➥ CASE SUMMARY OF:
Chibuike Ofordike V. The State (SC.695/2016, 2019)
by Branham Chima.
➥ ISSUES RAISED
Attempted rape;
Rape;
Armed robbery;
Confessional statement;
Conspiracy.
➥ CASE FACT/HISTORY
A summary of the facts leading to this appeal as can be gleaned from the records shows that one Mrs. Dora Karawe who testified as PW1 was going to Adult School Effurun on 23rd June, 2003 at about 3.00pm when she met the accused person and one other. They stopped her and forcibly took her bag, threatened her with a shot gun and broken bottle, removed the sum of N2,000 (two thousand naira) contained in the bag, dragged her into the bush and raped her because, according to them, the money in the bag was not enough. The PW1 was shouting whilst the act of rape was on and somebody who heard her shout came and they fled. The PW1 and others who also came to the scene pursued and caught the Appellant who was then dragged to the police.
PW1 stated that the appellant tore her skirt, her knicker and pant and that the appellant could not have erection and ordered her to caress his penis so that his penis could be erect and out of fear, she did it and the appellant was able to penetrate her. One of the women who came around as a result of the alarm she raised, gave her a wrapper to cover her nakedness. PW1 later went to the police station and made a statement.
This is an appeal against the judgment of the Court of Appeal holden at Benin Division delivered on 14th June, 2016 wherein the lower Court upheld the decision of the trial Court which convicted and sentenced the appellant to death by hanging in count two and to 10- and 7-years imprisonment with hard labour in counts one and three respectively.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the Court below was right to uphold the appellant’s conviction for conspiracy?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[CONSPIRACY WAS RIGHTLY REACHED AND PROVED AGAINST THE APPELLANT
‘In the instant appeal, the PW1 gave evidence of how the appellant and one other accosted her and robbed her of her bag and stole the sum of N2,000 in the bag at gun point and because the amount of money was not much the appellant decided to rape her in addition. The other accused person called Gedu raped her first while the appellant watched the road for him. Thereafter, the appellant took his turn but was cut short as passersby arrived the scene due to the alarm raised by the PW1. The PW1 and others pursued them and the appellant was arrested about 200 yards from the scene. He was then taken to the police station. In exhibit A, the confessional statement of the appellant, he gave a graphical account of how the offence was hatched and executed. Both the evidence of the prosecution witness i.e. PW1 and the confessional statement of the appellant (Exhibit A] clearly show that both the trial Court and the Court below were right in holding that the offence of conspiracy was proved against the appellant. All the acts performed by the appellant and Gedu were done in furtherance of the agreement to commit armed robbery and rape. They not only planned the robbery and rape, they actually performed it. As was rightly submitted by the learned counsel for the Respondent, the totality of evidence assembled and the evaluation of same, leaves no modicum of doubt that there was indeed a meeting of the minds of the appellant and Gedu and an agreement manifested by their overt acts of robbing PW1 with a gun and broken bottles and also raping her. I agree with the Court below that the offence of conspiracy to commit armed robbery and rape as found by the trial Court and affirmed by the Court below was proved beyond reasonable doubt against the appellant.’]
.
.
↪️ II. Whether the Court of Appeal was right when it upheld the appellant’s conviction for armed robbery and attempted rape?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[ARMED ROBBERY AND ATTEMPTED RAPE AGAINST THE ACCUSED WAS PROVED
‘In the instant case, although the PW1 stated that the appellant actually penetrated her, the appellant in Exhibit A said he was about to penetrate. The learned trial Judge gave him the benefit of the doubt in view of the fact that both PW1 in her testimony before the Court and in Exhibit A the confessional statement of the appellant, it is clearly shown that the appellant’s penis could not attain erection immediately but had to be caressed by PW1 before it kick started like the old Moris Minor Lorry which had to be wound up as generator to start the engine. In the process, Gedu gave signal that “yawa don gas” meaning “alarm don blow”. At that stage he put on his dress and joined Gedu to escape. Unfortunately for him, he was pursued and arrested. He joined Gedu to drag the PW1 into the bush, joined in tearing the lady’s dress and pant, watched the environment for Gedu to rape the PW1 and thereafter “climbed” her only to experience low current. Had Gedu not signalled him of persons coming to the rescue of the PW1, the appellant could have completed the act of rape. He was, in my opinion properly convinced of attempt to commit rape. The court below was also right to affirm his conviction for attempted rape. Learned counsel for the appellant had argued that since the learned trial Judge rejected the evidence PW1 that there was penetration, he ought not to have convicted the appellant for attempted rape. I think the said argument is puerile. The appellant stated in Exhibit A that he “climbed” PW1 to have sex with her only that his penis could not attain erection immediately. The PW1 said that she helped to kick start the penis out of fear. For me, had the learned trial Judge convicted the appellant for rape, I will have no problem because the PW1 who is the owner of her body testified that there was penetration. That notwithstanding, I am satisfied to agree with the Court below that the learned trial Judge was right to convict the appellant for the offence of armed robbery and attempted rape. The prosecution had no business calling many witnesses having been satisfied that the case could be proved with the evidence of the sole witness and the confessional statement of the appellant.’]
.
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↪️ III. Whether exhibit A, the confessional statement of the Appellant was rightly admitted in evidence?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE CONFESSIONAL STATEMENT WAS RIGHTLY ADMITTED; NO OBJECTION AS TO VOLUNTARINESS WAS RAISED
‘In the instant case, when the prosecution was to tender the confessional statement of the appellant, his counsel made the following statement at page 30 of the record of appeal:- “I object firstly, he said he did not sign the document and secondly he made a statement which was not read to him. It will be necessary to make further enquiry before it can be admitted.” To the above request, the learned trial Judge did not oblige but went ahead to admit the statement which was marked as Exhibit A. As was rightly held by the Court below, that objection raised by the learned counsel for the appellant was not suggestive of any fact that the statement was involuntarily made by the appellant or that he was coerced into making same. What the learned counsel clearly projected was a total denial of the statement. There was no allegation of any brutality, coercion, threats or promise/inducement of any sort against the investigating police officer at the time he made the statement.’
A TRIAL WITHIN TRIAL WAS NOT NECESSARY
‘The appellant’s answer to questions put to him by the prosecution is to the effect that he made a statement to the police but that it was not confessional. Learned counsel also objected to the tendering of the statement alleging that the police did not read the statement to the appellant and that he did not sign it. This is clearly different from saying that he made a confessional statement under duress. Here, the appellant is saying he did not make a confessional statement at all. I agree therefore with the lower Court which upheld the decision of the trial Court that a trial within trial was not necessary. I also agree that the lower Court was right when it affirmed the admission and reliance on the statement of the appellant as part of evidence against him.’]
.
.
.
✓ DECISION:
‘In summary, I hold that there is no merit in this appeal. It is accordingly dismissed. I affirm the judgment of the lower Court delivered on 14th June, 2016 in Appeal No. CA/B/57c/2011. Appeal Dismissed.’
➥ FURTHER DICTA:
⦿ WHAT IS PROOF BEYOND REASONABLE DOUBT
It is trite law that in all criminal trials, the burden of proving the guilt of an accused person rests on the prosecution which has to prove the case beyond reasonable doubt. What does proof beyond reasonable doubt mean It simply means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. In Miller v Minister of Pensions (1947) 2 All ER, 372, it was held that “proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course it is possible”, the case is proved beyond reasonable doubt.” — J.I. Okoro, JSC.
⦿ WHEN CAN THERE BE SAID TO BE A CONSPIRACY
Thus a trial Court can infer conspiracy and convict on it if it is established to its satisfaction that the accused persons, pursued, by their acts, the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and concluded; an agreement can be inferred from what each person does or does not do in furtherance of the offence of conspiracy. See Adeleke v State (2013) 16 NWLR (pt 1381) 556, Oduneye v State (2001) 2 NWLR (pt 697) 311, (2001) LPELR – 2245 (SC), The State v Salawu (2011) 18 NWLR (pt 1279) 580. — J.I. Okoro, JSC.
⦿ WHAT IS A CONFESSIONAL STATEMENT
The law is well settled on issues relating to admissibility or otherwise of confessional statements by accused persons. A confessional statement is a statement by an accused person which unequivocally confesses to the commission of an offence charged. Such a statement to be of any probative value, must be clear, precise and unequivocal. It must also be direct, positive and should relate to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan v The State (1992) 7 SCNJ 22, Yesufu v State (1976) 6 SC 167, Magaji v The Nigerian Army (2008) 8 NWLR (pt 1089) 338. — J.I. Okoro, JSC.
⦿ CONFESSIONAL STATEMENT IS USUALLY THE BEST EVIDENCE TO CONVICT AN ACCUSED
Where a confessional statement is voluntarily made, it is the best evidence which the trial Court can rely to convict an accused person. But in most cases, at the trial, accused persons raise objection ranging from that they did not make the said statement or that they were coerced to make it or that they did not sign it. These are issues that are usually raised in Court on a daily basis. — J.I. Okoro, JSC.
⦿ A TRIAL WITHIN TRIAL IS CONDUCTED WHERE A CONFESSIONAL STATEMENT IS CHALLENGED ON VOLUNTARINESS
The law is trite that in circumstance where the prosecution seeks to tender the confessional statement of an accused person and it is objected to and challenged on the ground that it was not made voluntarily, a trial within trial is conducted for the sole purpose of finding out if the statement was made voluntarily or whether the confessional statement was extracted from the accused by force or threat of punishment or by any form of inducement. If at the end of the trial within trial the trial Judge is satisfied that the confessional statement was not voluntary, such a statement is not admissible in evidence. If on the other hand the statement is adjudged voluntarily made, it is admitted in evidence. In both cases the trial Judge should rule on it accordingly and that brings the trial within trial to an end and the main trial continues. SeeIbeme v The State (2013) 10 NWLR (pt 1362) 333, Solola & Anor v State (2005) 11 NWLR (pt 937) 460, Federal Republic of Nigeria v Iweka (2013) 3 NWLR (pt 1341) 285. — J.I. Okoro, JSC.
⦿ THERE CAN BE CONVICTION BASED ON THE TESTIMONY OF A SOLE WITNESS
The law is trite that unless where the law prescribes otherwise, there can be a conviction based on the evidence of a sole witness. Such evidence of a sole witness must be cogent, strong, credible and reliable before a Court can rely to found a conviction. See Oduneye v The State (2001) 2 NWLR (pt 697) 311, Abogede v State (1996) 5 NWLR (pt 449) 279 at 280, Ighalo v The State (2016) LPELR – 40840 (SC). 27 Ordinarily, the credibility of evidence does not depend on the number of witnesses who testify on a particular issue, but it depends on whether the evidence of a single witness is believable and accepted by the Court and if so believed by the Court, then it is sufficient to ground a conviction. SeeAli v The State (1988) 1 NWLR (pt 68) 1, Lase v The State (2017) LPELR – 42468 (SC), Abogede v The State (1996) 4 SCNJ 227. — J.I. Okoro, JSC.
⦿ ACCUSED CAN BE CONVICTED BASED ON CONFESSIONAL STATEMENT ALONE – NEED TO TEST CONFESSIONAL STATEMENT
The law is also trite that an accused person can be convicted based on his confession alone. In such situation, there is however the need to test the truth of the confession in the light of other credible evidence before the Court. Such test as enunciated in the case of R. V. Skyes (1913) 8 CAR page 233 may include the following:- Whether there is anything outside the confession to show that it is true. Whether it is corroborated. Whether the statement made in it are in fact true as far as they can be tested. Whether the accused had the opportunity of committing the crime. Whether the confession is possible. Whether it is consistent with other facts which have been ascertained and which have been proved. See also Onyenye v The State (supra), Alarape v The State (2001) 5 NWLR (pt 705) 79, Dawa & Anor v The State (1980) SC 236 page 267. — J.I. Okoro, JSC.
⦿ WHAT MUST BE PROVED IN A CHARGE OF ARMED ROBBERY
The law is very clear that in a charge of armed robbery, the prosecution must prove that:- There was robbery or series of robberies. That the robbery or each robbery was an armed robbery. That the accused was one of those who took part in the armed robbery. See Afolalu v The State (2010) 16 NWLR (pt 1220) page 584, Ikaria v The State (2014) 1 NWLR (pt 1389) 639, Agugua v The State (2017) LPELR – 42021 (SC). — J.I. Okoro, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
John Inyang Okoro, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chijioke O.P. Emeka Esq.
⦿ FOR THE RESPONDENT(S)
Peter Mrakpor Esq., Hon. Attorney General of Delta State.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
