v. State (supra) at 98, 104."Per IKYEGH,J.C.A. (P. 21, Paras. A-C) - read in context

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JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the

Leading Judgment): The appeal is against the decision of

the High Court of Justice of Lagos State (the Court below)

whereby it convicted and sentenced the appellant to

fourteen (14) years imprisonment for the offences of

conspiracy to commit armed robbery and attempted armed

robbery contrary to Sections 297 and 296(2)(a) of the

Criminal Law of Lagos State, 2011, respectively.

In summary, the PW1, one Simeon Orakaba and the PW2,

one Sunday Okafor, his colleague at work, boarded a

commuter bus at Mile 2 bus stop at about 10p.m. en route

to Ijesha bus stop on 26.01.12. A Mr. Samuel Oyeniyi, the

appellant’s co-defendant, drove the vehicle at the material

time. The appellant was the bus conductor. Unknown to the

PW1 and the PW2, the appellant and his co-defendant

posed as bus conductor and driver, respectively, whilst in

reality they were operatives of a robbery gang plying that

route. While they were close to Ijesha bus stop, the

appellant shut the doors of the vehicle. He commanded the

passengers including the PW1 and the PW2 to bend over. It

was about 11p.m. The appellant pulled out a

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gun and pointed at Sunday Okafor, the PW2, who struggled

with him over it.

The driver then lost control of the vehicle due to the

struggle. The vehicle overturned and crashed into a

container at the Ijesha bus stop. The passengers raised

alarm that there were robbers in the vehicle. The appellant

and his cohort, Samuel Oyeniyi, were trapped in the

vehicle. Members of the public at the bus stop responded to

the alarm. They came to the rescue of the commuters. The

PW1 and PW2 identified the appellant and the co-defendant

on the spot as the robbers. They were apprehended by

members of the public and brought to the Ijeshatedo Police

Station with the locally made gun and an iron bar found in

the vehicle.

The police at Ijesha Police Station transferred the case with

the appellant and his cohort to SARS police Ikeja where the

appellant and his comrade-in-crime made voluntary

confessional statements to the police.

On the other hand, the appellant’s version was that he was

at all material times a foot-baller and owner of a lotto kiosk

and was one of the passengers in the vehicle at the

material time and was also a victim of the attempted

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robbery in the vehicle in question; that he was in the back

seat of the vehicle and saw some “guys” with guns who

ordered the driver of the vehicle to stop and park the

vehicle; that the “guys” ordered them to face down and

started to “raid” the passengers of the vehicle, while one of

the robbers struggled with the driver of the vehicle on the

wheel and forced the vehicle to hit a 40ft container on the

road-side.

The appellant further alleged that he collapsed and lost

consciousness at the bus stop and was revived back to life

with three others at the Ijesha Police Station; that the

passengers admitted that they could not recognize the

robbers because the incident happened in the bus which

had no light at the material time; that he made a statement

to the police, Exhibit 6, at Ijesha Police Station, which he

also signed but that the contents of the statement are not

true even though the statement, Exhibit 6, was based on

what happened at the material time.

The Court below believed and accepted the version of the

respondent and convicted the appellant as charged.

The appellant was dissatisfied with the decision of the

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Court below and challenged it on a notice of appeal with

four (4) grounds of appeal filed on 13.12.17 vide pages 130

– 132 of the record of appeal (the record).

The appellant contended in the brief of argument filed on

07.02.18 that the evidence led by the respondent at the

Court below did not disclose the meeting of the minds of

the appellant and the other defendant, Friday Utu, to do an

unlawful act or to do a lawful act by any unlawful means to

establish the offence of conspiracy, as the substantive

offence alleged in the charge was armed robbery which

was not consummated especially as the confessional

statement of the appellant where the offence of conspiracy

was admitted as retracted at the trial, therefore the Court

below was wrong in convicting the appellant of conspiracy

citing in support the cases of State v. Salawu (2011) 8

NWLR (pt.1279) 613, Posu v. State (2011) 2 NWLR

(pt.1234) 412, and that the initial statement of the

appellant to the police, Exhibit 6, in pages 28–29 of the

record, denied commission of the offences charged as the

appellant had alleged in the statement that he was one of

the victims of the robbery showing the

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evidence adduced at the Court below did not support the

charge of conspiracy to commit the substantive offences of

armed robbery, therefore the Court below should not have

convicted the appellant for the offence of conspiracy.

The appellant contended that counts 2 and 3 of the charge

are a duplication of the same offence and cannot co-exist

independently; that the appellant was presumed innocent

and the burden of proof was on the respondent to prove the

offences charged citing in support Section 36(5) of the

Constitution of the Federal Republic of Nigeria 1999 (1999

Constitution) and the case of George v. F.R.N. (2011) 10

NWLR (pt.1254) (no pagination).

It was also contended that the Court below relied on the

evidence of the PW1 and the PW2 who were described as

victims of the attempted robbery and the extra-judicial

statements of PW3 and PW4 in convicting the appellant of

the offences charged when PW1 and PW2 was materially

contradictory in that the PW1 had stated that he sat on the

front row of the bus behind the driver and identified the

appellant as the driver but that he did not identify the

driver as his assailant or being armed with a gun at

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the material time, while PW2 stated in contrast that he

knew the appellant and his companion and could recognize

Friday Utu very well only to state in another voice that it

was dark but there was light which enabled them to see

each other and that he did not know the driver of the

vehicle, the appellant, because he was at the back seat

which was contrary to the PW2’s earlier evidence that he

knew both defendants; nor did the evidence of the

respondent disclose that the appellant threatened to apply

force or assaulted the PW1 and the PW2 as the appellant

was said to be driving the vehicle at the material time.

The appellant contended that the investigation police

officer (I.P.O.) did not take steps to ascertain ownership of

the bus in view of the conflicting accounts in the purported

confessional statements as to ownership thereof and the

person that drove it at the material time; that the PW1 and

PW2 did not state that the appellant and the co-defendant

demanded money or valuables from them as to constitute

part of the elements of offences charged; that from the

surrounding circumstances of the incident which

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happened “late at night in poor visibility” and the fact that

the “PW4” was the first to regain consciousness after the

vehicle had an accident the Court below ought to have

treaded with caution in assessing the evidence on the

identity of the appellant and the co-defendant citing in

support the cases of Ukpabi v. The State (2004) All

FWLR (pt.411) 814, Ikemson v. The State (1989) 3

NWLR (pt.110) 455, Ndidi v. The State (2007) All

FWLR (pt.381) 1618, Attah v. The State (1993) 7

NWLR (pt.305) 257, Archibong v. The State (2004) 1

NWLR (pt.858) 488 and that the doubt created by the

contradictory evidence of the PW1 and PW2 on the identity

of the appellant and his co-defendant should be resolved in

favour of the appellant as the Court cannot pick and choose

from the contradictory evidence citing in support the case

of Obianwu v. The State (2016) LPELR – 40955.

The appellant contended that the I.P.O. did not conduct

further investigation by contacting other passengers in the

vehicle at the material time and the appellant’s statement

in Exhibit 6 that he did not drive the vehicle at the material

time which in addition to the poor quality of the identity of

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the appellant and the co-defendant demonstrated that the

evidence fell short of proving beyond reasonable doubt the

elements of the offences charged – the appellant’s intention

to steal; assault of the PW1 and PW2 by the appellant; use

or threat of use of violence by the appellant; and that the

appellant was in the company of any person armed at the

material time – consequently, the appellant contended that

the respondent did not establish the offences charged

beyond reasonable doubt and that the Court below was

wrong in convicting the appellant of the offences charged

citing in support the cases of Njoku v. State (2013) 2

NWLR (pt.1339) 548, Nwokearu v. State (2013) 16

NWLR (pt.1380) 207, Liman v. The State (2016)

LPELR – 40260.

The appellant contended that the Court below should not

have accorded any weight or probative value to Exhibit 2,

the extra-judicial statement of the appellant in that it was

written for the appellant by the I.P.O., PW4, and the

recording of the statement was not on video or in the

presence of a legal practitioner of the appellant’s choice as

admitted by PW4 under cross-examination in page 73 of

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the record contrary to Section 9(3) of the Administration of

Criminal Justice Law CAP A3 Laws of Lagos State 2015 and

the cases of Akaeze Charles v. F.R.N. (2018) 13 NWLR

(pt.1635) 50, Joseph Zhiya v. The People of Lagos

State (2016) LPELR – 40562 cited in the list of additional

authorities filed on 21.09.18; and that there was no

corroborative evidence of the purported confessional

statement, exhibit 2, to sustain the conviction of the

appellant, therefore the conviction was wrong citing in

support the case of Kazeem v. The State (2009) All

FWLR (pt.465) (no pagination).

The appellant contended that the judgment of the Court

below in pages 116 – 117 of the record disclosed that the

physical elements of the offence of attempted robbery had

been established against the appellant when there was no

finding or evidence establishing mens rea or intention to

convict the offences charged, therefore the respondent did

not prove the offences charged beyond reasonable doubt

citing in support the cases of Njoku v. State (2013) 2

NWLR (pt.1339) 548, Nwokearu v. State (2013) 16

NWLR (pt.1380) 207.

The appellant contended that the 2nd and 3rd counts are

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in respect of the same offence of attempted armed robbery,

therefore it amounted to double jeopardy to try and convict

the appellant for the same offence twice contrary to the

constitution of the land and criminal jurisprudence.

The appellant contended that the Court below erred by not

considering his defence in pages 76 – 77 of the record that

he was an innocent victim of circumstance and it was the

failure of the appellant to part with the money demanded

by the investigating police officer at SARS Ikeja who

initially concealed the statement made by the appellant in

Exhibit 5 at the Ijesha Police Station until he was compelled

by the de fence to t ender same under c ross -

examination which was strengthened by the fact that the

3rd suspect, one Oluwaseyi Lana, who was arrested

together with the appellant and taken into custody by the

police was able to secure his freedom from the police which

made the police not to charge him to Court was also not

considered by the Court below showing the decision of the

Court below is perverse and should be set aside citing in

support the cases of Williams v. The State (1992) 8

NWLR (pt.261) 515,

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Peter v. The State (1997) 3 NWLR (pt.496) 625,

Nwankwoala v. The State (2006) All FWLR (pt.339)

801, Adeyeye v. State (2013) LPELR – 1991, Chukwu v.

State (2007) All FWLR 1224 at 1263; upon which the

appellant urged that the appeal should be allowed and the

conviction and sentence imposed on the appellant be set

aside.

The respondent’s brief was filed on 28.11.18 and was

deemed as properly filed on the same 28.11.18. The

respondent argued in the brief that the PW1 and the PW2

identified the appellant and his co-defendant at the earliest

opportunity after they attempted to rob them at gun-point;

more so, the confessional statement of the appellant to the

police which was corroborated by the evidence of PW1 and

PW2 reinforced the unchallenged evidence of the

respondent and established beyond reasonable doubt that

the appellant and the co-defendant acted in concert in the

attempted armed robbery of the PW1 and the PW2 thus

proving the offences charged.

The respondent therefore argued that the Court below was

right in convicting the appellant as charged on the

evidence that had minor inconsistencies; and that

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Section 9(3) of the Administration of Criminal Justice Law

of Lagos State 2015 (ACJL 2015) which is procedural and

subservient to Section 29(1) of the Evidence Act 2011

(Evidence Act) did not affect the admissibility of the

confessional statement citing in support the cases of

Shurumo v. The State (2011) All FWLR (pt.568) 864,

Osetola and Anor. v. The State (2012) LPELR – 9348,

Okosi v. State (1989) 1 NWLR (pt.100) 642, Ukpabi v.

State (2004) 11 NWLR (pt.884) 439, Osuagwu v. State

(2009) 1 NWLR (pt.1123) at 527, Attah v. State (2010)

10 NWLR (pt.1201) 190, Odu and Anor. v. The State

(2001) 5 SCNJ 115, Ebeinwe v. The State (2011) 7

NWLR 402, Omisade v. State (1976) 11 SC 75, Kaza v.

State (2008) 2 NCC 374 at 425, Yakubu v. The State

(2014) LPELR 22401, Abdullahi v. The State (2009)

vol.2 SCLR (pt.16) 83, Oduneye v. The State (2001) 2

NWLR (pt.697) 311, Oladipupo v. The State (2012)

LPELR – 7965, Chijoke Ahukana Emmanuel v. F.R.N.,

u n r e p o r t e d j u d g m e n t o f t h e C o u r t i n

CA/L/1371C/2016 delivered on 25.04.18, Okondo v.

People of Lagos State (2016) All FWLR (pt.851) 1308,

Akalezi v. The State (1993) 2 NWLR (pt.273) 1 at 13,

Adamu v. Akukalia (2005) 11 NWLR (pt.936) 263 at

279,

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Audu v. State (2003) (pt.820) 516 at 554, Okere v. The

State (2001) 2 NWLR (pt.697) 397 at 415 – 416; upon

which the respondent urged that the appeal should be

dismissed.

The statement of the appellant to the police at SARS Ikeja

is in pages 26 – 27 of the record. It reads –

“I Friday Utu ‘m’ having been duly cautioned in

English language that I am not obliged to say

anything unless I wish to do so, but whatever I say

shall be taken down in writing and maybe giving in

evidence, voluntarily elect to state as follows:

I am the above named person and I stay at the above

stated place. I am a native of Isoko in Delta State, I

was born and brought up here in Lagos by my

parents, I attended Jimoh Ojora Primary School

Ajegunle, Lagos for my primary school education. I

also attended Gaskiya College, Ijora-Badia, Lagos for

my Secondary School Education. I have been working

as a casual worker at the Seaport Apapa, Lagos. (For

my) I joined one Armed Robbery gang in December

2011. I met the gang through one Akpom ‘m’ a friend

of mine, it was Akpom, he introduce me to one Ade,

they told me that they are Armed Robbers, that if

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I was interested in the business, that I should come

alone that was how I joined the gang that very day, it

was how I started robbery, when we went to the first

operation it was six of us, myself (2) Akpan (3) Seyi

‘m’ (4) Samuel (5) Ade A.K.A. Egbon all went to the

first operation. We have one gun we use to take to

operation is always with Ade ‘m’. Ade was the one that

brought the gun. I have gone to Armed Robbery

operations more than eight times, the last one I went

was on the 26th of January 2012 at about 7.30pm

myself and my gang members consisting of (1) Ade

(2) Seyi (3) Schoolboy (4) Samuel all took Samuel’s

Volkswagen Vanagon bus to operate, we normally pick

people on the road, we normally pick them at various

bus stops, we pick about 6 passengers it was when we

started moving that we started robbing people. But

the people were stubborn, that was how our driver

went to hit the vehicle at a trailer already parked at

Ijesha bus stop. I am aware that what I have been

doing is called Armed Robbery. I will never go back to

this type of business if I am released”.

The statement (supra) was tendered in evidence through

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PW4, one of the police investigators of the case, in page 56

of the record thus –

“Prosecution: I seek to tender.

Defence Counsel: These Statements were not

contained in the proof of evidence. I rely on Section

26(a)(b) 1999 CFRN.”

The objection was overruled and the statement admitted in

evidence as Exhibit 2. It is clear from the excerpt (supra)

that the objection was not based on Section 9(3) of the

ACJL 2015 which provides the procedure for the recording

of confessional statement on video or in the presence of a

legal practitioner of the defendant’s choice. In the case of

Shurumo v. The State (2010) 19 NWLR (pt.1226) 73

at 90 – 91 the Supreme Court held in the lead judgment

prepared by Mukhtar J.S.C., (later CJN) that objection to

the admissibility of confessional statement on the ground

that the procedure adopted in recording the statement was

not in accordance with the laid down principle of law must

be specifically raised at the trial Court and where not

raised as in this case where the statement was not objected

to for violating Section 9(3) of the ACJL 2015, objection to

it

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cannot be raised on appeal and probative value would be

accorded the statement. See also Olalekan v. State

(2001) 18 NWLR (pt.746) 793, John and Anor. v. State

(2011) 18 NWLR (pt.1278) 353 at 380.

Having not raised objection to the procedure of recording

the confessional statement, Exhibit 2, at the Court below as

laid down by Section 9(3) of ACJL 2015, the cases (supra)

cited for and against the applicability of Section 9(3) of the

ACJL to the present case are irrelevant and are hereby

jettisoned.

The Court below considered the probative value of Exhibit

2, the confessional statement, in its judgment in pages 118

– 120 of the record where it observed and held thus –

“I am however persuaded by the veracity of the

eyewitness account of PW1 and PW2, which has

clearly identified the 1st and 2nd defendants as the

aggressors in the bus on that fateful night and I so

hold. PW1 and PW2 came across as credible

witnesses; of truth, their testimonies were given in a

straightforward and concise manner without any

embellishments. They were not shaken nor

impeached. On the other hand DW1 and DW2 at SARS

Ikeja both confessed to having taken part in the

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robbery. They each explained their role in the

incident of 26/01/12. Although a Court of law will

usually not anchor its decision solely on a

confessional statement without more. Where a

confessional statement has been retracted by the

defendant, as in the instant case the Court is required

to apply the 6 way test for determining the truth or

otherwise of a confessional statement. Thus the Court

must look out for other evidence or material facts,

which corroborates the confession. Whether there is

anything outside the statement to show it is true. See:

ABASI vs. STATE (1992) WLR [Pt. 260] @ 383;

OGOALA vs. THE STATE (1991) 2 NWLR [Pt. 175] @

509; AKPAN vs. STATE [1992] 7 SCNJ @ 22 and

FATILEWA vs. STATE (2008) 12 NWLR [Pt. 101] @

518; IDOWU vs. STATE (2000) 12 NWLR [Pt. 680] @

48; ADA vs. STATE 2008) 13 NWLR [Pt. 1103] @ 149.

As stated by Iguh, JSC in ALARAPE vs. STATE (2001)

5 NWLR [Pt. 705] @ 79 ''The test for determining the

veracity or otherwise of a confessional statement is to

seek any other evidence, be it slight of circumstances

which make it probable that the confession is true”.

Following the six-point test laid down in the countless

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cases referred to above, is evident that this Court can

positively; answer in the affirmative the question

whether there is anything outside the confession as

mode on Exhibits 1 and 2 to show that it is true. In

the first place, the two defendants have each put

themselves in the locus criminis on the night

in question. The second test is whether the

confessional statements are corroborated. And again I

must answer in the affirmative. The evidence of the

victims PW1 and PW2 are consistent in all material

particulars with the confessional statements of the

defendants as made on Exhibits 1 and 2, and I so

hold, Thirdly, I need to ask whether there are relevant

facts in the statement, that are true as far as can be

tested. Again, I am persuaded, to answer this in the

affirmative. The police in their investigations were

able to recover the cut to size shot gun used in the

operations by the defendant and it is before the Court

as Exhibit 4.

Furthermore, I am persuaded to answer in the

affirmative the question, whether the facts on the

confessional statement are plausible. I would say a

categorical yes. To answer the question whether the

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defendants had the opportunity to commit the crime,

one needs to consider the role played by each

defendant. It appears that the defendants are

members of a commuter bus gang of robbers who

specialize in robbing passengers, and dispossessing

them of their valuables at will and as opportunity

presents itself”.

I endorse the holding (supra) that the Court below was

indeed satisfied that the confessional statement, Exhibit 2,

was true, positive, direct, clear and unequivocal and

rightly, in my view, accorded probative value or weight to

it.

The appellant and the co-defendant were apprehended on

the spot and spontaneously identified by the PW1 and PW2

ruling out doubt on the identity of the appellant and the co-

defendant. Besides, the appellant’s confessional statement

identified him as the culprit vide Archibong v. State

(2004) 1 NWLR (pt.855) 488 at 509 following Ikemson

v. The State (1989) 3 NWLR (pt.110) 455 to the effect

that where by his confession an accused person has

identified himself the issue of his identity is settled without

ado.

The alleged discrepancies (supra) in the evidence of PW1

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and PW2 are discrepancies as to details not affecting the

ingredients of the offences charged as the evidence of the

presence of the PW1 and PW2 as passengers in the vehicle

who witnessed the incident at the material time was

unchallenged vide Osetola and Anor. v. State (2012) 17

NWLR (pt.1329) 251 at 282.

The PW1 and PW2 testified as victims of the alleged crime.

The case against the appellant and the co-defendant did not

require corroboration of the evidence of PW1 and PW2.

Their credible evidence was therefore enough to sustain

the case against the appellant and the co-defendant ruling

out the interview and summoning of other passengers in

the vehicle at the material time as witnesses in the case

vide Adaje v. State (1979) 6 – 9 S.C. 18, and Osetola

and Anor. v. State (supra) at 280, Shurumo v. State

(supra) at 94 to the effect that it is the responsibility of

the prosecution, not the defence, to determine the number

of witnesses it needs to establish its case against the

accused person; and that the prosecution need only call

material witnesses such as victims of the crime as in this

case where PW1 and PW2, victims of the alleged crime,

were called as witnesses in the case.

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The voluntary confessional statement of the appellant

which the Court below found to be positive, direct,

unequivocal sufficed to ground the guilt of the appellant

regardless of the fact that the appellant resiled from or

retracted it altogether in his defence at the trial which the

Court below rightly held in its judgment in pages 118 – 120

of the record that the retraction of the confessional

statement did not affect the potency of the confessional

statement vide Osetola and Anor. v. State (supra) at

279 following Egbogbonome v. State (1993) 7 NWLR

(pt.306) 383, Shurumo v. State (supra) at 98, 104.

The credible evidence of PW1 and PW2 whose demeanour

was observed by the Court below also corroborated the

confessional statement of the appellant as rightly held by

the Court below in its judgment.

The confessional statement of the appellant formed part of

the case for the prosecution at the Court below vide

Nwabueze v. The People of Lagos State (2018) 11

NWLR (pt.1630) 201. Viewed dispassionately, the

confessional statement of the appellant (supra) further

supplied the ingredients of the offences charged.

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Likewise, the evidence of PW1 and PW2 on the use of gun

to threaten them showing the physical act of the appellant

and his cohort was sufficiently proximate to complete the

offence of armed robbery which evinced their intention to

complete the offence of armed robbery but for the

intervening act or obstruction to complete or consummate

the commission of the substantive offence of armed robbery

occasioned by the struggle over the gun and the crash of

the vehicle. See Osetola and Anor. v. State (supra) at

285 following Orija v. Police (1957) NRNLR 189 to the

effect that when an accused person is prevented from

committing the complete offence, a conviction for attempt

to commit the offence may be sustained. See also Jegede v.

State (2001) 14 NWLR (pt.733) 264 at 275 – 276, 282

– 283, 284 – 285 read with Section 21 in Chapter 4 of the

Criminal Law of Lagos State 2015.

A person charged with substantive offence may be

convicted of attempt to commit the substantive offence if

evidence of attempt to commit the substantive offence is

manifest in the record, as in this case vide Section 169 of

the Criminal Procedure Law Cap C18 Laws of Lagos State

which provides thus –

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“Where a person is charged with an offence but the

evidence establishes an attempt to commit the

offence he may be convicted of having attempted to

commit that offence although the attempt is not

separately charged”.

Conversely, Section 170 thereof provides that –

“Where a person is charged with an attempt to

commit an offence but the evidence establishes the

commission of the full offence the accused person

shall not be entitled to an acquittal but he may be

convicted of the attempt and be punished

accordingly”.

There is therefore no substance in the said complaint.

The defence of the appellant included the retraction of his

confessional statement which was considered and rejected

by the Court below in its judgment in pages 102 - 120 of

the record particularly pages 118 – 120 thereof. The issue

of the police demanding a bribe to release the appellant

being a grave allegation and forming part of the defence of

the appellant should have been put to the PW3, the I.P.O.,

from Ijesha Police Station and the PW4, the I.P.O. from

SARS Ikeja under cross-examination during their

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testimonies in pages 47 – 49 and pages 54 – 55, 60 – 61, 72

– 73 of the record, respectively, vide Okosi and Anor. v.

The State (1989) 1 NWLR (pt.100) 642 at 657 thus-

“In all criminal trials the defence must challenge all

the evidence it wishes to dispute by cross-

examination. This is the only way to attack any

evidence lawfully admitted at the trial. For when

evidence is primary, admissible in the sense that it is

not hearsay or opinion and not that of an expert, and

an accused person wants to dispute it, the venue for

doing so is when that witness is giving evidence in the

case, witness should be cross-examined to elucidate

facts disputed, for it is late at the close of the case to

attempt to negative what was left unchallenged; it is

even far an exercise in futility to demolish it on

appeal and it is like building a castle in the air to find

fault in such evidence in this Court.”

Having not done so, the allegation at defence stage and in

counsel’s address is an afterthought.

The appellant was caught in the act or red-handed

attempting to commit the offence of armed robbery and his

defence that he was one of the victims of the

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robbery was rejected by the Court below in its judgment

where it held in particular that the appellant belonged to a

gang that operated in that manner stated in his

confessional statement.

The defence of the appellant contained in the record and/or

evidence was therefore considered by the Court below

which rejected it and, having had the singular opportunity

of observing the appellant in the witness-box, the decision

of the Court below rejecting his defence turned on the

credibility of the evidence of the appellant which an

appellate Court can scarcely interfere with; more so, the

decision was not shown to be perverse or unreasonable or

unwarranted as to occasion a miscarriage of justice to the

appellant vide Faleye and Ors. v. Dada and Ors. (2016)

LPELR - 40297.

The Court below was therefore right in convicting the

appellant of attempt to commit the offence of armed

robbery and as counts 2 and 3 of the charge related to

different victims – PW1 and PW2, respectively, the

complaint by the appellant that it amounted to duplicity

and double jeopardy is hardly tenable.

The fact that the substantive offence of armed robbery

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was not consummated does not trivialise the serious nature

of the offence of attempted armed robbery with a gun with

its traumatised effect on the victim of the attempt to obtain

property from him under the barrel of a gun vide the case

of Bude v. State (2016) 12 NWLR (pt. 1525) 154.

Conspiracy to commit attempted armed robbery was

proved by the circumstantial evidence given by the PW1

and PW2 as well as the confessional statement of the

appellant showing he acted in concert with the co-

defendant at the time of the commission of the offence of

attempted armed robbery from which the meeting of their

minds to do the said unlawful act can be inferred to ground

the offence of conspiracy vide Osetola and Anor. v. The

State (supra) at 284 following Onochie v. Republic

(1966) 1 SCNLR 204, Ligali v. Queen (1959) SCNLR

14, Okosun v. A.-G., Bendel State (1985) 3 NWLR

(pt.12) 283 to the effect that the offence of conspiracy is

complete when two or more persons agree to do an

unlawful act or do a lawful act by unlawful means which

can be inferred by what each person does or does not do in

furtherance of the offence of conspiracy and that the

persons who conspire may not have

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met each other. See also Njovens and Ors. v. State

(1973) 1 NMLR 331 and Shurumo v. State (supra) at

104 and 106. The Court below therefore properly

convicted the appellant of the offence of conspiracy.

In the result, I find no merit in the appeal and hereby

dismiss it and affirm the conviction and sentence of the

appellant contained in the judgment of the Court below

(Ipaye, J.).

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft

of the lead judgement written by my learned brother Joseph

Shagbaor Ikyegh, JCA and completely agree that this

appeal is devoid of merit. For the reasons set therein, I too

dismiss the appeal and affirm the conviction of the

Appellant for the offence/s he was charged with.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother

JOSEPH SHAGBAOR IKYEGH JCA. afforded me the

opportunity of reading before today a draft copy of the lead

judgment just delivered. I adopt the judgment as mine with

nothing further to add.

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Appearances:

Mr. V. Ogude with him, Mr. A. Amokaye ForAppellant(s)

T. K. Shitta-Bey, Esqr. (DPP, Lagos State) withhim, Mr. Y. Sule (P.S.C.)For Respondent(s)

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