⦿ CASE SUMMARY OF:
Semiu Afolabi v. The State (2013) – SC
⦿ LITE HOLDING
Conspiracy is established once it becomes clear to the court that the conspirators knew of the existence and the intention or purpose of the conspiracy. Put in another way conspiracy is complete upon an agreement by the conspirators and in most cases conspiracy is inferred or presumed. Per Rhodes-Vivour JSC.
I would also add that an identification parade ought to be conducted in cases where the accused person is arrested a long time after the Robbery was committed. Once again an identification parade is only conducted when the identity, features of the accused person is in doubt and that is not the case in this appeal. Per Rhodes-Vivour JSC.
⦿AREA OF LAW
- Confessional statement.
- Armed Robbery.
(2013) JELR 35876 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
MAHMUD MOHAMMED, J.S.C.
- FOR THE APPELLANT
- Chief Michael Alliyu.
- FOR THE RESPONDENT
- Mr. Olayode O. Delano.
⦿ FACT (as relating to the issues)
The Appellant in this appeal was arraigned before the High Court of Justice of Ogun state at Abeokuta Judicial Division on, two count charge of, conspiracy to commit armed robbery and armed robbery contrary to Section 5(a) and 1(2)(a)) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendment etc) Act 1999.
The case against the Appellant as presented at the trial High Court by the prosecution reveals that on 9th September, 1995 PW1, a commercial motor cycle operator while riding his Suzuki Motor Cycle towards Akute was stopped by the Appellant in company of another person. The Appellant and the other person attacked PW1 with a broken bottle and seized the motor-cycle and the sum of ₦700.00 from PW1. On alarm being raised, another motor cycle operator came to the aid of PW1 and chased and stopped the Appellant who was trying to escape with the motor cycle in company of the other person. On being forced to stop, the accompanying person escaped leaving the Appellant with the stolen motor cycle which was consequently recovered from the Appellant and tendered and received as exhibit in the course of the trial.
On pleading not guilty to the two counts, the prosecution proceeded to prove its case by calling 4 witnesses. In the course of the trial, exhibits comprising the Appellants statement to the Police recorded from him in the course of the investigation of the case and the stolen Suzuki Motor Cycle recovered from the Appellant being the property the subject of the act of armed robbery were tendered and received evidence. At the close of the prosecution case, the learned trial Judge after hearing the Appellant in his defence and the respective addresses of the learned Counsel for the prosecution and the defence, in a well considered judgment delivered on 28th April, 1999, found the Appellant guilty of the two counts charge and convicted the Appellant accordingly. The Appellant was consequently sentenced to death.
Aggrieved by the judgment of the trial Court, the Appellant then appealed to the Ibadan Division of the Court of Appeal which after hearing, the appeal, in its judgment delivered on 25th February, 2010 allowed the appeal in part by substituting the conviction of the Appellant for conspiracy and armed robbery with that of conspiracy and simple robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act CAP 398, Laws of the Federation of Nigeria 1990 and sentenced the Appellant to 21 years imprisonment for each of the two counts to run concurrently.
The Appellant still not satisfied has appealed to the Supreme Court.
- Whether or not all the ingredients of the offence of robbery for which the court below convicted the Appellant had been proved beyond reasonable doubt by the prosecution?
- Whether the lower Court was right in upholding the learned trial Judge’s holding that the Appellant made the confessional statement relied upon by the said learned trial Judge in convicting him voluntarily?
- Whether the lower Court was right in holding that the identification parade was unnecessary even though the Appellant was never arrested while committing the crime?
- Whether any miscarriage of justice resulted in the decision of the Court of Appeal that the sentences of 21 years of imprisonment passed on the Appellant, were to take effect from the date of his conviction on 28th April, 1999 rather than the date of arrest of the Appellant on 9th September, 1995?
- Whether the lower Court could safely convict the Appellant of the offence of conspiracy from the legally inadmissible confessional statements allegedly made to PW2 and in Exhibits A and A1?
⦿ RESOLUTION OF ISSUE(S)
- ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The evidence of PW1 whose motor cycle was forcibly seized from him by the Appellant and his accomplice before they were intercepted and forced to stop with the stolen motor cycle found in effective possession of the Appellant almost immediately after the happening of the event of stealing by force, is enough in my own view, to prove all the ingredients of the offence of robbery, of which the Appellant was convicted by the Court of Appeal, Having regard to the evidence contained in the Appellant’s confessional statement Exhibits A and A1 admitted in evidence after the holding of trial within trial by the trial court, the conviction of the Appellant of the offence of simple robbery was fully supported by credible evidence in the confessional statement.
ii. In other words the law is well settled that where an accused person confesses to the commission of an offence, he can be convicted on his own confession alone once the confession is positive, direct and properly proved and as long as the Court is satisfied, as in the present case, the confession of the Appellant in Exhibits A and A1 to the commission of the offence of robbery as found by the Court below by forcibly seizing the motor cycle of PW1 which was immediately after the act of the robbery, found in his possession, was positive and direct to support the conviction of the Appellant.
- ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The case of Cpl. Jona Dawa v. The State (1980) 8-11 S.C 235, cited by the learned Counsel to the Appellant, indeed laid down conditions to be satisfied before a confessional statement may be admitted by a trial Court. These conditions include looking outside the statement to see if there is anything to show that it was true; whether: it was corroborated; whether the statement made in it of facts so far as can be tested are true; whether the accused person had the opportunity of committing the offence; whether the confession was possible and whether the confession was consistent with the other facts which have been ascertained and which have been proved before the Court. In the present case, the learned Counsel to the Appellant in his argument appears to have lost track of what happened at the trial Court when the learned trial judge quite rightly in accordance with the law, refused to use the statement of the Appellant admitted as Exhibits C and D on the ground that the person who acted as interpreter in recording the Appellant’s statement, was not called as a witness by the prosecution. The Appellants confessional statement Exhibit A and A1 were therefore correctly admitted and used as evidence in convicting the Appellant.
- ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the case at hand however, the case of conspiracy to commit robbery and robbery itself against the Appellant, does not wholly or substantially depend on the correctness of identification of the Appellant. The circumstances under which the Appellant with his accomplice committed the offences for which the Appellant was charged, tried and convicted, are such that the question of his identity can hardly arise. The Appellant, accordingly to virtually unchallenged evidence led by the prosecution, was apprehended immediately after forcibly dispossessing PW1 of his motor cycle. The stolen motor cycle was found in possession of the Appellant after his accomplice had escaped. The Appellant in his own confessional statement also admitted the Planning execution of the attack on PW1 to take possession by force of the stolen motor cycle found in possession of the Appellant, the Commission of which act he admitted on his arrest. It is my view that where an accused person by his own confession had identified himself with the Commission of the act constituting the offence he was charged with, the need for identification parade in such circumstances as happened in the instant case, is completely ruled out. In otherwords where the accused person is linked to the commission of the offence by convincing, cogent and compelling evidence, as was the case in the present case, an identification parade would case to be a relevant fact.
ii. In the circumstances of this case therefore, where the Appellant was virtually caught red-handed immediately after the commission of an act of robbery and in possession of the stolen property taken away from the owner thereof, the Court below was indeed right in holding that the holding of identification parade to identify the Appellant was unnecessary.
- ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Having regard to the fact that the Appellant was initially found guilty of conspiracy to commit Armed Robbery and Armed Robbery, for which he was sentenced to death by the trial Court on 28th April, 1999, the fact that the Appellant’s appeal having succeeded resulting in his being found guilty of lesser offences of robbery and conspiracy to commit same, which carry mandatory sentences of 21 years of imprisonment, simply because the Court below merely exercised its discretion to order that the sentences should start to run from the date of conviction of the Appellant by the trial Court in line with Section 381 of Criminal Procedure Act, the complaint of the Appellant of having suffered a miscarriage of justice, is definitely without basis whatsoever. The case of Osayeme v. State (supra) relied upon by the Appellant which deals with exercise of discretion of trial Judge passing a sentence, which this Court regarded as excessive, does not apply in the present case where the 21 years sentence of imprisonment is mandatory under the statute creating the offence. Therefore there was no miscarriage of justice to the Appellant in the sentence passed on him by the Court below to justify the review of the same by this Court.
- ISSUE 5 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The confessional statement of the Appellant also revealed how the plot commit the robbery was hatched between the Appellant and his accomplices when he said –
“On the 9th September, 1995 around 4p.m, myself Tumbosun and Taofik jointly left Lagos State down to Akute to celebrate with one of our friends called Nura. xxxxxx Three of us gone to the party around 5p.m and we did not stay more than one hour at the party before we left. As we are going on the road, Tumbosun and Taofik discussed with me that we will still snatch another motor cycle today. Immediately I heard these, I supported them, because this is not our first time doing such operation. As we are going on the road, we have moved about a kilometre to Nuru party, we saw an Okada driver. We stopped him. Immediately, he stopped, Tumbosun we started beating the driver and Tumbosun used the stick on him to hit, the Okada driver on the head. The Okada driver dropped his Motor cycle and ran away.”
The above confessional statement of the Appellant had not only established the offence of conspiracy against the Appellant but also the offence of robbery committed by him with his accomplices all of whom clearly belong to a gang of robbers who have been engaged in the business of snatching of motor cycles. With these revelations, I say the Court below was on very strong ground in affirming the conviction of the Appellant for the offence of conspiracy to commit robbery.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
Section 5(a) and 1(2)(a) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990.
⦿ SOME PROVISION(S)
Section 15 of the Robbery and Firearms (Special Provisions) Act, 1990 as follows – “robbery” means stealing and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
Section 381 of the Criminal Procedure Act which is thus: “381: A sentence of imprisonment takes effect from and includes the whole of the day of the date on which it was pronounced.”
Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990: “Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years”.
⦿ RELEVANT CASE(S)
The six guiding tests for the acceptance of a statement of an accused as confessional and acceptable as laid down in R v. Sykes (1913) 18 CR. App. R. 233 at 233-7 adopted in our Nigerian setting in CPL Jona Dawa v. State (1980) 8-11 SC 236 present, These guides are:- “(1) Is there anything outside it to show that it was true? (2) Is it corroborated? (3) Are the statements made in it of fact so as far as we can test them as true, (4) Was the prisoner a man who had the opportunity of committing the murder? (5) Is his confession possible? (6) Is it consistent with other facts which have been ascertained and which have been as in this case proved before us.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In this issue under consideration, it is quite plain that the Appellant is not complaining that the sentences of 21 years imprisonment for each of the two counts to run concurrently as passed upon by the Court below are excessive. This is because the sentence for the offence of robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act for which the Appellant was found guilty by the Court below in substitution for the sentence of death for Armed Robbery by the trial Court, is mandatory being imprisonment for not less than 21 years. – Mahmud JSC. Afolabi v. State (2013)
DOCTRINE OF RECENT POSSESSION: The law on the point is that: “If a theft has been committed and shortly afterwards the property is found in possession of a person who can give no account of it, it is presumed that he is a thief.” – Rhodes-Vivour JSC. Afolabi v. State (2013)