Will failure to prove substantive offence render a conviction for conspiracy inappropriate?

OLADELE v. STATE

CITATION: (2021) LPELR-54413 (CA)
In the Court of Appeal
In the Ibadan Judicial Division
Holden at Ibadan

ON WEDNESDAY, 9TH JUNE, 2021
Suit No: CA/IB/496C/2017

Before Their Lordships:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
UGOCHUKWU ANTHONY OGAKW JUSTICE, COURT OF APPEAL
FOLASADE AYODEJI OJO JUSTICE, COURT OF APPEAL

Between

ADEDAYO OLADELE – Appellant(s)

AND

THE STATE – Respondent(s)

LEADING JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FACTS
The appellant was charged at the trial Court on five-count information for offences bordering on conspiracy, armed robbery and unlawful possession of firearms. The case of the prosecution was that about 2.00am on November 11, 2010, there was an armed robbery incident at No. 10 Owakumudy Street, Ijebu Ode and the victims were robbed of their money and other valuables at gunpoint. At daybreak, the victims heard that the Police arrested some persons with some items, which they could not account for.

They therefore went to the Police Station and identified the appellant and his co-accused as among the robbers who robbed them.

The appellant denied the offences charged, but stated that he was arrested by the Police as he left his barbershop to go and see his elder sister, who had called him to say that she was not feeling well. He retracted the confessional statement he made, stating that he did not make any statement but that the Police just gave him a paper to sign.

The trial Court convicted the appellant as charged and sentenced him to death. The appellant being dissatisfied with the judgment appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
Whether the trial Court rightly held that the offences charged were proved beyond reasonable doubt so as to warrant the conviction and sentence of the appellant.

APPELLANT’S SUBMISSSION
Appellant’s counsel referred to Section 37 of the Evidence Act on the meaning of hearsay statement and submitted that since the sole prosecution witness did not see the appellant commit the crime and he was also not the person who arrested the appellant, his evidence was hearsay evidence, and thus inadmissible; FRN vs. USMAN (2012) 3 SC (PT I) 128 at 135.

The appellant’s counsel also submitted that the appellant’s confession was retracted and there was no corroborative evidence to ascertain the veracity of the confession. The case of JIMOH vs. THE STATE (2012) 3 NWLR (PT 1286) 144 was referred to.

Appellant’s counsel submitted that there was no identification parade and the purported victims of the robbery never identified the appellant. It was argued that identification evidence was critical to avoid a conviction based on mistaken identity as the circumstances are such that the victims did not know the offenders before they were confronted by the offenders for a short time and may not have had the opportunity of observing the features of the offenders.

Where there is no proper identification, the accused person is entitled to an acquittal vide DOSUMU vs. THE STATE (1986) NWLR [no volume stated] (PT 43) 664.

The appellant’s counsel further submitted that the offence of conspiracy is seldom proved by direct evidence, but from inference deduced from circumstantial evidence; ABIODUN vs. THE STATE (2013) ALL FWLR (PT 664) 110 at 124. Appellant’s counsel submitted that the prosecution did not lead evidence from which conspiracy can be inferred.

Conclusively, appellant’s counsel submitted that the constitutional presumption of innocence in Section 36 (5) of the 1999 Constitution requires the prosecution to prove every ingredient of the offences charged beyond reasonable doubt; and that not having been done, the appellant ought to have been acquitted; ONAFOWOKAN vs. THE STATE (1987) 3 NWLR (PT 61) 531.

RESPONDENT’S SUBMISSION
Respondent’s counsel submitted that where conspiracy and substantive offence are charged together, the substantive offence is to be considered first. The case of OSETOLA vs. THE STATE (2012) 12 SCM (PT 2) 347 at 365-366 was called in aid. The ingredients of armed robbery were referred to and the respondent’s counsel stated that the confessional statement of the appellant and his co-accused, the exhibits tendered and the testimony of the sole prosecution witness were not discredited under cross examination. Respondent’s counsel contended that the sole prosecution witness recognised the appellant as one of those transferred to his office and that the appellant in his confessional statement, Exhibit AA, placed himself at the scene of crime and admitted that he had a gun at the time of the robbery. The case of OSUNG vs. THE STATE (2012) 11 SCM 176 at 197 was cited in support. Respondent’s counsel further contended that the victims of the robbery identified the appellant as one of the robbers. It was asserted that where there is good and cogent evidence linking the accused person with the crime, then an identification parade is not necessary; ADEBAYO vs. THE STATE (2014) 8 SCM 34 at 35.

Respondent’s counsel contended that some of the stolen items were found with the appellant and that the presumption under Section 167 (a) of the Evidence Act was such that the doctrine of recent possession would apply.

Respondent’s counsel submitted that even though the victims of the robbery were not called as witnesses, that the trial Court was correct based on the provisions of Section 39 of the Evidence Act, to rely on their extra-judicial statements. It was contended that by virtue of Section 83 (1) (a) (ii) of the Evidence Act, the IPO, who had personal knowledge of the investigation could tender their statements.

Referring to Sections 28 and 29 of the Evidence Act on confessions, the respondent submitted that a Court can rely solely on a confessional statement to convict, where the confession is direct, positive and proved. It was stated that the appellant’s confessional statement was admitted in evidence after a trial within trial and that having been so admitted, an appellate Court cannot upturn it; LASISI vs. THE STATE (2013) 6 SCM 97 at 113. Respondent’s counsel further contended that even though the appellant retracted the confessional statement, Exhibit AA, at the trial, the retraction would not adversely affect the confession if the Court is satisfied as to its truth and the Court can still rely on the same to convict vide NWACHUKWU vs. THE STATE (2007) 12 SCM (PT 2) 447 at 454.

Respondent’s counsel submitted that conspiracy could be inferred from the Appellant’s confessional statement and the extra-judicial statements of the victims.

RESOLUTION OF ISSUES
The Court in resolving the sole issue cited Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty; and Section 135 of the Evidence Act, 2011 which provides that the Prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt. The Court held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. See BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12 – 13.

The Court held that there are three ways of proving the guilt of an accused person, which are confessional statement of the accused person voluntarily made; circumstantial evidence; and the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49.

The Court found that there was no eyewitness testimony of the commission of the offence. Furthermore, the trial Court in arriving at its decision, relied copiously on the extra-judicial statements made by the victims of the robbery, Exhibits Y2 and Y3, as well as other statements in the proof of evidence which were never tendered in evidence. The Court thus held that the extra-judicial statement made by a potential witness who was not called to testify in Court cannot be accorded any probative or evidential value.

See AFOLABI vs. THE STATE (2021) LPELR (53501) 1 at 26-27. The Court further held that the evidence of the sole prosecution witness was a summation of what was contained in the case file that was transferred to him and that since he did not witness did not witness the commission of the crime; his evidence is hearsay. The admissible evidence of a police witness is the evidence of what he saw, observed and actually did in the course of his investigation. See UGWUMBA vs. THE STATE (1993) 5 NWLR (PT 296) 660 at 668.

The Court further held that Section 39 of the Evidence Act deal with the admissibility of statements made by persons who cannot be called as witnesses, but there is nothing on record showing that the victims of the robbery could not be called as witnesses.

Also, there is nothing on record to the effect that the victims of the robbery made Exhibits Y2 and Y3, pursuant to the performance of any duty to record information as required by Section 83 (1) (a) (ii) of the Evidence Act. The Court thus held that both sections are inapplicable.

The Court held that the law is that the evidence in chief of a witness who is not produced for cross-examination cannot be acted upon by the Court. See ISIAKA vs. THE STATE (2011) ALL FWLR (PT 583) 1966.

The Court held that a free and voluntary confessional statement of an accused person alone is enough to sustain a conviction where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See YESUFU vs. THE STATE (1976) 6 SC 167 at 173. However, the retraction of a confessional statement by an accused person does not render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20. But a Court cannot act on such retracted confessional statement without first seeking any other evidence however slight, or circumstances, which make it probable, that the confession is true. See R. vs. SYKES (1913) 1 Cr. App. R 233 and IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192.

As regards the stolen items found with the Appellant, the Court found that the police officers, who were said to have arrested the Appellant were never called as witnesses; secondly, the victims of the robbery were never called as witnesses to identify the recovered items as property that was stolen from them during the robbery incident. Thus, the circumstantial evidence on record is therefore not based on evidence that can be accorded probative value. See FATOYINBO vs. A-G WESTERN NIGERIA (supra).

On the count of conspiracy, the Court held that conspiracy is a separate and distinct offence independent of the actual offence conspired to commit. Generally, the failure to prove a substantive offence would not make a conviction for conspiracy inappropriate. See BALOGUN vs. A-G OGUN STATE (2002) 2 SC (PT II) 89. Further, the proper approach in considering an information containing conspiracy charge and substantive charges is to deal with the charges for the substantive offence first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See JIMOH vs. THE STATE (2014) 10 NWLR (PT 1414) 105 at 135-136. The Court however found that there was no independent evidence adduced by the prosecution in proof of the conspiracy charge but it was based on the same evidence in respect of the substantive offence of robbery that the offence of conspiracy to commit robbery is to be inferred. In such circumstances, if the conviction for the substantive offence is set aside on appeal, the conviction for the conspiracy charge will equally be set aside: NJOVENS vs. THE STATE (1973) 5 SC 17.

HELD
The Court held that the appeal is meritorious and accordingly allowed same.

APPEARANCES:
Yemi Adeshina, Esq.
with him, Ms. Deborah Majekodunmi – For Appellant(s)
Mrs. R. B. Kadiri – For Respondent
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