In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 24th day of April, 2020
Before Their Lordships
Musa Dattijo Muhammad
Chima Centus Nweze
Amina Adamu Augie
Paul Adamu Galinje
OLUMIDE OPEKE APPELLANT And
THE STATE RESPONDENT
(Lead Judgement delivered by Honourable Olabode Rhodes-Vivour, JSC)
The Appellant, in company of two others, at about 8:30pm on 8th February, 2010, robbed PW1 and PW 2, a husband and wife, at their residence in Idanre Gurage, Idanre Road, Akure. The three men who were armed with guns, forced open the gate of the compound. While two of them went into the house, the third man went back outside the gate. The sum of N134,000.00, a handset and MTN rechargeable cards were stolen by one of the armed robbers who went into the room with PW 2 (the wife), while the other one beat up PW 1 (the husband) and members of the family, before locking them up in a room. After the robbery and when the armed robbers were leaving the house, one of the children escaped and alerted the neighbours about the incident. Two of the armed robbers escaped, but the Appellant was arrested in the neighbourhood and handed over to the Police.
The Appellant was consequently, arraigned before the High Court of Ondo State, Akure, on a two count Charge of conspiracy to commit armed robbery and armed robbery. He pleaded not guilty to the counts, and trial commenced. The couple and two Police officers gave evidence for the State, while the Appellant testified in his own defence. Exhibits, including the confessional statements of the Appellant were tendered and admitted in evidence, after a trial-within-trial. In its judgement, the trial court found that the Prosecution proved its case beyond reasonable doubt, and therefore, convicted the Appellant as charged. He was sentenced to death in accordance with Section 1(3) of the Robbery and Firearms (Special Provisions) Act.
Aggrieved with the judgement, the Appellant filed an appeal to the Court of Appeal, which court affirmed the decision of the trial court. Still not satisfied, he further appealed to the Supreme Court.
Issue for Determination
The sole issue considered by the Supreme Court was:
Whether the Prosecution had proved its case beyond reasonable doubt, to justify the conviction of the Appellant for the offences charged.
Counsel for the Appellant started his submission by observing that there were major contradictions in the extra-judicial statements and oral testimonies of PW 1 and PW 2. Counsel argued that, it would be doing great injustice to accept any version of the facts of the incident. Counsel argued that the lower court ought to have applied the inconsistency rule to the testimony of the witnesses, and hold that their testimony is unreliable. He argued further that from the evidence before the court, there was doubt about the identity of the Appellant as one who robbed PW1 and PW2. With respect to the confessional statements, counsel submitted that there was no evidence outside the confession to establish them as true. He urged the court to resolve the contradictions and inconsistencies, in favour of the Appellant.
Debunking the submissions above, counsel for the Respondent referred to the facts of the case and the evidence of PW 1 and PW 2, whereby they gave graphic and detailed narrations about the robbery. Responding to the submission about convicting the Appellant based on his uncorroborated confession, it was argued contrariwise that the conviction was not based solely on the confession of the Appellant, but also on the evidence of eye witnesses. Regarding the issue of identification parade, counsel submitted that same was unnecessary, as the Appellant was arrested immediately after the incident and promptly recognised by PW 1 and PW 2. He posited that there was no contradiction in the evidence, to cast doubt in the mind of the Judge. Finally, counsel urged the court to dismiss the appeal.
Court’s Judgement and Rationale
Deciding the sole issue, the Supreme Court held that, for an offence of conspiracy, it is not necessary for the conspirators to know each other. Once the court can infer an agreement between parties or knowledge of the existence and intention of the conspiracy, a strong presumption of conspiracy is established. The court went further to hold that an accused person cannot be convicted of conspiracy to commit an offence on the strength of the accused person’s own confession, unless there is an independent evidence that at least one other person had conspired with him. The court went on to hold that though a confessional statement which is shown to be voluntarily made, positive, direct and unequivocal, is enough to ground a conviction, it is however, desirable that some evidence outside the confession is available . The confession should be consistent with other ascertained facts. In this case, the confession of the Appellant was free, voluntary and in itself fully consistent and probable. The inculpating statements were corroborated by several facts, including the recovered stolen handset and bullet. It is also clear from the evidence led, that there was armed robbery on 8th February, 2010 at the residence of PW 1 and PW 2. The Appellant was one of the armed robbers who took part in the robbery, and all these facts were established beyond reasonable doubt by the Respondent.
Regarding the issue of contradictions and inconsistencies in the evidence of the Prosecution, the court restated the trite principle of law that where there are conflicting evidence which in effect creates a serious doubt in a criminal trial, the accused person should be given benefit of the doubt and acquitted. Evidence are said to be conflicting when one affirms the opposite of what the other evidence stated, and not where there is a minor discrepancy between them – EKE v STATE (2011) 1-2 SC (Pt. II) 219. In R v GOLDER (1960) 1 WLR 1169, Lord Parker, Chief Justice of England held that: “ When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn do not constitute evidence upon which they can act.”
The rule above is applicable in Nigeria with slight modification, in that if the case is before a trial Judge, the witness should be given the opportunity while under oath to explain the inconsistency, and it is only when he is unable to explain the inconsistency that the rule is applied – WILLIAMS v STATE (1975) 9-11 SC 139.
Their Lordships went further to postulate a guide for determining inconsistency or material contradictions in a case of armed robbery thus: “There must not be contradiction on material facts. Contradictions on material facts in a case of armed robbery such as this, may arise when there are contrasting views on issues such as – (a) how many robbers came into the house; (b) how was the robbery carried out; (c) what was stolen and were the stolen goods recovered; (d) how was the robber apprehended; (e) was there light and about what time did the robbery occur; (f) were the robbers masked, and how were they dressed. Where there are contradictions on any of the above, the witness ought to have been called to explain, and where no satisfactory explanation is made, the entire evidence and testimony of the witness should no longer be relied on by the court.”
Minor discrepancies other than those mentioned above, are allowed in law. In this case, PW 1 made an extra-judicial statement a day after the armed robbery at his house. He detailed the facts of the robbery, and when he gave evidence in court about two years after, his testimony was without major departure from his statement. PW 2 also made an extra-judicial statement like PW 1, a day after the armed robbery and gave oral testimony in court about two years after. Comparing the statement with the evidence given in court, there is no contradiction safe for minor discrepancies which are allowed in law, as they did not touch on the salient issues. It follows that, the prosecution proved the case beyond reasonable doubt.
Regarding the issue of identification parade, the court found that there must be real doubt as to who the witness claims he saw committing the offence before an identification parade is conducted, and this is done during investigation of the case by the Investigating Police Officer. In this instance, such parade was absolutely unnecessary, since PW 1 and PW 2 were reliable eye witnesses who saw the Appellant clearly, gave flawless evidence as to what he was wearing, and the fact that he was arrested immediately after the robbery.
R.A. Aladesanmi with G.A. Okewole for the Appellant.
- Oladeji for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)