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COURT OF APPEAL, (LAGOS DIVISION)
TUESDAY, 18TH JUNE, 1991.
BEFORE THEIR LORDSHIPS
ADENEKAN ADEMOLA, J.C.A. (Presided)
FRANCIS OLISA AWOGU, J.C.A.
NIKI TOBI, J.C.A. (Read the Leading Judgment)
Mrs. Stella Ugboma – for the 2nd Appellant
A.O. Akpovi – for the 3rd Appellant
David Onyeike, Legal Officer, Ministry of Justice, Lagos State – for the Respondent
CRIMINAL LAW AND PROCEDURE:– Armed robbery – Proof of – Ingredients of the offence under section 402 (2) (a) of the Criminal Code Law of Lagos State
CRIMINAL LAW AND PROCEDURE:- Confession – Legal foundation for the procedure of a trial within trial – History and purpose of – Challenges of
CRIMINAL LAW AND PROCEDURE:- Confession – Distinction between a confession and a denial statement – Duty of appellate court where a denial is treated as a confession by trial court
CRIMINAL LAW AND PROCEDURE:– Conspiracy – Meaning of – How established – Nature of evidence required – Whether apart from direct and distinct evidence it is open to the trial Judge to infer conspiracy from relevant facts – Justification
CRIMINAL LAW AND PROCEDURE:– Proof of crime – robbery – Doctrine of recent possession under section 148(a) of the Evidence Act– Whether the presumption of recent possession as contained in section 148(a) of the Evidence Act is not a presumption of law but a presumption of fact– How applied
CRIMINAL LAW AND PROCEDURE:– Legal difference between the discharge of an accused person and acquittal – When proper to discharge and acquit – Legal implications – Sections 33 (9) of the 1979 and Common Law Rules of autrefois acquit and autrefois convict
CONSTITUTIONAL LAW – FAIR HEARING:- 33(9) of the 1979 Constitution – Implication for a person discharged and acquitted of an offence
PRACTICE AND PROCEDURE – EVIDENCE:– Types of – Admissibility of – Presumption of “recent possession” – What constitutes – Whether a trial Judge has jurisdiction to believe evidence of a witness in installments – What constitutes confessional statement – Duty of trial court in relation thereto
WORDS AND PHRASES:- ‘confess’ – ‘confession’ – ‘confessional statement’ – Meaning of
TOBI, J.C.A (Delivering the Leading Judgment):
This is yet another armed robbery case. The appellants are three. They were charged with conspiracy to commit armed robbery under section 403 A of the Criminal Code Law of Lagos State. That is the first count. They were also charged with the substantive offence of robbery under section 402 (2) (b) of the same code. That is the second count.
Armed robbery is quite rampant in this country, particularly in recent times. And more particularly in the Lagos Area. So also are the appeals to this court. We get them very regularly. They come almost every other day. The trend is not only alarming but fairly frightening. But that is beside the point. Our concern here is with the legal position in relation to the facts. Let me first tell the story before the law and all that.
On 11th September, 1981, P. W. 1 was sent on an errand by P. W.2, his father. He left for the errand from their 77 Adeniji Jones Avenue residence at 6.30 a.m. to one Chief Lamikanra who lives at Anthony Village, Ikorodu Road. P.W.1 went in his mother’s Mercedes Benz 280. He drove it himself. The car bears Registration Number LA 6788K. P.W.1 got to the residence of Chief Lamikanra. He parked the car and delivered the message to Chief Laminkanre. He returned to the car and drove off.
As he was about to enter the main tarred road, a Peugeot 504 saloon car suddenly blocked him from entering the road. Some men came down from the car and joined some others who were already at the junction. They converged on him with cutlasses in their hands. They forced the door of the Mercedes Benz open. They dragged him out of the car. He ran to save himself from further attack. The gang pursued him with cutlasses in their hands. P.W. 1 ran into the house of Doctor Beko Kuti. He telephoned the parents on the incident.
Thereafter he went to the scene of crime. The car had been taken away by the gang. They abandoned the Peugeot 504 saloon car. PW4 and his parents reported the incident at the Pedro Station. They also made statements.
Later on the same day a policeman came from Badagry Police Station to the house of P.W.2 and reported that the Mercedes Benz car had been recovered. P.W.1. and P.W.2 accompanied the policeman to Badagry and they identified the car. They also made statements at the Badagry Police Station.
There is also evidence that on the eventful day, the 3rd appellant contacted P. W.3, a motor mechanic at his workshop at Ajara Village to help him change a tyre of the said Mercedes Benz car. P.W.3 followed the 3rd appellant, He saw 1st and 2nd appellants by the car. As P.W.3 was assisting the appellants to change the tyre. of the car, P.W.6, who had earlier received a tip off, came and arrested the appellants and P. W.3.
The appellants were duly charged and prosecuted. The learned trial Judge found them guilty of the first count of conspiracy, and convicted them accordingly. He however did not find them guilty of robbery as charged. But he found them guilty of robbery under section 402(1) of the Criminal Code. He therefore sentenced the appellants each to an imprisonment of 25 years on each count and the sentences were to run concurrently.
Dissatisfied with the decision, the appellants have come to us. The respondent also filed a cross appeal. Briefs were exchanged and argued. Learned counsel for the 1st appellant formulated five issues for determination; learned counsel for the 2nd appellant also five issues and learned counsel for the 3rd appellant eleven issues. On the other hand, learned counsel for the respondent, in his joint brief, formulated four issues for determination in the main appeal and one issue in the cross appeal. It will be quite prolix and unwieldy to reproduce all the arguments of counsel.
Mr. F. Ola Uddoh, counsel for the 1st appellant in his brief of argument submitted that where there is an objection on the part of an accused person as to the voluntariness of a statement, the Judge should first hear evidence on the point from both parties and make a ruling on the admissibility of the statement before receiving or rejecting it in evidence. He relied on R v. Onabanjo (1936) 3 W.A.C.A. 43; R v. Kassi (1939) 5 W.A.C.A. 154; R v. Bodom (1935) 2 W.A.C.A 390, and Sections 27 (2) and 28 of the Evidence Act. The incidental inquiry which the Judge makes in order to determine the admissibility of the disputedly voluntary confession is the procedure of a trial within a trial, counsel submitted relying on R v. Igwe (1960) 5 F.S.C. 55., (1960) SCNLR 158
Learned counsel argued that the learned trial Judge adopted a wrong procedure in the trial within trial by making the 1st appellant start giving evidence instead of the prosecution. The burden on the prosecution to show that the statement was voluntarily made never shifts. The enquiry never starts with the accused or any other defence witness being heard first as by so doing the prosecution wrongly shifts the onus placed on it unto the accused. He relied on Adekanbi v. Attorney-General West (1966) 1 All N.L.R.47; Ashake v. The State (1968) 2 All N.L.R. 198; Auto v. The State (1975) 1 All N.L.R. (pt. 1) 165.
Counsel submitted specifically that since the correct procedure was not followed in the trial within trial, Exhibit H was wrongly admitted, which made the whole trial a nullity. He called in aid R. v. Thompson (1893) 2 Q.B.2 and Oku v. The State (1970) 1 All N.LR. 60 at 68. He contended that since Exhibit H was the only evidence upon which the conviction of the 1st appellant was based, its expunction will result in his acquittal.
On the charge of conspiracy, counsel submitted that there is nothing in Exhibits J and K that disclose conspiracy– to rob by the three appellants vis-à-vis Exhibit H, assuming (without conceding) that Exhibit H was properly admitted. He urged the court to quash the conviction and the sentence passed on the 1st appellant.
Learned counsel for the 2nd appellant, Mrs. Stella Ugboma, in her brief of argument as well as her reply brief to the respondent’s cross appeal, submitted that there was no evidence of any conspiracy either directly or by inference from the circumstances of the case. She relied on Majekodunmi v. The Queen (1952) 14 W.A.C.A. 64; and Mohammed v. The State (1980) 1 N.C.R. 140.
Dealing with the doctrine of recent possession, learned counsel submitted that section 148(a) of the Evidence Act cannot apply in this case because the 2nd appellant has by Exhibit l. given reasonable explanation of being in possession of the stolen vehicle, an explanation which was not contradicted by the prosecution. Relying on Olufola v The State (1968) N.N.C.R. 262; Queen v. Obiasa (1962) 1 All N.L.R. 651(1962) 2 SCNLR 402 and section 177(2) of the Evidence Act, Counsel submitted that Exhibit H, being a confessional statement of the 1st appellant, is a testimony of a co-accused and accordingly not evidence against the 2nd appellant. It was also her submission that mere possession of stolen property is not sufficient to warrant a conviction. She relied on The Queen v. Ororosokode (1960) 5 F.S.C.208. (1960) SCNLR 501. To counsel, since the evidence of P.W.3 was rejected by the learned trial Judge, there was no other evidence on which the lower court could have convicted the 2nd appellant on the basis of recent possession.
At best, the 2nd appellant could have been guilty of receiving stolen goods, learned counsel argued. She relied on Archbold Criminal Pleading, Evidence and Practice, 3rd Edition, Volume 2, chapters 18 to 56 as well as the following cases: The State v. Olumuyiwa and others(supra) 2 N.C.R. 297; Queen v. Obiassa (supra). Counsel also attacked the procedure adopted by the learned trial Judge in the trial within trial. Describing the procedure as grossly inadequate, she submitted that the conviction cannot stand. She relied on Lawson v. The State (1975) 4 S.C.115 at 132 to 136 and Oku v. The State (1970) 1 All N.L.R. 60.
Replying to the cross appeal, learned counsel submitted that the lower court ought to have discharged and acquitted the 2nd appellant instead of reducing the charge against him since there was no direct evidence linking any of the appellants to a threat of violence against P.W.1. She relied on Omohodion v. Commissioner of Police (1961) All N.L.R. 594, (1961) 2 SCNLR 253 and R. v. Ogodo (1961) All N.L.R. 700. (1961) 2 SCNLR 366 Counsel finally urged the court to allow the appeal of the 2nd appellant, and discharge and acquit him accordingly. Learned counsel for the 3rd appellant, Mr. A. O. Akpovi, submitted that the learned trial Judge ought to have upheld the defence of alibi of the 3rd appellant in the circumstances of the case. Calling in aid Nwosisi v. The State (1976) 6 S.C. 109, he contended that the police ought to have investigated the defence of alibi. He also relied on Ikono v. The State (1973) 5 S.C.231 and Omorogbe v. Lawani (1980) 34 S.C. 108.
Dealing with what he regarded as inconsistencies and contradictions in the evidence of the prosecution witnesses, counsel submitted that the court ought to have resolved the doubts in favour of the accused persons. Counsel also submitted that Exhibit K was not a confessional statement and the learned trial Judge was wrong in treating it as one. He referred to Omisade v. The State (1964) 1 All N.L.R. 233 at 238 and The State v. Enabosi (1966) 2 All N.L.R. 116. The learned trial Judge was wrong in accepting the evidence of a co-accused without complying with the provisions of section 177(2) of the Evidence Act, counsel argued. He submitted that the statements made by one accused person cannot be evidence against another who denies the contents of such statement. He relied on Atanda v. Attorney-General (1965) N.M.L.R. 225 and Ozaki and Another v. The State (1990) 1 W.B.R.N. 55 at 61.(1990) 1 NWLR (Pt.124) 92 Suspicion, however strong cannot take the place of legal proof, and before a conviction can be based on circumstantial evidence, ‘such evidence must not fall short of the standard required by law, that is, the prosecution must prove its case beyond reasonable doubt, counsel argued.
Arguing that the prosecution did not establish a case of conspiracy against the 3rd appellant, counsel submitted that an accused person cannot be convicted of conspiracy to commit an offence on the strength of his own confession unless there is an independent evidence that at lease one other person had conspired with him. Counsel relied on Fayemi v. Attorney-General (1966) 1 All N.L.R. 186 at 188; Nnaji v. Inspector-General of Police (1957) 2 F.S.C. 18 at 19. (1957) SCNLR 156. Counsel also submitted that the doctrine of recent possession cannot apply where an explanation has been offered at the trial. In the circumstances of the case, counsel submitted that the learned trial Judge wrongly applied section 148(a) of the Evidence Act. He also attacked the procedure adopted by the learned trial Judge in the trial within trial. Counsel urged the court to allow the appeal of the 3rd appellant.
Learned counsel for the respondents, Mr. David Onyeike, Legal Officer, in his joint respondent’s brief which included the cross appeal, dealt exhaustively with the issue of trial within trial. Tracing the history of trial within trial in Nigerian law, learned counsel said that it was a colonial heritage which was applicable in Nigeria when the jury system was in operation. Since the abolition of the jury system in Lagos State, the procedure of trial within trial was no longer necessary.
He referred us to the decision of the Supreme Court in Michael v. The State (1990) 1 T.L.R. (Pt. 1) 34 at 45. He submitted that the procedure has the effect of eroding and indeed does erode the presumption of innocence guaranteed by section 33(5) of the 1979 Constitution.
Even if there was any irregularity that occurred in the trial within trial, which is denied, there is no authority that the irregularity make the entire trial a nullity. It only makes the exhibits inadmissible, counsel argued. He relied on Auto v. The State (1975) 1 All N.L.R. 165.
On the 1st and 2nd appellants vis-à-vis the offence of armed robbery, learned counsel made reference to the evidence of P.W.6 and submitted that they were guilty of the offence as charged. He contended that the doctrine of recent possession was applicable to them. He however could not support the conviction of the 3rd appellant. To counsel, the 3rd appellant, though found with the 1st and 2nd appellants with the vehicle, offered explanation before and during the trial which showed that he was merely a receiver of the stolen item. Counsel did not agree that Exhibit K, was a confessional statement. He urged the court to discharge the 3rd appellant.
On the charge of conspiracy, learned counsel submitted that there is evidence of conspiracy to commit the offence on the part of the 1st and 2nd appellants. He recalled specific acts of the appellants to substantiate his submission. On the cross appeal, learned counsel submitted that the learned trial Judge was clearly in error in holding that the prosecution did not prove any threat to violence. Relying on section 402(2)(a) of the Criminal Code (Amendment) Law, 1980, counsel submitted that a person who, at the time of committing the offence, was in possession of an offensive weapon does not cease to be guilty merely because he disposed off the weapon at the time of his arrest. Dealing with the relevant evidence of the witnesses, learned counsel called in aid section 75 of the Evidence Act, Adelumola v. The State (1988) 1 N.W.L.R. (Pt. 73) 683 at 691, William v. The State (1975) 9-11 S.C. 129 at 136, and Okosun v. The State (1985) 11 S.C. 194, and urged the court to set aside the finding of the learned trial Judge and convict the 1st and 2nd appellants, as charged.
Let me quickly dispose of the case of the 3rd appellant. Learned counsel for the 3rd appellant urged us to acquit him. Learned counsel for respondent urged us to discharge him. There is an agreement on the part of both counsel that he was wrongly convicted. I entirely agree with both counsel. I would rather say that the 3rd appellant was a mere victim of the prevailing circumstances. He did not commit the offences he was charged with. There is no evidence that he conspired with any of the other appellants to commit the offence. There is also no evidence that he committed the offence.
So far so good. But there is a world of legal difference between the discharge of an accused person and acquittal. The law is very elementary that it need not be stated. But I will state it in view of the position taken by learned counsel for the respondent. An accused person who is discharged of an offence stands the risk of being charged of the same offence. This is because in the eyes of the law he did not receive a full trial on the merits of the case. On the other hand, an accused person who is discharged and acquitted will not face the ordeal of a second trial on the same offence. He is free for all times and for all purposes as far as the particular offence is concerned. If he is so charged, section 33(9) of the 1979 Constitution will come to his aid. This apart, he has available to him the common law defences of autrefois acquit and autrefois convict, depending upon the particular situation. See section 221 of the Criminal Procedure Act. See also Edu v. Commissioner of Police (1952) 14 W.A.C.A. 163; Ogenyi and others v. Inspector General of Police (1957) N.R.N.L.R.140; Inspector-General of Police v. Marke (1957) 2 F.S.C.5. (1957) SCNLR 53 Inspector-General of Police v. Johnson (1959) L.L.R.35.
In the instant case, the 3rd appellant was alleged to have committed the offence way back in 1981. He was put in custody at that time. And he was finally convicted and sentenced to 25 years imprisonment. He has been in incarceration for the past ten years. Since he is not found guilty of the two offences, I am inclined not only to discharging but also acquitting him. He is accordingly discharged and acquitted in all the two counts.
Let me now take the issue of a trial within trial. All counsel dealt with it at some length. The first point I would like to address myself is whether there is an enabling law on the procedure of a trial within trial. I have examined all the relevant adjectival laws on the procedure and I cannot place my hands on any enabling law on the issue. There is no provision in the Evidence Act on it. There is also no provision in either the Criminal Procedure Act or the Criminal Procedure Code on the issue. I do not even see the procedure in the Judges Rules of England, 1964, applicable to the Southern States and the Criminal Procedure (Statement to Police Officers) Rules 1960, applicable to the Northern States. I can still go further to say that the procedure is not contained in the substantive criminal laws of the country. And here I have in mind the Criminal Code and the Criminal Procedure Code. Of course, I do not expect the codes which deal with substantive offences to make provision for a trial within trial, which is procedural in nature.
And so, the question is: why is it still part of Nigerian law? Historically, Nigeria was a British colony. This was way back in 1861, until 1960 when she became independent. Being a British colony, English law was made applicable to Nigeria, with certain restrictions. Section 45 of the Interpretation Act made the reception of English law possible in Nigeria. Since one aspect of the laws received by Nigeria was the English Common law, the English Procedure of a trial within trial was received. The courts in Nigeria therefore used the English Common law procedure whenever there was a denial by an accused person that he made a confessional statement voluntarily. See Auta v. The State (1975) 1 All N.L.R. (Pt. 1) 165; Owie v. The State (1985) 1 N.W.L.R. (Pt. 3) 470; Ogbodu v. The State (1986) 5 N.W.L.R. (Pt.41) 294; Okaroh v. The State (1988) 3 N.W.L.R. (Pt.81) 214.
As rightly pointed out by learned counsel for the respondents, the procedure of a trial within trial is basically necessary in respect of jury trials. In such a situation, the law will not like to expose the jury to the contents of a confessional statement which may not be admitted after all. The rationale behind this was to ensure that the jury was not influenced by the inadmissible evidence, in the decision making process. There is no jury system in Nigeria now, as far as my little knowledge carries me. And this has been since 1975 when the Lagos State by Edict No. 1 of that year abolished Jury trial in the State.
There are many problems surrounding the procedure of a trial within trial. First, it protects the judicial process. It is a matter of experience that a criminal trial can be prolonged for weeks and months, because of a trial within trial. Second, in most cases, the exercise is not realistic because the issue of admissibility of the evidence is being tried by the same court as the one which determines guilt. And this takes me to the third problem and it relates to the psychology the inadmissibility of the evidence has on the court in the subsequent determination of the guilt of the accused. The court may have its prejudices. This is a human element which can hardly be ruled out. A Judge might believe as a matter of fact that the accused person’s confessional statement is true but purely on a technical ground of law ruled it inadmissible. In such a situation, the psychology of the belief might work against the accused person. While an appellate court may get the accused person out on that ground, he has already suffered some reverse in the judicial process.
Four, there are some constitutional problems surrounding the procedure. I am not quite sure that the procedure can really sail through the provisions of section 33 on fair hearing. I will not pursue that aspect here.
In my humble view, the procedure of a trial within trial is unnecessary duplication in our criminal process. It wastes so much valuable trial time. It does not necessarily work in favour of the accused person, a person who is presumed innocent by the Constitution until he is proved guilty.
In view of the fact that I cannot place my head and my hands on any enabling law on the time honoured practice, I hold that it is not part of Nigeria law, particularly in republican and sovereign Nigeria where there is no jury system. With the above, I dare say that the trial within trial conducted by the learned trial Judge is superfluous. In other words, it was a surplusage. I would, in the place of trial within trial, like to see a procedure where the trial Judge resolves the issue of confessional statement at the end of the trial, in the same way he resolves all other issues in the judgment. That looks to me tidier and neater and less troublesome.
It is possible I am wrong. Assuming I am wrong in my conclusion, I should take a related issue. And it is this. What injustice have the appellants suffered from the irregular procedure adopted by the learned trial Judge? Could the appellants have been discharged and acquitted but for the wrong procedure followed by the learned trial Judge? Were the appellants denied a hearing on the statements made by them? My answers to all the above questions are in the negative. All the appellants had the opportunity to react to the statements and they really reacted. Where lies the injustice? I see none. And I so hold.
I move now to the issue of confessional statement. The learned trial Judge held that all the three appellants confessed to the commission of the offences charged. He relied on Exhibits H, J and K as the confessional statements of the 1st, 2nd and 3rd appellants respectively.
The word ‘confess’, the verb variant of the noun, `confession’, in general parlance, means to acknowledge fully, especially something which is wrong. It also means to own up or admit, again particularly a wrong. Legally, the word ‘confession’ means an admission of an offence by an accused person. It means an acknowledgment of crime by an accused person. In Saida v. The State (1982) 4 S.C.41, the Supreme Court defined ‘confession’ as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. See also Akpan v. The State (1990) 7 N. W.L.R. (Pt. 160) 101.
Therefore a statement which is made by an accused person admitting or acknowledging the fact that he really committed the offence for which he is charged is called a confessional statement. Because a confessional statement is, in most cases, a short cut to determining the guilt of an accused person, a court of law should not take it lightly. Because the owner of the mind knows his mind best as he is the master of it, because the committer of an offence knows the offence he has committed better than any other person, once he voluntarily admits the commission of the offence, the only function of the court, in most cases, is to convict him. There are however certain situations where the law requires some corroboration. As a matter of law, confessional statement voluntarily made appears to me to be the strongest evidence because it comes out directly from the head and mouth of the accused person himself.
Because of the importance attached to confessional statement in the administration of our criminal process, a trial Judge must be very sure and satisfied that a statement is really a confessional statement and not a caricature of it.
A confessional statement must be clear, precise and unequivocal. A confessional statement should, on no account, give any room for doubt in the mind of the trial Judge. Once the trial Judge nurses some doubt, however thin or infinitesimal it may be, that doubt must be resolved in favour of the accused person. By this singular act, he has vindicated the basic requirements of the adversary jurisprudence that we operate. Otherwise no.
In considering whether a statement qualifies as a confessional statement, a trial Judge must examine the totality of the statement as if it is a ‘corporate’ entity. A trial Judge cannot pick phrases here and there or expressions here and there and come to the conclusion that the statement is a confessional one. He has no such jurisdiction.
What constitutes confessional statement is a matter of fact. It is not a matter of law. After all, the trial Judge is dealing with the factual position of the statement, and that is his only interest. Accordingly, where the interplay of the facts of the statement does not unequivocally satisfy the requirements of a confessional statement, a trial Judge will be in error in admitting it as such a statement See generally Shazali v. The State (1988) 5 N.W.L.R. (Pt. 93) 164; Ojegele v. The State (1988) 1 N.W.L.R. (PL 71) 414; Okaroh v. The State (1990) 6 N.W.L.R. (pt. 155) 141.
If at all any statement does not qualify as a confessional statement, it is the statement of denial of the commission of the offence by the accused person. As a matter of fact, the opposite of confessional statement, if I may so naively put it, is the statement of the accused person denying the commission of the offence the instant case, the learned trial Judge admitted the statements of the 1st and 2nd appellants as confessional statements. I am in agreement with him in respect of the 1st appellant. I am afraid, I part ways with him in respect of the 1st appellant. I have gone through Exhibit J, the statement the learned trial Judge admitted and made use of as a confessional statement, in his judgment, and I cannot see my way clear that it is in fact a confessional statement.
Perhaps the point I am making will become clear if I sate hereunder, verbatim ad literatim the statement of the 2nd appellant. I can do this with convenience as it is not a long statement. This is what he said in his 21/9/81 statement to the Police:
“On the 11/9/81 at about 6 a.m. I was in my house when Ganiyu came to call me. He told me that I should come and escort him to Seme Border to go and sell something. We entered bus at Alaba Bus Stop to Amuwo Odofin i.e. Festac Village. We got there and carried one Innocent in his house. He dressed up and followed us. We went to the place where the Mercedes Benz No. LA 6788K was parked just two blocks near Innocent’s Block. We all entered the Mercedes Car and left for Badagry. The car was driven by Innocent Obodoekwe. When we arrived Badagry the car got punctured. Soon Innocent and Ganiyu left me where the car got punctured. Later Ganiyu came but Innocent came with a mechanic to change the spare tyre. As the mechanic was about to finish police came and arrested us to Badagry Police Station. I don’t know Innocent before. It was on that Friday 11/9/81 that Ganiyu came to call me to escort them to Seme Border to go sell motor. I asked him who has the car and he said it belonged to his master. When I started to ask him again he said that one Alhaji used the car in sending him message and he now wants to go and sell the car. I know Ganiyu for a long time. He used to come and buy palmwine from me. I used to see Ganiyu drive motor always. He drives different types of vehicle. I am not a robber. My name is Timothy Ayelabola. I am not bearing Bayo. That is all.”
Because the learned trial Judge believed that the above statement is a confessional statement that made him to conduct a trial within trial. This is part of what he said as it related to all the three appellants:
“They each denied their respective statements at the trial. A trial within trial was conducted, at the end of which the court was of the view that the statement credited to each of the accused persons, namely, Exhibits’ H’, ’J’ and ’K’, respectively was made voluntarily by the accused concerned.”
As a ‘preface’ to the reproduction of the so-called confessional statement of the 2nd appellant, the learned trial Judge said:
“Similarly, the 2nd accused in Exhibit ‘J’ confessed in material particular to the commission of the offence. He stated as follows:” And later in the judgment he drew his conclusion thus:
“Obviously, Exhibits ‘H’, ’J’ and ‘K’ are confessional statements. Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them in section 27(2) of the Evidence Act”.
And so the learned trial Judge closed the curtain with a 25-year sentence.
How can Exhibit J be a confessional statement? What portion of it gave the learned trial Judge that impression? How and why did he come to that conclusion? What are the ’material particulars’ of the facts contained in the alleged confessional statement? One can ask and ask questions galore.
The factual and true position of Exhibit 1 is that it is not a confessional statement. Far from it. It cannot be. On the contrary, it is a statement of denial on the part of the 2nd appellant. If the learned trial Judge was not quite sure whether the statement was a denial right through, it ought to have dawned on him in the penultimate five-word sentence that the statement was nothing but a clear denial of the 2nd appellant’s participation in the crime. Let me once again quote the very important sentence in Exhibit J.
“I am not a robber”
Such are the clear words of the 2nd appellant. He said that he is not a robber. And there is nothing in the rest of Exhibit J to the effect that he committed the offences he was charged with in my view, Exhibit J was wrongly admitted as a confessional statement and I so hold.
I shall return to the case of the 2nd appellant. But for now, let me take the offence of conspiracy. The verb, ‘conspire’ ordinarily means to plot or scheme together. It also means to act together to one end; to plan. Conspiracy, which is the act of conspiring, ordinarily therefore means a banding together for a purpose, often in secrecy and often unlawfully.
Legally, conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way. In effect and for short, the purpose of the meeting of the two or more minds is to commit an offence. In law, it takes at least two minds to meet and the two minds must really meet with a common intention and common purpose. The ordinary meeting of the two minds does not fuel the offence of conspiracy without the corresponding or associated element of crime commission. A mere meeting of the minds to commit some organised vulgarism or to perform a conduct bordering on some moral turpitude, cannot give rise to the inchoate offence of conspiracy.
Therefore in a charge of conspiracy, the prosecution has the burden to prove not only the inchoate or rudimentary nature of the offence but also the meeting of at least two criminal minds with a common intention and purpose to commit a particular offence or offences. And in the relevant offence of armed robbery and conspiracy to rob, the burden is on the prosecution to prove that conspiracy. See Iyaro v. The State (1988) I N.W.L.R. (Pt. 69) 256.
In determining whether the minds of the accused persons really met to commit an offence, the court should not only consider the physical meeting of the minds in a known and identifiable place or spot as the crime hatching or planning base or ground, but the totality of the conduct of the parties in what I may unguardedly refer to as the ‘campaign efforts’ of the minds towards the commission of the crime. Therefore the offence of conspiracy could be committed through either written communication by way of letter or oral communication by way of message. Once the court comes to the conclusion that the prosecution has established some community effort on the part of the accused persons aimed at committing a crime, there should be no difficulty in convicting them of conspiracy, unless there exists other mitigating circumstances. The courts have handed down a number decisions on the crime. See generally Clark v. The State(I986) 4 N.W.L.R. (Pt. 35) 381; Ahioye v The State (1987) 2 N.W.L.R. (Pt. 58) 645; Okosun v. Attorney-General, of Bendel State (1985) 3 N.W.L.R. (Pt.12) 283; Ikemson v. The State (1989) 3 N.W.L.R. (Pt. 110) 455.
So much of the principles. Now the factual position. The facts of the case point to the fact that the one evidence of conspiracy against the 1st and 2nd appellants as found by the learned trial Judge, is Exhibit H, the confessional statement of the 1st appellant. Before I reproduce the relevant portion, let me say that Timothy Ayelabola is the 2nd appellant. This is part of the confessional statement of the 1st appellant:
“On the 11/9/81 at about 5 a.m. I left with Timothy Ayelabola to Anthony Village with other 3 boys whom I can identify if seen. It was Timothy who planned the arrangement of going to Anthony for the operation.”
That is not all. The learned trial Judge also found evidence of conspiracy in Exhibit J, the statement of the 2nd appellant. I have already reproduced the statement, and I will not repeat it here.
Although both appellants took a complete ‘u’ turn at the trial, I entirely agree with the learned trial Judge that the two statements are conclusive of the offence of conspiracy and I so hold. In Exhibit H the 1st appellant said that the 2nd appellant “planned the arrangement of going to Anthony for the operation.”, In Exhibit J,. the 2nd appellant said that he was called by the 1st appellant to escort him to Seme border to go and “sell something.” By the evidence, each appellant shifts the crime on the other. But they do not seem to have succeeded in the shifting exercise.
The law is trite that for the purposes of convicting on conspiracy, direct and distinct evidence, though most desirable is not invariably indispensable. It is open to the trial Judge to infer conspiracy from the fact of doing things towards a common end by the execution of a planned and premeditated common intention and a common purpose. This is because the crime of conspiracy is usually hatched with utmost secrecy and the law recognises the fact that in such a situation, it might not always be easy to lead direct and distinct evidence.
Now to the substantive offence of armed robbery. In the recent case of Adeyemi and others v. The State (1991) 1 N.W.L.R. (Pt. 170) 679, the Supreme Court held that the ingredients of the offence of armed robbery under section 402 (2) (a) of the Criminal Code raw of Lagos State are that (i) the person charged with the offence must be armed with any firearms or any offensive weapon or chemical or obnoxious material; and (ii) that the person charged with the offence even if not armed must be in company of any person so armed. Olatawura, J.S.C. said at pages 689 and 690:
‘“To secure a conviction (i) and (ii) above must be proved where there are more than one accused person…”
The court further held that it is not a requirement of section 402(2)(a) that violence must be proved to secure a conviction under the section. See also Ajiloye v. The State (1983) 6 S.C. 1; Nwachukwu v. The State (1985) 3 N. W.L.R. (pt.l l) 218; (C.A.) Okosun v.Attorney-General, Bendel State (1985) 3 N. W.L.R. (Pt. 12) 283; Nwachukwu v. The State (1986) 2 N.W.L.R. (pt. 25) 765 (S.C.).
In the instant case, the learned trial Judge did not see his way clear in convicting the appellants as charged. He however found them guilty under section 402 (1). He stated his reason for non-conviction under section 402(2)(a): “However, although the 1st P.W. stated that some members of the gang that snatched his car carried cutlasses and knives the prosecution did not tender any cutlass or knife before the court. In that regard the prosecution was only able to prove that there was a threat of violence by the accused against the person of the 1st P.W.”
The above conclusion is the main basis of the cross appeal. I should therefore deal with it. I will not like to believe that the case of the prosecution will be destroyed because of failure to tender the weapons used in the robbery. That should not be so. Or better still, that cannot be so, I would like to draw an analogy from murder cases, where a murder accused could be convicted even where the corpse is not found, in so far as there is cogent and compelling circumstantial evidence which leaves no room for doubt. See The Queen v. Woghiren (1956)-84) 10 S.C.N.D. 35; Enewoh v. The Stare (1989) 5 NWLR (Pt. 119) 98. Once there is cogent, reliable and authentic oral evidence which the court believes and admits, failure to tender the weapons employed in the robbery cannot be prejudicial to the case of the prosecution.
Evidence could be primary or secondary. It could be documentary or oral. Once the evidence before the court passes the test of admissibility, the court is bound to admit it. And once it is admitted, it acquires all the status of an admitted evidence and the question of whether it was primary, secondary, documentary or oral will not arise.
In the instant case, the learned trial Judge believed the evidence of P.W. 1. Since he believed the evidence, he had no option than to convict the appellants as charged. A trial Judge has no jurisdiction to believe evidence of a witness in installments. He either believes the entire evidence or disbelieves it. As a general rule a witness can either be a truthful witness or a liar. He cannot be both at the same time. In Kalio and Another v. Woluchem and Another (1985) 1 N.W.L.R.(Pt. 4) 610, the Supreme Court held that it is not reasonable for a trial court to hold in one breadth that a witness was a deceitful person and then hold in another breadth that not always be easy to lead direct and distinct evidence.
Now to the substantive offence of armed robbery. In the recent case of Adeyerni and others v. The State (1991) 1 N.W.L.R. (Pt. 170) 679, the Supreme Court held that the ingredients of the offence of armed robbery under section 402(2) (a) of the Criminal Code raw of Lagos State are that (i) the person charged with the offence must be armed with any firearms or any offensive weapon or chemical or obnoxious material; and (ii) that the person charged with the offence even if not armed must be in company of any person so armed. Olatawura, J.S.C. said at pages 689 and 690:
“To secure a conviction (i) and (ii) above must be proved where there are more than one accused person…”
The court further held that it is not a requirement of section 402(2)(a) that violence must be proved to secure a conviction under the section. See also Ajiloye v. The State (1983) 6 S.C. 1; Nwachukwu v. The State (1985) 3 N.W.L.R. (pt. 11) 218; (C.A.) Okosun v. Atiorney-General, Bendel State (1985) 3 N. W.L.R. (Pt. 12) 283; Nwachukwu v. The State (1986) 2 N.W.L.R. (pt. 25) 765 (S.C.).
In the instant case, the learned trial Judge believed the evidence of P.W. 1. Since he believed the evidence, he had no option than to convict the appellants as charged. A trial Judge has no jurisdiction to believe evidence of a witness in installments. He either believes the entire evidence or disbelieves it. As a general rule a witness can either be a truthful witness or a liar. He cannot be both got the same time. In Kalio and Another v. Woluchem and Another (1985) 1 N.W.L.R. (Pt _4). 610, the Supreme Court held that it is not reasonable for a trial court to hold in one breadth that a witness was a deceitful person and then hold in another breadth that he was a credible witness. It is not open to a trial Judge to pick certain aspects of the evidence of a witness and reject other aspects of the evidence of a witness and reject other aspects. He is not in a game of chess.
Let me return once again to 2nd appellant. Learned counsel for 2nd appellant made heavy weather that the 2nd appellant cannot be convicted for the statement of the 1st appellant, a co-accused. That may well be so as a general proposition of the law but it may not be so at all times and for all times. See Odubanjo and others v. The State (1963) 1 S.C.N.L.R. 131; Ozaki v The State (1990) 1 N.W.L.R. (Pt. 124) 92.
I do not want to pursue that aspect as there exists enough evidence outside the confessional statement of the 1st appellant to ground a conviction. And this takes me to the doctrine of recent possession which learned counsel seriously relied upon as basis of exculpation of the 2nd appellant from criminal responsibility. Where an accused person is found in possession of a recently stolen article the doctrine of recent possession within section 148(a) of the Evidence Act would apply.
The trial court would rightly presume that the accused person was either the thief who stole the vehicle or he has received it knowing it to be stolen unless he could account for his possession of the said vehicle. See Salami v. The State (1988) 3 N.W.L.R. (pt. 85) 670.
The presumption of recent possession as contained in section 148(a) of the Evidence Act is not a presumption of law but a presumption of fact. Section 148(a) would appear to be the Nigerian equivalent of the English doctrine of recent possession. For section 148(a) to apply to a set of facts, there should be evidence that (i) the accused person was found in possession of some goods; (ii) those goods were recently stolen; (iii) the accused person failed to account for his possession of those goods. The presumption that a person found in recent possession of stolen property is either the thief or the receiver with guilty knowledge is merely an inference which the trial court is at liberty to draw from the facts and surrounding circumstances of each particular case. An accused person found in possession of a recently stolen property must state how he came about the property to the satisfaction of the court in order to rebut the presumption of fact in section 148(a). See Eze v. The State (1985) 3 N.W.L.R. (Pt. 13) 429.
In considering the question whether or not possession is recent, regard is to be taken of the nature of the property stolen as well as the course of human conduct in its relation to the facts of the particular case. See The State v. Aiyeola (1969) 1 All N.L.R. 303; Omogodo v. The State (1981) 5 S.C.5.
What constitutes “recent possession” is a matter of fact which can only be deduced from the circumstances of the case. Though the element of time lag is a major consideration, it is not the only consideration. The court should take into consideration the totality of human conduct in the matter. In the final analysis, the court has to consider the evidence of the accused person, whether he has been able to explain away how he came about the stolen goods through legitimate means. Once the prosecution proves the charge, the evidential burden shifts to the accused to exonerate him from the presumption under section 148(a) of the Evidence Act.
In the instant case, the learned trial Judge disbelieved the evidence of the 2nd appellant. Although the learned trial Judge rejected the evidence of P.W.3 as being unreliable, that by itself cannot exculpate the 2nd appellant, as contended by learned counsel. He did not believe the explanations of the 2nd appellant. Since his conclusions arise directly from the evidence, I cannot disturb them. The ipsi dixit of the 2nd appellant in court is not in anyway related to Exhibit J. There is not the slightest nexus. Why should it be so in the circumstances of this case?
I have carefully examined the appeals as they relate to the 1st and 2nd appellants and I cannot see how they can be allowed. The appeals are accordingly dismissed. In the light of the conclusions I have reached in this judgment, the cross appeal succeeds. Accordingly, the sentences passed on the 1st and 2nd appellants by the learned trial Judge are hereby varied. In their place, I enter a conviction for the offence of robbery which carries the death penalty. The 1st and 2nd appellants are accordingly sentenced to death.
I agree with the conclusion reached in this appeal by Tobi, J.C.A. This case has given me an opportunity to say a word about the procedure of conducting “a trial within the trial” when an accused person disputes the voluntariness of a confessional statement during a trial. My learned brother has examined this at some length in his judgment.
The brief filed by the Respondent counsel, Mr. David Onyeike has really put it in its historical context. It is a relic of the past or more appropriately a hand over. Nigeria must be one of the few countries in the Commonwealth whose judges still continue trial within the trial after the repeal of the Jury Act in Lagos by Edict No. 1 of 1975 of 3/3/75.
But happily there are voices raised calling for a stop to conducting a trial within the trial by trial judges. It is absolutely obsolescent and we should say so in no uncertain language.
Nnaemeka-Agu J.S.C. in the following passage in the case of Michael v. The State (1990) 1 T.LR (Part. l) page 34 at page 45 said:
“I must confess that I have my reservation about the continued need for a trial – within-a-trial in this country in which our judges are both judge and jury. In England where judges and jurors are different, there is always need to prevent jurors from being influenced by arguments (which may mention some of the contents of an inadmissible statement) as to whether or not a particular statement was obtained under duress or the like. In this Country in which it is not possible to shield the judge, being judge and jury, from any part of the proceeding, I doubt whether the duplication of the hearing by conducting a trial within a trial is anything but a cosmetic mimicry. It is regrettably, still the law in this Country.”
With respect, the learned Justice was very cautious in his approach on this issue. It is said that where angels fear to tread, fools rush in. Let me be labeled as one on this issue.
A trial within the trial is an off-shoot of the jury system. In this country the jury system having been on in Lagos in the 1930’s if not before that time.
In 1945, an Ordinance relating to Jurors and Trial with a Jury was enacted for the whole of Nigeria, see Cap. 90, Laws of the Federation of Nigeria and Lagos 1958.
By Legal Notice 1955 No. 47 of 1955, the 1945 Ordinance was applied to Northern, Western and Eastern Regions, and to Lagos and the Southern Cameroons. I am not aware of any Legislation on jury trials in the Northern, Western, Eastern Regions and Southern Cameroons.
By the Adaptation of Law Legal Notice 112 of 1964, the Jury Ordinance was applicable only in Lagos. Lagos when it became a State on its own enacted a Jury Law. See Cap. 58 Laws of Lagos State of Nigeria: 1973.
By Section 67 of Cap. 58, statutory recognition was given to the fact that jury must withdraw during a trial when certain legal argument are being unfolded before the Court. The Section read thus:
“Where an argument or certain evidence takes place or is likely to be about to take place and the Judge is of the opinion that the accused must be unfairly prejudiced if such argument is heard in the presence of the Jury, the Judge may direct the Jury to retire to their room during evidence.”
Edict No. l of 1975 abolished the Jury Law, Cap. 58, Laws of Lagos State of Nigeria.
In my opinion as far as Lagos is concerned since then there is no law that gives statutory backing for a Judge to conduct a trial within the trial in determining the admissibility of evidence which may be regarded as prejudicial to an accused person during a trial.
I go further to say that as far as the rest of Nigeria is concerned, Cap.90 of the Laws of the Federation can no longer apply here, because each of the Regions of the Federation then had the Legislative competence by the Constitution of the Federation 1963 No. 20 and the Adaptation of Laws (Miscellaneous Provisions) Order 1964, to enact a Law about jurors and trial by jury.
The absence of a Jury Act in the new and revised Laws of the Federation of Nigeria 1990 confirms my view that there is no jury Act or Law which is in operation today in Nigeria.
As I said before, trial within the trial is firmly rooted in jury system. Remove the jury, off goes trial within the trial.
Do we need a statute here to abolish it when it was just a matter of Practice and not law adopted by our Judges in the days when English law & practice held sway in our land?
I must bring out the contribution of two distinguished Chief Judges who recently expressed their views on this issue.
Mr. Justice P.K. Nwokedi C.J. (then) of Anambra State said in an unpublished paper, Admissibility of Confessional and other Statements thus: ”Personally, I have often wondered what it is necessity of a trial within the trial before the admission of an alleged confessional statement in our courts. In England, where trial is by jury, it may be said that the jury may be prejudice, by the controversy as to whether the same had been made voluntarily or not. In this country, where the court is the judge and jury, it seems to me that the judge can as well resolve the issue as to voluntariness, with other issues, in his judgment. The prosecution if challenged as to the voluntary nature of a confession should lead all evidence at its disposal to establish same. The accused in his defence may lead refuttal evidence. The judge makes his findings at the conclusion of evidence. The same judge who conducts the mini-trial, conducts the main trial. The issue of being prejudiced would not arise. Even if wrongfully admitted, the same may be expunged from the record while writing the judgment. The issue of mini-trial as far as this country is concerned, is an unnecessary, and at the same time cumbersome adjunct to our criminal trial. It is carry-over from the English legal system which operates under a different background.” (Judicial Lectures for Judges & Kadis; Zaria Nov. 1989).
Mr. Justice Shehu Mohammed C.J. Kaduna State added his own view on the issue in another unpublished paper titled;” Admissibility of Confessional Statements? Trial within Trial”
“I ought to point out at this stage, that quite a number of eminent judges and jurists do not see the necessity of trial within trial, arguing that the system has no relevance in Nigeria since the jury system has been abolished. They feel that it is much simpler and less cumbersome to listen to the objection of the accused and to decide on it at the judgment stage. It is a view I associate myself with as it is less time consuming. I hope this body would address the issue squarely” (Judicial Lectures for Judges and Kadis; Enugu Nov. 1990)
I add my own voice for the discontinuance by trial courts in Nigeria of conducting a trial within the trial.
AWOGU, M. A.:
I agree with the lead judgment of my brother, Tobi, J.C.A. The issue of a trial within a trial is, for me, subsumed under the question whether or not there has been a fair trial according to law. Even if no law specifically prescribes it, a trial court must resolve the issue of admissibility of a document, be it a confessional statement or otherwise, and whether it does “so after a trial within a trial cannot per se be a basis for a mistrial. In criminal law, Section 28 of the Evidence Act postulates that:
“A confession made by an accused is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient
in the opinion of the court, to give the accused persons grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”
The verbosity of the section and its inelegance grammatically notwithstanding, it merely declares voluntariness as a test of admissibility, not as a test of the truth. In civil proceedings also, the admissibility of a document is often fought in limine, and a ruling on same may be given. The fact that it was admitted or rejected does not mean that in the final judgment, the trial Judge may not change his mind on his interlocutory ruling on the document. No estoppel arises from the earlier ruling. Similarly, there ought to be no hullabaloo as to whether a trial within a trial in a criminal proceeding was held, since it is not meant to be a be-all and end all.
It ought not to prejudice the mind of the trial Judge and, if at the final judgment he changed his mind, he should say so. I am satisfied that in the instant appeal, the trial within a trial did not lead to a miscarriage of justice. I too acquit and discharge the 3rd Appellant for the reasons given in the lead judgment. I also affirm the conviction and sentence of the 1st and 2nd Appellants.
Appeal of 3rd appellant allowed Appeals of 1st and 2nd appellants dismissed and sentence of death substituted.